Thursday, May 03, 2007
The Other Side of Critical Legal Theory
Brian's last post on Critical Legal Studies and the Bush Administration has finally gotten me to write down a few things I have been thinking about for about a number of years about the relationship between Critical Legal Studies and political and legal events since the 2000 election.
The endemic disease of legal reasoning back to before Edward Coke is to make false claims about the past in the hope that they will be true about the future.
When you right that "CLS had-- and should have had-- an ambivalent relationship to law, seeing both its limitations in the face of social forms of power and its possibilities as a means of channeling power and preventing its worst injustices and excesses" you are, I think, falling victim to this disease.
I sat in Harvard's Economics Department in the 1980s, looking north at Duncan Kennedy, Roberto Unger, and company. I heard lots of: powerful people use law to subordinate others and secure their own interests under the guise of promoting laudable goals like freedom, equality, liberty, consent, community and human dignity, and it is our duty to demystify the authority of law and unveil that it is all naked politics. I heard very little of: by choosing to speak in the language of law, powerful people and interests can be called to account by being accused of committing injustice.
Perhaps CLS should have been a judo-move, stating that the powerful developed law as a mystifying cloak but we can make it more. But I have no sense that that was what it was.
I might not be your most valued contributor, but at the moment I think I can reasonably vie for title of "biggest fan." Thanks for an exciting post.
brad: Perhaps CLS should have been a judo-move, stating that the powerful developed law as a mystifying cloak but we can make it more. But I have no sense that that was what it was.
I think less "judo-move" and more "got lemons, make lemonade", particularly in an environment where a sated consumer class could never be looked to for a real people's revolution. I think I could get my undergrad prof from Cal State Dominguez Hills to sign off on this summary, the one who introduced me formally to cls in the early 90s. But there's no getting around that cls in the context of a Harvard econ department is bound to vary from that found in the home of gangsta rap. $.02
(For the record, I'm one of those sated consumers, here with my linux computer and verizon dsl, I know. I never put much stock in a "people's revolution" and am on record as saying Marx is the kind of thinker who would divide by zero.)
May I offer a humble perspective from a law student, who is quite persuaded by your characterization and defense of the lemons-into-lemonade version of CLS?
I think my response and the response of a good number of similarly situated law students would be: "CLS had enduring lessons?! Really?! Why weren't we told?" I and my ilk have been "awake" to the law for only five years or so. Even those among us with more than a passing interest in various theories of judicial review know of CLS as a mere footnote. I learned much more from my undergraduate economics professor about CLS than I ever will in law school. The first institutional exposure I had to the idea was on a practice LSAT, which used CLS as the topic of a reading comprehension exercise. (I wish I were making that last part up.)
Okay, so CLS is presented to most young minds as a footnote, so what? Well, all we know about it is that it's a widely discredited approach to the law that basically takes whatever interpretation of an outcome is simultaneously the most cynical and left-wing. Maybe some students would be attracted to learning more based on such a description, but I suspect few would follow up on a theory that is both "discredited" and "cynical."
Reams of submissions pour into law reviews, few if any give CLS serious treatment. No one is teaching it. (I think I read Matsuda in a law and sexuality seminar . . . that would be the extent of my CLS exposure since the LSAT encounter mentioned above). Are there students out there interested in the lemony lessons from CLS and all the hard work on behalf of scholars like yourselves in reading and understanding the movement? How will we ever know if someone doesn't teach us about it? Professor Tamanaha has shown that current events amount to a big batch of ripe lemons--if not now, when?
I suspect there are good reasons why the topic is not touched on in mainstream legal education. I just don't know what those reasons are.
This is a nice apotheosis, but I think your co-blogger Kim (at least, I assume she's a co-blogger though I don't see her post; she's listed up there) really beat you to the punch on this one a while ago. :)
Could we get her here to comment on this?
A is referring to Kim's article, When the Law Doesn't Count: The 2000 Election and the Failure of the Rule of Law, 149 U. Pa. L. Rev. 1361 (2001). If you are interested in an contemporaneous discussion of CLS and Bush v. Gore, you might also look at my own article, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L. J. 1407 (2001).
@Kevin: I know at least one undergrad pre-law program that still keeps the cls/fls light burning, but it's certainly not mainstream, it's Cal State Dominguez Hills, Professor Jeanne Curran. As to why "mainstream" doesn't teach it, or how it comes to be "discredited", well, what's the upside for the elite to give it voice? We do see, in Brad's comment, that cls was taught in the 80s in Harvard, but generally I expect cls/fls to appeal more to the National Lawyers Guild than to the Federalist Society, and I think we know which camp currently holds greater sway in the ABA and curriculum policies of the tier one schools. As for the good reasons you seek, tier one schools are primarily about joining/maintaining the power elite and getting well compensated therefor; cls is of little to no value for such pursuits.
@all: I've indulged myself here far too much this week, and will be reverting to lurker status. Am always happy to hear from folks via private email, which can be found at my blogger profile page.
Peace, and out.
Brad: Perhaps CLS should have been a judo-move, stating that the powerful developed law as a mystifying cloak but we can make it more. But I have no sense that that was what it was.Post a Comment
The history of CLS isn't something I spend a lot of time with, but two works from the CLS-era come to mind along those lines: E.P. Thompson's appendix to Whigs & Hunters (the rule of law as an unqualified good) and Mari Matsuda's Looking to the Bottom. The former spoke of ways that law might confine the powerful and the later suggested some ways that traditional legal doctrine might be remade to benefit the most in need.