STRANGE AND UNSETTLING noises are coming from Harvard Law School these days. Listen to a few:
Prof. Jerry Frug says interpreting law is no different from interpreting Henry James. And as James himself observed in his fiction, it's often unclear what the author meant to say. In law, as in literature, Frug argues, "there seems to be no identifiable thing called an 'intention' that can guide a reader's interpretation of a text."
Prof. Roberto Unger attacks the notion of the rule of law as a deception used by those with political and economic power to control those who lack it. The courts serve the elite, "brokering small deals against a background of disputed facts . . . and supervising the police and prosecutors as they decide which violent members of the underclass to imprison."
Prof. Duncan Kennedy calls much of what is taught at places like Harvard "nonsense" -- little more than brainwashing to prepare future corporate lawyers for roles in society that are "alternately evil and inconsequential." Kennedy urges that new associates in big firms use "sly collective tactics" to "confront, outflank, sabotage or manipulate" senior partners.
Pretty wild rhetoric to be coming from faculty members of an institution revered by the profession for its hard-nosed trade school philosophy. Not surprisingly, the rebels, who call their cause Critical Legal Studies (CLS), have provoked a spirited defense of conventional legal education and practice. Paul Carrington, dean of Duke University Law School, for example, calls CLS "nihilism" and declares that because its adherents "profess that legal principle does not matter," they have "an ethical duty to depart the law school."
At times, CLS does resemble an exercise in legal self-hatred. Leftists who decry duplicity and oppression in the system earn their keep by training the system's leading practitioners. Despite this contradiction, the CLSers do not deserve to be hounded out of Harvard or the handful of other law schools where they are cloistered. As extreme and occasionally irresponsible as they are, these critics provide valuable dissent in an era of widespread legal ferment.
The CLSers' disillusionment with mainstream jurisprudence is also worth considering in light of unrest on a very different front. At the pinnacle of private practice, the Olympian firms of Wall Street and K Street, young lawyers are increasingly expressing frustration over the grander pretenses of their profession. The trend is unfocused and nearly impossible to quantify, but one theme sounded by many young lawyers is that the job just isn't what it's cracked up to be: Rather than pursuing justice as officers of the court or exploring constitutional frontiers, they serve the narrow interests of big business as highly skilled mechanics. The tedium of crossing "T"s and dotting "I"s, they find, is exceeded only by that of "cite-checking" a brief with 150 footnotes.
Neither form of disillusionment threatens to revolutionize the American legal system anytime soon. However much alienation exists in the corridors of the blue-chip firms, top dollars still attract top talent. Similarly, although CLS has sparked rancorous faculty feuds at Harvard, the ivied walls stand firm. Competition for admission remains as fierce as ever. Graduates have their pick of $40,000-a-year apprenticeships, which can lead to six-figure partnerships within a half-dozen years. Contrary to press reports that left-wingers have taken over at Harvard, most sophisticated nose-counters say there are at most seven tenured CLS loyalists on a faculty of 65. Across the country there are probably no more than several hundred lawyers and professors who associate themselves with CLS.
Nevertheless, both the corporate bar and the legal professoriate would be well advised to pay attention to those who are rattling their cages. CLS raises questions that should trouble members of these powerful clubs, as well as anyone else who attempts to portray law as the neutral arbiter of conflict.
Critical Legal Studies blossomed at Harvard in the late 1970s, but its roots reach back to an intellectual revolution that reshaped American jurisprudence early in this century.
By 1890 American legal thinkers had reached a consensus based on three central assumptions: a formalistic, deductive approach to legal reasoning, a vague belief in natural law, and an unquestioning fidelity to precedent. By selecting the proper rules to apply to cases, judges assumed they could "scientifically" arrive at predictable and uniform decisions. The case method, invented at Harvard in the 1870s by Dean Christopher Columbus Langdell, taught students that by parsing judicial opinions they would discover the uniform principles that determined decisions. "The rules of law," one legal study at the time declared, "are founded upon principles of right and justice that never change."
