"The history of astronomy is a history of receding horizons. We find them smaller and fainter, in constantly increasing numbers, and we know that we are reaching into space, farther and farther, until, with the faintest nebulae that can be detected with the greatest telescopes, we arrive at the frontier of the known universe"--Edwin Hubble.
I write tonight about what comes of deconstructing law. Critical legal theory is the generic term assigned to a movement which began in earnest in 1977. Critical legal theory posited that the so-called "liberal model" of law was flawed not only in its failure to attain perfection, but also in its intrinsic goals and principles. I want to discuss how sometimes an interesting notion can prove
to be a missing portion of known space.
Let's begin where all good stories should begin--in Fort Lauderdale, Florida. It's Spring Break. Ronald Reagan is president. I'm 20something, in town for a conference. You see, in law school, the key perquisite and benefit (or, for those who, as I did, grew up chemically chaste but hopped up on anti-drug commercials, "perks and bennies") is something called "Law Review. You get asked to be on Law Review because your grades are good. I was in sunny Florida for a clouded seminar about publishing a law magazine.
My first semester at the University of Arkansas at Little Rock School of Law had proven to be one of those eternal moments in time when sheer, mind-numbing "failure at everything I touch" fear served its worthwhile purpose of frightening me into hard work and detailed study. I focused, I took detailed notes, I typed up my notes, I lived with a single-mindedness. I was tired of the tears of failure. I wanted to survive law school.
Law school exams are all "the final is the grade", except for a few practical courses. When I took the graded practice tests they offered, I scored in the solid "C" class. I was heartened by this. I might actually pass law school. I studied like the Great Recording Angel, memorizing souls. As I had managed to fail a sophomore level computer class I took for fun in Summer school, I knew I needed every ounce of hard work I could muster.
I had a phenomenal first semester, a 3.93/4 semester, which at UALR at that time put me on Law Journal "instantly" after one semester, a rare thing. By the time of my second year, I was on the "editorial board". My friend George, who was to be the next Editor, and myself, a lesser editor, were shipped off with lunch and hotel money to drive to Fort Lauderdale from Little Rock over Spring Break. We attended the National Conference for Law Journals, which was probably known by some more impressive sobriquet.
I should digress here to explain how the first year of law school caused me to fall in love with the law.
American law is a heady mix of history, logic and whimsy. Legal education was (and in large part still is) the same method devised by a fellow named Langdell at Harvard in the late 19th Century. One reads famous cases. One pores over the facts, seeking to distill the essence of the holding. But "learning the rules" is only incidental to the process. The process is designed to cause one to spot the issues, to distill facts, in short, to "think like a lawyer". The best classes feature no answers, but merely endless Socratic questions. It's heady stuff, about the structure of how law is determined. It's a great battlefield in which progressive and conservative ideals of justice joust, and society gradually improves as the progressive ideals over time win. I felt that the combination of irrational history and rock-solid logic suited me down to the ground. I was created, I am sad (and ecstatic) to say, to study law.
This Fort Lauderdale conference proved to be immensely interesting. For one thing, it was a feeder guppy thing. None of the "top" schools sent folks to attend. Only the "ordinary" law schools found a virtue in communing with the thundering herd of hundreds of other student editors from the mill-run cobbler's production line of law schools. But law schools and elitism go hand in hand. Harvard Law Review did not come to the convention. But Harvard Law Professor Duncan Kennedy did.
Duncan Kennedy, a Yale law grad, was among the pioneers who charged the windmills of legal institutions
with the jousting stick of critical studies. Critical legal studies borrowed ideas from the critical studies and deconstructionists, from the Frankfurt School and Marcuse and from the linguistic approach folks like Derrida. As so many movements do, Critical Legal Studies brought an insight to the table which should have been obvious to all. This insight was that in order to understand the realpolitik of law, one must understand the monied and powered interests. As so many movements do, though, the Critical Legal Studies movement, at its worst, went an extra step. It claimed that even progressive legal institutions were subverted by the powerful, and that the "ideal" of liberal thought proved illusory and pretextual to obscure the 'real fact' that those in power got what they wanted.
Professor Kennedy, a truly charismatic man, gave us a succinct explanation of Critical Legal Studies, its goals and theory. Then he told the hundreds of us that our law journals, which cataloged the progress of case law with articles of legal analysis, were of no value. He proposed that we instead should be printing up stories about statistical studies of case results and perhaps notions of jury nullification. He basically called upon us all to reject the theory that a workable legal system exists, and to deconstruct it all. He basically let us know, in the most charming terms, that we were drones in a sham system. My friend and fellow-UALR guy George, like Professor Kennedy a young man during the 60s,
asked the one pertinent question that day, which was "aren't you banking on the fact that almost everyone here will take everything you say as complete b.s.?". At the time, I thought George a little rude. But now I wonder if George had not put his finger on the pulse of the matter.
