The Empire Strikes Back

Outsiders and the Struggle over Legal Education

Arthur D. Austin

• Publisher: NYU Press
• Year: 1998
• ISBN:
  9780814705377
• Topic: Law
• Subtopic: Public Law
• Index: Law

Once dismissed as plodding and superfluous, legal scholarship is increasingly challenging the liberal white male establishment that currently dominates legal education and practice. The most significant development since the emergence of the casebook, at the turn of the century, this trend has unleashed a fierce political struggle. At stake is nothing less than the entire enterprise of law and education, and thus a powerful platform from which to shape society.

The result, here vividly recounted by Arthur Austin, has been an uncompromising, take-no-prisoners fight for dominance. The challenge comes from Outsiders, a collection of feminists, critical race theorists, and critical legal studies scholars who rely on unconventional methods such as storytelling to give voice to the underrepresented. In the other, demographically larger camp resides the monolithic Empire, consisting of traditionalists who, having developed an effective form of scholarship, now circle the wagons against the outsider heathens.

Neither partisan nor objective, Austin is both respectful and critical of each faction. The Empire, he believes, is imperious, closed-minded, and self-perpetuating; the Outsiders are too often paranoid, anti-pragmatic, and overly tolerant of fringe work. Is the new scholarship a vacuous, overpoliticized, soon-to-be-vanquished trend or the harbinger of an important new paradigm? Is reconciliation possible? Anyone with a vested interest in the answer to these questions, and in the future of law, cannot afford to miss Arthur Austin's invaluable volume.

Arthur Austin is the Edgar A. Hahn Professor of Jurisprudence at Case Western Reserve University.

1
The Outsiders vs. the Empire

The Players: Empire, Crits, Feminists, and CRT

The Empire is composed of academic traditionalists—the Kingsfields of legal education. The dominant theme dates to 1870 when Christopher Columbus Langdell introduced the casebook method to Harvard Law School. Since then, the study of law has been conducted according to the scientific model, which relies on rigid analysis to lead the student inevitably to neutral judgments. Scholarship adheres to the doctrinal method that informs decision makers and colleagues with objective analysis of legal problems. Until the appearance of the Outsider movement, the Empire had never been seriously challenged. Now it faces extinction.

According to conventional wisdom, the prevalence of back-stabbing in academics is due to the triviality of the rewards. Fights over curriculum changes, word processors, or tenure for a protégé are what academics call real politics. The Outsiders vs. the Empire is not trivial law school politics. Over the past decade legal education has exploded with vicious trashing, incendiary fax exchanges, and the return of the abuse tactics of the 1960s. This is not an academic sideshow; at issue is a brute power conflict over control of legal education and the future of the legal system.

On one side stands the Empire, composed mostly of Liberal white males. Joining them is a small group of females and minorities who share the Empire’s commitment to the Liberal tradition. The Empire is the Establishment. Challenging them is a coalition of three groups; the Crits of Critical Legal Studies, Feminists, and Critical Race Theorists (CRT). They are the Outsiders who accuse the Empire of refusing to acknowledge the unique contributions of their cultures and scholarship.

The Crits initiated the revolution. They defiantly threw down the gauntlet by attacking core Liberal values and by listing various Liberal atrocities committed against everyone from law students to minorities. Instead of benevolent protectors of the public trust, the Liberals were profiled as elitist oppressors who twisted the legal system to aggrandize power. To the Empire, the Crits were snot-nosed ingrates, nothing more than leftist rabble-rousers. Law school Jerry Rubinses. Harvard Professor (now Dean) Robert Clark called the Crits “Huns” whose sole objective was “the ritual slaying of the elders.”

Young, bright, with egos to match, the Crits saw law as the gateway to power, which had been exploited by the Empire to engage in class oppression. The ostensible objectivity of the legal system protects a market system that marginalizes the underclass, particularly minorities and women. Laws, decisions, and regulations are indeterminate, full of choices and options that are denied the oppressed. The solution: topple the Establishment, break up the monopoly on objectivity, and institute communitarianism. The first strike was aimed at the perceived source of the corruption—the law schools.

While the appearance of females in classes was still a novelty in the 1970s, by the 1980s it had become a tidal wave. With the substantial increase in population, feminists began to assert themselves, influencing administration, curriculum, and scholarship. Two of the most influential feminists, Carol Gilligan and Catharine MacKinnon, produced new—and differing—perspectives on the new feminism. In developing the thesis that women and men “speak” in “different voices,” Gilligan provided a persuasive justification for a distinct feminist ideology. The voice argument was to be borrowed by the Crits and the Critical Race Theorists. MacKinnon, a law professor, gained a national reputation for her antipornography campaign and for her writing on sex as a form of male oppression. Gilligan’s argument “infuriates” MacKinnon, who argues that male oppression is the sole reason women speak in a different voice. So long as man’s “foot is on her throat,” no woman can be part of the power equation.

