Reviewed by David Schultz, School of Business, Hamline University. E-mail: dschultz [at] hamline.edu.
The 1980s flared the birth and death of legal theory. It heralded in both the demise of the then dominant paradigm of Legal Process theory and the subsequent splintering of the field of public law into a cluster of mini-narratives that define its scholarship today. At the helm of the creation of these new mini-narratives were the personalities that defined them. This book is a collection of ten interviews with these individuals, offering a biographical account of them, their contributions, and their observations of their rivals and disputes. In writing this book Hackney has produced not just a history of these ten individuals, but essentially an autobiography of the contemporary field of public law over the last two generations.
Thomas Kuhn’s The Structure of Scientific Revolutions (1996) once captivated social scientists who appropriated his concept of paradigm shifts to explain epistemological change. Kuhn described the path of normal science as characterized by a set of assumptions about the world, with knowledge created by building upon them. Normal science was characterized by paradigms; but sometimes normal science broke down, assumptions collapsed, and paradigms shifted. According to Hackney, this is effectively what happened to American legal theory in the 1980s.
From the 1950s to approximately 1980 legal theory was dominated by the legal process scholarship of Henry Hart and Albert Sacks’ The Legal Process (2001). These individuals along with Herbert Wechsler, Alexander Bickel, and others emphasized a formal study of the legal system. Law was divorced from politics, sociology, and economics, and the key to understanding legal norms was placed on the formal actors and institutions. Law was neutral, but there was a correct democratic process to reaching decisions. Legal Process theory was the product of the Cold War and forged in reaction to Brown v. Board Of Education (1954) and the dismantling of legal precedent by a Warren Court perceived to be acting less on principle than on liberal ideology.
But while Legal Process theory was the dominate paradigm of the Cold War, challenge to it was rooted in the 1960s. In one direction the challenge came from the left. The Civil Rights movement pointed to the domination and oppression in the law, especially the racism and then eventually the sexism inherent in legal norms. The Civil Rights era also opened up higher education to new faces and perspectives, including Marxism and race and gender studies. Conversely, conservative backlash to the [*170] 1960s, first manifesting in Richard Nixon’s election as president in 1968 and then Ronald Reagan in 1980, appropriated theories of micro economics and behavioralism to explain law. In both cases, formalism was rejected and law and legal change and institutions were recast and explained by reference to other forces that contextualized them.
What replaced Legal Process theory was not one new paradigm but instead almost a Postmodern collection of mini-narratives. This is the setting for this book. James Hackney identifies ten fields of legal theory scholarship that emerged in the 1980s. Each of those fields had if not an inventor at least a major figure associated with the formulation and articulation of it. What Legal Intellectuals in Conversation does is unique. Hackney interviews each of these individuals. He asks them not only about their education and intellectual influences upon them, but also to articulate and retrospectively describe what they see as the field they created, how it has evolved, and where it is situated vis-a-vis each of its rivals. Each chapter thus is a solo interview with one of these individuals, and the elegance of this book is in how the author was generally able to get each most of the people he spoke to be reflective and engage with the rivals through him.
After a brief introduction, the ten chapters feature interviews with Duncan Kennedy (critical legal studies), Richard Posner (law and economics), Morton Horwitz (legal history), Austin Sarat (law and society), Patricia Williams (critical race theory and law and literature), Catharine MacKinnon (feminist legal theory), Drucella Cornell (postmodern legal theory), Bruce Ackerman (contemporary liberal constitutional theory), Charles Fried (classical liberal constitutional theory), and Jules Coleman (law and philosophy). Of course it would be impossible in a brief review to summarize what each of these individuals said about their field, contributions, and rivals, but nonetheless some general observations are appropriate.
The first point that jumps out is at time is both the clustering of perspectives along geography and institutions and an incestuous aspect to the ten mini-narratives that emerged. Harvard and Yale seem to be ground zero for so many of the thinkers here. They were often students of Hart and Sacks, and their scholarship was a reaction to it, or they are now faculty at these schools (or connected to the University of California, Berkeley) and are replicating their theories upon a new cadre of students. Alternatively, as in the case of Fried and Posner, they went on to become associated with the University of Chicago, again defining a field for that institution. Why this clustering is important is that in so many ways, most of the ten writers either acknowledge how their ideas developed along side or in reaction to rivals, or it is clear that upon reading some self-descriptions how there are core assumptions about power, domination, human nature, or efficiency that transcend many of the discussions here.
The second observation is that the location of the ten schools of legal theory has mostly come to rest within law schools. While Austin Sarat notes how he wanted to expand law and [*171] society beyond the law school (and he has succeeded in many ways), the study of law still remains formal in the sense that it is dominated by law professors and law schools and less by sociologists, economics, and political scientists. When the latter do get involved, it is those who are in possession of the now almost obligatory J.D./Ph.D. Theories about the law that were supposed to be a reaction to the formal paradigm of Legal Process theory have now been captured themselves by a new formalism of law schools.
The third observation is a generational, occupational, and perhaps a class divide that one finds in the ten interviews. Horowitz, Fried, Kennedy, and Ackerman on the one hand, represent the elder side of these legal theorists. To a larger extent than others their stories are more grounded in battles rooted in the Vietnam War, the Cold War, and the Warren Court. The second wave of legal theorists here, such as MacKinnon, Williams, and Cornell, are rooted in the 1970s and fault lines and debates defined by the Burger and early Rehnquist Court. One also sees a big difference among writers in terms of their occupational orientations – both Cornell and Williams had roots or professional experiences outside the academy or even the law initially, while most of the rest of the theorists have mostly defined their perspectives by being lawyers or law professors first. These distinct experiences come through in all of the interviews and make it clear how for some their approach to the law was distinctively autobiographical and how much of contemporary legal theory is distinctively personality-driven and driven by historical context and conflicts.
Finally, another part of the book that is interesting is exactly that the personalities of the interviewees come though. Some are more egotistic, gracious, or reflective than others, while in some cases some are more dogmatic or reflective. One learns interesting tidbits about each along with distinct intellectual daemons they have fought. But as noted earlier, one is really struck by the reality that despite an apparent kaleidoscope of views on law and the legal process, Hackney has done a masterful job in revealing the powerful affinities that these ten theorists and theories share, and really how much convergence there really is to contemporary legal theory.
Hart, Henry, and Albert Sacks. 2001. The Legal Process: Basic Problems in the Making And Application of Law. William N., Jr. Eskridge, Philip P. Frickey and Henry Melvin Hart eds, St. Paul, MN: Foundation Press.
Kuhn, Thomas S., 1996. The Structure of Scientific Revolutions. Chicago: University of Chicago Press.
Brown v. Board of Education, 347 U.S. 483 (1954).
Copyright 2013 by the Author, David Schultz.