Law school enters the matrix: Teaching critical legal studies

Journal of Legal Education

Volumn 54, Issue 2, 2004, Pages 201-215

  Anderson, Jerry L ^a  

^a DRAKE UNIVERSITY   (United States)

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EID: 4944265297     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (49)

1. Duncan Kennedy, A Critique of Adjudication: Fin de Siècle 9 (Cambridge, Mass., 1997).
2. E. Dana Neaçsu, CLS Stands for Critical Legal Studies, If Anyone Remembers, 8 J.L. & Pol'y 415, 422 (2000).
3. See James E. Herget, Unearthing the Origins of a Radical Idea: The Case of Legal Indeterminacy, 39 Am, J. Legal Hist. 59 (1995). I could list the typical cites to the authors of the realist movement - Llewellyn, Frank, Cohen, and Holmes - but I will limit myself to one of my favorites, which I also believe is both accessible and eye-opening for students: Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950). But see Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 452 (1989).
4. See James E. Herget, Unearthing the Origins of a Radical Idea: The Case of Legal Indeterminacy, 39 Am, J. Legal Hist. 59 (1995). I could list the typical cites to the authors of the realist movement - Llewellyn, Frank, Cohen, and Holmes - but I will limit myself to one of my favorites, which I also believe is both accessible and eye-opening for students: Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950). But see Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 452 (1989).
5. See James E. Herget, Unearthing the Origins of a Radical Idea: The Case of Legal Indeterminacy, 39 Am, J. Legal Hist. 59 (1995). I could list the typical cites to the authors of the realist movement - Llewellyn, Frank, Cohen, and Holmes - but I will limit myself to one of my favorites, which I also believe is both accessible and eye-opening for students: Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950). But see Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 452 (1989).
6. For a good example of what is needed, see Francisco Valdes, Outsider Jurisprudence, Critical Pedagogy and Social Justice Activism: Marking the Stirrings of Critical Legal Education, 10 Asian L.J. 65 (2003). Nevertheless, most law schools cannot hope to offer "and the Law" courses on every aspect of "outsider" jurisprudence, nor is this necessarily a better approach than introducing the critique into mainstream courses like Contracts and Property.
7. Larry and Andy Wachowski, The Matrix (1996). My thanks to Greg Sisk for introducing me to The Matrix on his big TV screen with surround sound.
8. One commentator has declared that "CLS is dead as a doornail": "It was an elitist group teaching revolution at prestigious schools, affecting the proletariat look in class before getting in BMWs to drive home to enjoy a glass of wine and toast the struggle against hierarchy and privilege." Arthur Austin, The Top Ten Politically Correct Law Review Articles, 27 Fla. St. U. L. Rev. 233, 250 (1999).
9. See, e.g., Richard Michael Fischl, The Question That Killed Critical Legal Studies, 17 Law & Soc. Inquiry 779 (1993).
10. These terms come from Duncan Kennedy & Peter Gabel, Roll Over Beethoven, 36 Stan. L. Rev. 1 (1984). For examples of mainstream reaction to such terminology, see Thomas E. Baker, A Compendium of Clever and Amusing Legal Writings, 51 Drake L. Rev. 105, 142 (2001); Austin, supra note 6; James D. Gordon, How Not to Succeed in Law School, 100 Yale L.J. 1679, 1698 (1991).
11. These terms come from Duncan Kennedy & Peter Gabel, Roll Over Beethoven, 36 Stan. L. Rev. 1 (1984). For examples of mainstream reaction to such terminology, see Thomas E. Baker, A Compendium of Clever and Amusing Legal Writings, 51 Drake L. Rev. 105, 142 (2001); Austin, supra note 6; James D. Gordon, How Not to Succeed in Law School, 100 Yale L.J. 1679, 1698 (1991).
12. These terms come from Duncan Kennedy & Peter Gabel, Roll Over Beethoven, 36 Stan. L. Rev. 1 (1984). For examples of mainstream reaction to such terminology, see Thomas E. Baker, A Compendium of Clever and Amusing Legal Writings, 51 Drake L. Rev. 105, 142 (2001); Austin, supra note 6; James D. Gordon, How Not to Succeed in Law School, 100 Yale L.J. 1679, 1698 (1991).
