Normative Jurisprudence Symposium: Promise for the Normative in Critical Race Theory
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.
Then, as it would happen, a number of my 1L teachers at Harvard Law were associated with CLS. Duncan Kennedy was my property teacher; Gerry Frug was my contracts professor. Martha Minow taught one of my electives. I would go on to take jurisprudence from Roberto Unger. My introduction to contract law, property law, and jurisprudence were also introductions to concepts like deconstruction, indeterminacy, formalism, truncation, trashing, utopian proposals, and so on.
Duncan Kennedy was an interesting teacher; he was powerful, charming, and manipulative. I recall his asking us to sit on the side of the room, left or right, that reflected our politics; and then asking us whether a factory was the property of the workers or its nominal owners. I recall his having us recite the infamous “rule against perpetuities” aloud a couple of times like the mantra of a dead religion, and then declare it not worth teaching. In the midst of this unique education, some students absurdly complained that he taught in jeans rather than a suit, and that not dressing up reflected disrespect for his pupils. Kennedy once told me the big packet of supplementary readings in property theory he assigned were not worth discussing in the close, reverential, analytical way my philosophical training suggested I must do. Why? Because they were just utopian proposals. He further once told me that he was not at Harvard to teach people like me (his presumed allies? an irrelevant black female?) but the white males headed to Wall Street. Ironically, I end up at Cravath, Swaine & Moore the year I graduated from Harvard Law.
- West’s Question
In Chapter three of West’s book on CLS, West asks, “what happened?” Whatever happened to CLS? It’s a good question. My sense of things is Harvard-centric and Georgetown-centric.
When I was a law student at Harvard (1981-1984), CLS was a vibrant thing; it was something to be contended with both intellectually and politically within elite law schools. The movement was still relevant into the early 1990s. When Georgetown hired Gary Peller away from Virginia, we prided ourselves in having captured a star of the younger generation of CLS theorists. We already had Mark Tushnet. We anticipated no demise.
In the circles in which I routinely travel today, one rarely hears the words “critical legal studies” anymore. When one does it is usually spoken of in the past tense. “Critical race theory” yes, critical legal studies, no. And while some of the early exponents of critical race theory have had strong intellectual and inter-personal ties to CLS (I have in mind Neil Gotanda, Ian Haney Lopez and my HLS classmate Kimberle Crenshaw), some of the people and work labeled critical race theory today are far removed from the intellectual core of CLS as insightfully defined –see below— by West. “Critical race theory” is often used blandly today to designate work by people of color that urges reforms and rethinking relating to vulnerable groups. So Dorothy Roberts is a “critical race theorist” and when I write about race rather than privacy or ethics, I am a “critical race theorist.” There once was race music and now there is race law; and theorizing race from any perspective if you are non-white is doing critical race theory.
- West’s Argument, a Brief Summary
West has undertaken to explain the seeming disappearance, the lack of salience of the set of ideas, methods, relationships and ambitions that used to label CLS. West suggests that the point of CLS, like legal realism before it, was to make the case for the possibility and the moral necessity for change. Legal rules can be manipulated, seen through, changed, overthrown, infused with new meanings, and re-imagined.
According to West, CLS consisted of what she calls jurisprudential claims and what she calls an aspirational and critical moral brief.
The jurisprudential claims of CLS included:
False necessity – The claim that the law and legal system are maintained and enabled by “false necessity” —the deceptive sense that legal conclusions and/or legal orderings are inevitable, vital.
Formalism – That claim that the law and legal system are characterized and at times immobilized by rule-bound, positivistic reasoning.
Indeterminacy – The claim that legal concepts, rules, and principles central to law do not have precise meanings (or are meaningless), so that outcomes reflect politics and values rather than inevitable logic.
Deconstruction— The claim that it can be shown that legal principles can be logically manipulated to reach contradictory conclusions.
Truncation—The claim that when reasoning from legal principles, judges, and lawyers consciously or unconsciously “stop short” of what is arguably the complete implications of their logic and that where they stop is a reflection of their politics.
What West calls the moral brief of CLS included:
A critique of legal liberalism, even its most progressive points of pride, such as the Brown or Roe v. Wade decisions.
The aspiration for utopian forms of life, generally– more collective, communitarian, democratic, honest, free, sexual, empowered, fluid, flexible than any liberalism imagined or called for.
West sought to explain, in a new and original way, why by the mid 1990s CLS seemed to the world to have died; but she had in her book an additional goal of explaining what in the movement, if dead, is worth resurrecting. I wonder though, if there can be an Easter morning for CLS.
