Legal Education and the Reproduction of Heirarchy: A Polemic against the System.

Vol. 14 No. 8 (August 2004), pp.667-672

LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM, by Duncan Kennedy. With Commentaries by Paul Carrington, Peter Gabel, Angela Harris and Donna Maeda, and Janet Halley. NY: New York University Press, 2004. 256pp. Cloth $25.00. ISBN 0-8147-4778-7.

Reviewed by Mark Kessler, Department of Political Science, Bates College. Email: mkessler@bates.edu.

During the summer of 1990, I participated in the faculty seminar, “Rethinking Rights,” at NYU. Organized by Christine Harrington, the seminar brought together a diverse group of faculty—law professors, historians, social scientists; scholars and activists; scholars at large, predominately white universities, small liberal arts colleges, and historically black colleges and universities—to read and discuss contemporary critical theories and research on legal rights and social transformation. Among other things, we explored left critiques of legal liberalism, theories of “new” social movements, and writings on rights by scholars associated with law school movements in “critical legal studies” and “critical race theory.” I recall thinking at the time that the seminar was reminiscent of what Duncan Kennedy called, in his by then classic work on legal education reproduced in the volume under review, the “left study group,” an important vehicle, he argued, for building a “left bourgeois intelligentsia” capable of providing effective opposition to illegitimate hierarchies in American society. I recall purchasing his self-published pamphlet for just a few dollars at a university bookstore, inspired to buy it after reading an abbreviated version in David Kairys’ (1982) edited collection, THE POLITICS OF LAW. Looking at the pamphlet today in its new, formally published form and thinking about it in the context of the NYU seminar provides an opportunity to assess both the promise and limitations of Kennedy’s approach to the critical study of law as well as to reflect on the project of “critical legal studies” more generally.

Kennedy’s “little red book,” as it was called by some, is an important founding text in the history of critical approaches to law taken by scholars located in law schools. It is reproduced in its entirety and in its original pamphlet form, retaining its typewriter-like typeface, square page format, and the original page numbers in the top left corner, numbers that do not match those in the uppermost top left corner of the new, more formal book. The original pamphlet is accompanied in this volume by a new Introduction and Afterward by Kennedy and commentaries by four law professors (one of the commentaries is coauthored by a law student, Donna Maeda). The new writings appear in a more standard book typeface and page format, serving to “frame” or focus the reader’s attention on the pamphlet as the object of attention. Although the purpose of publishing the pamphlet in this form is not revealed, it seems primarily a retrospective celebration of Kennedy’s [*668] important contributions to the legal academy’s “critical legal studies.” In addition and more generally, the new materials included in the volume seek to place critical legal studies in some historical context, and some begin to outline critical projects for the future. Although one of the writers, Paul Carrington, is a long-time opponent of the entire critical project who uses this opportunity to continue his critique of its fundamental assumptions (e.g., he responds to Kennedy’s call to resist hierarchy by suggesting, in his chapter’s title, the importance of “reproducing the right sort of hierarchy” because, as he argues, “hierarchy is indispensable to all human endeavors entailing organized collaboration” (p.147)), the others provide more sympathetically critical commentaries combined with interesting new directions. Peter Gabel, another of the founder’s of critical legal studies and at present the Director of the Institute for Spirituality and Politics, expresses admiration for Kennedy’s attack on hierarchy, but notes its failure to account for spiritual longings for social bonding in the context of a loving and caring community. Freedom from hierarchy without a “beloved community” to enter is empty and bleak. Without a clearly developed alternative that accommodates the human desire for rich and meaningful interpersonal interaction, according to Gabel, “unfreedom is the only source of fulfilling the longing for mutual recognition and social connection that inheres in the nature of social existence itself” (p.163). Angela Harris and Donna Maeda combine insights from critical race theory, Latino/a critical theory, and a case study of Berkeley’s Coalition for Diversity to build intelligently on Kennedy’s analysis of hierarchy and resistance. Janet Halley, an English professor prior to joining the legal academy, practices contemporary literary and postmodern theories by closely reading everything from the pamphlet’s formatting in this new volume to its copyright page to the illustrations he included from a children’s book. Halley uses her analysis to suggest that such foundational texts not be glorified as celebrated historical documents, a clear impression given by the manner in which this pamphlet is (re)presented in this formal book. Rather, such texts should be read and used as part of new genealogical projects, serving “as a fresh intervention; responsible about how it generates or narrows the opportunities for radical intellectual/political work” (pp.198-199).