13. These terms come from Duncan Kennedy & Peter Gabel, Roll Over Beethoven, 36 Stan. L. Rev. 1 (1984). For examples of mainstream reaction to such terminology, see Thomas E. Baker, A Compendium of Clever and Amusing Legal Writings, 51 Drake L. Rev. 105, 142 (2001); Austin, supra note 6; James D. Gordon, How Not to Succeed in Law School, 100 Yale L.J. 1679, 1698 (1991).
14. See, e.g., Richard Posner, Economic Analysis of Law, 6th ed. (New York, 2003).
15. Introduction, Critical Legal Studies (Debut de Siècle) : A Symposium on Duncan Kennedy's A Critique of Adjudication, 22 Cardozo L. Rev. 701, 706 (2001).
16. See, e.g., Fischl, supra note 7.
17. Kennedy, supra note 1, at 8-11.
18. Even this objection seems unpersuasive. Surely we would consider a political theory class incomplete without a discussion of Marxism; the fact that most political theorists reject the theory does not render it irrelevant.
19. I compare it to one of those "Magic Eye" pictures. There is something lurking behind the picture that the untrained eye does not comprehend. But once you get it and the hidden image pops out at you, the impact is quite remarkable.
20. Oliver Wendell Holmes Jr., The Common Law 1 (Boston, 1881); Oliver Wendell Holmes Jr., The Path of the Law, 10 Harv. L. Rev. 457, 465-66 (1897).
21. Oliver Wendell Holmes Jr., The Common Law 1 (Boston, 1881); Oliver Wendell Holmes Jr., The Path of the Law, 10 Harv. L. Rev. 457, 465-66 (1897).
22. For "moderate" you might substitute "a merely mortal professor who will quite frankly admit that he doesn't quite understand everything crits have written and isn't quite sure he agrees with it all." I suspect there are quite a few of us in this category.
23. Kenneth R. Minogue, The Concept of Property and Its Significance, in Property: Nomos XXII, eds. J. Roland Pennock&John W. Chapman, 3 (NewYork, 1980).
24. Jeremy Bentham, Theory of Legislation, 4th ed., 111-13 (London, 1882).
25. On the effect of property rights on the hierarchical power structure, see Robert L. Hale, Bargaining, Duress, and Economic Liberty, 43 Colum. L. Rev. 603 (1943).
26. 485 U.S. 439 (1988).
27. 485 U.S. at 442-43.
28. Northwest Indian Cemetery Ass'n v. Peterson, 795 F.2d 688, 691-92 (9th Cir. 1986), rev'd, 485 U.S. 439 (1988).
29. 485 U.S. at 452. Of course, the tribes were not asking for 'veto power" but rather wanted heightened scrutiny or a balancing test for projects affecting tribal spiritual interests.
30. Id. at 453.
31. Kristen A. Carpenter starts down this road by looking at the property aspects of Lyngin. In the Absence of Title: Responding to Federal Ownership in Sacred Sites Cases, 37 New Eng. L. Rev. 619, 627-28 (2003). See also Howard J. Vogel, The Clash of Stories at Chimney Rock: A Narrative Approach to Cultural Conflict over Native American Sacred Site on Public Land, 41 Santa Clara L. Rev. 757, 799 (2001).
32. Kristen A. Carpenter starts down this road by looking at the property aspects of Lyngin. In the Absence of Title: Responding to Federal Ownership in Sacred Sites Cases, 37 New Eng. L. Rev. 619, 627-28 (2003). See also Howard J. Vogel, The Clash of Stories at Chimney Rock: A Narrative Approach to Cultural Conflict over Native American Sacred Site on Public Land, 41 Santa Clara L. Rev. 757, 799 (2001).
33. Cf. Volstead Act, Title II, Sec. 3 (exempting sacramental wine from Prohibition).
34. Of course, a hard-line crit might not want to take this incremental approach to reform, because it would mean accepting, at least for the moment, the very system and nomenclature we are deconstructing in order to achieve a particular result.
35. 263 S.W.2d 906 (Ark. 1954).
36. 550 S.W.2d 771 (Ark. 1977).
