Critical Legal Times at Harvard

By Richard Lacayo

Along the corridors of Harvard Law School, professors still refer to one another as "colleagues," but the atmosphere of late seems something less than collegial. An intellectual debate has sharpened into a feud about the shape of legal education and the legitimacy of the law itself. On one side stand the adherents of Critical Legal Studies, who charge that the American legal system and its supposedly disinterested rules are prime instruments of social injustice. On the other side are more traditional professors who contend that the faculty "crits" are waging "guerrilla warfare" at the law school. For Dean James Vorenberg, striving to stay neutral in the dispute, the result is "a tremendous sense of vibrancy and energy." But sometimes, he acknowledges, "things get out of hand."

Less gently, a dean at a rival school asserts that Harvard is now "an extremely unpleasant and politicized environment," adding that "those who want to work on scholarship don't want to waste a lot of time on internecine war." Indeed, the Cambridge institution has had unaccustomed recruiting trouble. Despite its continued prestige, Harvard has not hired any professor from another law school for a tenured position since 1981, either because candidates have failed to win approval from the divided faculty or because those on whom compromise was finally achieved declined the offers. One professor already at the school, and affiliated with C.L.S., has had the decision on her tenure delayed for two years.

During a debate before alumni on the subject earlier this year, Corporate Law Professor Robert Clark, a leading opponent of the crits, charged that they had purposively created "prolonged, intense, bitter conflict" and engaged in "a ritual slaying of the elders." One wounded elder is Professor Paul Bator, a former U.S. deputy solicitor general. After 26 years at Harvard, he is moving in January to the more congenial precincts of the University of Chicago Law School, a redoubt of legal conservatism. Calling the C.L.S. movement a force for "philistinism" and "mediocrity," Bator believes that the intellectual integrity and academic excellence of Harvard are at stake. "On that," he has declared, "there is no right or left. Only right and wrong."

Critical Legal Studies was born during the late 1960s among a group of student activists and younger faculty at Yale Law School. By 1977 C.L.S. adherents had formed a network that now has about 400 members. Its annual conference today attracts roughly 1,000 participants. Proponents hold positions at some of the nation's most prestigious legal institutions, including Stanford and George-town. But with three of the best-known crits--Duncan Kennedy, Morton Horwitz and Roberto Unger--among those on its 64-member faculty, Harvard has become the leading C.L.S. center. "The battle is fiercer here than elsewhere," says Kennedy, who jokingly refers to himself and the others as "the unholy triumvirate." Less a coherent philosophy than an angle of inquiry, C.L.S. has roots in "legal realism," whose supporters in the 1920s and '30s began to argue that legal precedents could be found to support either side of most cases, and that judicial decisions depended less on the abstract "science" of law than on judges' personal predispositions, beliefs and prejudices.

Proceeding from there to an even broader indictment, the crits have borrowed from philosophical realms outside legal thought, including structuralism, semiotics and the "Frankfurt school" of such neo-Marxist theorists as Juergen Habermas and Theodor Adorno. They propose that law is no more than a means by which unjust power relations are dressed in the costume of eternal truths. Some of the C.L.S. adherents, like Kennedy, also flaunt a confrontational '60s style of incivility and antic provocation in relations with their colleagues. But at bottom, he is deadly serious. "The legalization of the rules," Kennedy inveighs, "the presentation of the rules as the consequence of a neutral, legal, analytic process, makes things that are rotten and unjust look inevitable, logical and inherently fair."

The battle may be academic, but it is far from meaningless. The institution is in the midst of a curricular reform that, if successful, would likely be imitated elsewhere. As Kennedy notes, "Harvard is the most influential law school on legal education and how the outside world perceives law." It has also been a source of much of the thinking that is being fought over, including the mainstream faculty notion that law can contribute to incremental but progressive change in American society. "So many people on either side of the debate are the personification of the ideas being challenged," says David Douglas, a graduate last spring. "It's more than an intellectual debate for them. It's a critique of their life's work." Third-Year Law Student Dan Gordon puts it more dryly: "It's hard to distinguish the personal animosities from the intellectual arguments."

Despite all the ferment among their teachers, most students have a different focus. "Everybody just wants to get a job," says Second-Year Student Sheila Maith. "I don't think anybody has a commitment to being on one side or the other as much as the faculty does." As for the bulk of the faculty, the "mushy centrist types," as one professor describes himself, they celebrate the clash of new ideas, though sometimes wearily these days. Notes Professor Laurence Tribe: "I especially disagree with the rigidity, orthodoxy and intolerance that both extremes display toward those who are not part of their camp." It may be remembered, however, that the charge of arrogant complacency was once leveled at the entire Harvard faculty. Whatever the excesses and inadequacies of the challengers on the left and right, they have at least changed that. --By Richard Lacayo. Reported by Joelle Attinger/Boston

With reporting by Reported by Joelle Attinger/Boston