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Tuesday, April 03, 2018

Quillette on Critical Legal Studies: The Wrong Start to What Could Be an Interesting Discussion

I occasionally read and generally enjoy the online essay site Quillette. I'm not sure how I would characterize its "politics," but I'm not much interested in doing so in the first place: the essays at their best are interesting, thought-provoking, and well-expressed, and that's good enough for me. It just put up a piece titled "Beyond All Warnings: The Radical Assault on Truth in the Law." The gist of the piece is that "the significant influence of ‘postmodern neo-Marxists’ on the legal academy is undeniable and pernicious," and that Critical Legal Studies, along with other fields such as Critical Race Studies, which the piece treats (mistakenly, in my view) as basically "subgroups" of Critical Legal Studies, have become the mainstream within the legal academy. 

Leaving aside my disagreement with various assertions and detours along the way in that piece, I respectfully think this is quite mistaken. Serious CLS scholars are rare in the legal academy in the United States. (I cannot speak to the other countries mentioned in the piece. Certainly CLS seems to have had more longevity and popularity elsewhere, perhaps in part because there are more academically oriented law "departments" elsewhere, whereas the American legal academy, however much and fairly it is criticized for being too impractical, is still more of a mishmash of professional training and scholarly work.) Much of the work that is criticized in rather general or anecdotal terms in the Quillette piece is really establishment progressivism, not CLS. Most American law professors these days are, I think, at best uninterested in things like indeterminacy and rule-of-law critiques. It is possible that some contemporary legal scholars take such ideas seriously in private, but believe these urgent times require us to be silent about those issues, or at least put them on the back burner. More common, I think, are those who either never bought into CLS, or assume it’s old-hat stuff, and thus has no value for purposes of either intellectual discussion or professional advancement, or that it was “refuted.”

CLS was never popular among establishment liberal law professors, who if anything were the targets of most of its critiques. Nor is it popular among most modern establishment progressive law professors (assuming, as I do, some difference between being a "liberal" and being a contemporary "progressive"). Consciously or unconsciously, these scholars are more likely to prefer the idea that some values or "settlements" are close to absolute and that they are beyond critique, serious problems of indeterminacy, and other potential "viruses" in their program. They want those values to be honored and advanced, through law and including through judicial review. They are therefore not keen on an intellectual program that might suggest that such projects are self-contradicting, predictably cyclical, futile, or otherwise mistaken. If anything, I think the tendency these days is not only to reject or ignore CLS, but even to publicly avoid open acknowledgment of Legal Realism, despite the cliche that we all all Legal Realists now, in favor of statements about "neutral magistrates" and "sound doctrinal principles." I can't imagine a serious Crit or even Legal Realist using such terms, except as a prelude to "trashing" them.

Certainly there are progressive legal academics drawing on the literature of things like Critical Race Theory in their current work. But CRT was not just a "subgroup" of CLS. It actively resisted some aspects of CLS, such as the critique of rights. And much of the contemporary scholarly literature drawing on or referring to things like CRT is much heavier on some basic and now conventional premises drawn from that literature than it is on deep critique--especially self-critique. Some of this semi-CRT or completely-non-CLS scholarship is excellent, of course. Among other things, some terrific doctrinal scholarship is being published these days, although it is curious and deserving of notice that we seem to have returned so enthusiastically to doctrinal work even as the legal academy has hired more people trained in other academic disciplines. But this excellent work, progressive or otherwise, is not Crit work, and it doesn't aim to be. 

A conventional view among political conservatives, outside and inside the legal academy, is that CLS and CRT had a strong and lasting influence on legal scholarship and continue to affect, or infect, it. That is basically the position of the Quillette piece. I think that view elides differences between progressivism, liberalism, and genuine Critical Legal Studies work. (And some conservative legal scholars--including many of the more interesting ones, in my view--are actually more interested in and sympathetic to Critical Legal Studies than many mainstream progressive legal scholars.)

