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Friday, November 18, 2016

What Next?--Part II: Avenues of and (Mostly) Revivals in Legal Scholarship

This post on "what to do" in response to the election of Donald Trump is long but shorter than my last. It involves more easily attainable and less disruptive action, but also has little if anything to do with real-world impact. I ask here what I would like to see in the next few years by way of responsive legal scholarship that is more or less in my field.* I'll dispense with the easy stuff first and relatively quickly, then add a few suggestions about what I would like to see, and one more suggestion about what one might see. Either direction would be interesting in its own way.

It is obvious and therefore uninteresting that one may expect an uptick of interest in separation of powers and federalism. A couple of conservative legal scholars have idly wondered, on blogs and listservs, whether their calls during the last eight (or eight-plus) years for limits on presidential power, and their interest in a vigorous separation of powers and federalism, will get more respect now that the shoe is on the other foot in a rather dramatic way. My prediction on that point is somewhat depressing and perhaps too cynical. I certainly think there will be an increased interest in these positions. But I doubt somewhat that mainstream liberal law professors will draw heavily on the work of conservative legal scholars who have made even relevant and helpful arguments along these lines. I think they are more likely to draw on the existing conservative literature a little, but much less than one might expect. Instead, they will adopt a mix of the following: invoke work from past eras when progressives favored such measures; write pieces advocating separation of powers, a more restrained or constrained executive, and federalism on the basis of their own existing work and methodology, drawing on the strands that would advance the Trump-resisting project, even if and when the bulk of their conclusions in that past work runs in the other direction; give more attention and more favorable and extensive treatment to federalism- or separation-of-power-favoring liberal scholars, like Heather Gerken, than they may have up until now; and, per the usual methods of many legal scholars, treat whatever they are writing in this new political direction as "novel" or the "first" to advocate this or that, sometimes because it really is novel but more often out of genuine and/or phony amnesia. As I say, all this may be too cynical. But I do expect existing arguments from legal conservatives along lines that might restrain Trump to get less attention than one might expect. Citation and prestige networks will remain more or less as much (or as little) of a closed loop as they always are. 

I wrote here a while back, before the election, wondering whether a Trump election might presage a revolt within the civil service. I also touched on it yesterday in my post, in which I suggested that one possible response of law professors in light of the election would be to go to work as government lawyers and civil servants in the Trump administration. I do think the ground-level mechanics and sociology of the civil service, and modes of bureaucratic entrenchment and resistance to the chief executive, overt and covert, will become a growing topic of interest, which is a good thing. (One hopes people will also write about the potential long-term consequences of such a model.) In addition to the couple of things I linked to in my earlier post, check out this online piece, rather confirmatory of my general prediction, by Jennifer Nou in the Yale Journal of Regulation blog, on "Bureaucratic Resistance From Below."

A pivot between the more and less obvious things I would like to see in legal scholarship over the next few years is the possibility of a more widespread interest in things like legal pluralism, mediating institutions, and subsidiarity. That is good news for those whose excellent books on First Amendment Institutions would make a superb Thanksgiving or Christmas present. I cannot say I would have predicted this on my own. But when The New Yorker--the New Yorker! home of generalized cosmopolitanism and attachment to centralized government!--suddenly expresses a post-election interest in Charles Taylor and specifically in subsidiarity, muses that subsidiarity could help us "get a grip on our political selves, and be less inclined toward nihilism on the national scale," and titles the piece "How to Restore Your Faith in Democracy," one gets the hint that something is up. I don't want to overstate this prediction. Based on what I have seen of about half of the current political commentary, it is just as likely that scholars of a political hue will simply argue more forcefully--and more successfully this time, or so they will swear--for more of the same. But I do think there will be some increased interest in things like legal pluralism and subsidiarity, in quarters that have in recent times been somewhere between uninterested in and forcefully opposed to these ideas. 

Let me suggest three other topics or approaches I would like to see more of in the next couple of years. They're all offered sincerely enough, but since I'm interested in and working on all three things and have been for some time, my vision may be distorted by my own preferences. I deal with them after the jump, so here's a list: 1) Critical Legal Studies; 2) Robert Cover's "Justice Accused" book; and 3) social class. I'll wrap up with the possibility that, instead of any of that, mainstream legal scholars will either stick with the same-old same-old or, more strikingly, return to the conventional views of earlier and seemingly superseded generations of scholarship.  

