Critical Legal Studies Conference Paper
February 24, 1983
Socially committed law students and law teachers share at least one common set of frustrations and a common plight. Many students, we know, embark on a legal career as a path to a meaningful life, one in which their energies and talents can be put to loftier purposes than the chase of the buck, occupational prestige, or even the ego rewards of professional performance at a high level of competence. They want to use their skills to fight for a more humane society; they do not believe that their lives can unfold in a satisfying way when millions around them live lives of frustration and deprivation because of racism, sexism and poverty, denying them the opportunity to realize their human potential. In short, they are repulsed by the hired gun model of the attorney, and they want to find ways to better align their lawyering activity with their values.
Many of those who are initially so motivated find these goals unrealizable and conclude, even while in law school, that the only “realistic” goal is to pursue success as it is conventionally defined within law school and commercial practice. Thus as students they find themselves on the verge of embarking upon a lawyering career that they know in the end will use them, despite their wishes, for purposes of which they deeply disapprove. They foresee their future as one in which they sell their services to the highest bidder and put their energies and skills at the disposal of various legal causes more or less without regard to the social consequences.
To some degree I, as a faculty member, mirror what I describe: I aspire to humane values but find their realization often frustrated by the logic of an institution which ends up using me, despite my wishes, for purposes of which I deeply disapprove. In the name of skills training, I find myself often adopting an amoral stance in the classroom. I find myself ranking and sorting people through the grading process even though I am deeply skeptical about the connection between the grades I give and the student’s potential as a socially motivated lawyer. Through the grading process and through letters of recommendation to potential employers, I end up, willy-nilly, certifying that students have the qualities that the firms-for-the-wealthy are looking for, even as I reject the values implicit in such definitions of quality.
Neither in the case of those of us who are students nor faculty does this come about primarily because we are bad people (though that is an optional extra). It comes about because the institution we are part of has an enormous capacity to press people to do its bidding rather than what its participants may believe is moral, satisfying, socially useful.
Students and faculty in this position share the common need to figure out how to implement their values from positions in a legal realm that does not share those values, that often denies them in the name of objectivity, neutrality, and professional competence, and that presses them into the role of hired guns for legal causes they believe are socially counterproductive. When we are defeated, it is not because we are faced with such pressures but because we are overwhelmed and numbed by them to the point that we abandon the effort to find a more humane role in life.
I see Critical Legal Studies as a counter institution to help cope with this problem. It brings together people who, despite their differences, share a disenchantment with conventional legal education, its social product, and with so much of the conventional practice of law. It helps such people reinforce each other and explore how they might better narrow the gap between their moral aspirations and the reality of their daily actions.
More specifically, it has helped me think about my role as an instructor, and how through that role I unwittingly contribute to the very results I deplore, i.e., to the reinforcement of certain notions of hierarchy, status and professionalism. Critical Legal Studies provides an occasion to think about what I can do to narrow the gap between my ideals of interpersonal behavior and my actual behavior toward my students both in and out of the classroom.
Also, it has reinforced my desire to think more critically about the ideological messages, overt and covert, that I convey in the process of my teaching. This has a special importance in procedure and evidence, fields in which I teach. These fields are critically important to the legitimizing function of the law; many of the illusions about the justice of the society are no doubt nurtured by the doctrine and the mythology of “procedural fairness.” It is therefore a subject that needs much more critical evaluation than the dominant legal culture is prepared to give it.
I do not find such critical evaluation an easy task. For the most part, I find myself accepting, almost reflexively, the conventional definition of “the issue” and reserving my critical talents, such as they are, for the debate as to the best solution. On occasion–all too infrequently–I am able to come up with a challenge to the conventional agenda of issues itself. As a modest example, I offer the following: Erie v. Tompkins, it will be recollected, is famous for its holding that federal judges in diversity cases are bound by the common law as announced by state judges. One can debate the pros and cons of this view, but the transcendent importance of the issue is taken for granted. Charles Wright says, “It is impossible to overstate the importance of the Erie decision. . . . [I]t returns to the states a power that had for nearly a century been exercized by the federal government.” Federal Courts, p. 255.
But a contrary and more useful perspective might be that the importance of the decision is easily overstated; that Erie raises a fairly trivial issue of power allocation; that the case has been exaggerated out of all proportion to its significance; and that its importance is a given only if one thinks of the distribution of power between state and federal judges as among the most important power issues in society. The truly vital allocations of power run along altogether different lines. Consider, for example, the fact that judges, whether they be federal or state, are overwhelmingly white, upper middle-class, male, and drawn from a narrow stratum of society. Now that is a phenomenon the importance of which “it is impossible to overstate.” Indeed, the important fact about Erie is not the differences between state and federal judges (so that which group gets to proclaim the law looms as a crucial issue) but the similarities between the two, given the narrow social base from which they’re both drawn. This doesn’t answer the question whether Erie is right or wrong-, but it does deflate the importance of the issue as compared to other things that might be, but usually aren’t, discussed. In short, it puts in issue which issues ought to be the subject of intense debate.
I draw some support for such efforts from the knowledge that others are no less concerned than I, are engaged in a: similar search, and regard the exploration of such issues as a crucial personal imperative.
Leon Letwin UCLA Law School