Probing Law's Contradictions

...By neglecting to do so Kelman has told a story oddly lacking a conclusion...

...For instance, law talk often asserts the desirability of clear and simple rules that leave no room for discretion in enforcement and no doubt in people's minds concerning what conduct is lawful...

...Expansive in scope as Kelman's book is, two strains in first generation Critical legal thought nevertheless get slighted: the effort (growing out of the Law and Society movement) to create a Critical sociology of law...

...The sum of the privileged positions—the preference for rules, for individual estimations of worth, for the idea that conduct is chosen—constitutes, in Kelman's words, a "remarkably Right-wing, quasilibertarian order...

...To cite a final example, the law supposes that individuals almost always choose their actions and must take responsibility for them...

...The first annual Conference on Critical Legal Studies was called in 1977, making the movement a bare decade old...

...It has also spawned a large, vocal and hostile contingent of detractors...

...Yet that is what Mark Kelman, a professor of law at Stanford, undertakes to do here with Critical Legal Studies (CLS...

...Then, as law students became increasingly interested in and enthusiastic about the Critical approach, student-edited law reviews at Stanford, Cardozo, American University, and Harvard organized CLS symposia, and the Harvard Law Review issued a volume collecting its own previous Critical publications...

...The final third of the book is the most accessible to nonlawyers and, in some respects, the most interesting...

...Parallels between the anti-CLS campaign and '50s campus McCarthyism were pointed out recently by Jerry Frug in a review of Ellen Schrecker's No Ivory Tower...

...He then asks whether law, rather than representing universal aspirations, might not merely be a contingent expression of the society that creates it and whose needs it serves...

...Thus the group occupies the Left wing of academic legal thought...

...Since about 1984 CLS has been involved in the project of clearly defining itself both for its own sake and for outside consumption...

...Legal academics around the country producing certifiably Critical work have, in fact, had their troubles getting hired and promoted...

...However, some of the crucial writings—including many by the notorious Harvard Law School triumvirate consisting of Roberto Unger, Morton Horwitz and Duncan Kennedy—preceded this meeting by a year or two...

...One can't impugn his choosing to write a history of the first generation, but histories usually give some hint as to future directions...

...Critical accounts of how the legal system hides the contradictory nature of its commitments suggest that the process works, in part, by giving more publicity to one of any pair of opposed values than to its competitor...

...Though he addresses rather specifically its claims about the "structure and meaning of standard legal discourse,' and even more specifically the work of "certain early participants"—including, not surprisingly, himself—his book nonetheless constitutes an intellectual history of CLS, told from the perspective of the fathers...

...and the use of psychoanalysis to obtain insights into all aspects of the legal enterprise...

...Moreover, he sees the privileged values embodied most concretely and coherently in the social theory and program of CLS' ideological opponent, the Law and Economics movement...

...This is especially true when the movement can with equal plausibility be described as still in its formative years, or as approaching maturity, or again as already in its dotage...

...Perhaps the most famous denigration to date has come from Dean Paul Carrington of Duke Law School, who declared that "Critical" teachers have no more place in the legal academy than atheists do in a divinity school, and that students training to serve society as lawyers should not be exposed to their corrosive influence...

...Essentially the CLS strategy has two components...

...The first third presents CLS as a beginning law student might encounter it in a class taught by one of its proponents—that is, as a technique for scrutinizing mainstream legal thought...

...This has been Kelman's own major scholarly project in earlier works, and his treatment here is excellent, if somewhat technical...

...It encompassed a wide range of political orientations, from progressive reformism to outright Marxism...

...His book, divided roughly into thirds, is a synthesis of the central tenets of the movement, as represented in the work of many of its first generation scholars...

...More troubling, and perhaps more revealing, is Kelman's failure to come to terms with the currently flowering second generation of CLS scholarship...

...The second is to uncover the conservative institutional biases—in favor of private property, say, or competitive markets—shared by the legal system and the Law and Economics advocates...

...member, Conference on Critical Legal Studies It is no easy matter to sum up a movement one is a part of, whether social, political or intellectual...

...Kelman starts with a critique of mainstream legal history, and goes on to turn the Critical method on itself by applying it to several alternative histories produced by CLS scholars...

...It may take some years before CLS finds a commentator ready to attempt for ? he second generation what Kelman has accomplished for the first...

...Next appeared Roberto Unger's The Critical Legal Studies Movement...

...CLS scholars see their task as describing and explaining the characteristics of the legal system that leave it open to self-serving manipulation by those with an interest in perpetuating society's many hierarchies...

...None of these writings does what Kelman promises and in large measure delivers in A Guide to Critical Legal Studies...

...With its formalization CLS has generated a sizeable body of literature and gathered an increasing number of exponents and mainstream sympathizers...

...He credits CLS with helping to promote the unprivileged values, which he associates with the Left-liberal end of the spectrum of doctrinal argument...

...The Critical contention is that there are no such principles, and that the system disguises this fact, leading those ruling on particular disputes looverlook much of the rangeof available argument...

...Kelman shows how the initial step is to locate the competing and contradictory loyalties embedded everywhere in legal doctrine...

...on the other hand, much is said as well about the need for flexible standards that can be adapted to meet the exigencies of particular situations...

...They—and we— even imagine they are "bound" by the rules to decide as they do, whereas in reality their decision represents a choice...

...The first book widely understood to be about Critical Legal Studies, The Politics of Law edited by David Kairys, was actually a cooperative enterprise between CLS and the Leftist National Lawyer's Guild...

...By underscoring the situation, the Critical approach pushes students to develop more fully the entire gamut of legal reasoning...

...yet it also countenances the idea that environment and immediate circumstance can substantially reduce one's freedom of choice...

...The scholarship CLS adherents produce is almost bewildering in its variety, but they are united by a shared skepticism about the legal system's ability to limit the efforts of different elites to maintain their social and economic advantages...

...If I had to hazard a guess about the cause of this shortcoming, it would be that Kelman is not yet comfortable with the diversity of perspectives being taken by feminist and minority Critical scholars, as well as by those who would borrow the tools of deconstruction from the areas of philosophy and literary criticism and put them to work on legal texts and institutions...

...In pursuing this question Kelman pays particular attention to the difficulties posed for any such "functionalist" understanding of law by the contradictions the Critical method lays bare...

...While the title signaled a general account, what the author proffered was his own highly individual and Hegelian view of CLS as "superliberalism...

...The presence of these conflicts would be unproblematic if the legal system were equipped with principles for determining when one of an antithetical pair of values should prevail over theother...

...Similarly, legal doctrine sometimes stresses that only individuals can decide what they want and how much they are willing to pay for it, but at other times deems it appropriate to impose the community's sense of what they need and its fair price...

...The middle portion of the book is largely devoted to reconstructing and elaborating the Critical response to Law and Economics...

...The first is to tease out, by means of the Critical method, contradictions in the economic framework analogous to those identified in legal doctrine...

...He further explores the possibility that legal discourse helps legitimate the existing social structure by limiting our ability to envision alternatives...