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The Question That Killed Critical Legal Studies

Published online by Cambridge University Press:  27 December 2018

Richard Michael Fischl
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Review Essay
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Law & Social Inquiry , Volume 17 , Issue 4 , Fall 1992 , pp. 779 - 820
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Copyright © American Bar Foundation, 1992 

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References

1 All quotes are to the best of my recollection. Given the splendid reveries conjured up by the occasion—not to mention the beer I was drinking—I make no claims to complete accuracy.Google Scholar

2 For the record, her answers to my questions were: (church) no; (Church) no; (confession) no; (communion) no; (meat on Friday) no, nor on any other day. Careers were thus not all that we had in common.Google Scholar

3 See, e.g., “Constitutional Law from a Critical Legal Perspective: A Symposium,” 36 Buff L Rev. 211 (1987); Symposium, “Roberto Unger's Politics: A Work in Constructive Social Theory,” 81 Nw. U.L. Rev. 589 (1987); “Professing Law: A Colloquy on Critical Legal Studies,” 31 St. Louis U.L.J 1 (1986); “Symposium on Critical Legal Studies,” 6 Rev, Cardozo L. 691 (1985); Symposium: “A Critique of Rights,” 62 Tex. L Rev. 1363 (1984);“Critical Legal Studies Symposium,” 36 Stan. L Rev. 1 (1984); Symposium, “The Public/Private Distinction,” 130 U. Pa L Rev. 1289 (1982); Symposium, “Legal Scholarship: Its Nature and Purposes,” 90 Yale L.J. 955 (1981); see also Duncan Kennedy & Klare, Karl E., “A Bibliography of Critical Legal Studies,” 94 Yale L.J. 461 (1985) (listing over 500 cls-produced or influenced books and articles published through the early 1980s).Google Scholar

4 See, e.g., the recent considerable refinement of earlier CIS analyses of the recurring rhetorical structures of legal argument in Duncan Kennedy, “A Semiotics of Legal Argument,” 42 Syracuse L Rev. 75 (1991); Jeremy Paul, “The Politics of Legal Semiotics,” 69 Tex. L. Rev. 1779 (1991); J. M. Balkin, “The Promise of Legal Semiotics,” 69 Tex. L. Rev. 1831(1991).Google Scholar

5 See, e.g., Symposium, “Beyond Critique: Law, Culture, and the Politics of Form,”69 Tex. L. Rev. 1595 (1991); “Postmodernism and Law: A Symposium,” 62 U. Colo. L Rev.439 (1991); Symposium: “The Frontiers of Legal Thought” (pts. 1–3), 1990 Duke L.J. 193,375, 625.Google Scholar

6 See generally David Kairys, ed., The Politics of Law: A Progressive Critique (rev. ed. New York: Pantheon, 1990) (“Kairys, Politics of Law”;).Google Scholar

7 Genovese, Eugene D., “Critical Legal Studies as Radical Politics and World View,” 3 Yale J.L. & Hum. 131, 133 (1991) (book review).Google Scholar

8 St, Theodore J. Antoine, Book Review, 43 Indus. & Lab. Rel. Rev. 142, 142 (1989).Google Scholar

9 Rodes, Robert E., Jr., “Critical Legal Studies,” 39 J. Legal Educ. 141, 141 (1989)(book review).Google Scholar

10 Lindsey, William B., “Well-plowed Fields,”Nat'l Rev., 29 April 1988, at 47, 48.Google Scholar

11 Daniel Farber, “Down by Law,”New Republic, 4 Jan. 1988, at 36, 39.Google Scholar

12 Barnes, Richard L., “Searching for Answers without the Questions,” 34 S.D.L Rev. 220, 221, 222 (1989) (book review).Google Scholar

13 John Stick, “Charting the Development of Critical Legal Studies,” 88 Rev, Colum L. 407, 432 (1988) (book review).CrossRefGoogle Scholar

14 Posner, Richard A., “A Manifesto for Legal Renegades,”Wall St. J., 27 Jan. 1988, at 23.Google Scholar

15 Massey, Calvin R., “Law's Inferno,” 39 Hastings L.J. 1269, 1271 (1988) (book review).Google Scholar

16 139 U. Pa. L. Rev. 801 (1991).Google Scholar

17 See Schlag, Pierre, “Normativity and the Politics of Form,” 139 U. Pa. L. Rev. 801, 804–5 (1991) (footnote omitted):Google Scholar

What should be done? How should we live? What should the law be? These are the hard questions. These are the momentous questions.Google Scholar

And they are the wrong ones.Google Scholar

They are wrong because it is these very normative questions that reprieve legal thinkers from recognizing the extent to which the cherished “ideals” of legal academic thought are implicated in the reproduction and maintenance of precisely those ugly “realities” of legal practice the academy so routinely condemns. It is these normative questions that allow legal thinkers to shield themselves from the recognition that their work product consists largely of the reproduction of rhetorical structures by which human beings can be coerced into achieving ends of dubious social origin and implication. It is these very normative questions that allow legal academics to continue to address (rather lamely) bureaucratic power structures as if they were rational, morally competent, individual humanist subjects. It is these very normative questions that allow legal thinkers to assume blithely that—in a world ruled by HMOs, personnel policies, standard operating procedures, performance requirements, standard work incentives, and productivity monitoring—they somehow have escaped the bureaucratic power games. It is these normative questions that enable them to represent themselves as whole and intact, as self-directing individual liberal humanist subjects at once rational, morally competent, and in control of their own situations, the captain of their own ships, the Hercules of their own empires, the author of their own texts.Google Scholar