Critical legal studies scholars still exist in profusion. Some allegedly sought to "take over" law faculties. One law professor boasted in an interview how she delighted in putting a white student on the defensive, eliciting tears, in her class on race and the law. On a less colorful note, debates raged back and forth about the central theme of critical legal studies--the idea that all of western liberal thinking about the common law was cant and show for a results-oriented jurisprudence.
Let me hasten to say that I don't want to demonize Critical Legal Studies. The "follow the money, follow the power structures" quasi-Marcusian notions raised worthwhile questions. Down in the legal trenches, the main problem I see with the justice system it not a deck stacked by politics, but a deck stacked by the unaffordability of the legal process for the middle class and working class.
But the idea that the ideal of justice, as espoused by western legal tradition, was an illusory pretext, as posited by CLS, was simply misplaced. Over time, the "myth of liberal law as sham" notion came to be seen as important, interesting, and yet something of a fad. To me, a series of ideas poorly adapted from other fields of study were superimposed on legal concepts where they simply did not fit. But the fundamental conflict inherent in this debate, which I've described herein only imperfectly, intrigues me still.
I'm intrigued because the idea that things make sense to me matters so much. I have little patience for
the notion that everything is relative, or that all the rules are sham. I am not quite among the Victorians, who imagined that some science, in the process of discovery, controlled everything with Newtonian precision. But to throw away the baby of a concept of justice to eliminate the bathwater of instances of justice denied seems to me very troubling even yet.
The fundamental vacuum created by critical legal studies once the idea of a "liberal concept of justice" had been eliminated proved a collapsed black hole, drawing into it for high-pressure elimination all hope and purpose in the pursuit of justice. The CLS scholars posited that true political action could begin by sweeping away the illusion that the justice system sought a fair result. But actually, the CLS solutions had no replacement for the things they disregarded with wit, aplomb and a sneering condescension. They were like John the Baptist, crying in the wilderness, in a godless landscape stripped of messiahs. Unless one likes the taste of bees, donning sackcloth without a reason fails to satisfy.
I truly enjoyed hearing Kennedy lecture, though in my own practice, I've always found that any real good I can do is by supporting the justice system, not seeking to question its moral validity. But I believe in the dowsing of cold water into my face. Although I've read a few of the key essays in the movement over time, I would like to read more of the material, so that the obviously reductivist approach I've taken here might be a bit more well-rounded.
I'd like to tell you something. The problem I see in our legal system is not with "activist judges", "greedy trial lawyers" or with "aberrant academics". Kennedy and his ilk made essentially no impact on law as it is practiced, other than as perhaps cannon fodder for Fox News. The problem I see in our legal system is instead that just a whale of a lot of people are too poor to pay for services at a rate that will pay the rent on a law office. Lawyers could do a lot better job in mentoring young lawyers and setting up law firms that could work on economic models that help ordinary folks. Courts could be more user-friendly, though, in fact, consumer matters do become more user-friendly over time.
To my way of thinking, the law does not need more huge class actions, nor major structural reform. The law needs lawyers who can handle cases brought by and against people who can't pay enough to hire a lawyer. The law needs family lawyers who can spend the time to collect child support. Failure to pay child support probably drives more people into poverty than any other factor in our legal system. The law needs consumer lawyers who can combat home equity fraud and "switch and repo" auto financing.
The law needs more protective orders against domestic abuse, and more ways to help people with the burden of unfathomable debt. The laws exist to stop that stuff--it's lawyers that we need.
I see so many wonderful ideas of the era 1930 through 1970 as glittering, amazing, and utterly directionless side roads. They're like theories of phlogiston, best disproved and cast aside. To me, the main road is in the idea that justice can be achieved, and that it requires laws and beliefs in law to do so. The CLS academics may not disagree, but their approach is so diffuse as to be nearly useless. Give me instead folks who theorize less, turn out fewer Harvard Wall Street lawyers, and
descend into the trenches.
It's not that the hiearchy in the legal profession isn't there. The big corporations have control of the top lawyers. The courts are elected or nominated from an elite. It's that the folks in the hiearchy can't help fight it. They can only substitute a different, less satisfying model for justice in their textbooks.
But I want to live where the people's days in court are spent. I don't need to deconstruct law to practice it.