West argues that CLS died, but did not die die. Indeed, some of the jurisprudential claims and implicit methodologies went mainstream; that is, they got folded into business as usual in the life of scholarly legal assessment and analysis. “Everyone” uses the jurisprudential methods of CLS to a degree, but no one labels their piercing through arguments to lay bare the limits of logic and the place for choice or politics as CLS. Practicing lawyers and law professors–we all deconstruct, note indeterminacies, see that logic stops arbitrarily, and call the dog of formalism a dog. We all teach our students the difference between power and logic, nature and contingency. Martha Minow is the Dean of Harvard Law. My colleague Dave Rudovsky, the brilliant Philadelphia practitioner and law teacher, champion legal defender of ordinary people, says CLS and his work with David Kairys influenced greatly him. But he says he doesn’t expressly identify his tactics as “CLS”.
West argues that Critical Race Theory (which I say was invented by Derrick Bell and initially perpetuated by people of color who also studied CLS and many who did not) breathed life into CLS and arguably overtook it. Life was also breathed into CLS by feminist legal theory, LatCrit and Gaylegal studies. CLS spawned non white, female and LGBT scholars held together by a desire to make the world better, especially for the least advantaged, the most subordinated, discriminated against, excluded, jailed, neglected, killed.
I have revised my prior view that CRT is an off shoot of CLS, and we all should. Recall, as an NEH program officer, I visited CLS and Bell seminars the same year; they were separate and autonomous enterprises, with no overlap of attendees. And they were de facto racially segregated. (Neil Gotanda and Jack Greenberg excepted.) In my view, Derrick Bell, who was not a “CLS” crit, was probably more central to shaping the understanding of the first generation of black Critical Race Theorists than any Duncan Kennedy or Peter Gable. Influential was Bell’s “interest convergence” thesis –laid out in his famous “Space Trader” parable. Racism is so deep in American society that blacks will get nothing that is not also in the interest of whites, Bell believed. In the Bell story, intelligent creatures from outer space land in the United States. They offer the country all the nature resources and endowments it needs to sustain itself into perpetuity. All the aliens want in return is the African American population. Bell imagines whites would gladly sacrifice blacks to the uncertain future in the hands of the aliens. But here is the rub. They would do so in a democratic and lawful manner. They would respect the rule of law. Clearly the exchange would violate the US Constitution. But Bell imagines that there would be a constitutional convention to amend the US constitution to make it possible for whites to lawfully send blacks away. He imagines that some blacks are eager to get away from racism and poverty and see the logic of the utilitarian trade-off whites make—so they go willingly, as if to a promise land.
The Parable of the Space Traders sums up Bell’s pessimistic vision of race and racism in America. It was this: liberalism does not protect us. Our freedom is fragile. Our inclusion is contingent. If you are black in America, the liberal promise of safety, security, and freedom is an illusion. You have what you have, whether a little or a lot, because it is for now in the interests of whites that you have it. If it is no longer in white’s interests to share the blessings of liberty and community, you will be dispossessed. The 13th, 14th and 15th Amendments purported to undo the damage of the 3/5th compromise, the fugitive slave clause, and the trade clause. But new amendments to our constitituion could once again, disenfranchise and enslave us. In the words of the title of one of Bell’s book, “And We Are Not Saved”.
Bell’s putting his job at Harvard Law on the line in the name of creating opportunities for black women law teachers was maddening and normatively inspirational. Bell made race and racism a teachable topic in law schools; he gave it a textbook; brought black legal scholars together for seminars, conferences, discussion; and his confrontation with Harvard, not unlike Clarence Thomas’ confrontation with Anita Hill, inadvertently brought minorities and women together to think hard and painfully about how best to matter.
Robin West argues that what we should have kept from CLS was not the jurisprudential claims and the Foucaultian criticisms of private and public power, but its moral brief, the aspiration of imagining and bringing about better ways of life in response to harm and need. And West suggests that text-obsessive theorizing limited to or premised on indeterminacy and power critiques of social arrangements, robs us of the capacity to speak and interact and argue in an expressly moral and political way with common betterment in mind.
CLS failed, where CRT did not.
- Assessment and Reflections
West’s genius of a book is mostly right. Our profession demands a normative agenda and the loss of normative focus helps explains the death of CLS.
West models CLS as two sets of claims. Her organization is extremely insightful. But her effort depersonalizes CLS in a way that I cannot. She does not tell us from whom the various jurisprudential claims originated and who forged the elements of the moral brief. A complete intellectual history of CLS could not ignore the differences among the thinkers, the sex, the drugs, the fights and the sorrows, all of which affected the capacity of CLS to capture adherents and survive.