It isn't so.Google Scholar

Schlag laid the groundwork for this provocative thesis in “‘Le Hors de Texte, C'est Moi’: The Politics of Form and the Domestication of Deconstruction,” 11 Cardozo L Rev. 1631 (1990), and “Normative and Nowhere to Go,” 43 Stan. L. Rev. 167 (1990); he further elaborated it in “The Problem of the Subject,” 69 Tex. L Rev. 1627 (1991).Google Scholar

18 39 Hastings L.J. 1269.Google Scholar

19 An Infocheck run reveals that Massey published over a dozen law review articles between 1986 and 1992, and that many of them appeared in such distinguished journals as the University of Chicago Law Review, Wisconsin Law Review, Duke Law Journal, and his home institution's Hastings Law Journal. Google Scholar

20 And Halcion nights, if my own experience as a crit securing tenure at the time in question is any indication.Google Scholar

21 Despite its title, Roberto Mangabeira Unger's The Critical Legal Studies Movement (Cambridge, Mass.: Harvard University Press, 1986) represents much more of an effort to construct and massage the author's own provocative jurisprudential and social theories than it does an attempt—like the one Kelman provides in the Guide—to synthesize and analyze the work of the CIS movement as a whole.Google Scholar

22 See, e.g., Roberto Mangabeira Unger, Knowledge and Politics 7 (New York: Free Press, 1975) (“one can begin to imagine the rudiments of a better alternative to the liberal doctrine, but this alternative should not be mistaken for the liberal view set upside down”).Google Scholar

23 And a male robot at that. See, e.g., Matsuda, Mari J., “Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls' Theory of Justice,” 16 N.M.L Rev. 613 (1986); Mac, Catharine A.Kinnon, Toward a Feminist Theory of the State 162–63 & n.30 (Cambridge, Mass.: Harvard University Press, 1989).Google Scholar

24 See, e.g., West, Robin, “Jurisprudence and Gender,” 55 U. Chi. L. Rev. 1, 28–36(1988).Google Scholar

25 See Schlag, 139 U. Pa. L. Rev. at 907:Google Scholar

What the liberals fail to notice is that while they are talking about the individual versus community, the reproduction and extension of bureaucratic practices routinely traverses back and forth across the public/private distinction without giving that venerable liberal distinction a moment's thought—thereby extinguishing ab initio the liberal version of both individualism and community. It turns out that being a liberal means that you worry a great deal about getting just the right combination of individual freedom and community, while getting neither.Google Scholar

26 For this reason, it has always seemed to me that in the debate over the critique of rights the critical race theorists were the “true” crits, providing thick and nuanced descriptions of profound conflict in the social experience of law and challenging the comparatively arid analyses of both liberal rights and left “anti-rights” thinkers. See, e.g., Delgado, Richard, “The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?” 22 Harv. C.R.-C.L L Rev. 301, 314–18. 321 (1987); Matsuda, Mari J., “Looking to the Bottom: Critical Legal Studies and Reparations,” 22 Harv. C.R.-C.L L Rev. 323, 332–42 (1987);Williams, Patricia J., “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,”22 Harv. C.R.-C.L L Rev. 401, 404–6 (1987). Indeed, I had thought that this was pretty much the point of that marvelous passage from E. P. Thompson's Whigs and Hunters: The Origins of the Black Act (New York: Pantheon Books, 1975) cited so frequently in the first generation of CIS work:Google Scholar

[T]he rule of law itself, the imposing of effective inhibitions upon power and the defense of the citizen from power's all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger.Google Scholar

Id at 266 (emphasis in original).Google Scholar

27 To be sure, Kelman seems to be aware of a linguistic dimension to the privileging phenomenon, observing at one point that “[r]ule -exception relations [such as contract law's treatment of paternalist interventions as begrudging exceptions to a general rule of private ordering] are communicated by subtle linguistic hints” (at 292). Yet the way Kelman frames this point suggests that he thinks that privileging exists apart from and prior to the linguistic structures it is then “communicated” through. Indeed, he reveals a similar assumption in his account of legal indeterminacy, a phenomenon he attributes to conflicts within liberalism's underlying conceptual or “justificatory” premises rather than to the recurring analytical structures of legal texts (at 12-13). For analyses that by contrast treat thought and language as interpenetrating, see, e.g., Schlag, 11 Rev, Cardozo L. 1631 (cited in note 17);Winter, Steven L., “Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for Law,” 137 U. Pa. L. Rev. 1105 (1989).Google Scholar

28 See, e.g., Schlag, 139 U. Pa. L. Rev. at 931 n.32 (cited in note 17):Google Scholar

Sometime in the future, the ALI will publish the Third Restatement on Everything. It will be a comprehensive compilation of four-part balancing tests all based on key terms that will themselves be defined in terms of four-part balancing tests, and so on in such away that the Third Restatement on Everything will have achieved the first totally comprehensive, totally closed system of totally self-referential four-part balancing tests. It will be great. Then it will turn to mud.Google Scholar

