The age of consent.
So what happened next? Did the society of which Gilmore wrote in the 1970s become more--or less--just, an assessment Gilmore claimed we could make by examining its laws? (1) There are encouraging signs that it did become more just, such as the broadening of access to health care by federal statute, (2) and the Supreme Court's declaration that the Defense of Marriage Act, which blatantly marginalized homosexual unions, was unconstitutional. (3) Or was there less justice, as a profusion of laws and regulations, like those of the federal tax code, were maniacally propagated, creating a jungle within which only the best-financed corporate predators could thrive?
I suppose the answer must be, as is so often the case with America, that all of these contradictory characterizations are true. We contain multitudes; we contradict ourselves. Law does reflect the moral worth of a society and thus it is, at any time, a mass of conflicting moral claims and entitlements. But Gilmore overstated matters, as he knew, when he asserted that the law in no sense determines the moral worth of a society." (4) Because law guides and channels our moral intuitions--determining at what moments our consciences are engaged to resolve which questions--such assessments are necessarily dynamic and subject to constant change. It is this interaction between the static studio portraits of a society as reflected in its laws, and the cinematic unribboning of law as it challenges, evolves, and shapes the very consciences that observe its development and on which it depends, that makes the moral evaluations of American society so complex, elusive, so legal in character.
Gilmore's conclusion was a paraphrase of Holmes, and it was to a biography of the great jurist and American superhero that Gilmore devoted his last years. The Harvard historian Mark De Wolfe Howe had begun the project, authorized by the Holmes Trust, but he had died having finished only the first forty years of Holmes's long life, before, that is, Holmes went on the Massachusetts bench and long before he was appointed to the U.S. Supreme Court at sixty-one. (5) Gilmore was not an unusual choice to succeed Howe. Though Holmes was known to the public as a great constitutional dissenter, his theories of contract (6) had brought him early fame. Moreover, Gilmore was a thorough New Englander and a prominent second-generation Legal Realist; perhaps the trustees thought his reticent and fastidious irony would render Holmes as compelling to future generations as he had been to the early Realists. Gilmore shared with Holmes a rigorous skepticism about reform movements, partisan programs, and political ideologies, indeed of systems of any kind. What he lacked was Holmes's willingness to let the chips fall where they may, and it was this failure of detachment, a quality so essential for a Nietzchean figure of Holmes's martial temperament, that led to a paralyzing estrangement between the biographer and his subject. Gilmore died fifteen years after receiving the commission and submitted no manuscript. (7)
Gilmore's rueful writer's block reflected the conundrum into which Holmes and the Realists had led American law. Legal Realism posed this challenge: If law was simply what the judges did, then how could they ever be--from a legal point of view-wrong? And if law was simply whatever the judges did--and they often contradicted and reversed each other and themselves--how could they ever be right? This unavoidably cast some doubt on the legitimacy of the judicial process.
This doubt particularly plagued constitutional law. It was one thing to say that great commercial and financial interests had influenced the drafting of the Uniform Commercial Code-that would hardly be surprising-or that the plaintiffs' bar had marshaled its political resources to effect ever broader statutory catchments for liability; that, too, was to be expected. But when the legitimacy of constitutional law was called into question, explosive charges were inserted beneath the very foundation of the rule of law: the idea that the state was constrained by law. Most acutely, the American practice of judicial review was called into question, for if there was no reason to believe that the judges had a legal basis for their decisions, then why should we not defer to the Congress and the state legislatures or the Executive, who could at least claim the political endorsement of the electorate? (8) If judges could never be wrong, then law itself was indeterminate--there was a correct argument for any conclusion-and the only explanation for the different results that judges reached had to lie outside the law in politics, ideology, personality, bias, and countless other factors, none of which provided, and many of which forfeited, the legitimacy of legal decisionmaking.
Gilmore's contemporaries working in constitutional law struggled, often heroically, with this problem. At the Harvard and Columbia Law Schools, Henry Hart and Herbert Wechsler proposed an answer. It wasn't what the judges decided but how they arrived at and applied their decisions that mattered. Judicial rule-applying must be a reasoned process of deriving rules from general principles of law-regardless of the substantive content of those principles--and following those rules resolutely in resolving actual controversies between adverse parties without regard to their status or to any fact not explicitly made relevant by the rule itself. (9)
On the U.S. Supreme Court, Justice Hugo Black proposed a different answer: not the legal process, as Hart and Wechsler's approach came to be known, but the plain words of the constitutional text provided the bases for judicial decisions. (10) The constitution's majestic absolutes-"Congress shall make no law ... abridging the freedom of speech or of the press"; "Nor shall any state deprive any person of life, liberty or property without due process or law"-supervened and cordoned off vast areas of judicial decisionmaking where politics and personality were forbidden to trespass. These provisions were to be applied according to the common understanding of the words to our contemporary publics, and not reconceived by doctrine or recondite, legalistic constructions. "No" meant "No."
At the Yale Law School, Charles Black--Gilmore's colleague and friend, the best man at his wedding--proposed yet another route out of the wilderness. Couits, Professor Black wrote, should look to the political structures ordained by the Constitution. American constitutional law could not be confined to constructions based on the history and text of the Constitution alone because many of its most important commitments lay in the relationships implicit among these structures. The democratic process, which authorized judicial oversight, and not the legal process isolated in an apolitical vacuum, legitimated legal rulemaking, for example. This could be inferred from the relationship between Article I and Article III of the Constitution whereby Congress established the federal court system, endowed it with jurisdiction, and expected it to apply the statutes the Congress had passed, subject only to the constitutional restraints to which the Congress itself was subject. (11)
Gilmore himself was intrigued by an approach proffered by the eccentric but hugely forceful Chicago Law School professor, William Crosskey, who gave a new, post-Realist twist to the originalist position--the position that constitutional interpretation is a matter of recovering the original intentions of the ratifiers of the text to be construed. Courts, Crosskey argued, should determine such intentions by examining the language of the society from which those ratifiers came. (12) Teasing out meaning from history had often been criticized by Realists as leading to labyrinths of indeterminacy, but Crosskey claimed we could avoid such mazes by taking words and phrases on their own historical terms and building up meaning to arrive at original intentions rather than the other way around, (13) as originalists had customarily done.
