Conflict in the Legal Academy, circa 1969-70, with Implications for Today

The first PrawfsBlawg post on Law as a Means to an End identified the key modern dynamic in the spread of an instrumental view of law within the legal culture, concomitant with a loss of faith in the social good.  These two components became firmly entrenched in the legal academy in the 1960s and 1970s, as I will indicate in the third post (coming this Wednesday).  But first, it is necessary to recognize the searing social and political events of this pivotal period, and their immediate effect on attitudes toward law.  Take a look at these extraordinary passages, excerpted from the "With the Editors" statements of the 1969-70 Harvard Law Review:

On the night of April 15, a conflagration raged between the police and demonstrators in Harvard Square.  Its destructive effects, however, spread far beyond the original participants and area.  Stationing themselves just a block from Gannett House [the home of the law review], scores of helmeted police cordoned off the Square from the north.  Many students stood in small groups outside the police barricade, silently watching and wondering about the events occurring a few blocks away.  Suddenly, and without any observable provocation from the bystanders, the police advanced, soon running and swinging their riot clubs wildly.  Students fled from the charging policemen and sought refuge in Gannett House or other nearby buildings.  Others were less fortunate.  An officer of the Review, trying to avoid the onrushing police, had his key in the lock of the Gannett House door when he was clubbed from behind by one of the two officers running by.  Neither stopped; the blow on the head was merely a gratuitous gesture by the guardians of the law.

...Police here, as in so many other cities, added recruits to the radical cause by their misguided attempts to bludgeon that very ideology.

The editorial statement from a another issue of the same volume remarked upon the "invasion of Cambodia and the official murders at Kent State, Jackson State, and elsewhere..."  In yet another issue, the editors linked ongoing events to their increasingly skeptical views of law:

At a time when so many venerable traditions are being skeptically scrutinized, if not harshly attacked, it is hardly surprising that legal reasoning is also attracting increasing criticism.  Growing numbers of students are questioning whether lawyer-like logic and analysis are indeed proper tools for contemporary problem solving.  Such students believe that the Law School and the method of analysis it teaches deliberately obscure rather than clarify relevant issues.  In assessing legal logic, at least one disgruntled student has termed it a "cerebral trickbag," which is presumably manipulated by the malevolent masters of the Establishment.

It is true that what passes for logic in some judicial opinions (and in many classrooms) is a little more than finely spun sophistry.  It is also important to note that pure logic does not offer a solution to all problems.  In reaching a great many solutions, a value judgment or aesthetic choice becomes inevitable, no matter how much the decision-maker may isolate and clarify the relevant issues by means of  careful analysis.  Indeed, in some cases the 'logical' solution may even be inappropriate because certain emotional or other supposedly illogical factors are proper considerations.

The preceding statements must be read as they were meant at the time--as an explicit repudiation of the legal process school, which was the dominant legal theory of that generation.  Harvard Law School was the home of the legal process school, developed out of the work of Felix Frankfurter, Lon Fuller, and, especially, The Legal Process course materials compiled by Henry Hart and Albert Sacks.

Legal process thinkers asserted that the role of the courts is, as Hart put it, "to be a voice of reason;" judging involves the "reasoned elaboration" of enduring legal principles.  The judicial development of these principles was described by Fuller as "the law 'working itself pure."  Courts were designated by the legal process school as collaborators with legislators in the development and rationalization of the law.  When interpreting legislation, judges were instructed to presume that "the legislature was made up of reasonable persons pursuing reasonable purposes reasonably."

This was the mainstream view of law in the legal academy throughout the 1950s and in to the 1960s.   The legal process account of judging was plausible in the 1950s because it implicitly relied upon the assumed happy consensus of this booming time--what Daniel Bell labeled "the apathy of the fat fifties"--a consensus that ignored the plight of black Americans, and was soon to be shattered by civil rights protests and anti-war protests.

The student editors of the law review were especially troubled by the fact that the legal process school, with its emphasis on reason and "neutral principles," implicitly and explicitly criticized the Warren Court as unprincipled and result-oriented.  The editors (in another Editorial statement) protested that the "compelling logic of the Frankfurter-Hart school has often appeard to impose a deadening hand..."  The Editors left no doubt about their sympathies, writing on the first page of the volume (on the occasion of his retirement): "To Chief Justice Warren, who with courage and compassion led a reform of the law while the other branches of government delayed, the editors respectfully dedicate this issue."

At the very outset of the 1970s, law students across the nation--and keep in mind that Harvard was not the most radical campus at the time--were skeptical of law and legal reasoning.   Many graduates from top schools--including 7 editors from the volume that produced the above quotes--became law professors.   Seminal works in law and economics and in Critical Legal Studies, both characterized by a deep skepticism of law and legal reasoning, were produced early in the decade, setting the stage for later developments in legal theory.