3.1 The origins of CLS: From sociological jurisprudence to critical legal scholarship 3.1.1 Introduction
In the previous sections we have seen that there were realist elements in legal scholar- ship in the 1960s and 1970s, but that these were not in a major position. The law school tradition remained more true to the process theory than to any policy analysis. However, society was in continuous turmoil and civil rights movements were on a roll, cultural radicalism and leftism marked the critical intellectual thought, and social sciences made their way into legal scholarship. As the 1960s progressed, realist elements and alterna- tive approaches began to get more attention from legal scholars. The Critical Legal Studies Movement (CLS) was thus a movement with several connections. Its basis was in the radicalism of the 1960s, it had law and development and law and society as sources of inspiration, and the taught tradition was its enemy.
In this section, I shall explore the development of CLS in the 1970s. As Duxbury notes, CLS grew out of the conflict between the alternative legal scholarship of the 1960s and the more radical-left orientation that eventually became CLS.201 It is true that CLS was a reaction to the failures of the alternative jurisprudence of the 1960s to meet the needs of legal reality, as well as the failures of reasoned elaboration to come to terms with the problems of legal reasoning. However, it was also much more, and this can be seen precisely in the conflict if we take into account the various aspects relating to culture, epistemology, world-view, and consciousness. The general account on CLS does not include the larger, cultural element in the development of the movement. Therefore, my purpose is to demonstrate how CLS was a complex phenomenon of combining various aspects within the academic field.
In this section, I will demonstrate how the various transformations culminated in the CLS movement in the late 1970s. I will begin at the law school, because it was the place where the radical scholars acquired their identities as scholars and where the clas- sical tradition was most pronounced. A central thesis is that some of the law students of the 1960s and 1970s felt alienated from the tradition and began to seek an alternative paradigm. I shall then analyze the development of the criticism of legal thought and critical scholarship in legal history, constitutional law, and criminal law. The first con- ference on critical legal studies, held in 1977, can be seen as the birth of the CLS
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movement. That will also function as a point of departure in the study, and our analysis will cease at the beginning of the 1980s. After taking a brief look at race and feminist scholarship, the analysis turns to the historical perspective at the end of the section.
3.1.2 Radicalism and the law school: The evolution of critical thought
The best manifestation of the spirit of the 1960s was campus radicalism. Radical stu- dents attacked the structures and administration of the university. Radicalism also in- vaded the law school in the late 1960s. Although relatively late and small as compared to the other disciplines,202 the discomfort with legal education was nonetheless wide- spread, in particular among first-year students.203 Like their fellow students, law stu- dents protested against the grading system and their lack of power in the university ad- ministration.204 The law student population had increased greatly during the postwar decades. By the 1960s, a significant portion of the law students were liberal leftists who supported civil rights and social justice, whereas the majority of the legal profession remained rather conservative.205 Law students also adopted the critical spirit of the time and wanted their education accordingly. Since law has been traditionally a relatively conservative and elitist field, law students were not at the forefront of the student radi- calism, but as the number of the liberal students increased and the disappointment with education grew, radicalism entered the law school as well.
The critical spirit of the 1960s changed the law school atmosphere significantly. Unsurprisingly, CLS has often been linked to the experiences of the leftist students in the law schools of the time. Common observations are that CLS “was born during the late 1960s among a group of student activists and younger faculty at Yale Law School who believe that using legal reasoning to justify the rules of society can make outcomes that are oppressive appear to be inevitable, logical and inherently fair,”206 and that its origins are in the “dissonance between the student political experience of the sixties and the law school curriculum of the sixties and seventies.”207 One of the most important figures of critical scholarship, Duncan Kennedy, wrote in 1991 that “I started law school in 1967 with a sense that the ‘system’ had a lot of injustice in it, meaning that the distribution of wealth and income and power and access to knowledge seemed unfairly skewed along class and race lines. I thought law was important in the skewing process
202 Paul N. Savoy, Toward a New Politics of Legal Education, 79 Yale Law Journal 444, 444 (1970). 203 Lawrence Silver, Anxiety and the First Semester of Law School, 1968 Wisconsin Law Review 1201–
1208.
204 Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill: The Univer-
sity of North Carolina Press 2005), 28–31, 84–105, 122–135, 145–157.
205 Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill:
The University of North Carolina Press 1983), 234–235.