Alexander Bickel, a colleague of Gilmore's and Black's at Yale, pressed yet another alternative. Extending an approach with origins in the jurisprudence of Justices Louis Brandeis and Felix Frankfurter, Bickel argued that the practical consequences for the institutions of the law should guide judges in deciding how (or even whether) to apply the provisions and precedents of the Constitution. (14) As with the other second-generation Realist approaches, Bickel's sought a calculus long ratified by common law-in his case, a comparison of the costs and benefits of a proposed rule-and tried to connect it to a fixed position mandated by the Constitution, the institutional position of the judiciary, thereby limiting the discretion of judges and protecting their stature.
Finally, an outsider--if a philosophy professor educated at Princeton and teaching at Harvard can be deemed so--claimed that legitimacy for the rules of government could be established by applying a simple test. What rule, John Rawls asked, would we all agree to in the absence of any knowledge about its impact on ourselves? (15) Such a rule derives from the guiding ethos of any society whose laws are indifferent to the political, social, and economic interests of those who wield power-even the power of a majority of the electorate. Law professors-most influentially Ronald Dworkin--as well as judges and advocates, some who hadn't read the philosopher or perhaps did not even know his name, adopted this approach or others derived from it, (16) in the hope of finding that moral principle, that saving, generative ethical theory, that would allow them to decline the wormwood chalice proffered by Legal Realism.
Each approach enjoyed a temporary preeminence--even Crosskey's unusual historicism, which has recently experienced a renaissance (17)--but ultimately no one approach was wholly able to succeed because none was able to capture the unreflective consensus enjoyed by Formalism in its Age of Faith. New alignments formed, composed of the various approaches that had failed to achieve a stable hegemony: "strict construction"-composed of historical, textual and structural elements--vied with a congeries of allegedly more latitudinarian forms--doctrinal, prudential, and ethical methods of interpretation--that its opponents ingenuously decried as "judicial activism." But this simplifying, contrapuntal division made the problem posed by Legal Realism harder, because there was no legal reason to prefer one set of approaches to another beyond the claim that each made that it alone was lawful, on its terms. Gilmore's Age of Anxiety had become an age of uncertainty, of ambiguity, of incompleteness. Despite Llewellyn's hopes for a renewal of the Grand Style of judging, instead we witnessed a new and barbaric Formal Style, as Gilmore bitterly foresaw. Indeed the whole history of American law might have been summed up in Zbigniew Herbert's short poem From Mythology:
First there was a god of night and tempest, a black idol without eyes, before whom they leaped, naked and smeared with blood. Later on, in the times of the republic, there were many gods with wives, children, creaking beds, and harmlessly exploding thunderbolts. At the end only superstitious neurotics carried in their pockets little statues of salt, representing the god of irony. There was no greater god at that time. Then came the barbarians. They too valued highly the little god of irony. They would crush it under their heels and add it to their dishes. (18)
The attitude of the vandals was simply put by a constitutional lawyer, Martin Garbus, who wrote in the New York Times that
law is just politics by a different name, and ... most Supreme Court justices are result-oriented and choose legal theories (originalism, judicial activism and the like) as window dressing while they get where they want to go. Although these illusory labels can be treated as serious methodologies and may be of interest to law professors ... the American legal system [is] ... just another part of the government, neither higher nor lower than the other two branches, and one that must be muscled. (19)
This is a crude but powerful prudentialism. Unlike the prudentialism of Brandeis, Frankfurter, and Bickel, it is not concerned with protecting and preserving the institutions of governing--they are all the same anyway, on this view. These radical prudentialists--Gilmore disparagingly called them the New Conceptualists (20)--had forgotten, if they ever knew it, the insight that, "[t]o realize the relative validity of one's convictions and yet stand for them unflinchingly, is what distinguishes a civilized man...." (21) Instead, they hungered for certainty. Some, not finding it after the exposes of Legal Realism, marched into a politicized realm of cynicism, clothed in an idealistic truculence; others, also not finding the certainty of science, decided to invent it. Two movements, Critical Legal Studies and Law and Economics, arose, the illegitimate children of Legal Realism. They did not wish to slay their father so much as inherit his mantle. These movements were neither uncultured nor unsophisticated. On the contrary, their leaders were among the most cultivated and widely read of the legal professoriate, though they could often be uncivil and in their need for a reductionist certainty could appear to be bullying and naive.
Law and Economics at first appeared to be no more than one more iteration--if the most powerful--of the "Law and--"phenomenon that arose as a consequence of Legal Realism's claim that law was a social science if not quite the physical science envisioned by Langdell. Some law professors, like Eugene Rostow and Guido Calabresi, also had advanced training in economics. Soon, anthropologists, sociologists, behavioral psychologists, even psychiatrists, many without law degrees, began to appear on law faculties. Calabresi's The Costs of Accidents (22) quickly became a classic text, and excerpts appeared in the leading torts casebooks, (23) but Calabresi was clearly a law professor with formidable economic skills, not a neo-classical economist. As he himself wrote,
The classical economist will show ad nauseam that those who were made better off by moving to a free market choice system based on full costs could more than compensate those who were made worse off. The problem is that such hypothetical compensation rarely comes about. It may be too expensive; it may be made feasible only through the levying of taxes that misallocate resources grievously; or it may be politically impossible to accomplish. In all such cases, the theoretical desirability of the totally free market approach has little significance in practice. (24)
But the Law and Economics movement was not simply the "Law and Alfred Marshall Show. For one thing, it was a movement. Financed by corporations and foundations, it sponsored a series of annual workshops for law professors-Arthur Leff ridiculed these as "Pareto-in-the-Pines" (25)--to educate them in the new skills of microeconomics and indoctrinate them in the manner of political summer camps. At its core, Law and Economics relied on two controversial assumptions about the world.
