Hostname: page-component-cd9895bd7-7cvxr Total loading time: 0 Render date: 2024-12-25T07:33:18.466Z Has data issue: false hasContentIssue false
  • English
  • Français

An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson

Published online by Cambridge University Press:  28 October 2011

Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Review Essays
Information
Law and History Review , Volume 6 , Issue 1 , Spring 1988 , pp. 139 - 186
Copyright
Copyright © the American Society for Legal History, Inc. 1988

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Notes

page 154 note 1. Nelson, William and Reid, John Phillip, The Literature of American Legal History (1985).Google Scholar

page 154 note 2. Chapter 16 (Report for 1981-84).

page 154 note 3. To summarize some of these briefly: 1) Your account seems to blur together several propositions that should be kept distinct, (a) Commitment to the study of law in its political-economic-social context does not have to entail the belief that law is determined by that context, (b) The beliefs, however sincerely held, of judges or lawyers that their practices are autonomous does not make them so, or preclude historians from concluding otherwise. It does not even follow pace your Japanese-internment example that, as an empirical matter, judges committed to a formalist-idealist conception of professional autonomy are more likely to resist the pressures of the power politics of their time than judges who think law is mostly the product of social forces. On the contrary, as the Legal Realists were fond of pointing out, legal formalisms certain of their autonomous, neutral, apolitical character are peculiarly prone to permeation with unconscious bias; only a jurisprudence capable of recognizing, rather than committed to denying, the political pressures imprinted on legal doctrines, is likely to be able to transcend such pressures. It was skeptical judges like Holmes, Brandeis, and Hand, not their formalist colleagues, who expanded free speech protections in this century, (c) The opposition seems too stark (as indeed you recognize at 200) between legally maintained “traditions” and the “preferences of politically dominant groups,” since the traditions could not become “essential” or even “traditions” to begin with unless the “dominant groups” had adopted and promoted them. 2) Even if a historical method is capable of identifying the “essential traditions” (such as “individualism”) of our society, I can't share your confidence that once identified they could or should have the constraining force you want them to have over our legal decisions, (a) The traditions of our culture are plural, not unitary: there is “republicanism” as well as “liberalism,” the Puritan commonwealth as well as the rugged individual, the artisanal fraternity as well as the free enterpriser, Eugene Debs and W. E. B. Du Bois (as Mark Tushnet has recently pointed out) as well as Thomas Jefferson and Andrew Carnegie, (b) Even within liberalism, as critical legal studies historians are fond of pointing out, the traditions point toward opposite goals: an abstract commitment to the traditions of “private property” or “freedom of contract” can perfectly consistently generate completely contradictory regimes of concrete legal rules. (More on this theme later.) At different points in our history, for instance, tradition-minded conservatives have supposed that “individualism” logically required prohibiting all corporations, allowing everyone to form corporations, precluding state regulation of corporations, permitting virtually unrestricted corporate combination, and breaking up all large corporations into small ones. It is hard to believe on such evidence that “tradition” is able to inform our policy options in the constraining manner you hope from it. (c) Some of our deeply embedded traditions—racism, nativist xenophobia, repression of dissidence, glorification of the more violent and dominating forms of male sexuality, ecological carelessness, obsession with money making, etc.—are ones we should be rediscovering in order to try to grow out of, not to endow with renewed normative authority.

page 155 note 4. See, e.g., Posner, Richard A., “A Theory of Negligence,” 1 J. Legal Studies (1972); Richard Epstein Takings (1985)CrossRefGoogle Scholar.

page 155 note 5. See, e.g., Ackerman, Bruce, “Discovering the Constitution,” 93 Yale L. J. 1013 (1984CrossRefGoogle Scholar).

page 155 note 6. Robert, W. Gordon, “Critical Legal Histories,” 36 Stanford L. Rev. 57 (1984Google Scholar).

page 155 note 7. Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” 28 Buffalo L. Rev. 205 (1979Google Scholar).

page 155 note 8. “A Bibliography of Critical Legal Studies,” 94 Yale L. J. 464 (1984Google Scholar).

page 155 note 9. Tushnet, Mark, The American Law of Slavery, 1810-1860 (1981).Google Scholar

page 155 note 10. Kainen, James L., “Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights against the State,” 31 Buffalo L. Rev. 381 (1983Google Scholar).

page 155 note 11. Auerbach, Jerold S.,Justice without Law? (1983).Google Scholar

page 155 note 12. Chase, William C., The American Law School and the Rise of Administrative Government (1982).Google Scholar

page 155 note 13. Baer, Judith, Equality under the Constitution: Reclaiming the Fourteenth Amendment (1983).Google Scholar

page 155 note 14. You link Auerbach to CLS thus: “Since Auerbach makes clear his own dissatisfaction with the legal system, it seems clear that Auerbach's work should be perceived as part of the critical legal studies effort to undermine the individualistic tenor of the American legal order.”

