The Hollow Law

On August 23, 1971, a corporate lawyer in Richmond, Virginia sat down and wrote a memorandum that would reshape American legal, political, and intellectual life for the next half century.

The memo was marked confidential. It was addressed to Eugene Sydnor Jr., chairman of the Education Committee of the United States Chamber of Commerce. Its author was Lewis F. Powell Jr., senior partner at Hunton, Williams, Gay, Powell and Gibson, member of eleven corporate boards including Philip Morris, and two months away from being nominated to the Supreme Court of the United States by President Richard Nixon.

The memo's title was "Attack on American Free Enterprise System." It was thirty-four pages long. It was not a policy paper. It was not a legal brief. It was a strategic plan, written with the precision of a military campaign assessment, for the systematic capture of the institutions that shaped how Americans understood the relationship between government, business, and individual rights.

Powell's diagnosis was specific. The American free enterprise system was under sustained attack, he wrote, not from communists or foreign enemies but from within: from college campuses, from the media, from the pulpit, from politicians, and from courts. The attack was not random. It was ideological, sustained, and coordinated. And business had responded with pathetic naivety, treating each challenge as an isolated episode rather than understanding the systemic nature of the campaign being waged against it.

His prescription was equally specific. Business needed to mount a coordinated counterattack across every institution where the attack was being conducted. Not one at a time. All of them simultaneously. The Chamber of Commerce was the vehicle. Corporate money was the fuel. The target was not legislation. Legislation was downstream. The target was the ideas upstream of legislation: the scholarship, the journalism, the judicial philosophy, and the public discourse that determined what legislative options were conceivable in the first place.

The memo was never meant to leave the Chamber. Jack Anderson, the investigative columnist, obtained it and published excerpts in 1972, after Powell had already been confirmed to the Supreme Court. The disclosure produced some public attention but no sustained political response. The strategy it described was already being implemented.

The Heritage Foundation was established in 1973, funded by Joseph Coors and Richard Mellon Scaife, among others, with an explicit mandate to produce rapid-response policy analysis that could influence the legislative and regulatory process in real time. The Cato Institute was established in 1977. The Manhattan Institute was established in 1977. The Pacific Legal Foundation, the Washington Legal Foundation, the Mountain States Legal Foundation, all followed in the same period, all funded by overlapping networks of corporate donors, all producing scholarship, litigation, and public commentary that advanced the legal and policy framework Powell had identified as the terrain to be captured.

The Olin Foundation deserves specific attention. John M. Olin, the chemical and munitions manufacturer, read Powell's memo and decided to act on it. The Olin Foundation between 1973 and its deliberate dissolution in 2005 spent approximately $370 million funding law and economics programs at elite American universities. Harvard, Yale, Chicago, Stanford, Virginia, Georgetown, Columbia. The explicit goal, stated in the Foundation's internal documents, was to shift the intellectual environment in which law was taught and practiced, to make the economic analysis of law the dominant framework through which legal questions were understood, and to create a generation of lawyers and judges who would approach regulatory, antitrust, and labor questions through an economic lens rather than a rights-based or political-power lens.

The economic lens the Olin Foundation funded was not neutral. It was the Chicago School framework that evaluated legal rules by their efficiency effects rather than their distributive effects, that treated concentrated economic power as a neutral or positive outcome if it produced consumer welfare gains, and that regarded collective action by workers with deep suspicion while treating collective action by corporations as presumptively efficient. It was the intellectual framework that produced Robert Bork's consumer welfare standard, the judge education programs documented in Part 6, and the Federalist Society pipeline documented in Part 9.

Two months after writing the memo, Lewis Powell was on the Supreme Court. He served until 1987. His opinions in business and antitrust cases were consistently favorable to the corporate interests he had spent his career representing, though legal scholars debate the degree to which his jurisprudence reflected the memo's specific recommendations versus his broader conservative legal philosophy.

The question of whether a man who wrote a strategy document for corporate capture of the judiciary and then joined the judiciary was a conflict of interest was never seriously examined. It was simply the condition that existed. The memo was in the public record by the time of his tenure. His corporate board memberships were disclosed at confirmation. The Senate confirmed him 89 to 1.

Powell's most consequential opinion may not be any antitrust case. It is First National Bank of Boston v. Bellotti, decided in 1978, in which the Court held for the first time that corporations have First Amendment rights to spend money on political speech. The opinion Powell wrote in Bellotti is the direct ancestor of Citizens United. He did not live to see Citizens United, but he built the doctrinal foundation it rested on. The man who wrote the strategy document for corporate capture of political institutions then wrote the Supreme Court opinion that gave corporations First Amendment protection to spend money on political campaigns. The circle was complete before most people noticed it had been drawn.

The memo Powell wrote in August 1971 was not a conspiracy. There was no secret meeting in a dark room. There was no coded communication. There were corporate lawyers and executives who read a persuasive strategic document, agreed with its diagnosis, funded its recommendations through legal and transparent channels, and watched over the next fifty years as the institutions it targeted were systematically reshaped in the direction it had prescribed.

That is not a conspiracy. It is a business plan, executed with patience, consistency, and resources that the people on the other side of the ledger could not match. The difference between a conspiracy and a business plan is documentation and legitimacy. This one has both. The memo is in the archives. The funding records are in the tax filings of the foundations. The results are in the judicial opinions, the law school curricula, the regulatory guidelines, and the antitrust enforcement record of the fifty years that followed.

The loaded gun Taney built in 1849 was being cleaned and reloaded in Richmond, Virginia, in August 1971. The man cleaning it would be on the Court before the year was out. The gun he built while there would be fired by a Court he never sat on, in a case decided twenty-three years after his death, restructuring the financing of American elections in a direction that would have satisfied every recommendation in the memo he wrote before his confirmation.