I am very pleased to have been asked to participate in this online symposium event devoted to Normative Jurisprudence: An Introduction (Cambridge Press 2012) by Professor Robin West. The book examines the state of natural law, positivism, and Critical Legal Studies. West argues that certain aspects of each school represent a retreat from, or evasion of, normative theory and practice.
In mid-September, I participated in a live book-publication recognition event in honor of Robin West held at the Georgetown University Law Center. This all-day, face-to-face symposium was an opportunity for me to make new friends, and even more significant, to reconnect with former colleagues. I now teach at Penn Law; but I taught jurisprudence at Georgetown for more than a decade (1987-1998) and served as an Associate Dean (1996-1998). I worked with Mark Tushnet, Gary Peller, Louis Michael Seidman, Dan Ernst and Gary Peller to develop an alternative 1L curriculum for Georgetown; our planning was funded by a grant from the federal government’s Fund for the Improvement of Post Secondary Education.
For the Georgetown event, whose remarks are the basis of this posting, I was asked, along with Professor Gary Peller, to speak about Professor West’s Chapter “Critical Legal Studies, The Missing Years.” My job was both to summarize and comment; Professor Peller’s job was to comment.
- My unique introduction to CLS and Critical Race Theory
Although I do not identify with the Critical Legal Studies Movement (“CLS”) as such, I have a relationship to CLS and some of its famous practitioners that made my selection to comment on this chapter especially meaningful to me.
By a strange twist of fate, I happened to be present at the historic first summer meeting of the Conference of Critical Legal Studies in Santa Cruz, California. (See Mort Horowitz here.) I was at the time a philosophy professor at Carnegie-Mellon University. I was on a leave to help run summer seminar programs in law and medicine for the National Endowment for the Humanities (NEH) in Washington. One of the programs was led by a Professor at Santa Cruz who was hosting the CLS “summer camp.” I was on campus for my official NEH site visit during the CLS meeting and was invited to sit in on several of the sessions. I was housed in the same dorm in which the Crits were housed and heard their secrets through the thin walls.
It is worth noting that my NEH job also led me to make site visits at Yale, where I sat in on a seminar directed by Robert Cover; and to Harvard where I spent a day at a seminar led by Derrick Bell that, I have recently concluded, helped create a community of race law scholars and to launch critical race theory.
When Professor Bell applied to teach an NEH funded summer seminar, there were two problems with his application. He was a civil rights lawyer, one; and two, he was not a practitioner of the traditional humanities. He was not a historian, not an English professor, and not a philosopher. The Endowment counted jurisprudence but not law as a branch of the humanities. In 1980, the field of jurisprudence was defined by the discussion and debate over three specific theories of the law: natural law, legal positivism, and legal realism. Bell wanted to teach race and racism in American law. (He wrote a pioneering textbook by that name.)
Bell and I worked together to conceptualize for a rigid bureaucracy how the scholarly study of race and racism in the law was a humanistic enterprise, an as yet neglected area of jurisprudential theorizing and analysis. Like legal realism, Bell’s critical race enterprise sought to expose and explain values and mechanisms behind the law—social, political, moral, attitudinal, and institutional. I am not sure my superiors at the Endowment fully understood the significance of embracing Bell’s enterprise as a “legitimate” humanistic inquiry. Although we knew the NEH was mainly interested in finding a way to safely integrate their pool of grant recipients, Bell and I were pleased with the outcome. He got the grant.
My first introduction to the formal study of the law was thus through the lenses of CLS and Bell’s critical race theorizing, and it took place in 1980, before I enrolled in law school. I was admitted to Harvard and Yale. I chose Harvard over Yale, because Boston, Bell and the CLS personalities seemed more lively and welcoming than New Haven, Cover, and the Yale crowd. Read More