206 Are Lawyers Really Necessary? Barrister Interview with Duncan Kennedy, 14 Barrister 11, 11
(4/1987).
207 Guyora Binder, On Critical Legal Studies as Guerrilla Warfare, 76 Georgetown Law Journal 1, 23
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and in efforts to make distribution fairer, but I had no clear idea how or why.”208 As the students felt disbelief in the society, they also felt betrayed by the law school and pow- erless within the university. The law school thus provides the arena for the synthesis of the critical thought that eventually led to the formation of the critical legal studies movement. It was the place where the traditional and the new models of legal thought collided.
It was not simply student radicalism that stirred the law school atmosphere. Alongside the rise of student unrest, the faculty also debated education. Legal education had been widely debated since the time of legal realism, and the 1960s intensified the debates. Although the curriculum was revised, no fundamental changes occurred, and the education at least during the first year was still based on the case method.209 Prob- lems of legal education were widely acknowledged. Even professors who were pleased with the education opined that there ought to be some social material in the curricu- lum,210 but the more critical scholars endorsed more fundamental changes. A common concern among the critics of legal education was that the students were not prepared for real-life circumstances. What was needed, then, was more attention to the substance,211 a functional approach to law,212 or more material on the social consequences of law in the text-books.213 Students were also often irritated by the emphasis on rationality and the apolitical nature of the education.214 The criticism of the traditional education clear- ly reflected the disagreement on the methodologies of legal research. The focus on law in action was becoming more common in the 1960s, and the alternative approach was clearly articulated in the critical arguments about legal education. The criticism of the education thus emanated more from the alternative scholarship than from the radical students.
Besides the substance of education, the scholars criticizing it also endorsed the methods of alternative legal scholarship. A common argument was that there ought to
208 Duncan Kennedy, The Stakes of Law, or Hale and Foucault! 15 Legal Studies Forum 327, 327 (1991). 209 Stevens 1983, supra n. 205 at 210–212. The debates on legal education before 1964 are summarized in
Note: Modern Trends in Legal Education, 64 Columbia Law Review 710–734 (1964), where it is stated that the case method was rare after the first year, but the majority of faculty thought that it was useful, even necessary, in the first year. (Id. at 716, n. 52.) Nevertheless, criticism of legal education continued from the realist period. On the realist critique of legal education, see Laura Kalman, Legal Realism at Yale, 1927–1960 (Union, New Jersey: The Law Book Exchange 2001), 68–119; Stevens 1983, supra n. 205 at 155–171.
210 Edward H. Levi, Law Schools and the Universities, 17 Journal of Legal Education 243, 248–249
(1967).
211 Charles A. Reich, Toward the Humanistic Study of Law, 74 Yale Law Journal 1402, 1402–1406
(1965).
212 Robert B. Yegge, The Future Legal Practitioner in the United States: What Training He Must Receive,
44 Denver Law Journal 12, 21–22 (1967, special issue).
213 Lester Mazor, Cases and Materials on Constitutional Rights and Liberties, 49 Minnesota Law review
1202, 1210 (1965).
214 Robert W. Gordon, Critical Legal Studies as Teaching Method, Against the Background of the Intel-
lectual Politics of Modern Legal Education in the United States, 1 Legal Education Review 59, 64–66 (1989).
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be more interdisciplinary education in legal training.215 Because of the stress on the so- cial problems, law was not to be understood as a closed and autonomous discipline. On the contrary, there ought to have been more philosophy,216 history,217 social science,218 and empirical data219 in legal education, because these would help the would-be lawyers to understand legal classifications and social functions and the effects of the law. It was often scholars with connections to law and society scholarship who most encouraged the inclusion of social science in legal education. The critical opinion of the 1960s was that law was an integral part of society and therefore could not be understood inde- pendently.
The functional approach toward legal education also concerned policy issues and social planning. The radical activist lawyer Ralph Nader argued that legal education traditionally promoted the needs of the big corporations and therefore often served to maintain the status quo.220 Many scholars argued that legal education did not pay due attention to contemporary problems221 although the purpose of education should be to inform the students of the potential for using law as a tool of social reform.222 The post- realist scholar Arthur Miller even argued that law schools ought to be turned into cen- ters of policy analysis where the potential of law to promote human values and solve contemporary problems could be analyzed.223 And since urban problems were pressing, David Cavers argued that law schools should pay attention to the contemporary urban crisis in both research and education.224 Specialized education was also proposed so that students could obtain deeper knowledge on certain topics.225 The functional approach and the emphasis on values and policies were parts of the alternative perspectives on law. Critical scholars and lawyers worked to resolve social problems and promote liber- al values, and these insights were accentuated in the criticism of education.