29 Of perhaps even greater significance is his related observation that critical scholars “find themselves in roughly the same relationship to their actual political beliefs as left liberals are to theirs. That is, they have … learned to argue confidently for a position one step to the right of their actual position” (at 5, emphasis in original). I think that Kelman is right in this, but I do wish that he had elaborated the point, for it may well be the most interesting and powerful example of just how “privileged” the so-called privileged positions are: Even those of us who are more or less conscious and in any event critical of the privileging are nonetheless caught in the gravitational pull. Here too Kelman's account might have been enriched by the insights of deconstruction and language theory that he so summarily dismisses.Google Scholar

30 See, e.g., the thoughtful critique of law and economics in Ronald Dworkin, Law's Empire 276–312 (Cambridge, Mass.: Harvard University Press, Belknap Press, 1986).Google Scholar

31 I doubt very much that any of this was intentional on Kelman's part. Rather, I suspect that he was just playing to his strengths, for what Kelman does best—and better than just about anyone else—is to challenge the legal economists on their own turf. Indeed, Kelman's basic insight—that liberal culture is most secure in defending the libertarian version of its world view—exposes a stark vulnerability of liberal thought: Undermine legal economics, and you may well have taken its queen. For one thing, the claims of the legal economists seem in a remarkable number of ways to vindicate what passes for “commonsense” among the educated laity; establishing that those claims already assume many of the very “commonsense” propositions that they purport to prove is accordingly a sound strategy in the battle for the hearts and minds of our students and of the legal profession generally. Moreover, in much the same way that the Realist critique dramatically changed the parameters of academic debate—less perhaps because “we are all Realists now” than because virtually no one who admits to being a formalist will be taken seriously—the work of Kelman, Duncan Kennedy, Pierre Schlag, and others has succeeded in demonstrating that Coase cuts both ways and that price theory is to social life pretty much as Velveeta is to cheese.Google Scholar

32 Unless otherwise indicated, all ellipses, bracketed material, and emphases appear here just as they did in Massey's review.Google Scholar

33 Notice, however, that the privileged position is challenged on its own rhetorical turf: Determinism is deployed in the service of a kinder, gentler free will. That's why we call it privileged. Google Scholar

34 One cannot help but notice that some of the more outspoken critics of CIS reveal an endearing if somewhat boyish fascination with “cowboys” that is quite nearly as intense(and boyish) as their fixation with the cars crits supposedly drive. Compare MR at 1281(cowboys) and Gordon, James D. III, “Law Review and the Modern Mind,” 33 Rev, Ariz L. 265, 269 (1991) (cars), with Brian Timmons. “That's No Okie, That's My Torts Professor,”Wall St. J., 3 Apr. 1990, at $ A, p. 20 (cowboys and cars).Google Scholar

35 To be fair to Massey, Kelman's decision to put the point this way is another example of how his tone may obscure the substance of his arguments—although a careful reading of the entire passage in question (at 138-41) suggests that this is another attempt at irony and, in any event, makes clear that Kelman himself shares many of these apprehensions about hard paternalism. From my own perspective, a far greater difficulty with Kelman's argument here is that he missed yet another opportunity to explore the privileged positions at work, this time by assuming that the rejection of paternalism by other CIS scholars is the result of a conscious choice—“cowardly” or otherwise—rather than of an unreflective response to the privileging of decisional autonomy in liberal thought; indeed, perhaps Kelman's assumption of a conscious choice is itself simply another example of the privileging of intentionalism.Google Scholar

36 See, e.g., Mills v. Wyman, 3 Pick. 207 (Mass. 1825); see generally Duncan Kennedy, “Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power,” 41 Rev, Md L. 563, 631–38 (1982)(collecting other examples from American contract law).Google Scholar

37 This is not the only place in Massey's review where his editing of Kelman's arguments may mislead. Consider Massey's claim (id. at 1284–85) that Kelman contradicts himself when he “castigates both CLS and mainstream scholars for assuming that norms have’ cross-culturally constant meaning’ (p. 234) while he berates the constitutional framers as ‘not an especially attractive group of people …, but rather … overtly racist … privileged white males' “ (p. 221). The ellipses are all Massey's, but it's worth noting exactly what he left out. What Kelman actually said was that the framers were an “overtly racist, slaveholding or slavery-tolerating group of privileged white males” (at 221, emphasis added to show Massey's deletion). Remove the italicized material, and Kelman sounds like a “typical” radical making wild and unsubstantiated charges; leave it in, and the passage reminds us of certain inconvenient but indisputable facts regarding our national heritage. See, e.g., US. Const, art. 1, $ 2 (requiring apportionment of representatives and taxes among the states to be calculated by reference to “the whole Number of free Persons … [and] three fifths of all other Persons”). Moreover, the content of the first excision reveals that Kelman was not, as Massey contends, judging the framers against “cross-cultura[l]” standards, but was instead challenging the “jurisprudence of original intention” and therefore questioning the utility of adherence to the framers' values in our own times. Thus, Kelman's claim—which is completely consistent with his skepticism concerning “cross-cultura[l]” standards—is simply that the framers “are not an especially attractive group of people [and here is what Massey left out] to use as models”; for solving contemporary constitutional problems (at 221, emphasis added).Google Scholar

38 41 Rev, Md L. 563.Google Scholar

39 “Perspectives on the Development of American Law: A Critical Review of Friedman's ‘A History of American Law,’“ 1977 Wis. L. Rev. 81.Google Scholar

40 “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941,” 62 Rev, Minn L. 265 (1978).Google Scholar