First, the efficient markets hypothesis holds that markets provide and asset prices fully reflect all relevant information and thus provide accurate signals for the allocation of resources. (26) This idea is an inference from the second assumption, the rational expectations hypothesis, which states a postulate about the conduct of individual economic actors. (27) It holds that these actors form and update their judgments in response to available information in an optimal way (rather than, say, supposing that the future will resemble the past, as in adaptive expectations). It is consistent with rational expectations that outcomes depart unpredictably from expectations, as even a person acting rationally need not have perfect or complete information. But it is not consistent with the postulate for outcomes to depart predictably from expectations, as that departure would make the expectations not rational. Both of these hypotheses depend upon a more general assumption that people behave in ways that maximize those outcomes considered by them to be most desirable, and that they know how to do this by acting rationally. (28)
These hypotheses promised to serve as the basis for a radical reductionism when applied to law. Legal rules-such as those that govern liability for breach of contract or the commission of a tort, rules that determine property rights or responsibility for crimes and the sanctions we enforce against criminals--could be evaluated and so adjusted that the persons subject to those rules would produce, as efficiently as possible, the outcomes desired by society. All that was lacking was a principle, which would overcome the political objections to exalting the efficiency of public policy over other values by explaining that the distributive consequences of such an approach were negligible, and a clever rhetorician who would show not only how this was done but, in the spirit of Holmes's The Common Law, that it had always been the implicit logic of common law judges, even if they were unaware of it at the time. Thus the culde-sac into which Legal Realism had led American law could be deftly redesigned as a happy, if confined, roundabout. If law was nothing more than what judges did, it "turned out" (a favorite, cloying phrase of social scientists) that what they did was microeconomics.
In 1906, the Italian economist Vilfredo Pareto provided one half of the needed principle when he proposed to a society deeply riven by partisan and social conflict this modest intersection of interests: surely, he said, all would agree with a policy that made at least some people better off and made no one worse off? (29) The other half was given by the Chicago School economist Ronald Coase whose famous "theorem" proved that when transaction costs were not a factor-when, among other things, information was equally and cheaply available to all market agents--liability rules did not influence the efficiency of the ultimate allocation of resources. (30) Whether the legal rule made the rancher liable when his cattle trampled the crops of his neighbor or left the farmer to suffer without redress, the outcome was the same from society's point of view: the two parties would bargain, arriving at the most efficient outcome-a fence for example, whose cost was measured against the cost of the ruined crops and the profits of uninhibited grazing. The party who paid might be different but the total cost was the same whether fruitlessly suffered or fully compensated, and neither party was worse off than he would otherwise have been. (31) Taking these insights of Pareto and Coase together yielded this conclusion: a perfectly competitive market would result in distributions of wealth from which no one could be made better off without someone being made worse off. Any redistributive action--indeed any action at all to shift losses-was bound to make the market less efficient, regardless of its claims of justice.
Thus in the aftermath of the bitterly ideological conflicts of the twentieth century, an apparently objective method had been arrived at that eerily recapitulated Holmes's prescription:
[W]hen we are dealing with that part of the law which aims more directly than any other at establishing standards of conduct, we should expect there more than elsewhere to find that the tests of liability are external, and independent of the degree of evil in the particular person's motives or intentions.... They assume that every man is as able as every other to behave as they command. If they fall on any one class harder than on another, it is on the weakest. For it is precisely to those who are most likely to err by temperament, ignorance, or folly, that the threats of the law are the most dangerous. (32)
This "objective" method must have seemed right to many people in the late twentieth century after the terrible wars to determine whether communism, fascism, or parliamentarianism would be the legitimate constitutional order of the industrial nation-state, (33) conflicts that by some estimates had cost ninety million lives, (34) just as Holmes's formulation must have seemed correct after the Civil War-in which both sides appealed to God-had cost the lives of more than 750,000 American soldiers alone. (35) After such suffering, the desire for a consensus independent of ideology became itself an intense, ideological objective. Now the Law and Economics movement lacked only a virtuoso, and it found him in Richard Posner.
Richard Posner entered Yale at sixteen and left four years later with an English degree, summa cum laude. He had a dazzling career at the Harvard Law School--first in his class, president of the Harvard Law Review--before clerking for Justice William Brennan, at the time the most liberal member of the Supreme Court, and then working as an assistant to Solicitor General Thurgood Marshall. (36) A red-diaper baby from Manhattan, he might have been expected to join the lists of leftist law professors at the great American schools.
Something happened, perhaps not so different in kind from the street violence that radicalized the German jurist and fascist Carl Schmitt in the 1920s. The turmoil on American campuses, from which some schools like Columbia and Berkeley have never quite recovered, seems to have led Posner to question the liberal--and liberal/legal--notion of reasoned consensus.