My own view is that we need more CLS work in legal scholarship right now, not less. (And that includes serious CLS work from a "conservative," religious, or traditionalist perspective. Although some of CLS's leading lights argue that it was always mostly just a location for people on the Left, I don't think that's entirely true; nor does it mean that this is how its ideas must be used. In any event, as I suggested, most progressive law professors are more accurately described as bourgeois establishment progressives than as genuine Leftists.) I emphasize "right now" both because I think there's too little of it these days, and because I think this is an especially fruitful time for CLS work. A sense of urgency and common cause can, of course, be productive and lead to important real-world change. But that sense can tend to lead to work that may be doctrinally excellent, but is light on critique or self-critique, or fails to ask broader questions--especially if they might damage the cause. It runs the risk of becoming dogmatic about its premises. At a moment at which there are many serious criticisms of liberalism and/or questions about its future, combined with substantial unanimity among legal academics about various progressive values (as seen, to be clear, through an establishment lens) and the routine invocation in current scholarly and public writing of things like "rule of law," faith in judicial review, and so on, there is a lot of room for interesting and valuable work questioning those assumptions and premises.

In saying so, I'm not suggesting that legal scholars or lawyers shouldn't file lawsuits or amicus briefs, or otherwise challenge and hold accountable some actions of this administration. But that activity does not, or should not, prevent one from writing scholarship that takes a deeper and more critical look at various assumptions about the law and legal doctrine. Someone interested in this kind of legal advocacy might worry that writing Crit scholarship, or even acknowledging in one's scholarly work CLS critiques of things like "neutral magistrates" or "sound doctrinal principles," might undermine one's legal advocacy at a crucial moment in our nation's history. That worry seems exaggerated, given that judges pay little attention to serious Crit scholarship in the first place. And in some cases, that Critical scholarly work might suggest problems with some forms of current legal advocacy, such as reliance on the courts, and counsel in favor of other forms of advocacy or activism.

The bottom line, I think, is that 1) the piece defines CLS way too broadly, and attributes to it things that have much less to do with CLS than with conventional establishment liberalism or progressivism, and that 2) we need more good CLS scholarship--scholarship that need not have any particular political valence--and not what we actually have right now in the American legal academy, which is almost none of it. 

Posted by Paul Horwitz on April 3, 2018 at 11:14 AM in Paul Horwitz | Permalink


I enjoy reading old CLS stuff, but were its claims about indeterminacy not refuted?

Posted by: Asher Steinberg | Apr 6, 2018 2:20:17 PM

'It is possible that some contemporary legal scholars take such ideas seriously in private, but believe these urgent times require us to be silent about those issues, or at least put them on the back burner'.

What, pray tell, are these urgent times? Trump's presidency? If so, are foreigners meant to believe that there has been a dramatic shift in content and style in American legal scholarship since his inauguration? (Have you read Steven L Winter's book chapter 'When Things Went Terribly, Terribly Wrong' from about 2009?).

Concerning CLS, where it is taken to reflect Frankfurt School influence, and a shift of focus from class to identity and cultural critique, its influence on both the legal academy and CRS seems clear. On the other hand, it would make sense to bypass CLS and just attribute the influence to the Frankfurt School itself... even if legal academics may not understand it, read the sources directly, etc.

As to CLS' merits, do you mean its thesis about the law's ideological content, or its Global Indeterminacy thesis? (Do you deem these to be reconcilable? I don't...). Leiter is wont to tell us that, as most cases (99%?) settle before going trial, the Global Indeterminacy thesis is simply false. Is he mistaken? If he is not, why isn't CLS (rather than Legal Realism) moribund for good cause?

If CLS nonetheless persists via the Ideology thesis, then surely conservatives and others could adopt it to critique certain areas of law (Labour law, Admin, etc.). However, is it in their interests to do so, i.e., to open Pandora's box to the thesis overall (i.e., rendering constitutional, private law, etc., susceptible thereto)?

Further, if one believes Quillette's 'conservative' critique elides liberal and 'progressive', views one will have to do far more work to establish that 'progressive' is indeed a discernible - as opposed to the more stringent requirements of cogent, coherent, or consistent - set of beliefs. (And yes, I've read your previous posts dabbling in this). (Prima facie, should we abroad give much credence to the self-reported beliefs of those who adjduge Bernie Sanders to be a socialist? Could you imagine, moreover, if many in the American academy actually faced up to the possibility that they are illiberal, and indeed, possibly anti-liberal?).