41 “The City as a Legal Concept,” 93 Haw. L. Rev. 1057 (1980).Google Scholar

42 “Critical Legal Histories,” 36 Stun. L. Reuv. 57 (1984).Google Scholar

43 Remarkably, Kelman leaves out of this part of his discussion Duncan Kennedy's unpublished magnum opus on legal consciousness—clearly the seminal work of this genre—which has been circulating in manuscript form since the mid-1970s. A portion of this important piece finally saw the light of day in Duncan Kennedy, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940,” 3 Res. L. & Soc. 3 (1980).Google Scholar

44 For examples of similarly sloppy reading by Massey, compare MR at 1273 n.11 (suggesting that Kelman accepts a naive Hohfeldian analysis of “correlativ[e]” rights and duties “between individuals”) with Kelman at 279–84 (criticizing that version of Hohfeldian analysis); and compare MR at 1285 (asserting that CIS “fails to come to grips with the fact that legal norms often go wholly unobserved”) with Kelman at 246 (noting the importance of that very insight to the CIS critique of functionalism).Google Scholar

To be fair to Massey, it should be noted that in an earlier review of the Guide Judge Posner misread the abortion passage in exactly the same way. See Posner, Wall Sr. I., 27 Jan. 1988, at 23 (cited in note 14) (asserting that Kelman “thinks the decision in Roe vs. Wade may have been intended to give men freer access to women by reducing the consequences of an accidental pregnancy”). On the other hand, the content and wording of this and other points in Massey's piece bear such a striking resemblance to the corresponding points in Posner's that it is difficult to ascribe the identical misreadings to coincidence. Compare Posner (asserting that Kelman's book is “marred by stridency and turgidity, as well as by exaggeration and a patronizing tone”) with MR at 1270 n.2 (book is “turgid, strident, … exaggerated, and condescending”); and compare Posner (asserting that Kelman attacks efforts “to depict law as a reasonably objective, reasonably disinterested, reasonably nonpartisan, reasonably civilized method for resolving conflicts and securing .,. widely shared values”) with MR at 1270 (Kelman challenges “the notion that law is a reasonably neutral, objective, and civilized method for resolving conflicts and maintaining widely shared societal values”). Massey, however, never mentions Posner's review.Google Scholar

45 “The Past of Constitutional Theory—and Its Future,” 42 Ohio St. L.J. 223 (1981).Google Scholar

46 There he goes again, suggesting with yet another condescending adverb that what is involved is deliberate and self-conscious rather than simply an artifact of the very structures of thought 1CIS has endeavored to identify and critique.Google Scholar

47 Massey altogether misses this facet of Kelman's argument, perhaps in part because its causal valance runs in a direction precisely opposite the simple elite-interests-determine-law functionalism he seems to see in every nook and cranny of CIS thought. This is ironic indeed, given Massey's not-so-subtle Red baiting. See, e.g., MR at 1274 (referring to the “perhaps Marxist perspective of CLS”); id at 1281–82 (“[p]resumably the dictatorship of an enlightened elite in a utopian post-liberal world is the answer served up by CLS”); id at 1289 & n.50 (noting that Kelman “claims not to know” what a better world would look like, but asserting that “[i]t is hard to take th[is] claim seriously, given the evident fascination of CLS thinkers with Marxist tropes”); id. at 1290 (suggesting that CIS supports an “authoritarian radical-left vision of a neo-Marxist community”). As Kelman says of the CIS critique of the public/private distinction in liberal legalism, critical scholarship is “perhaps more traditionally Marxist in this regard than in any other I can discern” (at 198); compare the argument in text with, e.g., Georg Lukács, History and Class Consciousness: Studies in Marxist Dialectics 83–222 (R. Livingstone, trans.; Cambridge, Mass.: MIT Press, 1971). Thus, Massey missed his best chance to paint CIS with the broad brush of Marxism and make his claims stick.Google Scholar

48 It is tempting to speculate what the result would be if I were to try to convince a respectable law journal to permit me to publish the suggestion that scholars associated with, say, the Federalist Society want to impose a “dictatorship of an enlightened elite in a utopian post-liberal world” and to offer as authoritative support only my “hunch.” But I won't.Google Scholar

49 See discussion at note 47 supra. Google Scholar

50 To be completely accurate, Massey does not seem to take personal responsibility for making these demands; rather, he simply invokes the subtle but imposing authority of the Brooding Omnipresence with a passive construction. “[I]t is essential,”; he declares, that our insights and arguments meet his criteria if we want them to be “meaningful” and “significant” (id. at 1271, emphasis added). (As Pierre Schlag would say, “Look, ma, no subject!”)Google Scholar

51 In fact, it is not at all difficult to imagine a reaction of the medical or scientific establishment to the hypothetical follow-up studies that would look a lot more like Massey's critique of CIS than my argument suggests; that, 1 gather, is a principal lesson of Thomas Kuhn's path breaking work, The Structure of Scientific Revolutions (2d ed. Chicago: University of Chicago Press, 1970). But it may sometimes be easier to identify the apologetics of normal science in a field other than one's own, since the constraints of the dominant orienting paradigms and/or of self-interested stakes in the “system” may exert less force on the outsider than on those who work within the discipline in question. To cite an example of this phenomenon that I found particularly striking when it occurred, in 1986 I delivered a paper on the Realist-cls indeterminacy critique to a convention of undergraduate pre-law advisers, most of whom were, as it turned out, political scientists. I had fully expected my arguments to cause great controversy—I had friends elsewhere in legal academia who were, after all, getting fired for articulating such views—but the reaction of most of my audience that day was something like, “You all are just figuring that out?” (The only person publicly to take issue with my views was, naturally, a conference participant who was a retired local judge.)Google Scholar