"Politics is about enmity," he once said in words that could have been written by Schmitt. "It's about getting together with your friends and knocking off your enemies. The basic fallacy of liberalism is the idea that if we can get together with reasonable people we can agree on everything. But you can't agree: strife is ineradicable, a fundamental part of nature, in storms and in human relations." (37)
But that didn't mean law was politics. Indeed it pushed Posner the other way, in a search for a point beyond enmity and sectarianism. This he found in Pareto and Coase. After a year at Stanford, Posner moved to the Chicago Law School, where he grew to embody its famous empiricist model to such a degree that now the school resembles him. His most influential work, The Economic Analysis of the Law, is now in its ninth edition. (38) Most prominently in the first edition, however, it is composed of a series of marvelous sleights of hand, reminiscent of the mathematical transformations by which identities are proved in trigonometry, in which each branch of the law is resolved into a species of microeconomics. These transformations resemble the just-so stories of sociobiology and neuroscience, and other reductive centrifugal methods by which all the elements not germane to the particular qualitative sediment sought are spun away, an art of which Posner is a master and of whose exaggerations and distortions he is quite aware. Indeed partly by overstating his case he became, as of 2000, the most-cited legal academic in the United States. (39)
Posner has many gifts, including a lucid pen and a refreshing hostility to cant, and these two are allied with perhaps his most controversial trait, a Nietzschean detachment that doesn't "make allowances," (40) a quality of anti-sentimentality he shares with Holmes. (41)
Gilmore had identified, early on, the Holmesian legacy in the Law and Economics movement: "Holmes' strict definition of boundaries of liability, stress on the introduction of scientific and economic considerations to legal questions, and lack of social welfare consciousness have induced economists, and lawyer-economists, at the University of Chicago to claim Holmes as one of their own." (42)
But Gilmore also saw something more. When he gave his Storrs Lectures, his audience was shocked at the portrait of Holmes as the Mephistopheles to Langdell's befuddled Faust. Wasn't Langdell's attempt to found a "science" of law just the sort of naive law-quarrying that Holmes and the Legal Realists had ridiculed? Wasn't it Langdell's illusions that Holmes, Brandeis, and Cardozo, as well as Corbin and Llewellyn, had sought to dispel? Yes, but not only that. Just as Voltaire and the philosophes had accepted the basic tenets of the ideology they professed to despise--and just as the Roman Catholic Church had deftly moved to assume the scope and power of the Roman Empire it superseded (43) Gilmore saw a "community of interest" between the Realists and the Langdellians. (44)
Indeed, he went further. Though few appreciated it at the time, Gilmore not only saw Posner as Holmes's heir, but quite shockingly saw the Law and Economics movement as a repackaging of Langdellianism. In almost the last page of The Ages of American Law, (45) he quoted Posner's inaugural announcement of the Journal of Legal Studies, the house organ of the law and economics movement, with its uncanny repetition of Langdell's own goals, and even his metaphors:
The aim of the Journal is to encourage the application of scientific methods to the study of the legal system. As biology is to living organisms, astronomy to the stars, or economics to the price system, so should legal studies be to the legal system: an endeavor to make precise, objective, and systematic observations of how the legal system operates in fact and to discover and explain the recurrent patterns in the observations--the "laws" of the system. (46)
Llewellyn had hoped that the emergence of the Formal Style before World War I was simply an aberration and that the Grand Style would reemerge triumphant. (47) Like Llewellyn, Gilmore saw in Corbin's pragmatic treatment of contracts (48) and Cardozo's seductive case-lawyering (49) evidence that a more pluralistic, less formalistic style was emerging once again in American law. (50) Indeed Llewellyn's and Gilmore's efforts with the Uniform Commercial Code's open drafting style and its vague rules followed by extensive exemplary notes seemed to confirm this trend. Constitutional theorists like Bruce Ackerman claimed to find in the New Deal reversals of Formal Style opinions a "constitutional moment" of such consequence that it paralleled the adoption of the Civil War amendments that announced the Age of Faith and the founding cases of the Republic that marked the Age of Discovery. (51)
Alas, reports of the death of Formalism were exaggerated, as the Law and Economics movement demonstrated. Moreover, a simple indifference to craft, notoriously in Roe v. Wade (52) but no less in evidence in the jurisprudence of less controversial cases--whether striking at executive authority as in United States v. Nixon (53) or Clinton v. Jones, (54) or legislative discretion as in Reynolds v. Sims, (55) 56 or affirming congressional power as in Garcia v. San Antonio Metropolitan Transit Authority, (56) whether enforcing rights as in New York Times Co. v. Sullivan, (57) or trampling on them as in Bush v. Gore (58)--such indifference is not sufficient to merit the accolades of a "Grand Style" even if it is heedless of the rigors of a Formal Style. Perhaps a lack of style fitted the age. Perhaps it was an age of carefree vandals who smashed up things and then retreated back into their vast carelessness and let others clean up the mess they had made. That suggestion leads us to the other, post-Gilmore movement that, like Law and Economics, sought to build on the wreckage left by Legal Realism.
The movement that came to be known as Critical Legal Studies (CLS) was obviously not going to be impressed with argumentative rigor by judges whom it referred to as "toadying jurists." (59) Far from seeking a way out of Legal Realism, CLS embraced its critique of legal reasoning with a passionate intensity. The UCC that Llewellyn and Gilmore had crafted was too pluralistic, too craft-oriented. If the Law and Economics movement tried to restore an objective, universal calculus out of fear of the unknown, then CLS exploited this fear almost to sadistic depths, claiming that the lack of such a calculus meant that all was potentially permitted; what actually eventuated was the replication of oppressive hierarchies.