page 155 note 15. And only two in the footnote (262 n. 7), one of which is co-authored by Schlegel himself.

page 155 note 16. Kennedy, Duncan, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940,” in 3 Research in Law and Sociology 3 (ed. Spitzer, 1980Google Scholar).

page 155 note 17. Gordon, Robert W., “Law and Lawyers in the Age of Enterprise,” in Professions and Professional Ideologies in America 70 (Geison, ed., 1984Google Scholar).

page 155 note 18. See Kennedy, supra note 16.

page 155 note 19. A most peculiar aspect of your article is that one of the few works of a CLS-affiliated historian that actually does set forth instrumentalist (among other) interpretations is a work you don't mention at all, though you seem secretly to be using it as proxy for CLS work generally: Morton Horwitz's Transformation of American Law. And while in its instrumentalist mode, as I pointed out in my article, Horwitz's book is entirely within the mainstream of social-legal historiography, as politically it is within the mainstream of Progressive historiography. It is a wonderful book in many ways, but it is not in those respects (though it is in others) typical of recent CLS history.

page 156 note 20. See Johnson, Philip, “Do You Sincerely Want to Be Radical?”, 36 Stan. L. Rev. 247 (1984CrossRefGoogle Scholar); Louis B. Schwartz, “With Gun and Camera through Darkest CLS-Land,” id. at 413; Carrington, Paul, “Of Law and the River,” 34 J. Legal Education 222 (1984Google Scholar).

page 156 note 21. Especially those in the “Kennedy School”: see supra at note 16.

page 156 note 22. The example is yours (274), suggested by Stanley Katz, N., “Legal History and Family History: The Child, the Family, and the State,” 21 Boston College L. Rev. 1025 (1980Google Scholar).

page 156 note 23. Mensch, Elizabeth, “The Colonial Origins of Liberal Property Rights,” 31 Buffalo L. Rev. 635 (1983Google Scholar).

page 156 note 24. Singer, Joseph, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,” Wisconsin L. Rev. 975 (1982Google Scholar).

page 156 note 25. Alexander, Gregory, “The Dead Hand and the Law of Trusts in the Nineteenth Century,” 37 Stanford L. Rev. 1189 (1985CrossRefGoogle Scholar).

page 156 note 26. Hendrik Hartog's book (which you praise) on New York City fits beautifully into the CLS account of the history of the public-private distinction (prefigured by Louis Hartz's great book on Pennsylvania, years ago), as do Scheiber's work on the history of public rights and Steven Diamond's on taxation; Charles McCurdy's articles on Justice Field and on corporation law, Patrick Atiyah's history of contract law, Thomas Grey's article on Langdell (which you also praise, and which is heavily indebted to Kennedy) all dovetail neatly with Kennedy's, Horwitz's, and my material on late-nineteenth-century law; Charles Donahue's and Tom Grey's synthetic histories of property confirm Vandevelde's CLS article on property, and so forth.

page 156 note 27. Observe the rhetorical oppostions in this sentence: You gently and consensually “preserve”; we forcefully and conflictually “impose.” Your order promotes “individual autonomy and freedom,” ours a “collective” vision of the good. Yours is sanctioned by tradition; ours is “new.”

page 156 note 28. Some of your views of CLS are totally wacky—like the identification of CLS with Austinian positivism (290); where did that come from, I wonder? Or the notion that CLSers think “Americans are a violent people” (268), especially since later Edward Ayers is praised for his “nondogmatic” explanation of southern crime as the outcome of the “cultural glorification of violence” (275–76). Or that CLS “ignores… the persistence of basic social values and social structures even in the face of just demands for reform” (279 n. 99). All these seem to be the purest invention.

page 156 note 29. You say this of Jerold Auerbach's Justice without Law, which you proceed to summarize so as to make it sound uncannily like your (apparently now disowned) early work.

page 156 note 30. See, e.g., Kelman, Ellen, “American Labor Law and Legal Formalism,” 58 St. Johns. Univ. L. Rev. 1 (1983Google Scholar); Casebeer, Kenneth, “Coppage v. Kansas and At-Will Employment Revisited,” 6 Cardozo L. Rev 765 (1985Google Scholar).

page 156 note 31. Holmes, Oliver Wendell Jr., “Privilege, Malice and Intent,” in Collected Legal Papers 117 (1920Google Scholar).

page 156 note 32. Cook, Walter Wheeler, “Privileges of Labor Unions in the Struggle for Life,” 27 Yale L.J. 779 (1918CrossRefGoogle Scholar).

page 168 note 1. Gordon, Robert W., “Critical Legal Histories,” 36 Stan. L. Rev. 57, 116 (1984CrossRefGoogle Scholar).

page 168 note 2. See Kuhn, Thomas S., The Structure of Scientific Revolutions 77–91 (2d ed. 1970).Google Scholar

page 168 note 3. Tushnet, Mark V., The American Law of Slavery, 1810-1860, at 32–33, 36 (1981Google Scholar).