52 Quite apart from its extraordinary usefulness as a teaching tool, the key insight of Jeremy Paul's “bedtime story”—in which a child attempts to convince her baby-sitter to permit her to stay up past her usual bedtime—is its demonstration of the many ways in which our everyday experience of moral contention matches quite closely with the conflicting rhetorical structures of legal argument. See Paul, Jeremy, “A Bedtime Story,” 74 Va. L. Rev. 915 (1988). Paul elaborates this point thoughtfully and persuasively in 69 Tex. L. Rev. at 1815–20 (cited in note 4).Google Scholar

53 The use by cls scholars of “liberalism” or “liberal legalism” as a short-hand description of the dominant cultural/professional/ideological assumptions we are attempting to explore and criticize may well account for the not uncommon impression that we think we have somehow transcended these contradictory modes of thinking, rather than (not so)simply attempting to bring them into view. That, I take it, is Mark Hager's point in his excellent review of the Guide: “I cannot see what could be thought specifically liberal about the contradictions identified—rules/standards, value objectivity/subjectivity, free choice/determinism. They can, it seems, more plausibly be viewed as existential or structural than as specifically liberal.” Mark Hager, “Against Liberal Ideology: A Guide to Critical Legal Studies, by Mark Kelman,” 37 Am. U.L Rev. 1051, 1057 (1988) (book review) (emphases in original). That the modes of thought at issue are not the exclusive domain of those who might commonly be referred to in legal, academic, or political life as “liberals” is surely right, though that is a much narrower meaning of “liberalism” than most CIS scholars have intended since Roberto Unger offered a rather more capacious description of it in Knowledge and Politics at, e.g., 6-7 (cited in note 22). For this reason, I think that Pierre Schlag has made a brilliant, even discourse-shifting move in identifying “normative legal thought” as the target that is also our situation, since that expression avoids some of the “just-who-are-you-including-here” confusion that attends the use of “liberalism.” (On the other hand, it may simply generate a larger class of enemies.)Google Scholar

54 As my colleague Steve Winter has argued:Google Scholar

There is no way to get outside of time and existence, no way to escape the field of social interaction that is the self and that the action of the self maintains, no way to transcend—even for a moment—the constitutive action in which the self is already situated and in which the self is always implicated. Sometimes, we can relax the particular scheme by which we separate subject-from-object-from-context long enough to attend to the ways in which it constructs our world. But there is never a moment of privilege because there is never a moment outside a process of construction. What is possible— and all that is possible—are studied acts of situated self-consciousness. “Without Privilege,” 139 U. Pa. L. Rev. 1063, 1068 (1991) (footnotes omitted).Google Scholar

55 I am reminded of a faculty seminar I gave at the beginning of my second year at Miami. Although I had practiced labor law for five years before entering academia, I had never noticed until I attempted to teach the subject for the first time that virtually all of the statutory, administrative, and judicial exclusions of working people from the coverage of the National Labor Relations Act—eg., managerial employees, supervisors, independent contractors, students (like hospital house staff)—seemed to reflect precisely the same set of cultural-legal assumptions about the importance of separating employment from ownership and of distinguishing the conception of work from its mere execution. My senior colleagues listened politely and asked their usual slew of thoughtful and interesting questions, but the session nearly fell apart when I was asked (you guessed it) what I though should be done about all of this. When they were not satisfied with various versions of my initial response—“Isn't it enough that I've seen something no one else has ever noticed?”—I could no longer suppress the bad boy in me and provided the answer that a handful had feared all along: “Transfer the means of production to the working classes.” (The response I would give today: “Amend the Labor Act to instruct NLRB members, judges, and labor lawyers— not to mention working people and their employers—to stop thinking this way about work.” Whatever else can be said for a decade of experience in legal academia, it has greatly sharpened my sense of irony.)Google Scholar

56 As Pierre Schlag has astutely observed:Google Scholar

Not surprisingly, those theories that are the most popular within the legal academy are those that project the most attractive self-image. Consider, as an example, Dworkin's theory of law as integrity and his depiction of the ideal judge as “Hercules.”… Regardless of whether Hercules is an accurate or a desirable model of the appellate judge, he certainly resonates profoundly in the self-image of the contemporary legal academic. Indeed, it is easy to understand Hercules as the projection of the legal academic's idealized self-image onto the character of the appellate judge. Similarly, Dworkin's theory of law as integrity can easily be understood as a projection of the kind of elegant theory-construction that characterizes the most esteemed legal scholarship onto the appellate judicial opinion writing process. 139 U. Pa. L. Rev. at 844–45 (citation omitted) (cited in note 17).Google Scholar

57 There is a considerable body of cls-associated work that does offer what look for all the world like “constructive” proposals, many of them quite concrete and within the realm of the politically plausible. See, e.g., Klare, Karl, “Workplace Democracy & Market Reconstruction: An Agenda for Legal Reform,” 38 Cath U.L Rev. 1 (1988). Those who insist that CIS has never engaged The Question either ignore this work, dismiss it as unresponsive to the broader normative enterprise, or strike the pose of what Jerry Frug has called the “modest realist”:Google Scholar