Two principles united the CLS movement: (1) traditional legal doctrines were incoherent, precisely because they were pluralistic; for every rule there was an opposite, equally plausible formulation and thus the system of rules was infinitely manipulable, indeterminate, and subjective; and (2) the system existed in this mystifying form in order to sustain a legal order that was the basis for corporate capitalism, distracting reformers and dictating who gets how much in society while legitimating an oppressive social order. Thus American law, which claimed to be to some degree autonomous from politics, was really only an extension of politics by other means. (60)
Although the CLS movement claimed continuity with the civil rights movement, this genealogy did not quite wash. The historic triumphs of the civil rights struggle were the laws they spawned, the Civil Rights Act of 1964 (61) and the Voting Rights Act of 1965, (62) and the numerous and courageous decisions of the Fifth Circuit judges who fearlessly interpreted Supreme Court precedents to destroy de jure segregation. (63) The true paternity of CLS can be found in the anti-war protests where demonstrators had circumvented the ordinary processes of representation and elections, shouting down speakers, closing classrooms and attempting to make the society ungovernable. That movement had not so much ended the war as forced the United States to abandon it; it was a heady experience that quite a few protestors were loath to leave behind. It created a generation infused with the confidence that the society looked to them for change, and that they, rather than the elected and appointed leaders ostensibly in charge, knew how to deliver that change. In the universities, perhaps especially in the law schools, they looked at their older colleagues--men who had supported the war, often in melancholy resignation--and did not want to be like them.
According to its principal theorist, Roberto Unger, Critical Legal Studies was composed of three principal perspectives: a claim of radical indeterminacy (64) that fed a deconstructionist critique, exposing the role of the status quo embedded in the assumptions of the American legal process; a functionalist, neo-Marxist position that appealed to the conventional left; and what Unger called a "micro-institutionalist" program that asserted that the alternatives to American practices had to be recovered from a canvass of the "institutional variations in present and past law" because such alternatives had, at the level of traditional ideological abstraction (e.g., socialism versus capitalism), evaporated. (65) This may have been news to Unger's companions at the outset of the movement in the 1970s, (66) but by the time of Unger's own Storrs Lectures in 1994 (67) the appeal of Karl Marx had considerably waned.
In the meantime, from roughly 1977 and the founding CLS Conference at Ann Arbor to the disillusionment with which it is today generally regarded, (68) CLS ridiculed, insulted, and assaulted the liberal establishment that had overwhelmingly dominated the elite law schools. Duncan Kennedy, the charismatic face of CLS for most Harvard Law students, had grown up in Cambridge and had known Mark Howe, Louis Jaffe, and Ben Kaplan-all senior members of the Harvard Law School faculty who were widely revered and stood, like Gilmore, for a particular kind of post-Legal Realism that was "skeptical of any attempt at grand theory of either a descriptive or a normative land." (69) They reminded Kennedy of the pre-Civil War Northern Democrats of whom Henry James wrote,
Such was the bewildered sensation of that earlier and simpler generation ... that ... their illusions were rudely dispelled, and they saw the best of all possible republics given over to fratricidal carnage. This affair had no place in their scheme, and nothing was left for them but to hang their heads and close their eyes. (70)
The Crits had captured something altogether true about the dominant post-Realist Law School: its members struggled to justify themselves when confronted by the very heirs whose patrimony they had attempted to preserve. Gilmore's generation had tried to rebuild a bulwark against Legal Realism; CLS wanted to make sure that didn't happen.
A paramount issue was the question: what should the sequel to nineteenth-century legal science ("doctrinal formalism") be? The point was a contest over the method of reasoned elaboration: the purposive interpretation of law in the vocabulary of impersonal policy and principle. The mainstream schools of legal theory-philosophies of right and justice, law and economics, legal process--tried to ground this analytic practice at a moment when its assumptions were already ceasing to be credible. The point was to argue for another future for legal analysis. (71)
Some of its adherents--but by no means all-credit CLS with the success that the legitimacy of conventional American legal practices has never been reestablished. I would be inclined to attribute this to Legal Realism, but if the advocates of CLS simply mean that they renewed the insights of Legal Realism against those in Gilmore's era who tried to fashion a post-Realist jurisprudence, perhaps they are right in their claims. CLS was always redefining itself to avoid its critics rather than answering them; for example, to the charge that the movement had collapsed by the mid-90s, Unger rejoined, "Those of us who called it a movement did not intend to establish a permanent genre or school of thought but rather to intervene in a particular moment, in a particular direction." (72)
Were there few constructive ideas? CLS was therapeutic, not constructive. The very suggestion that they should have a replacement for the conventional practices was a contemptible affront, an insidious effort to co-opt them into reforming an irremediable enterprise. (73) Were the leaders a bit too elitist, too upper-middle class, too interested in good restaurants, for the masses whose interests they claimed to champion? They weren't Leninists, for heaven's sake; rather, a new organized "left bourgeois intelligentsia" that would one day merge with an unspecified mass movement to initiate "the radical transformation of American society." (74)
But to note these aspects of the movement misses its appeal to my generation. In the first place, CLS's leaders had considerable gifts at doing the doctrinal analysis that their predecessors thought so essential. As Daniel Markovits later observed,
[E]ven as its practitioners deny that doctrine can decide cases, they retain a formalist's aesthetic love of doctrine (something lawyer-economists almost at once abandoned). If one looks at Unger's "The Critical Legal Studies Movement," [and one might add, Duncan Kennedy's "Form and Substance in Private Law Adjudication,"] one finds page after page of genuinely first-rate private law doctrinalism, just aimed [in] a direction almost exactly opposed to the one that traditional doctrinalists pursue. (75)
Moreover, its leaders had for many of my contemporaries a charm and rebellious attractiveness. Kennedy himself was an irresistible Pied Piper for some students (though an equally irresistible target for their professors). This was the advice he gave to students who regrettably went to large law firms: "[Resistance] means engaging in indirect struggle to control the political tone of the office, say by refusing to laugh at jokes. Blank expressions where the oppressor expects a compliant smile can be the beginning of actual power." (76) It is hard not to see why some at the time linked such advice-as opposed to trying to persuade, by example, young lawyers to abandon their customary milieu in favor of living with the poor-to the prep school student, home on break, who tries to shock his parents' friends at dinner.
