Description
A gripping account of how the distinction between law and politics is collapsing in the United States and imperiling democracy itselfThe norms that have separated law from politics in America are eroding, making democratic constitutional government increasingly hard to sustain. Losing the Law tells the story of how we came to this precarious moment. This trenchant, persuasively argued book describes how a decades-long revolution in both professional culture and legal thought is fueling the nation’s slide into strongman rule. It also offers essential guidance on what we can do to change course, not just by crafting institutional reforms but by resetting professional incentives and reinvigorating popular belief in the necessity of the rule of law in constitutional governance. Looking beyond the well-known politics of red and blue, Deborah Pearlstein charts the rise of “legal polarization”—a growing divide between lawyers and judges who believe there should be a difference between law and politics and those who no longer do. Drawing on original interviews, archival research, a close reading of American legal thought, and a sobering account of recent events, she unearths the conservative legal movement’s foundation. Over the course of a few decades, it established a new career pipeline from law school to judgeship, promoted partisan loyalty above professional responsibility, and popularized legal theories in irreconcilable conflict with long-settled understandings of how law worked. From the early role of unitary executive theory in kneecapping major post-Watergate reforms to the originalists’ wholesale rejection of precedent, Pearlstein traces how legal polarization has supercharged democratic backsliding under Trump 2.0. An urgent call to action by one of today’s foremost legal minds, Losing the Law charts the complex task ahead for those committed to understanding both the depth of the current crisis and what it will take to reestablish constitutional democracy.