[M]odest realists tend to respond to their critics' concrete suggestions for change in the manner of a sober grown-up addressing a naive child. If the suggestion is “in the ballpark,” they treat it as one more factor that needs to be “weighed” against a host of other competing factors, and the likelihood that they will accept the suggestion is low. Chances are that it has already been weighed and found overridden by other factors, or has already been taken into account to the extent that it has merit, or has yet to develop a sufficient track record to be seriously considered, or is simply too trivial a revision of the status quo to be worth pursuing. If, on the other hand, the suggestion proposes some radical change, the modest realist dismisses it out of hand as utopian. “Things are complicated and difficult,” one almost hears the modest realist saying, “Of course we have a long way to go. But everything is a tough policy choice, and every decision we make will have its faults. All we can do is the best we can.” Frug, Gerald E., “The Ideology of Bureaucracy in American Law,” 97 Harv. L. Rev. 1276, 1383 (1984) (footnotes omitted).Google Scholar

The upshot is a double-bind for those doing critical scholarship: Refuse to engage The Question, and your arguments are either dismissed as insignificant or mischaracterized as dangerous. Engage The Question, and your proposals are ignored, conventionalized, or dismissed as utopian. All this reveals a great deal more about the rhetorical structures that fortify mainstream legal thought against critique than about the supposed failure of the critics to come up with “constructive” proposals of their own.Google Scholar

58 The greatest difficulty that CIS may face here is to avoid an essentialist leap that would elevate this experience of contradiction to ontological status, concealing the prospect that it is a particular and situated epistemological moment (albeit a really long one) in the construction of which we are ourselves deeply implicated. See, e.g., David Gray Carlson, “Contradiction and Critical Legal Studies,” 10 Rev, Cardozo L. 1833, 1854 (1989) (book review) (“For Hegel, contradiction has meaning, and more! Contradiction, for Hegel, is the very substance of our lives. It is not to be regretted or denied but embraced as both the fact of our finitude and our salvation from it”) (emphasis in original). In this connection, my colleague Steve Winter is surely right when he argues that critical scholars and mainstream legal thinkers alike seem to “participate in exactly the same understanding of objectivity and subjectivity as mutually entailed, dichotomous choices.” Winter, Steven L., Foreword: “On Building Houses,” 69 Tex. L Rev. 1595, 1597 (1991).Google Scholar

59 See Carrington, Paul D., “Of Law and the River,” 34 1. Legal Educ. 222, 227 & n.21(1984). As Robert Gordon observed in his thoughtful response to Dean Carrington's claim:Google Scholar

[W]hom is it realistic to call a nihilist? Surely not a romantic Christian Hegelian like Roberto Unger, who has just set off to spend several years of his life doing grass-roots political organizing in Brazil; there are few people anywhere in the world who have given more effort to constructing a theory of social transformation and shown more courage in trying to carry it out in practice: in his case at least, the proper analogy is not the one you suggest to an atheist in a divinity school, but rather to a liberation theologian.Google Scholar

Letter from Gordon, Robert W. to Carrington, Paul D., in “‘Of Law and the River,’ and of Nihilism and Academic Freedom,” 35 J. Legd. Educ. 1, 13, 14–15 (1985).Google Scholar

60 Dworkin, Law's Empire 275 (cited in note 30). Presumably, he has a list of names.Google Scholar

61 It should perhaps be noted that the penchant for asking the What would you put in its place? question is sometimes observable among CIS insiders as well. Consider, for example, the review of the Guide written by John Stick, who has closely identified himself with what he calls a “counter tradition” within cls—a tradition that he defines in terms of its rejection of the “mainstream” cls view on indeterminacy and legitimation. 88 Rev, Colum L. at 408 (cited in note 13). Drawing on an earlier piece, Stick argues that Kelman and other critical scholars find a “failure of moral and political justification” in the materials of legal decision making because they are testing those materials against a model of rationality that is very different from—and much more restrictive than—the one that common law lawyers and judges actually deploy. Id at 413 & n.18, citing John Stick, “Can Nihilism Be Pragmatic?” 100 Harv. L Rev. 332, 345–69 (1986). Legal reasoning, the argument goes, is not confined to logical deduction or something akin to “mathematical calculation”—as the crits assertedly assume—but rather includes the active use of “legal culture, conventions, common sense, and politics.” 100 Harv. L. Rev. at 356; see also 88 Colum. L. Rev. at 413.Google Scholar

Stick gives a fair sketch of the experience of legal reasoning, but what his account misses is what Steve Winter has identified as the discontinuity between that experience and the practice of legal argument and justification. See 137 U. Pa. L. Rev. at 1180–98 (cited in note 27). Thus, with rare exception, the rhetoric of legal argument—whether used by a lawyer to attempt to persuade a court or by a judge to attempt to justify a result—is a rhetoric of constraint, entailment, and necessity. To be sure, we expect the “legal culture, conventions, common sense, and politics” that Stick describes to have a profound impact on the ways a lawyer or judge will actually think about a case; that is one of the most interesting points of Duncan Kennedy's insightful piece on the phenomenology of judging. See “Freedom and Constraint in Adjudication: A Critical Phenomenology,” 36 J. Legal Educ. 518 (1986). But we would think it highly unusual if the lawyer in her brief—r the judge in her decision—relied on any of those factors as a reason for reaching a particular result in a particular case.Google Scholar

