On the occasion of the republication of the “blue volume,” containing the proceedings of the 1986 “Critical Legal Thought: An American-German Debate” Conference at the University of Bremen Law School, much or little might be said as to the significance, promises or learned lessons of that event. The original conference conveners, like the editors of the ensuing volume, do much of that in the following pages. In fact, their recollection of the motivations and ideas driving the transatlantic event provides a marvelous view into the evolving mystery of legal thought, education and professionalism - on both sides of the Atlantic. The two accounts rightly embed the mid-1980s conference in a much larger historical context. Christian Joerges’ much-referenced account reaches back deep into the constituting phases of nineteenth-century German legal thought. David Trubek's essay is a thoughtful critical assessment of both the gaps and the overlaps between the German and the American legal cultures in the lead-up to and of the globalizing aftermath of the event.

The motivation and agenda of the German contributors to the “German-American Debate on Critical Legal Thought”, were not, and certainly could not, be uniform, neither within the American nor the German group of participants, let alone between Americans and Germans. It seemed nevertheless obvious at the time that we shared a number of concerns. Four seemed obvious and particularly important: Uneasiness, albeit for different reasons, with our respective mainstream traditions; a concern for social justice, albeit in different societies and with different priorities; the critique of our educational systems though they differed so markedly; an awareness of the discrepancies between the law on the books and the law in action which generated contextual studies and all sorts of “law and…” endeavors. Neither during the laborious preparations of the 1986 conference nor during the equally demanding publication process and not even with hindsight is it conceivable to identify comprehensively and exactly our communalities and differences. This is why we have decided to write separate introductions. Mine will proceed in three steps. The first is a reconstruction of German, more precisely: my own, motivation and agenda (A). The second step reproduces in the form of an essay the proposal submitted to the Volkswagen Foundation in 1985, the funding organization for the conference (B). The third summarizes much more briefly what I see as accomplishments and failures - and ensuing challenges (C).

It is not easy to remember the thoughts and feelings that accompanied the American contingent's participation in the 1986 Bremen conference and which led to this volume. Time has eroded memories. But more than that, there is no single “American” set of thoughts and feelings to recall. Although we shared a desire to explore critical legal thought with colleagues from Germany, we were, in fact, a very heterogeneous group. We came together — momentarily — for the Bremen conference but we approached it from different perspectives, participated from different motives, and went different ways in the years after the publication of the book.

Historical evaluations are expected to mark a starting point and, at the end, produce a result, which then shows a “development” from the starting point. This development need not be in a straight line. It may have made detours and suffered set-backs. Altogether, however, it connects beginning and end like a red thread; it is possible to see from this the task of the historian, picking up this thread like a careful housewife, undoing knots and loops, winding up assiduously and finally presenting a tidy ball of work.

My story is a story about American Legal Realism. It is part of an attempt to understand what Realism was by addressing the question, “Why is the study of Realism a subject of legal history and not of current events?” Of course, the “answer” to such a question is made up of several partial answers, of which what follows is but one. Others would talk about the relationship between legal doctrine and capitalist economic development or about legal theory and political philosophy or about legal theory and legal practice, to name a few examples. However, this partial answer can best be approached by examining how a simple idea about law - the liberal idea of the rule of law in its guise as the “rule theory of law” - has had in its rise and in its demise an impact on legal education and to attempt to understand why that is so. My attempt however, requires that I start my story back aways with Christopher Columbus Langdell and the Harvard Law School.

Recent theories of societal development carry a heavy load; they are weighed down by their inheritance from the philosophy of history. Only at the price of a paradoxical forgetfulness can they ignore the fact that there have been predecessors, whose origin and decline, as well as the particular circumstances of their revival, must also be of interest. However, there appears to be a quest for the meaning of life, coupled with an aesthetic requirement to do a kind of elegant violence to historical complexity, which gives rise to such forgetfulness about one's own history. If one has discerned the difficulties with philosophy of history, it is only with considerable irony that one could erect a handsome structure in the form of a theory of development. There are, nevertheless, some lessons from the development of theories of development, which may permit a cautious advance. In what follows I want to attempt such a cautious advance towards a theory of legal development.

What should we make of Susan Silbey's call for socio-legal scholarship that is both critical and empirical? Do we think the law and society movement can and should develop a critique of the legal order? Can empirical research contribute to such a critique? Does the idea of a “critical sociology of law” make any sense at all?

Empirical research had already lost the possibility of a naive claim to objectivity when empirical legal sociology began work in post-war Germany. From the mid-1960s general sociology was involved in the “Positivismusstreit” and was discussing the influence of preconceived interests of perception, commonplace theories and social interaction on empirical observation. Social scientists widely accepted the view that social reality does not exist objectively, but emerges intersubjectively. Science also shapes social reality. For sociology there is nothing which can simply be counted and measured.

This paper describes a topology of legal thought and the social conditions (the larger social construction of reality) of which that topology, that thought, is a component. Part I is a description of the structure of legal thought; Part II of the social conditions (a theory of the state, or political economy). The Conclusion considers the place of traditional legal practice on a new landscape.

This paper provides an outline for a general theory of postwar U.S. labor law and regulation. It focuses on the structure and administration of the Labor Management Relations Act (LMRA), the centerpiece of U.S. labor policy over the past two generations. The central thesis of the analysis is that American labor law tends systematically to constrain and fragment worker organization, and is best understood as comprising a regulatory regime that both codifies and furthers the weakness of American labor. The organizing principle of this regulatory regime is the general denial of substantive generic entitlements for workers, and the general limitation of enforceable substantive worker claims to those claims arising from the guarantees of specific collective bargaining agreements negotiated within narrow contexts of union-employer dealings. As a consequence of this distinctive structure of interest articulation and satisfaction, unions rationally adopt highly particularistic bargaining strategies in their dealings with employers. As a consequence of such adoption, unions are divided within themselves, from one another, and from unorganized workers, with the result that workers overall are cumulatively weakened as a class.

So much has been written about liberal rights and critical legal theory that many of us begin to find the topic boring. It is with some trepidation that I impose yet one more discussion of rights analysis upon the waiting - but satiated - world.

In 1984, President Reagan signed a bill that created the Martin Luther King, Jr. Federal Holiday Commission. The Commission was charged with the responsibility of issuing guidelines for states and localities to follow in preparing their observances of Martin Luther King's birthday. The Commission's task would not be easy. Although King's birthday had come to symbolize the massive social movement that grew out of efforts of African-Americans to end the long history of racial oppression in America, the first official observance of the holiday would take place in the face of at least two disturbing obstacles: first, a constant, if not increasing, socioeconomic disparity between the races, and second, a hostile administration devoted to changing the path of civil rights reforms that some believe responsible for most of the movement's progress.

The first few years in the development of critical legal studies (CLS) saw an ongoing discussion of an issue that was framed as “rationalism v. irrationalism”. The labels, it now appears, were misleading, for the discussion can be better understood as concerning the utility - for purposes of orienting strategic action as well as of understanding the social order - of relatively large-scale social theories in the traditions of Marx and Weber. The distinctive contribution of CLS to leftist social thought, and the embodiment of the fact that one side in the earlier discussion more or less prevailed, is its insistence that a leftist social and political theory does not need to be grounded in that sort of social theory.