Kennedy’s writing on legal education is worthy of our attention some twenty years after its first appearance. First and foremost, he provides a detailed and compelling critique of the many and varied practices of law schools, such as classroom pedagogies, admissions, grading, job placement, and faculty recruitment, that serve to reproduce hierarchies of privilege throughout American society. “Law schools,” he writes, “are intensely political places” that engage in “ideological training for willing service in the hierarchies of the corporate welfare state” (p.15). Legal education, he goes on to argue, is “nonsense with a tilt . . . biased and motivated rather than random error.” The message of legal education’s indoctrination “is that it is natural, efficient, and fair for law firms, the bar as a whole, and the society the bar services to be organized in their actual patterns of hierarchy and domination” (p.16). Such arguments from a scholar located so fully and firmly within the [*669] institution that he critiques cut powerfully against the institution’s grain. In particular, his insistence that legal decisions have political consequences and that legal educational practices, including such things as Socratic teaching and legal reasoning, encourage students to embrace and defend those consequences argues against many of the basic teachings of the institution in which he works. Thus, while readers of this journal may find nothing novel or even surprising in much of the analysis, and one might suggest that social scientists and historians like Stuart Scheingold (1974) and Jerold Auerback (1976) were making similar arguments years before (to be fair, Scheingold draws upon an earlier writing by Kennedy (1970) in his analysis of the “narrowing vision” of law school training), his argument challenged and continues to challenge conventional thinking in the law school world. Indeed, John Brigham (2004), in a recent review in this journal of a book about the rule of law written by Ronald A. Cass, a law school Dean, speculates that much of what is written, read, taught and learned by those within the law school world may form the contours of a coherent legal ideology that is foundational for the institutional life of law. Kennedy provided a significant and courageous intervention to such practices and the ideology they helped constitute.

As significantly, Kennedy’s writing anticipated, in a rather loose and undeveloped way, important trends in critical scholarship on law and legal practices that appear after the (self) publication of his pamphlet. Specifically, his pamphlet includes passages that prefigure work on critical or “rebellious” lawyering by legal academics (e.g., Lopez, 1992) and social scientists (e.g., Harrington, 1994), especially in his inclusion of lawyer-client relations as part of the hierarchy he opposes, critical work on law school pedagogy (e.g., Guinier, et al., 1997), the critique of rights as a “trap,” as Kennedy puts it, by others in critical legal studies (e.g., Tushnet, 1984) and more generally in the social sciences (e.g., Rosenberg, 1991), constitutive approaches to law (e.g., Brigham, 1996), the critique of the concept “merit” in works in feminist jurisprudence and critical race theory, work on law in culture (e.g., Sarat and Kearns, 1998), and writings on the impact of law and legal ideology in areas of race, class, gender, and sexuality. Although none of these strands is sufficiently elaborated, it seems extraordinary to me that Kennedy sees the possibilities in the early 1980s for such a multifaceted critique and analysis of law’s ideological power.

Kennedy’s descriptions of law school practices are consistently nuanced, subtle, and insightful. Some may have problems with his method of research, which he describes as “a novelistic, subjective evocation of the social-psychological pressures that work to make students into lawyers and citizens who will participate willingly in the reproduction of the system” (p.1). But it is significant that so much of Kennedy’s “novelistic, subjective evocation”—used here as the pamphlet’s subtitle suggests as a “polemic against the system,” rather than a dispassionate scholarly analysis—is consistent with social scientific studies of law schools that describe and seek to explain why large percentages of incoming students committed to social justice causes eventually choose to [*670] practice corporate and business oriented law (e.g., Stover, 1989; Granfield, 1992).

While there are hints of connections to social and political theory throughout the pamphlet, Kennedy’s analysis is generally thin theoretically and sometimes simply confusing. At times he seems to suggest that he is not engaged in a theoretical project on principle. At other times he seems to say that he is building theory inductively, “grounded in late night conversations, flashes of insight, rebellious moments, and moments of failure” (p.96). At still other times he suggests that his theoretical project is “the projection onto the widest screen of the ideas and images that develop in the course of small-scale backwater actions that we long to join into the great stream” (p.99). This “projection,” he suggests further, is produced from an “existential-Marxist, anarcho-syndicalist modernist point of view,” which, he hastens to add in parentheses is “a conjunction of labels” that “doesn’t tell much” (p.100). While Kennedy may be “performing” a parody of grand social theory in these and other passages, and while his primary purpose seems one of provoking and inspiring some sort of “resistance” among law students, his inability to ground his work theoretically narrows his project, making it difficult to connect his analysis to broader social and political questions and other critical projects.