The point, then, is that critical scholars are measuring the practice of legal argument against liberal legalism's own professions of constraint and entailment, not against some external standard of “moral and political justification” that CIS has independently embraced. Thus, Stick is making the same mistake that Massey made, confusing critical analysis with a form of normative argument that may reveal more about his own rationalist commitments— however much they differ from Massey's—than about the views held by other critical scholars.Google Scholar

62 34 S.D.L. Rev. 220 (cited in note 12).Google Scholar

63 According to Barnes, the book is also a “failure” because it is often such a difficult read (id. at 223–25). He has a point: Kelman tends to pack phrases and sentences to the bursting point and to pitch his arguments at an exceedingly abstract level. See, e.g., Guideat 13 (“the legal system is invariably simultaneously philosophically committed to mirror-image contradictory norms”) (emphasis removed). Barnes is surely right that those characteristics make the Guide just about the last thing you would want to give to a lawyer—let alone a lay person—looking for an introduction to CIS (BR at 223).Google Scholar

Yet despite the title, it was surely Kelman's prerogative to address an audience of sophisticated legal academics familiar with the jurisprudential debates in which CIS plays a significant role and to attempt to enrich and refine those debates, rather than to reduce them to some sort of primer. Indeed, sketching an account of those debates that is accessible but not simplistic is no easy task. The most successful efforts thus far can surely be found in Robert Gordon's work, especially “New Developments in Legal Theory,” in Politics of Law 413 (cited in note 6), and “Unfreezing Legal Reality: Critical Approaches to Law,” 15 Fla. St. U.L Rev. 195 (1987). I tried my hand at it once, and the principal reaction of my senior cls-identified colleagues was to advise me to hide the draft in some dark hole, at least until I received tenure. At the same time, the responses of my more mainstream colleagues, of our students and alumni, and of faculty at other schools looking for ways to introduce their own students to CIS was for the most part quite encouraging, suggesting that attempts at translation and outreach are well worth their considerable effort. See Fischl, Richard Michael, Essay: “Some Realism about Critical Legal Studies,” 41 U. Rev, Miami L. 505 (1987).Google Scholar

64 Barnes's fourth citation—Guide at 298 n.12—refers to a lengthy note in which Kelman astutely describes CIS from the vantage point of some of its more hostile mainstream detractors. Here is a representative passage from the argument in question:Google Scholar

At best [cls] may be viewed as a dissident voting bloc at faculty meetings that attempts to prey on insecure and guilty liberal colleagues to build coalitions that will hire only unqualified “politically correct” hacks; undo “meritocratic” (test-based) admissions programs; force students into serving the poor at storefront clinics without any respect for those who believe that they better serve the poor by greasing the wheels of commerce or simply feel that serving the poor is just not what they had in mind.Google Scholar

To the same effect, see Kelman's sarcastic reference (at 299 n. 12) to mainstream academics who fear the adoption of what they see as “the ‘party platform’ of the CLS wing (or is it cell?)” at their home institutions. Barnes evidently mistook these obvious attempts at parody for “hints of the Marxist bent” among cls scholars.Google Scholar

65 4 Jan. 1988, at 36 (cited in note 11).Google Scholar

66 Of course, the fact that a crit is now at the helm of a leading law school might be read to support Farber's legal-academia-is-a-stronghold-of-the-New-Left claim. On the other hand, it might be read to undermine the popular image of crits as folks who “stalk the halls,”“thunder” about, and hang out in “strongholds.”Google Scholar

67 3 Yale J.L & Hum. 131 (cited in note 7).Google Scholar

68 This tendency is difficult to miss in some of Roberto Unger's work—a point developed at note 69 infra and accompanying text. But an appropriately modern—not to say postmodern—version of it lurks awfully close to the surface in the work of many of the more “mainstream” CIS scholars as well. See Schlag, 69 Tex. L Rev. at 1679–1705 (cited in note 17) (“Critical Legal Sartre”).Google Scholar

69 Ironically, the most common critique of Unger by other critical scholars is similar to the cls-wallows-in-individualism point made by Genovese and quoted earlier. See, e.g., Cornell, Drucilla, “Beyond Tragedy and Complacency,” 81 Nw. U.L Rev. 693, 700 (1987) (citation omitted):Google Scholar

[F]or Unger, attachment is always valued from the vantage point of the self, which somehow or other is present to itself before attachment. The other is for-the-self. [But] the self-present-to-itself in time and space is not only a myth, but a myth based on erasure of the mother…. For we come into this world only because we have been attached to one who is already there when we make our entry. The mother symbolizes our inevitable dependence on others and our tie to a world that was already there before us; the “it was” of the past denies to the infinite, willing self the illusion of self-creation. We do not give birth to ourselves in the continual process of self-transcendence. Instead, we endure birth as we are thrown into a pre-given environment. Cass Sunstein is evidently the originator of the elegant if horrifying phrase, “erasure of the mother”; he makes a point similar to Cornell's in “Routine and Revolution,” 81 Nw. U.L Rev. 869, 885 & n.63 (1987).Google Scholar

