Can't We All Just Not Get Along?

Dan Ortiz has an interesting and enjoyable new paper, available here, titled "Nice Legal Studies."  Nice, as contrasted with Critical Legal Studies.  Ortiz writes beautifully and begins provocatively:

Until recently, legal theory pushed a critical agenda.  Critical legal studies, feminist legal studies, and even normative law and economics all challenged orthodoxy -- from somewhat different angles, of course. . . . it was a time when reading law reviews was sometimes exciting and many thought we were finally getting down to first principles, as uncomfortable as that can be.  Much of the writing outraged, but it was even more exciting for that. . . . Theory . . . seemed to matter. . . .

The backlash has set in.  As critical turned tired, legal theory turned nice.  In an effort to reclaim peace and calm, legal theory has increasingly sought to minimize conflict and soften its edge when it is unavoidable.  In different ways, many legal theorists have moved to privatize disagreement in the belief that a calmer, more polite, but still robust public sphere would remain.

Ortiz complains that this sort of "niceness . . . does not so much avoid as settle conflict -- and in a particular way. . . . It is not neutral or largely procedural, as its proponents claim, but value-laden through and through."  He argues that "we need to face up to social conflict.  Niceness may make us feel better but only because we fail to see its partiality and violence.  Its smile masks the troubling political work it achieves.  Disagreement and conflict can, moreover, serve a healthy social function.  If nothing else, they can focus on our ideals, our imperfections, and our differences and let us see -- sometimes painfully -- how law actually works.  And just as important, the discomfort they bring can galvanize us into productive social action."

I quote so heavily in part because Ortiz writes so cleanly and well.  (And, as Stoppard's Shakespeare would add enviously, "Good title!")  I also write because I want to give a full sense of the scope of Ortiz's claims and the context in which he places the body of his article, which turns out to be somewhat narrower -- a close read of materials by Thomas Nagel, Cass Sunstein, and Chief Justice Roberts.  In each of his critiques of these writers, he's concise and sharp.  (Twisting the title of Nagel's famous work "The View From Nowhere," he writes: "Nagel's is a view from somewhere -- the current center and moderate left.") 

I agree with much that Ortiz has to say in these sections.  He is right to note that legal theory and scholarship may lack the zing and zest of conflict that they had twenty to thirty years ago; on the same point, read the opening to Laura Kalman's great The Strange Career of Legal Liberalism, in which she notes how, during this period, she could no longer read law reviews to help her get to sleep -- they were too exciting.  He is right, too, to suggest that civility is not always the primary virtue, or a virtue at all, and to note that some practitioners of the politics and theory of civility and process are far from neutral, and in fact exemplify liberalism's tendency toward empire.  One example of particular interest to me is his discussion of Nagel's treatment of religion, at pages 11-12.  Over all, the article is well worth reading.

Does Ortiz succeed, however, in making his critiques of Nagel, Sunstein, and Roberts do the work his bold introduction and conclusion promise?  Is his article ultimately a successful critique of "nice legal theory?"  And just as importantly, does he succeed in showing that nice legal theory has taken over critical legal theory's position, or that we should get critical again, in order to "galvanize us into productive social action?"  I think not.  More after the jump.       

These thoughts are provisional, but let me set down how I think Ortiz doesn't succeed in proving the bold claims of his introduction and conclusion in the body of the paper, and some of the considerations I think are missing in his brief introductory treatment of nice vs. critical legal theory.

First, I am not convinced that Ortiz has established that all procedural, or civility-oriented, approaches to legal theory -- approaches that set out to minimize disagreement, work from incompletely theorized agreement, and so on -- are illegitimate.  He does a wonderful job, certainly, of establishing that they are rarely as neutral as they claim to be; that civility can mask a desire to resolve issues in someone's favor, and that neutrality or proceduralism can smuggle in a host of substantive positions.  This is fairly well-covered ground, although he puts the argument forcefully and well. 

But I think three things remain to be said about this.  First, I think he is too ungenerous in suggesting that civility- or process-oriented approaches are always really mostly about substance, and especially that civility and proceduralism are only a "guise."  Civility is not always a mask, and procedure is not always a hidden grab for power; sometimes these are good faith approaches. Certainly his critique suggests that these approaches finally cannot be completely neutral.  But for all their flaws and, in many cases, their seminar-room vision of public deliberation, many of its practitioners understand the limits of their approach and are (sometimes) candid about it.  At the very least, civility and proceduralism provide a basis for critiquing a particular civility-oriented approach for its substantive bias.  Second, to say these approaches are imperfect is far from saying that they are not a leap forward -- that they do not, in fact, move the ball forward in terms of providing for more open, useful, and free public dialogue and (incremental) legal reform. 

