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The Politics of The Politics of Law

Published online by Cambridge University Press:  20 November 2018

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Review Essay
Copyright © American Bar Foundation, 1984 

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1 The genre is shaped by such works as the National Lawyers Guild-connected volume edited by Robert Lefcourt, Law Against the People: Essays to Demystify Law, Order and the Court (New York: Random House, 1971), and a collection of Voice of America radio programs published under the editorship of Harold Berman, Talks on American Law (New York: Vintage Books, 1961).Google Scholar

2 See Morton J. Horwitz, The Doctrine of Objective Causation, in The Politics of Law [hereinafter PL] at 201; Duncan Kennedy, Legal Education as Training for Hierarchy, PL at 40.Google Scholar

3 Perhaps a new experience for authors who ordinarily write for the unrestricted world of law reviews.Google Scholar

4 See, e.g., Karl E. Klare's essay, Critical Theory and Labor Relations Law, PL at 65, which never mentions his debate with Staughton Lynd. See id., Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law, 4 Indus. Rel. L.J. 450 (1981).Google Scholar

5 Introduction, PL at 1, 6.Google Scholar

6 Few of the authors of The Politics of Law would ever claim any interpretation is ever absolutely true.Google Scholar

7 See W. Haywood Burns, Law and Race in America, PL at 89, and William J. Chambliss, Toward a Radical Criminology, PL at 230.Google Scholar

8 Alan D. Freeman, Antidiscrimination Law: A Critical Review, PL at 96.Google Scholar

9 Klare, supra note 4.Google Scholar

10 Note that Klare steps back from this antistatist conception at the end of his piece, although what he leaves us with is unclear (PL at 83–84).Google Scholar

11 Elizabeth Mensch, The History of Mainstream Legal Thought, PL at 18.Google Scholar

12 Peter Gabel & Jay M. Feinman, Contract Law as Ideology, PL at 172.Google Scholar

13 Mensch, supra note 11, at 23–26.CrossRefGoogle Scholar

14 Gable & Feinman, supra note 12, at 176.Google Scholar

15 Id. at 183. Several of the essays develop less grand versions of the same story, focusing their attention on intellectual structures and contradictions that underlie particular legal decisions. E.g., Tushnet sketches the compulsive force of our commitments to market metaphors and to ideas of corporate personality as a way of making sense of the Supreme Court's recent recognition of the constitutionally protected status of corporate speech and advertising. Mark Tushnet, Corporations and Free Speech, PI, at 253. Likewise, Horwitz demonstrates how a doctrine of causation in tort law, which denies the possibility of objectively determining the causes of injury and which views injuries as statistical and collective phenomena, came to the fore in twentieth-century legal thought as a result of the breakdown of the formalistic categories that dominated late nineteenth-century tort law. Horwitz, supra note 2.Google Scholar

16 See E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), and Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977), for the opposite view.Google Scholar

17 See Tushnet, supra note 15.Google Scholar

18 For a more corrosive social vision–-of groups of individuals creating their own” semi-autonomous social fields” of rules, of groups that regard state-created law as tangential to their norms of conduct–-one should turn to the empirical work of scholars like Stewart Macaulay and Sally Falk Moore. See Macaulay, Private Government, University of Wisconsin-Madison, Disputes Processing Research Program, Working Paper 1983–6 (Revised) (1984); Moore, Law as Process: An Anthropological Approach ch. 2 (Boston: Routledge & Kegan Paul, 1978).Google Scholar

19 See Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon Books, 1974); Maureen Cain, Gramsci, the State and the Place of Law, in David Sugarman, ed., Legality, Ideology and the State 95 (New York: Academic Press, 1983).Google Scholar

20 This is very different from recent English Marxist studies of the importance of “socialist legality.” See David Sugarman, Introduction and Overview, in Sugarman, ed., supra note 19, at 1, 3; Allen Hunt, The Theory, Method and Politics of Critical Legal Theory, (manuscript, Legal Studies Institute, University of Wisconsin Law School, 1984); Andrew Fraser, A “Legal Amnesia”: Modernism Versus the Republican Tradition in American Legal Thought, Telos (forthcoming).Google Scholar

21 Mark Kelman, The Origins of Crime and Criminal Violence, PL at 214. None of the essays incorporate the perspective of recent social historians who have explored the ways different classes and social groups perceive law and legal rights. These writers have begun to develop a legal theory premised on the existence of courts and other legal institutions as terrains on which conflicting legal consciousnesses compete for ascendancy. See E. P. Thompson, The Grid of Inheritance: A Comment, in Jack Goody, Joan Thirsk, & E. P. Thompson, eds., Family and Inheritance: Rural Society in Western Europe, 1200–1800, at 328 (New York: Cambridge University Press, 1976);Michael Ignatieff, State, Civil Society and Total Institution: A Critique of Recent Social Histories of Punishment, in Sugarman, ed., supra note 19, at 183; see also David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984).Google Scholar

22 36 Stan. L. Rev. 1 (1984) (nos. 1 & 2 combined); 62 Tex. L. Rev. 1363 (1984); also the four-article Perspectives on Critical Legal Studies, 52 Geo. Wash. L. Rev. 239 (1984).Google Scholar

23 The Federalist Society.Google Scholar

24 Reporter at Large: Harvard Law, New Yorker, Mar. 26, 1984, at 53.Google Scholar

25 For an excellent recent introduction to Critical Legal Studies, see James D. A. Boyle, Critical Legal Studies: A Young Person's Guide, prepared for the most recent meeting of the Conference (manuscript, American University, Washington College of Law, 1984).Google Scholar

26 Robert W. Gordon, New Developments in Legal Theory, PL at 281.Google Scholar

27 Klare's study of labor law, e.g., blandly deprecates attempts to achieve workplace reform through assertions of legal rights, without ever mentioning that the question of the political and theoretical status and value of legal rights remains a matter of great controversy both within and without CLS. See Forum, 4 Indus. Rel. L.J. 449 (1981); Staughton Lynd, Communal Rights (manuscript prepared for 1984 CLS Conference), 62 Tex. L. Rev. 1417 (1984).Google Scholar

28 Compare Kennedy, supra note 2, with id., Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (Cambridge, Mass.: Afar, 1983). Similarly, see Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978); Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941, 62 Minn. L. Rev. 265 (1978).Google Scholar

29 See in particular Roberto Mangabeira Unger, Knowledge and Politics (New York: Free Press, 1975), and Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 205 (1979).Google Scholar

30 Note that this conflict between older and newer commitments and ways of thought may be fought out or suppressed in the individual's mind as well as in the trenches of scholarly writing.Google Scholar

31 See Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561 (1983).Google Scholar

32 See Boyle, supra note 25.Google Scholar

33 See Kennedy's reconsiderations in Peter Gabel & Duncan Kennedy, Roll Over Beethoven, 36 Stan. L. Rev. l (1984).Google Scholar

34 See Gary Peller, The Metaphysics of American Law (manuscript, 1984).Google Scholar

35 See Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984).Google Scholar

36 For an almost genealogical approach, see John Henry Schlegel, Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies, 36 Stan. L. Rev. 391 (1984).CrossRefGoogle Scholar