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Ginsburg And The Chicago School Of Thought

November 08, 1987|David M. O'Brien | David M. O'Brien, professor of government at the University of Virginia, is currently a visiting fellow in constitutional studies at Oxford University. He is author of "Storm Center: The Supreme Court in American Politics" (Norton)

OXFORD, ENGLAND — Whatever the reverberations from a weekend of charge and countercharge over the nomi nation of Judge Douglas H. Ginsburg to the U.S. Supreme Court, the man's law school philosophy may be forgotten amid allegations related to marijuana-smoking, missing records and inflation of prior courtroom experience.

But philosophy is what should matter. Reagan justice has always been about two things: pushing the New Right's social agenda on abortion and affirmative action, and promoting the old guard's corporate interests by infusing law with a free-market philosophy. The President has failed so far to deliver the first. But until the two most recent bitter Supreme Court battles, he had huge success with the second--in the Justice Department's enforcement policies and in selection of federal judges. That economic agenda was behind the latest nomination.

The profound controversy over Ginsburg is different from, though related to, what led the Senate to reject Judge Robert H. Bork by a resounding 58-to-42 vote. Both men came from the same law school and the same philosophy. For Bork an essential issue was race--could he be trusted not to turn back the constitutional clock on civil liberties and civil rights? For Ginsburg the big issue should have been big business--would he bring back trusts and monopolies and how far would he go with his economic analysis in constitutional law?

Ginsburg shares with Bork more than a nomination and a seat on the District of Columbia Circuit Court of Appeals. He is Bork's protege, 20 years younger but tracking the same path--years at the University of Chicago Law School where both adopted the theories of its economic approach.

Chicago is the only law school in the United States known for promoting its own particular perspective: It teaches that law is best understood in light of economic theories and basic techniques such as cost-benefit analysis. In other words, legal principles or rights should be applied, or eliminated, when costs outweigh benefits.

This philosophy ultimately furthers conservative economic interests. And, not surprisingly, over the years Chicago graduates have been attracted to businesses and corporate law firms attacking government regulation. They now possess enormous influence within the government itself, since the Chicago school of thought serves the Reagan Administration's conservative economic instincts.

Bork once attributed his "conversion" at Chicago to Aaron Director, now at the Hoover Institution, Stanford's conservative think tank. In the 1950s, as the first economist to teach in the Chicago school, Director helped pioneer the economic approach to law--rigorously attacking New Deal regulation and antitrust enforcement for hurting corporations. His brother-in-law, University of Chicago economist Milton Friedman, is even better known for championing free-markets.

Bork later emerged in the vanguard, arguing that big business is not bad. More than his sharp criticism of the court's rulings on civil liberties, Bork advanced his career and the movement with economic-based articles and his book "The Antitrust Paradox." He did so by carrying Director's theses to the conclusion that antitrust law is at war with itself; it results in inefficiencies when corporations are treated as consumers in an economic analysis of antitrust law.

Chicago's reputation was well established by 1970, when Ginsburg entered. He too took up its banner and followed Bork into the field of antitrust. During almost a decade of teaching at Harvard Law School, Ginsberg won modest attention for his critiques of regulation, such as automobile safety standards, which he claimed "stifled innovation."

A host of the Chicago school's advocates have been named by Reagan to the federal bench, in the expectation that they would apply big-business analysis to the law. Besides Bork and Ginsburg, there is Justice Antonin Scalia, appointed last year to the Supreme Court, and several appellate court judges--notably, Danny J. Boggs, Frank H. Easterbrook, Richard A. Posner, Bernard H. Siegan and Ralph K. Winter.

Still others have filled the lower ranks of the Justice Department and the offices of legal counsel for administrative agencies. Ginsburg signed on in 1983, as assistant attorney general in the Antitrust Division. There he quickly became known for moving in the direction long advocated by Bork and others of the Chicago school. Ginsburg stood for industrial deregulation, sided with corporations in opposing antitrust constraints on businesses in world markets and approved large corporate mergers. In 1985 he was promoted to chief of the division and a year later rewarded with a judgeship.

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