Law School Encounters with Critical Perspectives on Law: Part II

In American legal education, full-time law students undertake a three-year course of study that introduces them to the legal subjects most crucial to the practice of law in the United States. The basic curriculum includes required courses in civil procedure, constitutional law, contracts, criminal law, property, and torts. Casebooks published by legal publishers factor significantly into the coursework, for they provide excerpts of judicial opinions and other materials to teach legal principles and rules, illustrate their applications, provide historical backgrounds, and introduce theoretical concepts. Casebooks are regularly updated with recent judicial opinions and other materials, and as a consequence they can shed light on doctrinal developments and theoretical shifts. The editions of some of the casebooks I read in law school provide insight into how American law students were introduce to critical approaches to law in the 1990s.

For instance, I encountered critical perspectives on law in the required contracts course in the fall of 1995. The assigned casebook was the third edition of law professors Charles L. Knapp and Nathan M. Crystal’s Problems in Contract Law: Cases and Materials, published in 1993.[1] The book began with an introduction that, among other things, acquainted students with various perspectives on contract law theory, including critical approaches. After observing that critical theorists have brought about “[p]erhaps the greatest recent controversy in legal scholarship,” the authors noted that CLS scholars (often known in the legal academy as “crits”) take the process of deconstruction farther than their predecessors, American legal realists.[2]

CLS scholars “argue that it is impossible to discover or develop any rational system of decision-making within our legal system as it now exists,” Knapp and Crystal explained. Furthermore, crits “maintain that attempts to justify the existing legal process are essentially a form of political ideology, mere rhetoric having as its consequence the preservation of existing distributions of power and wealth in society.” The casebook authors also observed that CLS offered a critical outlook more than a program for social change and that some crits sought as their ultimate goal “a utopian society based on altruistic and communitarian values.” After discussing CLS, the casebook authors noted that other theorists, writing from feminist and racial perspectives, contend that “the law has often served the interests of white males at the expense of women and members of minority groups” (12).

I also encountered these perspectives in several elective courses.[3] In the summer of 1996, I took two elective courses that more extensively introduced critical approaches to law. The first was a course in race and the law. The assigned text was the third edition of law professor Derrick Bell’s Race, Racism and American Law, which was published in 1992 when he was a member of the Harvard Law School faculty. Bell played a principal role in the origins of CRT, and his text surveyed race and racism in American law and introduced law students to some key ideas.

In Chapter 1, Bell highlighted two key components of racism in America:

1. the sense that white people are a superior order of humanity and black people an inferior order, and
2. the sense that America is a white country and Black institutions are unnatural and suspect and ought not be encouraged.

At the end of the chapter, Bell argued that racial tactics had been successful throughout American history and that racism had served a stabilizing role in the nation. He also explained that “racial realism” needs to do to race relations what Legal Realism did to jurisprudential thought, which was to challenge “the classical structure of law as a formal group of ‘common law’ rules that, if properly applied to any given situation, would lead to a right—and therefore a just—result” (62-63). The chapter concluded with Bell’s appeal to replace “the racial equality ideology” in civil rights thinking with an approach that “recognizes the real role of racism in our society and seeks to deflect and frustrate its many manifestations” (63).

The second course in the summer of 1996 studied feminist jurisprudence. The assigned text was the first edition of law professors Mary Becker, Cynthia Grant Bowman, and Morrison Torrey’s Feminist Jurisprudence: Taking Women Seriously, published in 1994. After sketching historical and constitutional background, the authors turned to feminist theory. Following an excerpt regarding consciousness raising, male power, and oppression by feminist legal scholar Catharine A. MacKinnon, the authors explained that “consciousness raising is the fundamental feminist method,” but they also recognized that other methods or techniques (such as storytelling) have helped to “uncover[] women’s reality” (57).

Having identified consciousness raising as the primary method in feminist jurisprudence, the authors continued:

Consciousness raising critiques “objective” reality as women have been taught to see it (as natural, inevitable, fair) and attempts to formulate other ways of seeing reality. Consciousness raising rejects the notion that there is one objective reality independent of one’s perspective and interests. (57)

Rather than accepting a view that women’s status is personal and inevitable, consciousness raising offers a view that women’s status is political and changeable through political action. Furthermore, in the place of abstract universality that “constructs maleness as the norm of what is human, all in the name of neutrality,” feminism puts forward concrete universality, which regards context and experience as important aspects of knowledge. Additionally, feminist jurisprudence values women’s feelings and regards emotion to be closely related to reason (57-58). In their survey of feminist theory, the authors next turned to the issue of male-female difference, followed by theoretical approaches to “(in)equality,” essentialism, and heterosexism.

In the fall of 1996, I took an elective course on the American legal process. The assigned text was the second edition of federal jurist Ruggero J. Aldisert’s The Judicial Process: Text, Materials and Cases, published in 1996. Judge Aldisert sought to introduce students to how judges decide cases that come before them. In the Preface to the second edition, he observed that “a true revolution in legal philosophy [had] appeared around the turn of the [twentieth] century under the influence of three giants of the American legal tradition—Roscoe Pound, Oliver Wendell Holmes and [Benjamin N.] Cardozo.” In Aldisert’s view, these three “thinkers led us out of the discredited methodology of conceptual jurisprudence [i.e., formalism]—the view that a legal precept should be followed to its dryly logical extreme, regardless of its effects on society.” And he celebrated the generation of thinkers who followed these three and contributed to a new legal philosophy (Legal Realism) concerned with developing legal rules and institutions that yield desirable social effects and social environments that improve human life (VII).

In its treatment of the development of modern American adjudication, the second edition included a brief discussion of CLS, a movement that “contends that mainstream legal thinking is not the objective reasoning process it appears to be.” This movement, Aldisert explained, argues “that value judgments are endemic to the reasoning process, and that there is no neutral ratiocination, only interest-oriented rationalization.” Accordingly, crits presupposed that a judge’s value judgments are inherent in the judicial process in the endeavors (1) to find the law, (2) to interpret the legal precepts that are found, and (3) to apply the precepts to the facts that are found by the factfinder (99).

Footnotes

[1] I currently use the ninth edition of this casebook in the contracts course I teach, and it continues to include a brief introduction to critical perspectives on law, which I assign my students to read.

[2] Legal realists were a collection of early twentieth-century legal scholars who approached judicial decision-making with skepticism and sought to uncover the “real” reasons and motivations (such as personal beliefs or political biases) behind judicial decisions.

[3] The law school that I attended required students to take at least one legal perspectives course as part of their studies in the Juris Doctor program. I ultimately took five perspectives courses during my legal education.