I have been thinking a lot recently about history, legal education, and law school reform, and Critical Legal Studies (CLS). In the past month, I have read and heard reflections on this topic from Robert Gordon, Duncan Kennedy, Lani Guinier, Daniel Coquillette and Edgar Cahn. These have spurred me to think about the connection between some of the critiques of Critical Legal Studies and the history of legal education and its reform. Let me try to draw it together with the thought that Harvard Law School has ceased to be a leader in legal educational reform. Christopher Columbus Langdell’s radical reformist heritage lives on more in the critical legal studies tradition than in the current HLS administration.
Robert Gordon ends his masterful article, Critical Legal Histories, by responding to two arguments used against critical legal historians, the first of which he summarizes as, “The history of DOCTRINE? This is the big liberating move? You’ve got to be kidding!” One of Gordon’s many interesting responses to this argument is that it made “good strategic sense” for critics to focus on “the core doctrinal subjects of the first year curriculum” because it allowed them to engage “traditional doctrinalists on their own turf,” particularly in light of the ongoing failure of the Law and Society movement since the mid 1960s to undermine that curriculum. This last point is itself an argument for historical awareness when evaluating social and academic movements. Without an understanding of the movements in place at the outset of CLS, it is difficult to evaluate the strategic decisions made by the movement. As it happens, there were attempts at early CLS conferences to include older law and society professors in the conversation, but these were largely unsuccessful.
I think this criticism is related to one that is often directed at Duncan Kennedy and the CLS movement as a whole. An example appears in the Harvard Law School Bulletin of Summer 1987, in which Richard Stewart is quoted as saying, “If you don’t have a positive, realistic program, then it may be irresponsible to tear down the status quo in the hopes of eventually creating a juster society.” I want to focus on the first part of this sentence, which is the common charge that CLS, and Duncan Kennedy in particular, lacked a positive program. In the Q&A the Bulletin article reports on, Kennedy called for “a series of incremental changes” through which “people would get to feel that the only fair way to organize most workplaces in the U.S.A. is for everyone to be paid the same amount of money.” He also called for a reorganization of the educational system “to give everyone more or less the same educational chance”. Kennedy had several years earlier fleshed out a version of this proposal applied to legal education in particular in his well-known piece, Legal Education and the Reproduction of Hierarchy, the final two pages of which consist of proposals for a new model curriculum and steps to address hierarchy at the law school. The latter includes lottery-based admissions following a test establishing minimal skills, programs to address hierarchies among students, channeling of students into certain forms of legal practice and equalization of all salaries including janitors and secretaries, with everyone spending one month per year performing jobs in different parts of the hierarchy.
Kennedy’s curricular reform suggestions include a required clinical program and the conversion of 1L into a single doctrine course that would include much more than “cases and materials”. These haven’t happened, but in decades since he published that article, there has been a great increase in clinical offerings and even a modest change to the 1L curriculum. However, to focus on these changes – improvements – without a historical perspective would be to miss the bigger picture, as Coquillette and Guinier made clear in recent presentations. The bigger picture is that recent changes have been relatively small, and Harvard Law School is now a follower instead of a leader.
The major recent change to the 1L curriculum has been Dean Kagan’s replacement of Constitutional Law with Legislation and Regulation. However, the major development here probably took place under the direction of Dean Landis in the 1940s, when administrative law, the core of Legislation and Regulation, was introduced into the curriculum. Far more noteworthy is that the fundamental structure of the 1L curriculum and teaching method has not changed since its introduction by Dean Langdell in the 1870s. Most of the 1L courses remain and the use of the case method and the socratic method continue unabated. Lani Guinier made this point in a recent session of the WLA Feminist Legal Theory reading group, itself evidence that some things have changed – there were more female students in the room than there were in a law school class in the early 1970s – but the structure of legal education, which has been criticized by Guinier among many others for it’s effects on women in particular, has not.
While the range of clinical offerings at Harvard Law School is impressive, it is notable that the model was developed at Antioch Law School, as its founder Edgar Cahn discussed in a recent lunchtime event here. Harvard followed.
This brings us back to the accusations against Critical Legal Studies. Like Langdell, but unlike Harvard Law School today, CLS developed proposals for radically rethinking the legal curriculum and legal education. Harvard Law School is in a position of prestige and power, especially if it coordinates with the very small number of elite law schools it considers its rivals for students and post-graduate employment. Duncan Kennedy and others have made proposals for how it could use that position to begin to address some of society’s ills. Perhaps those proposals should be considered, rather than their existence denied.