The Langdellian orthodoxy received a severe jolt in the '20s and '30s from a group of scholars at Columbia and Yale who dubbed themselves Legal Realists. Relying on common sense and lawyerly experience, the Realists argued that judges could find rules and precedents favoring either side of most disputes. Rather than obeying deductive logic, they were more likely to reach a result based on personal and class beliefs. Law, in a slogan some Realists encouraged, is merely a matter of what the judge ate for breakfast.
After World War II, new theories surfaced to blunt Realism's pointed descriptions of how law works. The Legal Process school, for example, celebrated what the Realists had criticized. Where the Realists saw vagueness, the Legal Process school celebrated the flexibility of legal doctrine. Through "reasoned elaboration" of the rules, wise judges could combine considerations of public policy with more traditional common law principles. Legal Process adherents, many of them ex-Realists, tended to avoid troubling questions of substantive injustice by focusing their attention on procedure: which court has jurisdiction, who has the right to sue, where the lines lie between legislative and judicial authority.
The problem was that polishing the mechanisms of legal procedure will take you only so far. Few scholars today consider Legal Process weighty enough to be called a philosophy. But no coherent alternatives have emerged. For more than 25 years, law schools, including Harvard, have been teaching a largely theoretical hodge-podge of Langdellian deductive science, toned-down Legal Realism, and comparative public policy. In the late '60s, many schools added "clinical" programs which enabled students to serve poor people in the local community while learning a few tricks of the trade.
It is this intellectual logjam that CLS is trying to explode. Prof. Robert Gordon, a CLS legal historian at Stanford, explains that for him and his colleagues, the resistance began in law school in the '60s: "The vision of law as a technocratic policy science administered by a disinterested elite was tarnished, to say the least, for anyone who watched the 'best and the brightest' direct and justify the war in Vietnam." Experience with liberal reform attempts only aggravated resentment of the legal establishment, Gordon writes: The "greatest contribution" of poverty law work "was probably an education in all the myriad ways in which the system was not a set of neutral techniques available to anyone who could seize control of its levers and pulleys but a game heavily loaded in favor of the wealthy and powerful." Fueled with an angry updated version of Legal Realism, some young lawyers sought academic jobs, searching, according to Gordon, for "a theory . . . that connected what happened in the legal system to a wider political-economic context."
In the relative isolation of the ivory tower, the CLSers found their quest taking them from left to further left. They adopted their name and many of their ideas from the "critical theory" of German philosophers who used Hegelian, Marxist, and Freudian thought to expose oppressive elements and contradictions in capitalist society. From the French structuralists and deconstructionists, the CLSers borrowed techniques of literary analysis with which to dissect legal doctrine. This is what CLSers refer to as their "fancy stuff."
Jerry Frug of Harvard, for example, invokes the theories of philosopher-critic Jacques Derrida when arguing that the meaning of laws is as open to dispute as the meaning of novels. Literary texts, according to Derrida, are what the reader makes of them; the crucial creative process takes place in the mind of the reader, not that of the author. Relying on sweeping analogies, Frug contends that no one interpretation of a statute or court precedent is any more valid than another. By disguising their actions as constrained by the intention behind legislation or earlier legal opinions, judges "establish legal rules without taking responsibility for what they are," according to Frug. "They hide -- even from themselves -- the extent of their own role in choosing what these rules are."
The CLS approach can be lawyerly and highly practical: It teaches students how advocates use the law to protect the bad guys as well as the good guys. The point of CLS, says first-year Harvard student Richard Appel, is "more than convincing you one way or the other. It seems indispensable for understanding what's going on in the doctrine." A vocal minority of conservative students at Harvard complain about the blatantly political motivation of CLS deconstruction. But for others, CLS has been a positive revelation. "When I got here I didn't know from Marx or Hegel," says one third-year student. "But (the CLSers) were talking about what I thought was important -- that people have meaningful lives."