For me, both the most refreshing and ultimately disappointing aspect of Kennedy’s writing is his attention to strategy and tactics in the cause of social transformation. Kennedy seems committed throughout to blur the lines of scholar and activist. He tells us in his new “Introduction” that he intended in his writing to appeal to “resisters” of legal ideology and the hierarchy it helps constitute, and we learn in the pamphlet that he seeks to build a “left bourgeois intelligentsia.” Kennedy writes about the need for collaboration, cooperation, and coalition in the interests of building an oppositional structure capable of challenging hierarchies of privilege. But throughout this book, Kennedy exhibits a rather narrow vision of who he might collaborate, cooperate, and form coalitions with, a narrow vision of a movement composed, on an academic level at least, exclusively of law school faculty affiliated with critical legal studies or perhaps more broadly with other law school centered critical movements. Kennedy admirably includes in his critical project those who live and work outside the academy. But in the scholarship he cites and employs in both his discussions in the original pamphlet, and his current reflections on that text and the movement he helped create, he largely ignores or characterizes dismissively as part of the “mainstream” non-critical legal scholars in the legal academy and the rest of us located outside of the law school’s walls. My impression over the years, by and large confirmed by this new volume, is that some critical legal scholars spend so much of their time defending their work from internal attacks that they seldom, if ever, look outside the law school world for scholarly support or work that moves the project forward. Because critical legal scholars have experienced such strong internal opposition, it is understandable that some circle the wagons tightly. But this tendency is disappointing, if not downright harmful, because it excludes from the general critical project quite a bit, including [*671] scores of “critical’ academics who study law and legal practices outside of the law school, liberal academics, legal and otherwise, with strong social justice sympathies, social scientists who produce research findings that may be utilized by left movements for change, and theorists with frameworks that may help guide future action, scholarly and political. Most important, I think, the insular quality of some works within critical intellectual movements in the law school world makes it difficult for anyone, within or outside the legal academy, to fully understand patterns of privilege and oppression or design effective strategies of resistance.

One of the lessons that I learned from that extraordinarily diverse and interdisciplinary seminar I attended many years ago is that scholars from multiple backgrounds and disciplines have much to contribute to thinking and action about law and social change. Legally trained academics have something unique to offer through their understanding of doctrinal developments. But scholars with training in broader or different theoretical, substantive, and methodological matters may themselves make unique contributions. The more we draw upon all of these strengths, the more systematic the work, the more trenchant the critique, and the more focused the thinking about alternatives. Critical legal studies and other law school centered critical movements can enrich the work of those outside the law school community; while, at the same time, work by those in other disciplinary locations can broaden and sharpen the work of those within the legal academy. Thus, I could not help thinking as I read this volume that those of us committed in our work to follow Kennedy’s admonition to resist hierarchy should open up our conversations, expand our reading lists, and work collaboratively across lines of difference, including differences of academic background and disciplinary training.

Duncan Kennedy is an important and inspiring legal scholar who helped to establish an influential intellectual movement. This book celebrates him, the movement he helped establish, and his intellectual contributions appropriately. But, with Janet Halley, I hope that the book is used for more than celebrating the past. I came away from that NYU seminar experience convinced that the cause of social justice could be served by scholars, but only if we could somehow make more permeable the boundaries separating us, including boundaries separating academic disciplines and those separating the law school world from the rest of us. Transgressing these boundaries, it seems to me, is part of a broader, more general assault on the boundaries constituting hierarchy, and it promises, at the very least, a more richly textured and sharply focused critical legal studies movement inclusive of all who wish to participate. In his closing words in the “Afterward” to this volume, Duncan Kennedy makes this argument best: “there is a lot of radical legal scholarship and scholarly activity still around for the student who is willing to look for it, even if there is not the sense of an all-inclusive, open movement to join or rebel against. It’s time for something new here too” (p.221).

REFERENCES:

Auerbach, Jerold S. 1976. UNEQUAL JUSTICE: LAWYERS AND [*672] SOCIAL CHANGE IN MODERN AMERICA. NY: Oxford University Press.

Brigham, John. 1996. THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS. NY: New York University Press.

Brigham, John. 2004. Review of Ronald A. Cass, The Rule of Law in America. Baltimore: Johns Hopkins University Press, 2001. In LAW AND POLITICS BOOK REVIEW 14: 563.

Granfield, Robert. 1992. MAKING ELITE LAWYERS: VISIONS OF LAW AT HARVARD AND BEYOND. NY: Routledge.

Guinier, Lani, Michelle Fine, and Jane Balin. 1997. BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, AND INSTITUTIONAL CHANGE. Boston: Beacon Press.

Harrington, Christine B. 1994. “Outlining a Theory of Legal Practice.” In Maureen Cain and Christine B. Harrington, eds., LAWYERS IN A POSTMODERN WORLD: TRANSLATION AND TRANSGRESSION. NY: New York University Press.

Kairys, David. ed. 1982. THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE. 1^st edition. NY: Pantheon Books.

Kennedy, Duncan. 1970. “How the Law School Fails: A Polemic.” YALE REVIEW OF LAW AND SOCIAL ACTION 1:77.

Lopez, Gerald P. 1992. REBELLIOUS LAWYERING: ONE CHICANO’S VISION OF PROGRESSIVE LAW PRACTICE. Boulder, Colorado: Westview Press.

Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Sarat, Austin and Thomas R. Kearns. ed. 1998. LAW IN THE DOMAINS OF CULTURE. Ann Arbor, Michigan: University of Michigan Press.

Scheingold, Stuart A. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. New Haven, Conn.: Yale University Press.

Stover, Robert V. 1989. MAKING IT AND BREAKING IT: THE FATE OF PUBLIC INTEREST COMMITMENT DURING LAW SCHOOL. Edited and with an introduction by Howard S. Erlanger. Urbana, Ill.: University of Illinois Press.

Tushnet, Mark V. 1984. “An Essay on Rights.” TEXAS LAW REVIEW 62: 1363.

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