While CLS built a large body of scholarly work that was heavily freighted with inherited jargon--"fundamental contradiction," "false consciousness," "counter-hegemonic consciousness," "ideological state apparatuses," even "deviationist doctrine"--it needed the adroit elusiveness of its own Jack Flash, a rhetorician with considerable terpsichorean skills. To float like a butterfly escaped from the chrysalis of the leaden law school, to sting like a bee-see Mark Tushnet's acid attack on Laurence Tribe (77)-CLS had to have the dance step of a Duncan Kennedy. Although convinced that the existing legal and social arrangements should be free of the hegemonies and hierarchies that currently prevailed--Kennedy proposed that salaries for janitors and law professors be equalized, (78) that students be admitted to the most prestigious law schools by lottery (79)--CLS exponents' influence derived in great measure from their seizure of the commanding heights of tenured professorships at the Harvard Law School, whose position at the apex of legal education they gleefully exploited. Blocking appointments on political grounds, (80) vituperatively attacking colleagues in print, persuading the law reviews to accept submissions they merrily called "trashing," (81) CLS seemed, for a time, where the future of law, or at least the study and analysis of law, lay. (82)
But CLS, while it offered a generation hope that a change of consciousness would open up as-yet-undetermined ways of avoiding the delicate balancing of values that the preceding generation had cultivated within the walled garden of its privileges and its power, was never able to deliver on its promise. How was consciousness changed by lawyers and judges if not by law? What did a change in consciousness amount to if its vision was not secured by laws? The fatal blows to the movement were delivered by other, more authentic movements--feminist and race theorists who had no trouble finding an Archimedean point on which to base their preferences and lever the society. CLS's principal theorist, Roberto Unger, seeking just such a fixed point in the widening gyre, had ended his most famous work with the plaintive, "Speak, God," (83) but the feminists and race activists did not need any divine confirmation. Indeed, what they sought was confirmation of their victories in the courts and legislatures--that is, they sought the very imprimatur that CLS was busily trying to discredit.
A young professor at the Yale Law School, Arthur Leff, answered Unger with a witty reply in the form of a memorandum from "The Devil." (84) Leff, a commercial law scholar, had been plucked from obscurity by Gilmore and brought to New Haven. He saw clearly that neither Law and Economics nor CLS could validate itself in the post-Realist environment without privileging its own normative assumptions (whatever the merits, and these were disputed, of their descriptive projects). Without some external referent-without God's guidance-all our normative systems and intuitions were contestable, and if the contest was to be waged by legal argument, then the indeterminacy at its core that the Legal Realists had identified made the entire enterprise a bad joke. Of course the Crits saw this; that is why they claimed it didn't really matter that they had nothing constructive to replace the system they trashed. The difficulty they encountered was that while they were reassuring themselves on this point, the Law and Economics movement was putting judges on the bench, writing deregulation into statutes, and resolutely replacing the liberal state's hostility to the unregulated market with deference to markets untrammeled and undisturbed by law. (85) Things were changing all right, but not in the direction CLS had anticipated.
Leff skewered the Law and Economics movement for its counterintuitive pyrotechnics. Wherever Posner found an inefficiency and mocked the ineptitude of a rule, Leff simply asserted a different value being maximized. (86) How could Posner say he was wrong if the ultimate test was what society actually does? Even if it was accepted that the common law could be explained as the result of unconscious, perhaps genetically driven impulses to efficiency-- a bizarre marriage of Richard Dawkins and Ayn Rand, a union one would not want to visualize--this did not provide the basis to find an ultimate warrant for efficiency as the touchstone for justice (though Posner once claimed that justice simply was efficiency (87)). As CLS had shown in the discrediting of the liberal state, a mere practice could not provide justification for itself. The problem with the Law and Economics movement was that it wasn't conservative enough. It had nothing to say about the values of decency, modesty of ambition, deference to tradition, reverence for sacrifice, privacy, loyalty, courage, fidelity, or even simple honesty. It might be possible to link these to efficient outcomes--and if anyone could do it, the artful Professor Posner was the person--but there hardly seemed any necessary link and there were many obvious counterexamples. The problem with CLS was that, for all its defiant poses, it wasn't radical enough. It began as a Marxist movement just when Marxist regimes were being dismantled, wall by wall, barbed wire and all, in revulsion by those very persons they claimed to serve--persons who, "it turned out," preferred a liberal state. CLS then attempted to transform itself through dalliances with existentialism, decisionism, structuralism, and eventually postmodernism, chasing the avant garde and arriving only to find its new partner was already passe. (88) Building on the powerful insights of Legal Realism, CLS added little insight of its own. It was foreordained, perhaps by their common lineage to Legal Realism, that the movements would merge; and this happened in the person of Richard Posner himself, who became the last Crit, denouncing the pretensions of legal argument to form any structure of meaning beyond the service of power. (89)
Leff died at the age of forty-six in 1981; an austere eulogy (90) was written by Gilmore, who died the next year. Gilmore noted that Leff had devoted himself, in what were to be his last years, to writing a legal dictionary; Gilmore said this was a project "that no one else would have thought of." (91) There are some obvious reasons Leff might have set out to do it. It might have made his family some money. It was an open-ended outlet for his wit and clarity. (92) But was it not also a bulwark against his despair? For what the debate after Legal Realism ignored were the words, the legal concepts and doctrines we employed, deployed, criticized, rejected, refashioned, that had a legitimacy all their own. This wasn't justification-perhaps we still needed God for that-but it would allow us to go on. It didn't require that we throw away the ladder by which we had emerged from feudalism.