The first possibility I'm interested in is a revival of interest in Critical Legal Studies. To the extent that that school was viewed as an organizing mechanism for thinking about resistance to a conservative (or "Liberal") status quo and saw the left (as opposed to mere liberals or "progressives") as operating from a minority position against the prevailing tide, it would be a natural time for more people to pick up an interest in it again. To the extent that the election causes a few liberals to focus more on class issues, on the legitimating effects of the current system, and on the degree to which establishment liberalism, including establishment liberal legal scholarship, partakes of these problems and structures, again this would be a natural school to focus on and revive.

Since most legal academics are establishment liberals, one shouldn't overstate the degree to which they will suddenly become interested in formerly-outre left theory. I think they should be interested in it. I have seen a fair amount of recent liberal legal scholarship that really does seem to recapitulate, in its unthinking doctrinairism and unquestioning use of contestable premises, everything the Crits wrote about and against, while operating at a fairly high level of either bad faith and denial, or amnesia. I think CLS scholarship and thinking would be worth reviving even if--perhaps especially if--the establishment liberal had won. A CLS revival certainly wouldn't have happened in that event. But at least a little revivalism is more likely now. (I'm currently working on--and tragically behind on--a piece about CLS, although it has a somewhat different focus.)  

The second, more specific item is a renewal of interest in Robert Cover's classic book Justice Accused: Antislavery and the Judicial Process. That book, which asks what a judge should do "when he must hand down a ruling based on a law that he considers unjust or oppressive," will be or seem to be of renewed interest under the current regime. And the questions it asks will be of particular interest not with respect to judges, but with respect to the mid- and lower-level government officials and civil servants I mentioned earlier. (Cover's book is of interest to me because of a long-term project on oaths and the Constitution. It remains decidedly long-term as a project. But one might expect increased interest in that general topic as well.) 

Finally, it would be nice to see an increased interest, within legal scholarship, in social class. (Final self-serving note: I'm under contract and working on a book--and, again, woefully behind on it--about social class and the American legal academy.) Certainly that topic came up, in various ways (including self-critical ones), in the Crit literature. And the ClassCrits remain interested in it, although I don't sense that they currently have a huge audience. And both the facts on the ground in the past decade and the popularity of the Piketty book have caused an uptick of interest among legal scholars about economic inequality. But that interest doesn't necessarily translate into an interest in social class as such. (A recent symposium issue of the Texas Law Review, some of which is directly about class but much of which is not, is illustrative of this point, I think.) I know a couple of rising and established legal scholars are interested specifically in social class and the law. Given one of the possible lessons of the election for members of the establishment or elite, I expect and hope that this topic will become more popular. One might well start with a recent commentary by law professor Joan Williams, who to her credit has been working on these questions for a long time.

I suggested above that mainstream, establishment legal liberals might not take a sudden interest in the Crits, and wrote that liberal "scholars of a political hue" may simply follow a substantial number of their establishment confreres in politics and political commentary and "simply argue more forcefully...for more of the same," a prospect nicely captured here. So one possibility is that nothing much will change by way of thinking, scholarly agenda, methodology, or jurisprudence among the legal liberal mainstream, elite or otherwise, although naturally some of the current issues will change. From a political and--perhaps more important for many legal academics, if less openly acknowledged--a professional standpoint, that may turn out to be perfectly sensible, even if I personally think it would be unfortunate.     

Another, more intriguing, possibility is that liberal legal scholars will instead turn to arguments and approaches from the past--arguments and approaches that in many cases have been superseded, or criticized in the intervening decades, to the extent of being pronounced dead. Much of that will depend on the precise state of play of the federal judiciary. But maybe we will see everyone suddenly writing straight doctrinal work (or more straight doctrinal work, since there has already been an uptick in doctrinalism), or invoking and acting as latter-day followers of Bickel, Wechsler, or Ely. The uncertainties of the 1970s brought us Happy Days. The current situation may bring us a revival of the Greatest Hits of Past Liberal Legal Scholarship. If this happens, it would be especially interesting if scholars writing in this re-mined vein do so un-self-consciously and as if the critiques of the past few decades didn't exist. But even if they are more self-aware than that, as times change we will inevitably end up recapitulating whole earlier histories of argument, thrust, and counter-thrust, although faster and perhaps more farcically.    

* I deal mostly with general constitutional law and theory here. I don't address my own sub-field of law and religion. I have some ideas of what might happen here, but not much. Per my post yesterday, my answer on that question is "I don't know yet." 

Posted by Paul Horwitz on November 18, 2016 at 12:22 PM in Paul Horwitz | Permalink


Maybe conservatives will reevaluate their support for the unitary executive theory. Once Trump gets going they may wish that federal bureaucrats had more independence from the presidency, not less. Personally, I would be happier if there still was an independent counsel.

Posted by: Jr | Nov 20, 2016 10:46:25 AM

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