Law School Encounters with Critical Perspectives on Law: Part I

Over the past decade or so, critical theory and related critical perspectives have become a subject of widespread discourse in the United States and beyond. Discussions have occurred in school board meetings and corporate boardrooms, on mass media and social media platforms, and in many other settings. Many of these discussions have been contentious and counter-productive, but some have been thoughtful and constructive. As these discussions continue, some debate persists as to what exactly critical theory and related critical perspectives are, who rightly represents them, who correctly understands them, and who may properly criticize them.

As a lawyer and law professor, I have listened with interest to these discussions, and I have been reminded of my first encounters with these perspectives when I went to law school. In 1995, I finished my Master of Divinity studies at Southeastern Baptist Theological Seminary and began my legal studies at a non-elite American law school. Although I had studied biblical literature, theology, philosophy, ethics, and history, I was unaware of the “radical” perspectives on law that had been developing at elite American law schools for more than a decade and were being exported to law schools throughout the nation. At the time, the most prominent of these radical perspectives were Critical Legal Studies (CLS), Critical Race Theory (CRT), and Feminist Legal Theory (FLT). [1]

These perspectives were transmitted from elite law schools to other law schools by various means. Proponents of these perspectives organized conferences at which they presented papers and networked with likeminded and sympathetic professors. They developed casebooks that were published by leading legal publishers for use in law schools, and they published scholarly writings in student-edited law journals. Graduates of elite law schools joined the faculties of other law schools, and law professors eager to be associated with the theoretical avant-garde published their own scholarship demonstrating their affinity and applying these developing approaches in various areas of law. Each of these means helped to facilitate the spread of critical perspectives within the legal academy. [2]

Because the legal academy provided a fertile environment for critical perspectives to develop and spread, there may be some value for those who were trained in American law schools during the period when these perspectives were developing and spreading to share their experience with those who were not so trained. In a series of articles, I would like to give readers a glimpse into American legal education during the mid-to-late 1990s to see how one American law student encountered and began to evaluate these perspectives and how these perspectives factored into the formation of American law students, lawyers, and judges.

I will begin by sharing about my initial encounters with these perspectives in several of the courses that I took in my first two years of study, and I will focus especially on the casebooks for these courses. After considering these courses and casebooks, I will next consider how two other courses that I took and a book that I read during my third year of law school helped me evaluate critical approaches to law. Finally, I will conclude with some observations drawn from my initial encounters with critical perspectives on law during my legal training in the 1990s and from my subsequent experience in law and legal education. [3]

Footnotes

[1] The origins of critical theory are traceable to around 1930. Critical Legal Studies (CLS) is traceable to the mid- to late-1970s, and Critical Race Theory (CRT) and Feminist Legal Theory (FLT) are traceable to the 1960s and 1970s, the civil rights movement, and second wave feminism. In the mid-1980s, several pieces were published in widely circulated publications that made the broader American public aware of the critical approaches to law developing at elite American law schools, particularly at Harvard Law School. In 1984, the New Yorker published a piece by Calvin Trillin entitled “A Reporter at Large: Harvard Law,” and then in 1986, The Washington Post published a piece by Paul Barrett, a second-year student at Harvard Law School, entitled “Self-Hatred and Doubt at Harvard’s Law School,” the Wall Street Journal published Terry Eastland’s “Radicals in the Law Schools,” and The New Republic published Louis Menand’s “Radicalism for Yuppies.” Proponents of these perspectives have themselves used the term “radical” to describe their interest in social and political perspectives calling for fundamental social and structural change

[2] Within the legal academy, many responded disapprovingly to these new perspectives. For instance, Paul D. Carrington, Dean and Professor of Law at Duke Law School, published a widely-discussed article addressing the threat posed by critical legal theorists (crits) in legal education. He argued that the legal profession “cannot abide . . . the embrace of nihilism and its lesson that who decides is everything, and principle nothing but cosmetic.” Furthermore, he wrote, “[t]he nihilist teacher threatens to rob his or her students of the courage to act on such professional judgment as they may have acquired. Teaching cynicism may, and perhaps probably does, result in the learning of the skills of corruption: bribery and intimidation. In an honest effort to proclaim a need for revolution, nihilist teachers are more likely to train crooks than radicals.” Paul D. Carrington, “Of Law and the River,” Journal of Legal Education 34 (1984): 222-28.

[3] These articles do not undertake to provide a thorough theoretical evaluation of critical perspectives on law (or of critical theory more broadly). Many scholars are engaged in that crucial work, but it goes beyond the scope of these articles.