"Law and--" had implicitly disparaged such an enterprise, even while it paid it the false and sometimes smirking homage of claiming to "explain it. Yet as one of the most incisive American literary critics once wrote,
Some critics make a new work of art; some are psychologists; some mystics; some politicians and reformers; a few philosophers and a few literary critics altogether. It is possible to write about art from all these attitudes, but only the last two produce anything properly called criticism; criticism, that is, without a vitiating bias away from the subject in hand. The bastard lands of criticism can have only a morphological and statistical relation to literature: as the chemistry of ivory to a game of chess. (93)
To suppose, however, that the Law and Economics and Critical Legal Studies movements would appreciate that the source of their enthusiasms was also the source of their ultimate sterility would be to ascribe to them a depth of self-reflection even greater than the insights they ascribed to themselves.
The hunger for a validating foundation for law made an equally great impact outside the academy in the efforts of Congress, the regulatory agencies, and the judiciary to reduce the discretion exercised by officials. As a prominent Realist judge, Charles Wyzanski, put it: "Choosing among values is much too important a business for judges to do the choosing. That is something the citizens must keep for themselves." (94) If, as the Crits had argued, "who decides is everything, and principle nothing but cosmetic, " (95) then reducing the scope for decision by officials, toadying or otherwise, was a vital step in assuring fairness. If, as the Law and Economics movement had claimed, all decisions could be reviewed by the application of a discretionless, even mathematical, analytical rule, then repeated layers of review would eliminate the idiosyncratic and arbitrary, refining decisionmaking to that which most closely hewed to the calculus of efficiency. (96) The importunate and acerbic guests from Legal Realism that demanded a foundation for law do not depart if their demands are not accommodated, yet the result of trying to satisfy them is to live with their desires rather than our needs.
And so it has proved. After all, if there was no warrant for the assertion of particular values by judges, this was certainly true for less exalted figures like teachers, or policemen, or doctors. Whereas Gilmore's generation had tried to rescue common law notions of reasonableness, duty, consent and the like from the corrosive acid of Legal Realism that exposed their biased, unreflective and often contradictory precedents, the next generation struggled to find a technology of decisionmaking that would eliminate or at least minimize these flaws. (97)
It was already apparent that deep trends were developing in American law that would move its orientation away from the interest of groups, with which it had been concerned since the Civil War--racial and ethnic groups, unions, political parties, sectarian organizations, the underprivileged and the marginalized--to a greater focus on the individual. Initially this was manifested in a "rights revolution" wherein the interests of groups against the state were vindicated through individual lawsuits. But it is now becoming clearer that something more fundamental was at work, something of which CLS and the Law and Economics movement themselves were mere epiphenomena.
No doubt the most controversial of the Supreme Court's decisions at the time of Gilmore's lectures was Roe v. Wade, (98) which upheld the right of women to terminate their pregnancies. Here the rhetoric of rights proved problematic, however, as a broad political reaction arose that asserted the rights of the unborn, a group at least as vulnerable and underrepresented as pregnant women. One way to resolve this tension was to shift the spotlight from groups to individual persons. Three years after the lectures, the Court overturned an important rights precedent that had held corporations liable for the disparate racial impact of their hiring policies; henceforth, actual discrimination against the individual plaintiff had to be proved. (99) By 1995, the Court was holding unconstitutional the common practice of minority "set-asides --a means of assuring that a certain percentage of contracts went to vendors from certain recognized racial or ethnic groups. (100)
Perhaps this trend to empower the individual reached a turning point with the reversal of the right/privilege distinction. In an 1892 case brought by a Boston policeman who was fired for the expression of his political views, Holmes had written that the 'petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." (101) While courts had accepted claims based on an abuse of discretion by officials, the presumption lay in favor of the person exercising official responsibility. Now, widespiead skepticism of, even hostility to, duly constituted authority replaced the deference of earlier generations as the public was persuaded that government officials had deceived them--especially regarding the Vietnam War--and were in collusion with powerful interests to preserve unsafe automobiles, pervasive pollution, and a rigged political system that favored incumbents and suppressed challengers.
In the midst of the war, five high school students in Des Moines, Iowa were suspended after they wore black armbands to class in protest. The Supreme Court announced that public schools should not be "enclaves of totalitarianism" and held the suspensions unconstitutional. (102) I doubt the Court realized that this decision protecting nonverbal forms of political action would lead, eventually and perhaps unavoidably, to the evisceration of campaign finance laws and the holding in Citizens United v. FEC that the Congress could not regulate private funding for political campaigns because campaign contributions--like other non-verbal demonstrations-were actions protected by the First Amendment's bar against laws abridging free speech. (103) For in a political environment dominated by expensive media campaigns, who can deny that once the limitation on the First Amendment to the spoken or written word is dispensed with, the checkbook of the millionaire speaks at least as formidably as the armband on an adolescent? If we weren't willing to trust the discretion of highhanded school administrators with an alleged taste for the "totalitarian," why would we trust the Congress, an ongoing class reunion of politicians, to set rules for the behavior of those who wished to unseat them?
A few years after the Des Moines case, four students attacked a school security officer after he intervened to halt a brawl in the lunchroom. The school principal, who herself had witnessed the incident, promptly suspended the four students. But the Supreme Court reversed the suspensions holding that the status of being a student was a protected property right within the Fourteenth Amendment. (104) That same year, the Court held that students who had been suspended for spiking the punch at a school dance could sue school administrators for monetary damages for the violation of their Fourteenth Amendment rights to a hearing. (105) Subsequently, the Court extended similar rights to government employees who faced termination.