Posted by: Let'scloneandfarmmammothsforthemeat | Apr 5, 2018 6:33:51 PM

"Imagine" was (rhetorical) tongue-in-cheek...and I'm familiar with Tikkun (since its inception) and of course know Peter's work (I recall recently seeing notice of a new book from him). Speaking about the prospect of a non-Leftist CLS in more than a nominal sense strikes me as plausible or coherent as, or analogous to, someone claiming neoliberalism is the current iteration of Dewey's reconstructed Liberalism (which of course grounded his conception of democratic socialism). I must have misread "any" particular political valence to mean "no" political valence, perhaps in part because I find all political valence to be "particular."

Posted by: Patrick S. O'Donnell | Apr 4, 2018 12:33:07 AM

Thanks sincerely for the comment. I believe I disagree with virtually all of it, but I doubt I'll have the time to give that disagreement the care and detail your very interesting comment requires. I will make a couple of quick points, however: 1) One needn't imagine a left-oriented religious CLS: Peter Gabel and Elizabeth Mensch both did and and advocated for it, and Gabel had a later piece about this, I believe in the Cardozo Law Review. I don't read Tikkun, but no doubt it would provide many fine examples. 2) I was not suggesting a CLS "without political valence," but that CLS need not have a *particular* political valence, other perhaps than a desire to critique and unfreeze what it sees as the regnant liberal regime. Even if CLS is inevitably and actively political, I don't think it is inevitably and necessarily leftist. (I appreciate that we disagree on this.) The bigger points, alas, will have to await another occasion.

Posted by: Paul Horwitz | Apr 3, 2018 10:09:18 PM

erratum: ...to highlight a view that “elides differences between progressivism, liberalism, and genuine Critical Legal Studies work,” while expressing the need for or possibility of CLS work from a “’conservative,’ religious, or traditionalist perspective.”

Posted by: Patrick S. O'Donnell | Apr 3, 2018 8:43:24 PM

Paul, I appreciate and enjoyed this post if only because it prompted me to think about things I’ve not thought about in a while.

That said, I happen to agree that “we need more CLS work in legal scholarship right now, not less.” I also agree that, strictly speaking, “most progressive law professors are more accurately described as bourgeois establishment progressives than as genuine Leftists” (hence their reconstructed Liberalism trumps an anarchist or Marxist orientation, rather than being intrinsic to the latter) even though it’s certainly possible to find bourgeois academics who are, at the same time, “genuine Leftists.” It strikes me as a little odd (and that’s not necessarily a pejorative description), however, to highlight a view that “elides differences between progressivism, liberalism, and genuine Critical Legal Studies work,” while the need for or possibility of CLS work from a “’conservative,’ religious, or traditionalist perspective.” While I can imagine a radically religious (or perhaps better, ‘spiritual’) Left perspective (e.g., Liberation theology and praxis, Catholic Worker movement, Sojourners, Buddhist Peace Fellowship, Buddhist Marxism a la the Dalai Lama, etc.), animating or in conjunction with CLS, I cannot seriously entertain the possibility of a—religious or otherwise—“conservative” or “traditionalist” CLS committed to the goal of “creat[ing] a more humane, egalitarian, and democratic society,” as that goal is far from paramount as a motivating ideal among those on the right side of Mirabeau’s “geography of the assembly.” Perhaps that’s a failure of imagination. However, I can find ample (pragmatic or political) reasons, on occasion, or for this or that reason, to “elide differences between progressivism, liberalism, and genuine Critical Legal Studies,” although it may be a bit difficult to determine precisely what is “genuine” CLS, as more modest criteria might (should?) be satisfied with strong family resemblance. A broadly Left orientation, I think, is intrinsic to CLS (without it, CLS is but a shadow of its former self, a mere caricature or skeletal remains), even if this or that legal academic or professional of a conservative bent or political worldview, that is, not on the Left, turns out to be open-minded or creative enough to avail themselves of some method or insight common to CLS. CLS without “political valence” is something else altogether, and if it need be the case that “good scholarship” by definition requires such a constraint, it’s time to leave the academy.

Posted by: Patrick S. O'Donnell | Apr 3, 2018 8:39:45 PM

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