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Talkin’ Dirty: Twining's Tower and Kalman's Strange Career

  • John Henry Schlegel

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1 The exception that immediately comes to mind is Richard Abel at UCLA.

2 For a brief report on the current activity of engaging in foreign travel in order to spread the good news about American legal education, see Judith W. Wegner, “The Association of American Law Schools' Role as an International Learned Society,” Association of American Law Schools Newsletter, No. 95–3', Aug. 1995, pp. 1, 2–3. For the lost history of a previous attempt to export American legal education in the name of democracy and all things good, see Trubek, David M. & Galanter, Marc, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States,” 1974 Wis. L. Rev. 1062.

3 Twining also discusses libraries, a topic I shall omit since it is of less interest for my purposes.

4 I have cobbled these figures and later ones together by combining those that Twining presents with others found in Richard Abel, The Legal Profession in England and Wales (Oxford: Basil Blackwell, 1988). As the English do not have an intrusive Big Brother (the role played by the American Bar Association Section on Legal Education), figures on these matters are hardly uniform (even between my two sources) and so should be taken to indicate orders of magnitude and not of detail.

5 I have engaged in a gentle disagreement with Twining over his book Karl Llewellyn and the Realist Movement for many years. Only a tiny bit of that dispute has made it into print. See my American Legal Realism and Empirical Social Science at ix, 365 n.123 (Chapel Hill: University of North Carolina Press, 1995) (“Schlegel, American Legal Realism”); id., “American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore,” 29 Buff. L. Rev. 195, 295 n.620 (1980).

This disagreement centers on three topics. I would dispute the plausibility of treating, as Twining does, Corbin and Hohfeld as Realists and so of seeing the Realist movement as over with the split of the Columbia faculty in 1928; the plausibility of seeing the Columbia deanship fight as one between the Scientists–Douglas, Moore, and Oliphant (with Cook in the background)–and the Prudents– Llewellyn and the others–over professional education; and the plausibility of treating Realism as a jurisprudence of which Llewellyn's work is a central representative. A wonderful story that Kalman tells about Arthur Link and John Morton Blum (at 217) has made me see that my disagreement with Twining has less to do with his work as an historian–the first two points are, after all, a matter of interpretation easily disputed–than with his work as a philosopher, the third point.

I continue to believe that it is a mistake to treat Realism as a jurisprudence rather than as activities of a group of more or less friends who focused on a vaguely shared topic. They were thus more like the beat Generation's poets and novelists, see Steven Watson, The Birth of the Beat Generation (New York: Pantheon Books, 1995), than the law and economics scholars at the University of Chicago. Twining keeps saying that Realism is not a jurisprudence, see “Talk about Realism,” 60 N. Y. U. L. Rev. 329 (1985), and then works to turn it into one. See, e. g., “The Job of Juristic Method: A Tribute to Llewellyn, Karl,” 48 U. Miami L. Rev. 601 (1993). It is time to recognize that Twining's sensible work in jurisprudence is his own. It may be an attempt to bring out what was implicit in Llewellyn's thought; it is not therefore an attempt to bring out what was implicit in Realism.

6 See Consultative Group on Research and Education in Law, Law and Learning: A Report to the Social Sciences and Humanities Research Council of Canada (Ottawa: Information Division, Social Sciences and Humanities Research Council of Canada, 1983).

7 Here Twining seems to ignore the most common continental European model of legal education–the huge lecture class, mass university where “law, as a cheap subject,… [is] the main dumping ground for excess demand for higher education and the main function of legal education… [is] to reduce juvenile delinquency by keeping youngsters off the streets” (at 51). Ignoring this model of legal education is odd, given the decreasing proportion of English law students qualifying to practice. The existence of this group of nonqualifiers that gives Twining his inspiration for broadening legal education may well be the English version of unemployment reduction and delinquency prevention.

8 It is this concept of legal education that Twining sees as the “aspiration” of continental European legal education. The contrast between the actuality of entering classes of 4,000 and the aspiration suggests that those doing the aspiring are seriously deluded.

9 Of course, it is possible that the claims are spurious and that the student culture reflects the actual content of the law course. Ultimately Twining admits as much (at 196).

10 Again, it is possible that what Twining sees as the faculty's lack of consensus is not that at all but a disjuncture, much like that between the claimed purpose of the law course and the purpose to which the students were putting it, between the expressed consensus of the faculty and the doctrinal education that they are offering. And again Twining ultimately admits as much (at 196).

11 Twining's comment when rejecting this stream of legal thought merits recounting for its epigrammatic succinctness. “Realism opens Pandora's box and allows disciplines to escape. Cynical acid destroys the subject matter; genuinely pure science induces paralysis; other claims to scientific purity are spurious” (at 158). Holmes would be envious.