215 Lawrence M. Friedman, Contract Law and Contract Research (Part I), 20 Journal of Legal Education
452, 459–460 (1968). Friedman noted that the education in criminal law, for instance, had been revised more but the education in contract law was still very conservative. (Id. at 452.)
216 James E. Wallace, Philosophy and the Future Law School Curriculum, 44 Denver Law Journal 24, 26–
27, 34 (1967, special issue).
217 Lawrence M. Friedman, History and the Future Law School Curriculum, 44 Denver Law Journal 43,
45–46 (1967, special issue).
218 Wilbert E. Moore, Social Science and the Future Law School Curriculum, 44 Denver Law Journal 49,
50–54 (1967, special issue).
219 Stewart Macaulay, Contract Law and Contract Research (Part II), 20 Journal of Legal Education 460,
467–468 (1968).
220 Ralph Nader, Law Schools and Law Firms, 54 Minnesota Law Review 493, 493–496 (1970).
221 Quintin Johnstone, Student Discontent and Educational Reform in the Law Schools, 23 Journal of
Legal Education 255, 255–258 (1970); Steven H. Leleiko, Legal Education – Some Crucial Frontiers, 23 Journal of Legal Education 502, 503–506 (1971).
222 Reich 1965, supra n. 211 at 1405; Yegge 1967, supra n. 212 at 13, 16–17; Moore 1967, supra n. 218 at
53; Stewart Macaulay, Law Schools and the World outside Their Doors: Notes on the Margins of “Pro- fessional Training in the Public Interest”, 54 Virginia Law Review 617, 635 (1968).
223 Miller 1970, supra n. 122.
224 David F. Cavers, Legal Education in Forward-Looking Perspective, 143–148, in Geoffrey C. Hazard
Jr. (ed.), Law in a Changing America (Englewood Cliffs, New Jersey: Prentice-Hall 1968), 139–156.
225 Abraham S. Goldstein, The Unfulfilled Promise of Legal Education, 164–165, in Hazard (ed.) 1968,
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The concern over legal education involved broad aspects of alternative legal scholarship. Miller, for instance, encouraged a very realistic education that would in- clude the impact of extra-legal factors in judicial decision-making and the way judges in fact decided cases, as well as the aspects of law as a tool of social control.226 The criti- cism marked a more dramatic shift in the paradigm of legal education. The aim of the criticism was to combine recent trends in alternative scholarship in legal education and bring the level of realism in the behavioral sciences into the law. Alternative legal scholarship of the 1960s challenged the traditional scholarship, and the struggle struck at the essence of legal education.
A major vice of legal education, the critics claimed, was the Socratic method. Many of the students found the method very stressful,227 and Paul Savoy noted that a real interaction between teachers and students would “never happen until we remove our academic masks and put an end to those degrading ceremonies we politely call the ‘Socratic method.’”228 Notwithstanding the realist period, American legal education had done well until the mid-1960s, and no major reforms had occurred.229 Part of the critical thought of the 1960s, however, was to demonstrate that the case method was boring and reifying, and thus had to be replaced by more realistic approaches. The alternative legal scholars endorsed alternative methods to traditional scholarship and heard the cries of the student radicals, and they attacked the legal tradition in the effort to change it.
The critical debates show that legal education and legal paradigm are intertwined. The problem was deeper than simple controversies over educational policies. Friedman argued that legal education had long been a closed discipline and recent times had wit- nessed a counter-revolution following the realist period, which had moved legal theory and education in a more conservative direction.230 In an unsigned article titled “Legal Theory and Legal Education” it was argued, after noting that studies on law in action had again become common, that “[m]any of the current proposals to establish empirical research about particular socio-legal problems in the law schools carry with them an implicit paradigm which attempts to serve these general professional functions.”231 As the debates on neutral principles showed, there was an urge to maintain the traditional prestige and rationality of the profession even though the alternative bloc was present. A problem concerning change was, however, that the “genius” of American democracy was the “readiness with which its legal institutions and practices have accommodated
226 Arthur Selwyn Miller, On the Interdependence of Law and Behavioral Sciences, 43 Texas Law Re-
view 1094–1101 (1965).