CLS does not provide an index to determine the relative meaningfulness of different professional pursuits. But Duncan Kennedy, the movement's unofficial spokesman and cheerleader, leaves little doubt as to which job he considers to be devoid of meaning. "Corporate lawyers," Kennedy writes, "are in alliance with selfish business interests. They lobby against regulatory legislation and try to pick it to pieces in the courts; they do their best to bust unions, or to preserve 'union-free environments'; and by tax practice they mean tax minimization. In exchange for all of this antisocial activity, they receive grotesque monetary rewards, which they take without apparent trace of shame."
CLSers are equally strident when they turn their attention from the realm of private business to the public sphere. They have argued that antidiscrimination laws legitimate institutional racism by focusing largely on individual harms. The entire field of criminal law, according to one CLS critique, lacks logical coherence and often reflects the oppressive tendencies of lawmakers and judges.
CLS as law review metaphysics is far less appealing than CLS as corrective pedagogical tool. One of the first things you learn in law school is that legal discourse is misleading, sometimes purposely deceptive. "Thinking like a lawyer" often requires abandonment of the layman's common sense and directness. An important lesson to be drawn from CLS is that this tradition is wrong.
People should think twice about difficult choices dressed up as neutral workings of the law. Candor ought to be the rule, not the exception -- in judicial opinions as well as debates about how the courts should operate. Reflecting on his generation of Ivy League lawyers, those in their 30s, one Harvard professor not affiliated with CLS describes a group of "very intelligent people with a lot of ideals and ambitions." They left law school planning, if not to change the world, then at least to do something constructive. Most gravitated, naturally enough, towards large firms, where the right credentials and hard work bring handsome material rewards.
Yet more than a few of this professor's acquaintances are unhappy with their careers, despite apparent professional success. The law as practiced on K Street, they have discovered, has little to do with the problems of flesh-and-blood people, let alone broad questions of justice or equity. More often it consists of greasing wheels for faceless businesses, drafting gratuitous motions, and proofreading the fineprint of annual bond offerings.
"The actual business of law," says one veteran Washington attorney, "doesn't seem to interest" many of the brightest graduates from the best law schools. Explaining the causes of what she calls "four-year burn-out," the attorney says, "They don't realize law is a business. You have to develop markets . . . do painstaking, boring work . . . . They graduate from law school thinking law is one thing but in practice they think what they do is sleazy or demeaning."
Some aspiring lawyers encounter this experience even before taking the bar exam. "What amazed me," says one third-year Harvard student about his summer at a prestigious Wall Street firm, "was just how mundane the work is." Assigned to a multi-firm team supervising a routine securities transaction, the student "would sit at the conference table with nine to 10 other lawyers for six or seven hours and go over 90-page documents, out loud, word by word." There were 10 sessions, with partners charging about $200 an hour.
"The documents were the same as those used for years in earlier incarnations of the same deal," the student says. "The new draft would have a few commas moved and maybe a sentence deleted . . . . A skilled clerk could have done this work." The investment bankers underwriting the transaction dismissed it as a "'cookie-cutter deal,' because there really wasn't much work to be done." But "from what I saw," the student adds, "at a corporate law firm, that's what 'work' is."
Another Harvard student jokes bitterly that "corporate law is form over substance at all costs." He recalls being chastised by partners for composing memoranda on a typewriter. "This was the wrong image, I was told. Secretaries type; lawyers don't type." Fast acquiring a repution for attitude problems, the student later received a reprimand for typing an intra-office note on paper of the wrong color. "I suggested that it was more efficient to use plain white paper that I had at my desk. (The partner) told me, 'The goal here is not efficiency. The goal is perfection.' This is what they're worrying about . . . . The key to everything, I was told, is marketing yourself."
Few lawyers, Prof. Robert Gordon observes, "ever stop to think about what our profession actually accomplishes for the society or . . . . whether what it does is worth doing." Of CLS's many broadsides, this is among the simplest. But for lawyers, especially those not wedded to the mythology of the profession, it should be one of the most disturbing.