Feminists argue that the Empire’s exclusive reliance on the analytical and objective problem-solving model excludes the female voice of empathy and nurturing. They counter this form of oppression with highly subjective critical scholarship designed to dismantle the white male hegemony of anti-women canons.

They are the Gangsta rappers of legal education. They titillate, provoke, and censure the canons of the Empire. Deans shudder when a CRT person makes an appointment for a “visit.” Deans have reason to blink; CRT is the most energetic and focused wing of the Outsider movement. They describe themselves as a “people of color” institution—a collective designation that includes everyone except white males.

CRT ideology is based on a voice thesis: centuries of oppression gives minorities a distinctive vision of agony and the capacity to describe the experiences of the Outsiders of society. They scorn the Empire for presiding over a plantation culture in which people of color are relegated to a peripheral status. CRT challenges Empire doctrinal scholarship with storytelling, a term that includes narrative, allegory, parable, autobiography, and poetry.

While Harvard Law School enjoys fame as the home of the great names in legal education and as the birthplace of the casebook method, it shudders at its notoriety as the site of the Outsiders’ most aggressive and sweeping attacks on the Empire—and the Empire’s equally vigorous response. Things got so bad that Harvard was labeled “the Beirut of legal education.” The Harvard experience is the most thorough and revealing case study of the Outsiders-vs.-Empire conflict and will be used to introduce some of the players, the issues, and the consequences.

Led by the young and charismatic Duncan Kennedy, the Crits at Harvard adopted a multilayered strategy. The immediate objective was to “turn” the students away from the usual drift into fashionable law school liberalism by exposing its callous victimization of women and minorities. In class, Crits used the indeterminacy argument to show how fields like contracts and property were used to conduct class war. Faculty meetings and committees became battlegrounds as Crits pushed for curriculum change and sought to terminate the Socratic Method, to take control of admissions, and to recruit new Crit faculty. On a broader and more ambitious level, they joined Crits at other schools to publish scholarship critical of Liberal tyranny.

The Harvard conflict revealed much about power, motive, and strategy. Even with support from a circle of sympathetic friends, the Crits did not have the numbers to pose a serious threat. On the Liberal side, the bitterness cut deep, prompting Liberals to retaliate against the Crits with the ultimate academic weapon: a lockout on promotion and tenure. As a tactic it was successful; as strategy it was a disaster. The Crits wrapped themselves in the cloak of martyrdom, yelled about academic class warfare, and accused the dominant Liberal authoritarians of beating up on the vulnerable Critical Legal Studies people. They played the oppression game of victimology politics. Within a short time the oppressed category was expanded to include feminists and minorities.

Feminism Emerges: The Dalton Case

Out of six new faculty of the class of 1981, three were women and one was Black. When everyone in the group made tenure except Clare Dalton (even after a two-year extension), the gender issue flashed into faculty politics at Harvard. It became an extremely divisive controversy, characterized by rowdy sit-ins and press conferences. A disgruntled student charged that Professor Dalton used her final contracts exam to solicit legal advice from her students: “[S]he was exploiting us just as surely as the worst capitalist exploits his workers.” Reports out of Harvard indicate that her tenure rejection left such a bitter division that some faculty still refuse to talk to each other. Her husband, Robert Reich, a member of the faculty of the Kennedy School of Government who was to become President Clinton’s secretary of labor, was indignant; the day after her rejection Reich phoned one of her opponents, “an old curmudgeon, as arrogant as he is smart, without the slightest sense of the irony lying in the epithet I chose to hurl at him; I called him a son of a bitch.”

On the official level, the tenure decision involved a simple question of merit, and when Dalton’s scholarship was judged intellectually flawed, she was gone. (An energetic opponent wrote an eighty-page negative critique of her work.) One of her tenure pieces, “An Essay in the Deconstruction of Contract Doctrine,” was written in the Fem-Crit style, including references to deconstruction and storytelling, techniques anathema to Liberals. Instead of the standard Liberal form of practical doctrinal analysis, Dalton’s work was a partisan piece of advocacy, reflecting what Harvard Law Professor Mary Ann Glendon called the Fem-Crit “zany passion for novelty [and] a confusion of advocacy with scholarship.”

Who won? The Harvard Empire got rid of Dalton. On the other hand, she eventually accepted a $250, 000 settlement in a sex discrimination suit. The real significance of the Dalton incident was that it highlighted scholarship as the main issue in the fight for control of legal education.

For the Empire, it was tantamount to a show trial to deliver a message to the law school community: strait is the gate to tenure, and only certified Liberals need apply. The Liberal majority circled the wagons around the Empire scholarship criteria of analysis and objectivity. Implicit was another message: raises, status, and perquisites come from acceptable scholarship, so get in line, all of you outnumbered tenured Crit sympathizers. When Robert Clark became dean, he was explicit: “I don’t want to stamp out the CLS people. I just want to domesticate them.”