One impact of what Henry Friendly called a "due process explosion" (107) was to invite protracted and costly jury trials-or the threat of jury trials--where institutions and governments had to justify their decisions. Increasingly these institutions sought to avoid making discretionary choices they feared might be costly to defend.
The fear of costly litigation infected many ordinary daily decisions. It wasn't simply that persons involved in the administration of schools, hospitals, churches, parks, and sports leagues suddenly faced frivolous and yet expensive lawsuits; it was that the consciousness of the ordinary person who had had little to do with lawyers now felt a threatening, litigious presence in the background of everyday life. It was often reported that a significant share of medical expense went to unnecessary, defensive tests, (108) and the popular press delighted in reporting absurd tort cases. (109)
Holdings protecting the Fifth Amendment rights of criminal defendants to remain silent and the Sixth Amendment right to counsel (110) were added to the Supreme Court's controversial exclusionary rule. The exclusionary rule held that evidence improperly collected-without a valid warrant for example-could not be constitutionally introduced at trial. (111) Soon, criminal trials were chiefly about criminal procedures which were in turn chiefly about the application of constitutional rules. The aggressive defense of defendants meant guilty, often dangerous defendants were acquitted on what were obvious technicalities, i.e., flaws in the investigation and prosecution of the case that did not relate to the guilt or innocence of the defendant. A prominent lawyer and public interest advocate, Philip Howard, concluded, "[i]n the place of officials who had been unfair, [now there were] self-interested individuals [who] bullied the rest of society." (112) As a result, "[r]ace relations were strained, government unresponsive, schools unmanageable and [criminal] justice perceived as a game." (113)
Whatever the effects on institutional practices, the consequences of these developments for the standing of lawyers and the legal profession were catastrophic. While the number of lawyers doubled in the quarter century after Gilmore's lectures, (114) their standing in the public eye plummeted. In 1977, the Supreme Court handed down its decision in Bates v. State Bar of Arizona (115) striking down a ban on advertising by lawyers. Holding that such advertising was commercial speech protected by the First Amendment, the Court held that the public's access to information about the pricing and availability of legal services outweighed the Bar's desire to maintain an image of professionalism. "Bankers and engineers advertise," Chief Justice Burger wrote, in a remarkably obtuse observation, "and yet these professions are not regarded as undignified." (116)
Just how far the public perception of such a change in the role of lawyers went can be seen eight years later when the Supreme Court handed down Supreme Court of New Hampshire v. Piper in 1985. (117) Kathryn Piper was a lawyer who lived in Vermont but wanted to practice law in New Hampshire, as she lived quite close to the state line. She submitted her application to the New Hampshire Bar Examiners, took the bar exam and passed but was then informed that she would have to establish residence in New Hampshire before she could be sworn in. (118) It had been assumed that, at least for the purposes of Article IV of the U.S. Constitution, states had considerable leeway in setting the requirements for the offices of state, which were distinguished from mere businesses. (119) Nevertheless the Court had little difficulty in identifying the lawyer's role as essentially that of a market participant, and struck down the New Hampshire requirement of residency. (120) The notion of the attorney as an "officer of the court" seemed quaint.
It had long been an open secret that law firm partnerships were becoming rarer and more tentative when they were awarded. Partners didn't expect to stay with the same firm for an entire career and firms didn't commit to retaining partners in whom they lost confidence as generators of profits. More adversarial relationships seemed to prevail among lawyers even outside the courtroom, depositions dissolved into efforts to intimidate and humiliate, and the Moloch-like rule of billable hours seemed to taint all participants who sacrificed, and were sacrificed, to it. Deborah Rhode, the director of the Stanford Center on the Legal Profession, has recently described a deep dissatisfaction throughout the legal profession that, she has concluded, is reflected in the high rates of stress, depression, and substance abuse reported in numerous surveys. (121)
From the protectors of litigant's rights, lawyers came to be seen as hectoring tormentors when these rights were no longer perceived as reasonably limited. But who was to say what was "reasonable"? Judges had been doing that--the "reasonable man" appears as often in judicial opinions as a butler in English country house mysteries--but something had changed. We no longer believed that the reasons judges gave for their rulings accurately reflected the true grounds for their decisions.
Partly this was the result of the late nineteenth and early twentieth century dethronement of the autonomous mind, a revolutionary defenestration as to which the Legal Realists had played the role of enthusiastic Jacobins. Minds, judicial or otherwise, were no more than brains, subject to the vagaries of billions of chance, evolutionary twists of the helical ascent by which man had abandoned his brother the chimpanzee; minds were "conditioned" by class preferences and the cultural hegemony of ruling groups; minds were unconscious, pushed by the lingering effects of unrecognized and distant traumas, pulled by the attractions of pheromones and artfully shaped chrome automobile grilles.
But mainly, the discrediting of judicial autonomy sprang from the same origin as the discrediting of the autonomy of law itself, the move from observing that law was no more than whatever the judge said it was to the demand that we find out just what was motivating judges if it was not the reasons they gave for their rulings. Thus was the green apple of self-knowledge cultivated by the Legal Realists and consumed by the Republic. If the liberal state's balancing of interests was the death of Reason, as Duncan Kennedy liked to quote-the death, that is, of Formalism-then what demonic forces were alive and calling the shots?
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|Title Annotation:||American legal history since Grant Gilmore's presentation of the 1974 Storrs Lectures; I. through V., p. 2234-2365|
|Author:||Bobbitt, Philip C.|
|Publication:||Yale Law Journal|
|Date:||May 1, 2014|
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