I would stress more than West does that the death of CLS also stems from philosophical dissatisfaction (by people like me) with its jurisprudential claims. Those claims demanded richer articulations than they ever received. The philosophical claims implicit in some of the jurisprudential claims—-claims about language, truth, and logic— were rarely engaged. The insights of CLS are a helpful pedagogy and an implicit call to praxis, but they were never taken far enough qua legal theory or praxis.
At the Georgetown live book event, Gary Peller argued that West was fundamentally wrong about CLS. He said there were always divisions within the group. He briefly laid out his “radical” perspective that legal terms lack meaning apart from their use, context, and history. Rationality and logic are pretensions, hubris, Peller argued. I don’t think either Peller or the CLS scholars from whom he chooses to distinguish himself have ever done a compelling enough job of defending the complex anti-rationalist philosophical claims implicit in their theories broadly to win many new followers.
In addition, CLS didn’t die simply because of its inherent intellectual problems or lack of normative push. It died because its opponents proved more powerful and attractive to their students and colleagues: law and economics, the Federalist Society, and philosophical liberal legalism.
In her book, West related an incident in which she sought to run a conference inclusive of CLS, CRT, and feminists. It fell apart. People literally walked out. CLS died because the white men who invented it proved unwilling and unable to accommodate feminism, intersectionality, and multiculturalism. (Peller is an exception.)
CLS died because too many of the people who wrote and taught it were poor role models for the potential young reformers they had a chance to educate. The founding “Crits” –- many of them—sat in the comfy chairs in elite universities and educated people headed for capitalist employment. These Crits’ anti-establishment claims rang false. Sure, they might teach in jeans and wear their hair a little longer, but were they putting their bodies and spirits on the line to help move the world in radically new directions?
In the eighties and early nineties, some CLS founders went to Europe and other places to spread the gospel and even to help design constitutions for the Eastern Europeans. At the Georgetown event, audience members included European, Israeli, and other global intellectuals who illuminated the ways in CLS got exported and what it meant to them.
But what about the impact in the USA? In our schools, in our communities, in our Congress? To have built a sustainable model of legal education, scholarship and social change—now that would have been something. CLS was known to be “radical,” but -–Robert Unger’s direct involvement in South American politics aside-—CLS’s normative and practical contributions appear to have been modest at best.
CLS needed more recruits in order to sustain itself. Robert Unger’s classes at Harvard were mesmerizing presentations of the elements of his utopian proposals. One could get sucked into his stunningly brilliant classes, but they could feel like episodes of “Doctor Who.” CLS could feel pointlessly entertaining, nihilistic, self-satisfied, and duplicitous. And since most of its leaders didn’t map an important path for doing something here and now, a common barb was that the practical project of CLS was no more than “counter hegemony at the Xerox machine.”
I am only one person. I might have been a convert from legal liberalism. But CLS effectively pushed me away. When I got to Harvard, Professor Charles Fried, of all people (proponent of liberal legalism), reached out to me and hired me as his TA. In my 3L year, he volunteered to help me get a job if I could construe myself as a Republication. (I could not.) Consider my relationship with Duncan Kennedy, whom I sought out. My efforts to connect left me feeling frustrated. As noted above, he told me quite explicitly that he was “not here to teach you, but the white boys headed to Wall Street.” No wonder war broke out when West tried to host a racially and gender inclusive CLS conference.
West and I come to a similar place from very different directions. I too am deeply persuaded that my country and my school and my profession are in need of overtly normative conversations, expectations, and goals. This may be unduly personal, but… (What do I do about it? All of my books are normative. I run around the country urging people to be more ethical. In my private life, I work with nonprofits aimed at raising healthy babies and literate children, and at diverting resources to people affected by mental illness. But I am no big reformer. No Derrick Bell, either.)
CLS gave a generation or two of lawyers a catchy analytic vocabulary, but not a deeply normative one. CLS gave a generation the permission to voice the political, but little help with identifying specific injustices and articulating grounds for legal/political action.
I learned a great deal about legal analysis from my CLS education and from my friendship with Derrick Bell. But I left Harvard no convert—still a left of center liberal who finds the vocabulary of liberalism and western ethics compelling for normative analysis of the legal system, government and culture around me. CLS made me savvier but not “good.”
I wonder how to tell the story of the impact of CLS and CRT on the theories and practices of Barack Obama, Harvard’s most powerful graduate (in 1991) of its angriest, most divisive CLS/CRT era. You can admire the Harvard contingent of CLS. But you have to admire more some of the school’s non-CLS graduates, like the man struggling, as I write, to hold on to the White House.