37. In Powell, for example, Justice Smith emphasizes the "essentially residential" character of the neighborhood by summarizing a long list of commercial uses in terms that clearly minimize their commercial aspects and potential conflicts with the neighborhood. The dissent on the other hand, uses language that highlights the commercial nature of the uses. Majority 1. "A seamstress... earns some income by sewing at home." 2. "The couple ... rent rooms to elderly people and take care of them when they are ill." 3. "J. T. McAllister... is in the wholesale lumber business and uses one room as an office, keeping books there and transacting business with persons who call." 4. "An eighty-year-old dentist has a small office in his yard and occasionally treats patients." Conclusion: neighborhood is "exclusively residential" or at least "essentially residential." Dissent 1. "a seamstress place of business" 2. "a nursing home" 3. "a lumber office" 4. "a dentist office" Conclusion: neighborhood is "mixed residential and business area."
38. There was also a racial point in Elston because the proposed funeral home owner was African-American. The lower court based its nuisance decision, at least in part, on a city official's testimony that allowing the black-owned funeral parlor could slow the influx of whites into the racially mixed neighborhood. The Arkansas Supreme Court held that such "social" considerations were irrelevant to the nuisance analysis. So a legal realist could also say that the court's decision furthered the policy of equal treatment.
39. See Village of Euclid v. Amber Realty, 272 U.S. 365, 394 (1926) (apartment houses are "mere parasite [s] " that take advantage of amenities of single-family residential districts).
40. See Letter from Thomas Jefferson to James Madison (Oct. 28, 1785), in The Portable Jefferson, ed. M. Peterson, 395, 396-97 (NewYork, 1975) ("Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labour and live on.").
41. See Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987).
42. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
43. Although most unowned property is allocated according to the "first possession" rule, the "law of the sea" is a modified version of it, with women and children at least ostensibly given first crack. This was further modified, we are told, by allowing rich people space before those in the lower class or steerage compartments. You can then analyze, if you're bored by the movie itself, whether this allocation rule comports with the typical policy reasons for property allocation - for example, economic efficiency, fairness, and certainty. It is possible, for example, that favoring children makes sense because they have more years ahead of them, on average, than adults, and favoring them will maximize the total life-years rescued. Because mothers were traditionally the caregivers, they would need to accompany the children to ensure the success of this scheme. But would this make sense today, or should the "law of the sea" allocation scheme be reexamined in light of modern views of equality? This analysis can continue as long as the movie's dialog remains sappy and unrealistic. As my colleague David McCord noted, the introduction of the Coke bottle into the aboriginal tribe in The Gods Must Be Crazy also provides fertile ground for examining how property rights arise in the first instance.
44. Andrew Altman, Legal Realism, Critical Legal Studies, and Dworkin, 15 Phil. & Pub. Aff. 205, 216-35 (1986), quoted in Neaçsu, supra note 2, at 430.
45. Andrew Altman, Legal Realism, Critical Legal Studies, and Dworkin, 15 Phil. & Pub. Aff. 205, 216-35 (1986), quoted in Neaçsu, supra note 2, at 430.
46. Allan C. Hutchinson & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, 219, 225 (1984).
47. Kennedy & Gabel, supra note 8, at 43. See also id. at 7 ("[Unfortunately the body snatchers are always nearby, and you wake up and they're all pods. The whole conceptual structure has been turned into a cluster of pods."). O.K., so this is all really a reference to another movie, Invasion of the Body-Snatchers, but still -
48. Kennedy & Gabel, supra note 8, at 43. See also id. at 7 ("[Unfortunately the body snatchers are always nearby, and you wake up and they're all pods. The whole conceptual structure has been turned into a cluster of pods."). O.K., so this is all really a reference to another movie, Invasion of the Body-Snatchers, but still -
49. The Critical Legal Studies Movement, 96 Harv. L. Rev. 561, 669-70 (1983).