12 I use “ostensibly” very carefully. I doubt whether the education in an English law school fits a student particularly well for practice, and Twining clearly shares that belief as evidenced by the fact that he repeatedly states his understanding that major London firms prefer students with degrees in fields other than law. One particularly pointed example ought to suffice. “I am afraid that I am one of those who think that the city law firms were often justified in preferring non-law graduates to law graduates, for some undergraduate legal education as currently practiced can seriously damage one's intellectual health” (at 164). We would, on the other hand, disagree on what is to be done with that dangerous education.

13 Anyone familiar with English academic novels immediately begins to snicker at this suggestion as one remembers the hysterical attempts of the Philosophy Department at a mythical university to increase its diminishing resource base by placing a departmental extension–the Mind and Body Shop–on a busy metropolitan street. See Frank Partkin, The Mind and Body Shop (New York: Atheneum, 1987). This clearly not what Twining has in mind.

14 Legal Education in a Changing World: Report of a Committee on Legal Education in the Developing Countries (New York: International Legal Center, 1975). Twining was a member of the committee that issued this report.

15 “A Vital School of Jurisprudence and Law,” in Association of American Law Schools, Handbook and Proceedings, 1914 at 76 (Washington: Association of American Law Schools, 1914).

16 See Schlegel, American Legal Realism 25–67 (cited in note 5).

17 I have long disagreed with this assessment. I have a hard time believing that one could put forth the arguments made by Bickel, Hart, Weschler, and their friends unless one was a relative political conservative. Or to put it another way, I have a hard time believing that their jurisprudential positions could have been other than a cover for a rather conservative politics. But Kalman has worked in the most significant available sets of papers–Bickel and Hart-and so I defer to her judgment.

I note, however, that by arguing that both the legal liberals and the legal process scholars share the same politics, Kalman partially undercuts her argument for distinguishing legal liberalism from the liberal legalism that CLS has demonized. This is because on her reading the two groups share a commitment to a philosophical liberalism that might (though might not) be traced to Locke, a philosophical liberalism that CLS called liberal legalism.

Unlike Kalman's objection to the CLS usage–it demeans the honest attempts of legal liberals to improve social conditions in America by calling those attempts a “legalism”–it seems to me that a better objection to the concept of liberal legalism might be that the legal liberals in the academy are arguably so committed to state intervention in economic and social life that they are not philosophical liberals at all. But to make this assertion Kalman would have to distinguish rather sharply legal liberals from legal process scholars.

I wonder what one might conclude about the politics of the legal process scholars from better access to Fuller's private thoughts or by treating not Brown but some other issue, say, Baker (a case that Hart abhorred) or Mapp or Miranda or Griswold as the touchstone. Brown may simply be too easy a case for northern academics.

18 It is unbelievably difficult to avoid entering the debates that Kalman recreates. I will limit myself to this one observation. I am endlessly baffled that no one in the debate seems to have argued that it is bizarre to treat the decision of the Congress or any state legislature as representing the majority will. I cannot understand how this very intelligent group of men swallowed hook, line, and sinker a conception of democracy that is best characterized as that presented by a bad high school civics course. (It is the acceptance of this view of democracy that has always given me the feeling that these men cannot have been the political liberals that Kalman argues that they were.) A legislative decision that supports the position of one of the two (usually) small groups that care about the question at issue and that gains the acquiescence of the large group that is largely indifferent to that question is the decision of a majority of THE PEOPLE only by the most rigid of formalisms. I thought that lawyers, especially liberal lawyers, were good at recognizing formalisms when they saw them and so of demolishing them when appropriate. Apparently, this is not true in constitutional law.

19 Mislabeled because the interpretivists were against interpretation and the noninterpretivists were for it.

20 Why no one responded that it was simply stupid to attempt to govern an imperial power by the understandings of appropriateness derived from a sleepy, largely agricultural, though nascently commercial colonial outpost is unclear to me.

21 It is not obvious to me why it is not obvious to everyone that determining when the Court speaks as the voice of The People is the same problem as determining when the Court is acting contrary to the Founder's intent, at least unless one is willing to say, “One can only know when The People are speaking in retrospect, well after the event, so shut up and go back to deciding cases.”

22 “The Sex of Law,” in David Kairys, ed., The Politics of Law: A Progressive Critique 453 (rev. ed.; New York: Pantheon Books, 1990).

23 The thought of Lon Fuller hanging out with the boys talkin' dirty is so delicious that I can't stop grinning.

24 And probably since 1870 despite what Langdell, Ames, Thayer, and others said about what they were doing.

25 This latter metaphor for what it is to do legal argument is from my good colleague Jan Lindgren.

A good friend who probably should remain anonymous made several suggestions that decreased the incoherence of several passages in an earlier draft. Talks with A1 and Pierre should be evident to the careful reader.

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