70 There is in fact some ambiguity concerning Genovese's view of Kelman's position—and the position of CIS generally—on the issue of rules and standards. Thus, at one point, Genovese states that “[ilt is not clear to me that Kelman in fact does think [rules] should be dispensed with” (id. at 134). But a few paragraphs later, Genovese approvingly quotes Harold Berman's measured response to the CIS criticisms of rules (id. at 134-35): “Berman properly scoffs at the notion that the replacement of the emphasis on rules by one on substance would end well, especially if carried as far as many of the Critics seem willing to go. ‘What is to prevent discretionary justice,’ he asks, ‘from being an instrument of repression and even a pretext for barbarism and brutality, as it became in Nazi Germany?’“ One is tempted to answer Professor Berman's question thus: The same thing chat will prevent the current Supreme Court's rule-obsessed jurisprudence from serving as “an instrument of repression and even a pretext for barbarism and brutality”—a differently constituted Supreme Court and a different social/legal/cultural context. See Winter, Steven L., “Indeterminacy and Incommensurability in Constitutional Law,” 78 Cal. L Rev. 1441 (1990).Google Scholar

71 Toward a Feminist Theory of the State 168 (cited in note 23).Google Scholar

72 The “state” is not, after all, some gender-neutral abstraction. As Mason Williams put it in the somewhat different context of the riots that accompanied the 1968 Chicago Democratic convention, “I'd call the police, but they're already here.” See generally MacKinnon, Toward a Feminist Theory of the State 157–70.Google Scholar

73 Genovese's nigh complete erasure of the victim here is of a piece with his snide remarks concerning Kelman's frequent use of the female personal pronoun when the antecedent is not gender-specific (GR at 136–37):Google Scholar

I make no apology to the ladies for usually writing “men” instead of “persons” and always writing “his” instead of “his/her” or God knows what, for I cannot fathom how a commitment to justice and equity for women requires a trashing of the great English language…. What have we come to when men who aspire to speak seriously of serious things degrade themselves by cowering before threatened accusations of sexism?Google Scholar

From which I suppose we are to gather (1) that persons other than “ladies” (gentlemen?) shouldn't be offended by sexist language; (2) that “men” (but not women?) who endeavor to avoid sexist language are intellectual cowards; (3) that the notion that linguistic conventions reflect and reinforce the ways that we think—and indeed are the way that we think—is too arcane to “fathom” (and accordingly that law has a hegemonic function but language does not?); and (4) that to speak harshly of sexism and “to speak seriously of serious things” are mutually exclusive categories.Google Scholar

74 See, e.g., Frug, Jerry, “McCarthyism and Critical Legal Studies,” 22 Harv. C.R.C.L.L Rev. 665 (1987) (book review). My own sense is that intergenerational jealousies, misunderstandings, and institutional power struggles account for even more of the hostile treatment of critical scholars than does the Red scare; Kelman offers a brief but insightful analysis along these latter lines (at 298–99 n.12).Google Scholar

75 I refer here to the op-ed piece run by the Journal in 1990 by Brian Timmons, then a second-year student at Harvard. See Wall St. J., 3 Apr. 1990, at $ A, p. 20. Timmons made a series of standard-issue anti-left charges against Kennedy—and leftist academics generally—that were intended to suggest that we all live lives of unremitting hypocrisy. Thus, he argued that we zealously support egalitarianism in every aspect of American life except with respect to the running of the elite educational institutions that give us our daily bread and that we broadly embrace the cause of working people in our scholarly work but shun them and ignore their interests in our personal lives. Drawing on a rhetorical move that has worked well for recent presidents and Supreme Court nominees alike—i.e., summon up a home-spun, folksy image just before you lie—Timmons invoked the populist wisdom of his working-class grandfather, with whom Timmons had reportedly discussed Kennedy's infamous proposal for job swapping between law faculty and custodial staff: “Few intellectuals, according to my grandfather, could ever speak for the common man, because few have ever lived his life. (I never told my grandfather about the Jaguar that Duncan Kennedy drives to school. I didn't have to.)”Id Google Scholar

Jeremy Paul and I wrote a response pointing out that Timmons's charge was embarrassingly wide of the mark in Kennedy's case, citing among other things Duncan's outspoken support for aggressive affirmative action (indeed, randomness) in law school hiring and admissions policies, and his active personal involvement with housing and labor issues in the Harvard and greater Boston communities. Wall St J., 7 May 1990, at $ A, p. 15. Whether those facts undermined Timmons's broader claim may be a matter of opinion, but the Journal edited out of our letter an additional point that might have called into question both Timmons's good faith and the Journal's capacity for scrupulous fact checking when presented with assertions that correspond to its cozy world view: In 1990 Kennedy owned and drove a 1985 Nissan Sentra, nor the Jaguar of Timmons's overactive imagination. The defensive circle-the-wagons response we later encountered when we asked Journal officials either to correct the misreported fact or to print the censored portion of our letter revealed a commitment to “the party line”—on this, seemingly the most trivial of issues—that one would more readily associate with popular images of small-time dictators than with a respected organ of the national press; evidently, the perceived need to assure its readers that radicals drive fancy cars too (and hence can safely be ignored as hypocrites) outweighed the Journal's desire to get the facts straight.Google Scholar

76 The source of the quoted phrase is Kennedy's memorable extemporaneous response to Steven Burton's cls-believes-that-law-is-junk speech at the 1986 AALS annual meeting. For the published version of Burton's remarks, see “Reaffirming Legal Reasoning: The Challenge from the Left,” 36 J. Legal Educ. 358 (1986).Google Scholar