And this leads to my third point: even if the kind of "uncivil" dialogue he champions is the right kind of approach for a first-best world, it may not be the best kind of approach for a second-best world, and for the kinds of institutions that operate in this second-best world.  Although civility and proceduralism are certainly legal theory of a sort, they are also practically oriented: they are operating manuals for how to run particular flawed public institutions as best as they are capable of being run, in light of, among other things, imperfect knowledge and the fact of substantive disagreement on various issues.  To be sure, in this second-best world, civility can sometimes mask real conflict and proceduralism can sometimes quietly impose a substantive victory for one side.  But the question should be, do these approaches work as well as or better than other approaches, all things considered?  Ortiz certainly exposes the worm in the civility/proceduralist apple, but I don't think he comes near answering this question.

So far, I've focused narrowly on Ortiz's position on civility and proceduralism.  But there are broader questions, I think, about how well Ortiz's middle sections link up with the broad claims in his introduction.  It seems altogether too narrow to use just three writers as evidence that critical legal theory has dried up in favor of nice legal theory.  That's especially true when one of them, Nagel, is primarily a philosopher and not a legal theorist; he is cross-appointed at NYU Law School, but he speaks as much to the former crowd, or to the more serious jurisprudes of the legal academy, than the broader and woolier bunch of legal academics who practice the kinds of legal theory Ortiz is writing about.  And another is a judge, not an academic at all -- in fact, the scant evidence suggests he is, if anything, rather contemptuous of much legal academic writing.  That leaves us only with Sunstein.  And as prolific and influential as he is, showing that Sunstein has turned to a civility-oriented approach hardly demonstrates that this approach has supplanted critical theory.  Ortiz is certainly right that critical legal theory of the kinds he mentions has, for the most part (although the Latcrit folks are certainly very busy), diminished or disappeared altogether.  But that does not show that it has been replaced by "nice" legal theory: that the two stand in some kind of relationship of succession, or that "nice" legal theory occupies the space that critical legal theory otherwise would have occupied.  Indeed, as Ortiz notes, theories such as Sunstein's descend mostly from work such as that of John Hart Ely.  But Ely's work occurred simultaneously with the work of critical theorists, and was countered by their work.  So it's not clear to me that Ortiz has shown that the rise of nice legal theory necessarily has anything to do with the decline of critical theory.  To paraphrase Shakespeare, that suggests to me that the decline of critical theory lies primarily in itself, in its own flaws and problems, and not in what the "stars" of legal theory are up to.

Finally, even if the decline of critical legal theory and the rise of nice legal theory are more unrelated than Ortiz suggests, is he right to imply that we need more critical legal theory?  Is he right to say that it would "galvanize us into productive social action?"  Note that this is not the same thing as saying that we need less civility, less niceness.  I agree with Ortiz that we ought to face up to fundamental disagreement and social conflict, not paper it over.  But is critical legal theory the vehicle by which it should take place, and will it lead to more productive social action? Well, one way to answer that question is to ask why critical legal theory got "exhausted" in the first place.  One possibility is that it never had anything to do with "productive social action" at all.  It was always an academic game, and once the giants in the field had used up whatever social capital could be produced by mining a new field, they moved on, to new projects or into senescence.  Another possibility is that at least some of the critical theorists believed that their work could and should lead to productive social action -- and were wrong. 

If so, then why argue that critical legal theory will be a more socially productive endeavor than "nice" legal theory?  Indeed, why argue about legal theory at all?  If "productive social action" is what Ortiz wants, maybe he has focused reviving the wrong corpse.  If we are looking to bring back what most would see as a failed movement, perhaps it should be that of the scholars who arose at the same time as critical legal theory but who worked in a more practically, empirically, sociologically, and socially engaged way than the critical theorists: the law and society scholars.  In the years since the decline of critical legal theory of various kinds, plenty of scholars have devoted their work to empirically grounded studies of various spheres of activity, often influenced not only by sociology but by economics, behavioral economics, and other methods.  Their work is sometimes grand, and sometimes "small," in scope and ambition.  And it is often at least putatively "neutral" in orientation.  It is certainly rarely "critical" in the way Ortiz uses the word, and often is even "nice," as he uses that term.  But which article is likely to be more socially "productive": another take on 19th Century private law as understood by the Frankfurt School, or a study on racial patterns in taxicab tipping in modern-day New Haven? 

It seems to me, in sum, that if social productivity is really what Ortiz cares about, he has not shown that "critical" theory is likely to achieve more of that than would a "nice legal theory" that actually proposes reasonable compromises for real-world deliberating institutions, individuals, and courts.  Nor has he shown that critical theory -- or theory in general -- is likely to yield better results than a more chastened, but also more grounded and empirical, approach that eschews grand theory and just tries to solve one problem at a time.

Again -- an article well worth reading, notwithstanding my criticisms.  And, also again -- good title!