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Radicalism and the Law



most reserved and moderate of legal scholars.

CLS thinking challenges mainstream legal theory by asserting that law is often incoherent, contradictory, and illogical. The central purpose of the law is to uphold and legitimate as oppressive Lerarchy dominated by the ruling class, CLS scholars maintain. They therefore maintain that law is based on subjective, political and arbitrary interests--as opposed to any objective standards adapted from natural models or utilitarian reasoning.

But it would be impossible to neatly categorize CLS, because CLS is more of a united front of distinctly individual theorists then an easily identifiable, well-demarcated theory. CLS scholars draw upon an eclectic mixture of thinking, using in various proportions the tenets of Legal Realism, neo-Marxism and French Structuralism. In fact, there are so many factions in CLS that nobody knows how many CLS professors there are at the Law School.

Somewhere between six and 15 faculty members could be considered CLS adherents, according to one professor. "It depends how you define it," says Professor of Law Duncan M. Kennedy '64.

The Guiding Spirit Of CLS

Kennedy, who many regard as the guiding spirit of the nation-wide CLS movement, is perhaps the most recognizable leader of radical legal thought. A bearded, flamboyant and endlessly controversial figure, Kennedy hopes to use CLS theory to "flatten hierarchies" and expose students to CLS thought.

The CLS movement at Harvard was effectively born when the triumvirate of Kennedy, Warren Professor of American Legal History Morton J. Horwitz, and Professor of Law Roberto M. Unger burst on the scene in the early 1970s.

Since then, "CLS has clearly grows fairly rapidly," says Kennedy, citing the snowballing attendance at and participation in the annual National Conference on Critical Legal Studies, a gathering of CLS scholars.

But Kennedy warns that the rapid growth of CLS in law school faculties--especially at Harvard--"is not likely to last very long." The politically-charged Law School faculty is generally considered to be about evenly divided among factions on the right, the center and the left--and only a small percentage of the left-leaning professors are CLS scholars. The "conservative" professors--most of whom are conservative only when compared to the radical left at the Law School--are strong enough to block any attempt by the CLS movement to influence faculty hiring decisions. Without such influence, say CLS supporters, the movement will be contained until it suffer from attrition.

Kennedy, however, remains optimistic about the staying power of CLS. He believes that a large number of law students, drawn into CLS at Harvard and a handful of other CLS-influenced law schools (including those at Stanford University, the University of Wisconsin, and the University of Buffalo), will choose to become law professors and pass on ideas to the next generation.

But even such a conservative strategy might be in real trouble if some conservative and very outspoken CLS critics have anything to do with it.

Critics Say Get Out of Law School

Last year the head of the prestigious Duke University School of Law, Paul D. Carrington, wrote in a widely circulated article that "The nihilist who must profess that legal principle does not matter has an ethical duty to depart the law school." That article referred specifically to Unger, but the Duke dean continues to generate considerable controversy in legal and others have criticized both the scholarly ability and the morality of CLS professors in numerous harshly-worded essays. "While the adherents to this banner [CLS] are a varied group, it seems safe to characterize them collectively as nihilists Carrington writes. "Their scholarship is often avowedly destructive in its purpose."

Carrington's statements have polarized much of the academic legal community. Most CLS professors and a large number of moderates and liberals--including Harvard's highly-respected Tyler Professor of Constitutional Law Laurence H. Tribe '62--have called Carrington's comments offensive and accused him of witch-hunting.

Tribe last year asked Carrington in a letter if he meant "to endorse a rebirth...of [the] McCarthyism that stained the history of so many universities, and of the nation as a whole, several decades ago."

Kennedy says that Carrington's criticisms of CLS are based on a basic misunderstanding of CLS writings. "If Carrington thinks that Roberto [Unger] is a nihilist, then he doesn't have the slightest idea what Roberto is talking about," Kennedy says. Unger, one of the philosophic lenders of CLS, is considered by many to be a brilliant but dazzlingly complex writer.

But it is not enough to be brilliant, many CLS critics maintain; a professor must be fit to teach. Carrington claims that they are not. And he has a good deal of support across the nation--including some at Harvard.

"CLS is subversive of the educational enterprise which we are nominally supposed to be engaged in at the Law School," says second-year student Bennett E. Cooper, vice president of the Harvard Society of Law and Public Policy. Cooper contends that a large number of students, regardless of political or legal viewpoint, believe that "there is a real problem with the quality of teaching" of CLS professors, who he says tend to be overly political or polemic.

CLS Advocates Reject Bias Charge

The charge of bias is "Ridiculous," counters Susan E. Keller, a second-year student with self-professed CLS leanings. "I haven't been in a law school class without a political slant. You can't teach law neutrally," she says. Keller believes that conservative professors may claim to be neutral, but they nonetheless slant their classes to present a view that "the status quo is legitimate." Ail classes are political, she says--and this is of course one of the CLS tenets.

Administrators at the Law School, however, call the controversial professors excellent teachers. Assistant Dean for Academic Administration Stephen M. Bernardi says student evaluations of CLS professors are consistently excellent. Bernardi adds that students almost never criticize CLS professors for politically slanting their presentations.

Cooper of the Society of Law and Public Policy maintains that Bernardi is "Whitewashing," and that a large number of students, regardless of what they put on evaluation forms are dissatisfied with CLS teachers.

Cooper also charges that students believe Kennedy and his cohorts to be "hypocritical who don't practice what they preach. "I think Duncan Kennedy is self-serving," Cooper says. "If someone really believes something he should be willing to pay the price for his principles."

Cooper's statements are indicative of one of the most common anti-CLS arguments that CLS adherents, because they believe law to be so flowed should stop teaching it. In addition, CLS critics claim who believe that hierarchy inherently bad have no business in the fiercely hierarchical law school structure. These critics suggest that a more ethical route would be to practice poverty law or follow other altruistic pursuits in order to help those oppressed by the social order.

But Kennedy points out that "there are many places where you can struggle effectively against social injustice. That includes influential, elite institutions like Harvard Law School." Kennedy and his colleagues make no claim to "moral purity," and they believe that they don't have to give up their careers in order to be radical. By offering a creative, radical perspective at the Law School, Kennedy says, he can expand the range of choices leftward, thereby pulling moderates slightly to the left. "It's surprising how effective that is," he says.

Some CLS critics say radical legal scholars are self-serving intellectuals who retreat into academics, thereby disassociating themselves from grass-roots social movements Kennedy again disagrees, saying CLS professors are, for example, integrally involved in the divestment movement at Harvard, and have in general had close ties to student protest movements. He also points to CLS-leaning professors and students who provide legal services to the poor through the Law School's clinical program.

But even just being radical within the Ivory Tower can be very gratifying, as several CLS scholars observe. "It's really liberating to be off the wall," Kennedy says.

Despite such self-deprecation, CLS professors like Kennedy are very serious about their views and methods. "I believe that the legal system is the repository of some of the best values of our culture," Kennedy says. "But I believe that they have been manipulated and betrayed."

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