page 168 note 4. See Nash, A. E. Keir, “A More Equitable Past? Southern Supreme Courts and the Protection of the Antebellum Negro,” 48 N. C. L. Rev. 197 (1970Google Scholar); Nash, A. E. Keir, “Fairness and Formalism in the Trials of Blacks in the State Supreme Courts of the Old South,” 56 Va. L. Rev. 64 (1970CrossRefGoogle Scholar).

page 168 note 5. See Schlegel, John Henry, “Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies,” 36 Stan. L. Rev. 391, 411 (1984CrossRefGoogle Scholar).

page 168 note 6. The quote is from Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” 28 Buffalo L. Rev. 209, 211–13 (1979Google Scholar).

page 168 note 7. Gordon letter at 147.

page 168 note 8. Duncan Kennedy, (supra) note 6. 11. Id. at 219.

page 168 note 9. Ibid.

page 168 note 10. Id. at 372.

page 168 note 11. Id. at 219.

page 168 note 12. 31 (Buffalo L. Rev.) 635 (1982).

page 168 note 13. Id. at 636 (emphasis added).

page 168 note 14. Id. at 660.

page 168 note 15. Singer, Joseph William, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,” (1982) Wisconsin L. Rev. 975.Google Scholar

page 168 note 16. See e.g., id. at 997, where, after quoting an argument of Mill, Singer observes that the argument “begs the question.” Frequent comments of this nature suggest that criticism rather than explication is Singer's goal.

page 168 note 17. Id. at 1058-59 (emphasis added).

page 168 note 18. Alexander, Gregory S., “The Dead Hand and the Law of Trusts in the Nineteenth Century,” 37 Stanford L. Rev. 1189 (1985CrossRefGoogle Scholar).

page 168 note 19. Id. at 1228.

page 168 note 20. Id. at 1193.

page 168 note 21. See, e.g., Lochner v. New York, 198 U.S. 45, 74-76 (1905) (dissenting opinion of Justice Holmes); Holmes, Oliver Wendell, “The Path of the Law,” 10 (Harv. L. Rev.) 457 (1897Google Scholar).

page 168 note 22. Gordon letter at 153.

page 168 note 23. Id.

page 168 note 24. The quoted language from my colleague Dworkin, Ronald, Law's Empire 229 (1986Google Scholar), strikes me as particularly apt here.

page 183 note 1. Klare, Karl argues this point eloquently and precisely in “Traditional Labor Law Scholarship and the Crisis of Collective Bargaining Law: A Reply to Professor Finkin,” 44 Md. L. Rev. 731, 748–52 (1985Google Scholar).

page 183 note 2. Kornhauser, Lewis, “The Great Image of Authority” 36 Stan. L. Rev. 349 (1984CrossRefGoogle Scholar).

page 183 note 3. Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Campbell, R. H. (Oxford, 1976) II:715 n. 21Google Scholar.

page 186 note 1. See, e.g., 1 Foucault, Michel, The History of Sexuality (Hurley, Robert trans. 1978)Google Scholar; Hartz, Louis, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (1948)CrossRefGoogle Scholar; Storing, Herbert, What the Anti Federalists Were For (1981)CrossRefGoogle Scholar; Thompson, E. P., “The Moral Economy of the English Crowd in the Eighteenth Century,” 50 Past and Present 76 (1971CrossRefGoogle Scholar).

page 186 note 2. Unlike Gordon, I do not understand my conclusion to be an attack on instrumentalist legal history. Instrumentalist work does not argue that interest is the basis of law; it assumes the importance of interest and then goes on to illustrate how particular interests affected particular rules in particular ways. For example, when Lawrence Friedman, the leading instrumentalist legal historian, analyzes prosecutions for petty crime in the late nineteenth century, the point of his analysis is not to show that these crimes were prosecuted at the behest of interest groups, but to identify what the groups were and what they had to gain from prosecution. See Friedman, Lawrence M. and Percival, Robert V., The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910, 311–13 (1981)Google Scholar. It is precisely this attention to contextual detail that makes the work of Friedman and other instrumentalist historians interesting and valuable. In contrast, as Gordon himself notes, “traditional” historians with good reason usually criticize' CLS historians “for neglecting context.”

page 186 note 3. One of the subtleties I have picked up from Gordon is his thesis that intellectuals should be more skeptical about their ability to influence law so fundamentally as to make it either more objective or more arbitrary. This thesis is sufficiently interesting and important to warrant further research, but until that research shows that law professors lack all such power, it would be irresponsible to act as if what we say has no practical significance.

page 186 note 4. I agree with Gordon that the current maldistribution of wealth in the United States is a troubling element of the status quo. I also agree with one of his main themes that law has often been used to defend this maldistribution. It is not necessary, however, to undermine the rule of law in order to rectify the maldistribution. All that is needed is the political will, which currently is completely lacking, to impose high taxes through progressive rate structures and to use tax revenues to fund social programs that would redistribute wealth to the poor.