After Dalton, Battles Remain

Though Political Divide More Narrow

The settlement of Clare Dalton's sex discrimination suit against Harvard Law School this week was meant to maintain a hard-won peace, but professors at the school say the ideological battle lines at the root of her case remain.

And the disagreements that tore the school apart over the 1987 vote to deny Dalton tenure still exist, as professors heave a sigh of relief at not having to defend their old decisions in front of the Massachusetts Commission Against Discrimination.

The settlement was a smooth alternative to a messy trail, one which kept old arguments in the background and allowed the school to get on with the study of law, professors say.

Clark says the Law School admitted no fault while turning over $260,000 to fund an institute for the study of domestic violence. But Dalton, who will receive $80,000 to head the institute, called the settlement a "vindication" of her claims.

When then-Assistant Professor Dalton filed suit six years ago, the Harvard Law School was divided into warring camps. But the major skirmishes did not center around plots of land or fortresses.

Instead, the faculty squared off over how to study the law and who would be allowed to do it at Harvard.

Dalton was an adherent of Critical Legal Studies, a school of legal thought which is concerned with the effects of culture and society on the law and with its effects on the distribution of wealth and income. Traditional scholars maintain that "crit" does not constitute a legitimate filed of study.

Today, the split between adherents of Critical Legal Studies and more traditional modes of thought have narrowed somewhat.

"I think [Critical Legal Studies] has peaked, as it were," says Bemis Professor of International Law Detlev F. Vagts, who voted against Dalton's tenure in 1987. "Some [of Critical Legal Studies] has been accepted by the mainstream and some is now being ignored."

But even if the once white-hot debate over Critical Legal Studies has clamed, all is not necessarily quiet on the Law School front. Such approaches as feminism and "Law and Economics" as an approach to the law now divide law school professors and overshadow the appointments process.

"I think it's safe to say there are many, many different little fault lines," says Professor of Law Reinier H. Kraakman.

Feminist legal scholar Catharine A. Mackinnon was denied tenure last spring, and some of her supporters felt that her controversial approach mattered as much as the quality of her scholarship in the decision.

"She raises hackles among men," says Vagts. "Men by and large don't like the idea that any time they make love to a woman it's rape."

And such dislikes can "bleed over" into professional judgements, he says.

At the same time, however, many professors agree with Dean of the Law School Robert C. Clark's assertion that divides over methodology have narrowed. This week's settlement, these professors say, prevents a painful reopening of the wounds.