Organizational lessons from the conservative legal movement

The nomination of Brett Kavanuagh to the Supreme Court has ignited an interesting discussion about the rise of the conservative legal movement.

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The nomination of Brett Kavanuagh to the Supreme Court has ignited an interesting discussion about the rise of the conservative legal movement. While Trump has challenged the conservative establishment in many ways, he has remained deferential to the conservative legal establishment, effectively handing over judicial appointment decision rights to the Federalist Society.

David Brooks has the best overview of the rise of the conservative legal establishment, tracing the rise of the Federalist Society. It is worth reading in whole. He summarizes the outcome of existence of the conservative legal establishment.

Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.

This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.

Moreover, it took time for conservatives to develop a successful nomination strategy. Their initial attempts were unsuccessful.

As Steven Teles notes in “The Rise of the Conservative Legal Movement,” the first conservative efforts to stand up to the left failed. Business groups funded a series of conservative public interest law firms. But the business groups had no intellectual heft, they were opportunistic and they had zero moral appeal.

But at some point they began to realize their mistakes, and adjusted their strategy accordingly.

Then came the intellectual entrepreneurs. Aaron Director of the University of Chicago Law School inspired many of the thinkers — like Ronald Coase and Richard Posner — who would create the law and economics movement. This was a body of ideas that moved from the fringes of American legal thought to the very center. This movement was funded by groups like the John M. Olin Foundation, which was willing to invest for the long term and not worry about “metrics” or “measurable outcomes.”

Key to the success of the Federalist Society and the conservative legal movement was its seriousness.

As Teles points out, the key features of the Federalist Society were the limits it would put on itself. It did not take stands on specific policy issues. It did not sponsor litigation on behalf of favorite causes. It did not rate judicial nominees the way the American Bar Association did. It did not go in for cheap publicity stunts, like the Dartmouth Review crowd of that era did.

It wielded its immense influence indirectly, by cohering a serious, disciplined community and letting it do the work.

The innovative governance movement should adopt the best practices of the conservative legal movement if advocates want to be similarly effective. First, because this is a long-term project, ecosystem building must come first to make success sustainable. Second, movement building should be prioritized over promoting any single person or project; doing the latter is a recipe for failure. Third, the movement must develop and nurture talent.

The innovative governance movement has always been primarily concerned with long-term projects. A charter city takes decades to reach its potential, but so far, such thinking hasn’t translated into strategic action. This is likely because efforts have been directed towards single projects, and there has been little realization of the importance of an innovative governance ecosystem.

A charter city requires coordinating three distinct moving parts: real estate, governance, and politics. Alone, each of these is highly complex. The necessary real estate investment for a charter city is more often than not in the billions. Governance requires creating and administering a new legal system from scratch. Politics requires convincing a host country to pass legislation creating a charter city and credibly commit to enforcing it.

This lack of long term strategic thinking can also lead to unproductive headline-chasing. The Seasteading Institute ran into this problem early in their existence. “Libertarian Island: A billionaire’s utopia” was a common framing of early seasteading, though they’ve since successfully rebranded.

Similarly, innovative governance has been overly dependent on Paul Romer and Honduras. Romer gave his famous TED talk and almost was able to get legislation passed in Madagascar, and then was involved in passing charter city legislation in Honduras before a fight broke out between him and the Honduran government. As Honduras had the most advanced legislation, there have been a number of firms formed to create a charter city there. Unfortunately, this focus has come at the expense of building out the city’s ecosystem. And though Paul Romer is a great advocate for charter cities, his voice alone isn’t enough to sustain an entire movement.

Those interested in making charter cities a global reality should get serious about developing a coalition of capable advocates with different skill sets A handful of very talented individuals have entered the innovative governance space, but not nearly enough. Who are the entrepreneurs who will build charter cities? Who are the managers who can help administer them? Who are the lawyers who will create the legal system and draft the legislation?

The next generation of innovative governance leaders needs to be identified and trained. Not only that, but those sympathetic to innovative governance need to collaborate. Economists don’t even have an agreed upon definition for ‘charter cities’, as my recent exchange with Lant Pritchett demonstrates. The increased transaction costs because of different conceptions of charter cities makes building them that much more difficult. Every meeting, whether to raise money, negotiate with a host country, etc, requires first developing common knowledge. Only then can collaboration be productive.

The innovative governance movement is in its early stages. Long-term success will require careful planning and coordination. Still, there’s no reason for charter city advocates to reinvent the wheel; taking a page from the Federalist Society and conservative legal movement could make all the difference.