The Dalton incident was a learning experience for Outsiders—including those at other schools. It confirmed the suspicion that the Liberal agenda used scholarship to maintain the illusion that the system of law and education is neutral when, in reality, it is oppressive and exclusionary. On the other hand, there was a positive consequence—the recognition that the Outsider movement was a legitimate threat and that defiance of the Empire style of scholarship was the way to achieve parity and ultimately gain control. It was time for a new Fem-Crit-Black voice in scholarship.

The Voice of Derrick Bell

The most defiant and contentious Outsider at Harvard was Derrick Bell, the school’s first Black professor. Bell is quoted as saying, “Derek Bok [dean of the Law School and later president of Harvard] hired me, and we have disappointed each other ever since. I have not been grateful, which is about the most serious thing a black person can do to a white person.” Bell’s agitation is always on or near the surface; high profile and sometimes volatile, he conducted a four-day sit-in at his office to protest the denial of tenure to two Crits, was one of the most vocal supporters of Clare Dalton, and made diversity the main issue of the 1980s by accusing the Liberal majority of using its version of merit to rationalize the exclusion of Blacks. As for several Black colleagues Bell suspected of supporting Empire views, he frostily observed that while they “look black, they think white.”

While Bell, who is presently at NYU, keeps his options open by operating as an independent agitator, selecting his causes with care, his career has defined the aspirations and the strategy of the Racial Critique Theorists. In 1985, the Harvard Law Review published Bell’s The Civil Rights Chronicles, a series of parable-narratives that described race and gender oppression. The parable style was a direct challenge to the Liberal doctrinal linear, analytical article.

The Civil Rights Chronicles quickly became the Critical Race Theorists’ model for stories of the evils of the Empire. Storytelling increased in popularity to become the accepted vehicle to demonstrate to the community that the experiences of Blacks, feminists, and other minorities in a white-male-dominated world produce a distinctive perspective and attitude. The narrative and the unique voice of the author merge to create a new and dynamic form of legal scholarship. According to Outsiders, it is this distinctive voice that justifies the use of nontraditional criteria in evaluating narrative as scholarship for hiring, promotion, and tenure.

The Implications

The Outsiders did more than merely survive; they persevered to become a presence that the administration decision makers must now consider in making policy. Even Dean Clark made an effort to ease tensions; he designated Professor Roger Fisher, known for his unsuccessful efforts to get Kuwait and Iraq together, as a faculty-student go-between. In an effort to soften his image, Clark shaved off his beard. The growing leverage of feminists and Blacks took up the slack left by the dwindling Crit influence. The students are always on call for support. Moreover, if the Liberal majority is serious about avowed efforts to recruit women and minorities, its numerical advantage will probably go down.

The Outsiders achieved a major victory when they outflanked the faculty by going to the pages of the Harvard Law Review to publish nontraditional scholarship. To the Liberal scholar, the Review is an institution; while Yale indulges in publishing trendy chic work, Harvard is the keeper of the grand style. That certainly was my assumption—until I compiled a ranking of the top ten politically correct law journals and discovered that Harvard had a lock on number ten. Everyone knew Stanford, Yale, and Michigan had succumbed to the politically correct winds—but Harvard!

Because of its prestige, when the Review opens its pages to the Outsider scholarship genre, it makes a major statement of approval. Bell’s Chronicles was a beneficiary of the Review’s endorsement and is now canon in the Outsider movement. Another example of the use of student editors to feed Outsider scholarship into the system is Cynthia Bowman’s “Street Harassment and the Informal Ghettoization of Women.” Bowman advocates fining harassing men who “intrude or attempt to intrude upon the women’s attention in a manner that is unwelcome to the woman, with language or action that is explicitly or implicitly sexual.” Harassment would include wolf whistles, leers, winks, grabs, pinches, catcalls, and street remarks. Then there was the Mary Joe Frug article.

It had been a good day for Professor Kingsfield. Damn near perfect. He had devoted the hour to the Allegheny College decision, using logic-chopping analysis like a scalpel to guide students to the inescapable conclusion that Cardozo used a form of intellectual deception to impose an irrational contract theory on that poor widow. It was always a pleasure to expose that lightweight Cardozo. Why, he mused, did those crazy females in the back of the classroom start whispering and chanting oppression, oppression.…“I wish those women would acquire some manners—and some decent clothes. Probably riffraff Yalies. It’s about time I took care of that bunch.” This slight irritation was soothed by a note from Erik Jensen who wrote that Kingsfield’s recent article, “Relational Theories in Contracts: Subverting Intention with Subjective Fallacies,” was the ultimate counter to the ranting of the anti-rationalist opportunists. I like that young Jensen; he values style. Maybe he carries it too far. Too much Maxwell Perkins in him.