227 Andrew S. Watson, The Quest for Professional Competence: Psychological Aspects of Legal Educa-
tion, 37 University of Cincinnati Law Review 91, 124 (1968).
228 Savoy 1970, supra n. 202 at 456–457.
229 Robert Stevens, Two Cheers for 1870: The American Law School, V Perspectives in American Histo-
ry 403, 405 (1971).
230 Friedman 1968, supra n. 215 at 457–459.
231 Legal Theory and Legal Education, 79 Yale Law Journal 1153, 1156 (1970). According to the CLS
bibliography, the article was written by Rand Rosenblatt. (Duncan Kennedy & Karl E. Klare, A Bibliog- raphy of Critical Legal Studies, 94 Yale Law Journal 461, 484 (1984).)
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shifting objectives without profound or radical change in the fundamentals.”232 Society and legal scholarship were in turmoil but fundamental changes were difficult to achieve.
Because of the turmoil and the criticism, scholars were talking about a crisis in le- gal education in the early 1970s.233 Those who were very critical of the education felt that there was a need for fundamental reform,234 but the proposals varied and some not- ed the difficulty of combining them.235 The rising resistance within both the faculty and among the students had in any event transformed the law school, even if major changes had not occurred. Many law students grew up and received their education in the critical atmosphere of the 1960s and, as has been noted, the new left found an afterlife in the American academy in the 1970s.236 The crisis of education was thus a culmination of scholarly and student discomfort with the traditional paradigm.
While emphasizing the connection between the disappointing experiences with le- gal education of the 1960s and the origins of CLS, Robert Gordon writes that “[m]ost activist students of the 1960s who were involved in radical or left-liberal politics found the studiedly antipolitical teaching of that time simply irrelevant to their concerns. They scrounged such slim practical pickings from law school as they could, got the degree, and moved on. But the 1960s law students who went on to form the core of CLS mostly became teachers themselves and so were motivated to engage with the content and style of orthodox doctrinal teaching and scholarship.”237 For some students, radicalism was a passing phase, a part of youth, which passed when the period of studying was over. For others, however, radicalism became a part of identity, and they continued their critical enterprise in their professional lives. Critical legal scholarship was partly an expression of the student dissatisfaction with the law school experience and a willingness to im- prove, or simply criticize, the system they felt was seriously flawed.
The crisis in legal education and the critical social ideology built a fertile ground for critical legal scholarship. Duncan Kennedy, who later became one of the most emi- nent critical legal scholars, noted the inconvenient atmosphere in his criticism of the law school. According to him, professors were often narcissistically self-assured of the su- periority of the legal method over other disciplines. The worst part was, however, the hostility of the law school, because many students “feel the socratic method… is an assault” and, furthermore, they “see professors as people who want to hurt them; profes-
232 William T. Gossett, Balances and Controls in Private Policy and Decision-Making, 26, in Hazard (ed.)
1968, supra n. 224 at 26–42.
233 Arthur Kinoy, The Crisis in American Legal Education, 271, in Black (ed.) 1971, supra n. 179 at 271–
280; Robert Borosage, Can the Law School Succeed? A Proposal, 1 Yale Review of Law & Social Action 92, 92 (1970).
234 Savoy 1970, supra n. 202 at 502–504. See also Johnstone 1970, supra n. 221; Miller 1970, supra n.
223; Leleiko 1971, supra n. 221; Edward R. Cohen, Toward Radical Reform of the Law School Curricu- lum, 24 Journal of Legal Education 210–220 (1972).
235 Lawrence M. Friedman, Some Thoughts on the Relationship between Law and Political Science, 1971
Washington University Law Quarterly 375, 380.
236 Diggins 1992, supra n. 20 at 290.
237 Robert W. Gordon, Critical Legal Studies as a Teaching Method, 35 Loyola Law Review 383, 393
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sors’ actions often hurt them, deeply.”238 People felt alienated in both the society and the university. Traditional structures of power and authority were felt to be oppressive, suffocating, and humiliating, something that a better world would not include. And as was typical of the critical mind, the fault was seen in the structures of the system. The problem was not about certain old, egoistic professors who would not tolerate the young and acted as if they could do as they pleased. Nor was the problem about the young people themselves being unable to adapt to society like many people had done before them and many people still did. The problem was in the structures, and that is what crit- ical scholars realized, and therefore Kennedy attacked the institution in his criticism.