As was his custom, Kingsfield was relaxing with a glass of Château Lagrezette. After an extended sigh to let the drink take its soothing effect, he extracted a recent copy of the Harvard Law Review from the top of his desk. Ever since the Review had published that subversive aberration by Derrick Bell, he kept a sharp eye on what those student fools were publishing. Parables—what the hell was going on? Next it would be stories. He was glad when Bell took his oppression politics and left for New York. What Kingsfield had been reading in the Review was a gradual but steady decline in quality. The young people were into that dreadful interdisciplinary nonsense. But what else could you expect from student editors—people just out of an undergraduate experience of politically correct chaos. Berkeley, Columbia—even Penn. It did not make sense. Then Kingsfield saw it: “A Postmodern Feminist Legal Manifesto (An Unfinished Draft)” by Mary Joe Frug. After the first page he was sweating and at page 1072, he felt vomit nearing his mouth, then a stabbing pain tried to get out of his chest.…Kingsfield glanced up at an oil portrait of his mentor.…

A Postmodern Feminist Legal Manifesto is the most controversial law review article ever published. Mary Joe Frug, a forty-nine-year-old professor at New England Law School, the wife of a Harvard Crit law professor and the co-founder with Clare Dalton of the Fem-Crit movement, was brutally murdered near her home in an exclusive area of Cambridge. Although the decision to publish her uncompleted manuscript was not unanimous, the editors concluded that the preservation of her voice justified relaxing “traditional editorial policy.” After its publication, the dissenting editors publicized their reservations in a parody at the Review’s annual banquet that triggered a fax firefight among the faculty. Lawrence Tribe wanted the dissenters disciplined. Alan Dershowitz responded with charges of “a McCarthy witch hunt.” Elizabeth Bartholet’s reply: “This incident shows something very scary about male anger toward women at this institution.” Charles Fried, the house conservative: “If you are a leftist, this has not been a good decade for you.”

If the Bell article was a challenge to the limits of credible scholarship, the Frug article was treason. To the Kingsfields of the Empire it was the final insult—postmodernism in the Harvard Law Review! An epochal term, post-modernism is a pop culture theory that favors the assumption that reality is ultimately unknowable. Under postmodernism, everything is relevant, meaning that Donald Duck and Shakespeare get equal status. It blends microtheory, micropolitics, plurality, fragmentation, and indeterminacy. As Bernard Rosenberg said: “In short, the postmodern world offers man everything or nothing. Any rational consideration of the probabilities leads to a fear that he will be overtaken by the social furies that already beset him.”

Frug’s postmodern manifesto is a collection of fragments of indeterminacy on the relationship of law to the female body. To remind the reader that everything is nothing, she endorsed the postmodern style and then said: “[B]ut I don’t think feminist legal activists need to adopt the postmodern medium in order to exploit the postmodern message; my point about the style is simply that it doesn’t require us, strategically, to dismiss postmodernism as an influence on our work.” After citing Madonna, Frug made law review history by invoking the F and C words: “In pornography, women get fucked.” “Now, women get ‘fucked’ in the workplace, too, where we do ‘women’s work’ for ‘women’s wages,’ working for male bosses and working on male schedules.” “We are raped at work or on route to work because of our sex, because we are cunts.” These references are obviously the sources of Professor Kingsfield’s consternation.

The Outsiders applauded the Frug article as an effective form of oppositional writing, that is, an example of feminist advocacy using postmodern imagery to mock the Empire. The use of the “F” and “C” words forces the dominant male system to confront the most graphic effects of its oppression on the female body. It’s a verbal kick to the Establishment’s groin, a gesture that gained the approval of the feminist Martha Minow, who, writing in response to Frug’s article, said: “I get a charge thinking about … certain four-letter words appearing in a law review.” While a reader dedicated to the linear analytical style of the Liberal scholar may disdain Frug’s disjointed syntax, it is consistent with the objectives of postmodernism, in which, as she says, the medium is the message. “When style is salient,” according to Frug, “it is characterized by irony and by wordplay that is often dazzlingly funny, smart, and irreverent. Things aren’t just what they seem.” And she proved it.

The experiences of Harvard Law School challenge, in varying ways, every law school. White male Liberals dominate. While the identity of the opposition group, or combination of groups, varies, the core issues are the same. Even when a group, such as the Critical Race Theorists, is numerically small, students often act as surrogates. Sometimes the visit of one of the nationally known players like Catharine MacKinnon or Derrick Bell can turn heat on the system. (At my school a visit by the Crit guru Duncan Kennedy inspired demands for CLS and feminist courses. To the chagrin of my colleagues, I volunteered.) The Frug factor, Liberals splitting away to support specific Outsider causes, plays out at middle- and lower-tier law...