Paying a Visit to the Crits

WASHINGTON--Here I am--a formally dressed news reporter--surrounded by a group of people who look like a cross between Woodstock and Harvard Law School.

"Lose the tie and jacket--you'll fit in better," a student advises me.

A day later, I'm confronted by a grown man dressed in tattered jeans, red basketball shoes and an untucked "See Jane Swim" t-shirt, who says he's "in charge" of this conference.

This can't be the 11th annual Critical Legal Studies National Conference. I cannot believe the 400 or so people around me include professors who have for years bedeviled the Harvard Law School tenure process, people whom President Reagan called "a misplaced monster of prehistoric radicalism."

Despite their deceiving appearence, these blue jean-clad scholars are the root of a legal education movement which former Harvard Assistant Professor of Clare Dalton says has caused a "crisis of faith" at law schools nationwide.

Critical Legal Studies [CLS] charges that scholars cannot viewed the law objectively but must take into account the social and economic value judgements on which it is based.

But even the conference-goers admit there is no single way to describe all the CLS thought.

"I don't think there's any consensus about a goal among people who call themselves 'Crits,'" says Richard Drury, a Yale law student. "It's hard to talk about CLS as one voice."

"It's a critique of traditional legal thought and how law is made," says Pat DePace, a second-year American University law student. Traditional legal scholars "try to teach you it's like the Ten Commandments coming down from the mountain, and that it's always right. CLS people tell [you] politics of the time and the social climate have an effect on the decisions that are made. There's a lot more aspects to CLS."

"It's a very diffuse movement that consists more of themes than of precisely delineated views," says Jim G. Pope, assistant professor at Rutgers Law School. "Themes are that legal decision is a process of choice, including a value choice, and that those choices should be made in a way. That liberate people in various forms of oppression."

Although they may not agree on exactly what CLS is, Crits like Harvard Professor of Law Duncan Kennedy--who casually smokes a cigar outside of the conference--say they've put the establishment up against the wall.

"I think it's quite right for the right wing and the establishment to feel threatened, because changing the terms of the debate is bound somehow to influence legal education in a pervasive way," says Kennedy, a leading CLS scholar. "They see that changes in the terms of debate at this level are rare in the history of institutions so it's natural for them to be scared and angry."

And while CLS' incessant disputes with legal doctrine have yet to tip the scales of the bar or the practical legal establishment, Crits say they're already changing the way today's young lawyers think.

"CLS has called attention to deeply rooted value assumptions that underlie legal doctine," Pope says. The influence of CLS, he says, "will appear in the course catalog, under courses that feature 'competing visions of the law.' And we're seeing a lot of decisions with CLS slants, too, probably because clerks who had CLS in law school go on to work for judges and work on the decisions."

Changing the way legal scholars think should not be an impossible task for the Crits, since many CLS scholars hold lifetime posts at top law schools. Harvard alone has three tenured card-carrying Crits--Professor of Law Gerald Frug, Warren Professor of Legal History Morton J. Horwitz, and Kennedy--as well as several other left-leaning faculty members.

"Harvard is already a CLS stronghold," says Daniel Trubek, a law professor at the University of Wisconsin. "The presence of a prominent left at Harvard is a permanent presence. It's had an immense impact on Harvard. Harvard turns out a significant percentage of all law professors."

But Trubek himself found out that other voices have significant impacts on legal education at Harvard. In 1987, he and Dalton lost their bids for tenure at Harvard in controversial faculty votes and ensuing reviews by President Bok. CLS supporters have charged that in both instances the faculty discriminated against the left-wing scholars for their adherence to CLS, a charge which has taken the CLS debate from the classroom to the national news.

Right-wing and moderate Harvard Law School professors counter that argument, saying that Trubek and Dalton did meet the school's tenure standards. This spring, Bok, acting on the advice of a review committee of experts, upheld the faculty's decision to deny Dalton tenure.

"I think [Dalton] was a victim of the battle that was going on at Harvard," says conference-goer Drury. "It was more a matter of the rest of the faculty trying to keep the Crits from getting a stronghold. If Clare Dalton is any indication, it seems as though the faculty is pretty set against letting the Crits get any real stronghold there."

However, Trubek says left-wing thought will always be a part of legal education, even at Harvard.

"Short of a Draconian right-wing purge, which I don't imagine would happen there, CLS professors will continue to gain tenure at Harvard," Trubek predicts. "Somebody will, not this year, not in the immediate future, but CLS will continue to influence the Harvard faculty no matter what they do."

The Harvard decisions and ensuing claims of persecution increase the value of attending the convention for many CLS adherents. Crits--who make up only a small percentage of most law faculties--say the conference makes them fell that they are not alone.

"I think [the turnout] shows that although there's a lot of academic repression at a lot of institutions, CLS is still a very strong movement," says American University Professor of Law James Boyle, the t-shirt-clad director of the convention.

"We are not isolated," Dalton says. "There are numbers of people who share our concerns about the law and the legal system."

As they gather in their unconventional workshops and meetings--on everything from "CLS spirituality and nature" to "Sexuality, violence and male power"--the Crits decide what new directions CLS should take. While students bat around ideas for activism at a picnic caucus, professors--donning short sleeves and jeans like their pupils--debate how CLS can begin to construct and not just criticize.

"The theme of this conference, I would say, is reaching out beyond the academic community and making CLS more real and useful in practice," Pope says.

Critical Legal Studies is often attacked for presenting only a negative view of scholarship and viewed as an assault on other theories that provides no real alternative.

Turning the criticisms into positive action is a major theme of discussion at the conference. For an energetic Professor Peter Gabel, short-sleeve clad and with shoulder-length hair, taking CLS out of the classroom and onto the streets is the top priority for the next year.

"How can we as political lawyers continue to transform society and social relations, continue to practice work in that world and remain in touch with our central vision?" asks Gabel, who teaches at the New College of Law in San Francisco.

"We've developed the critique of law-we are an educational movement," Trubek says. "We also see there are limits to what can be done within this effort. The people who were most interested in the theoretical project and educational project are also very much in favor of practical applications."

Most student Crits say that activism--such as holding protests--is a vital part of their participation in CLS. A belief that the legal system is corrupted by prejudices, they say, implies that they must do something to change it.

But, according to some would-be disciples, however, taking CLS off law campuses presents a paradox.

"CLS is so critical of the system there's no way to work within the system," says second-year student DePace. "CLS people may criticize public interest law because public interest law is trying to work within the system instead of changing the system. Maybe the only place to [practice CLS] is in a faculty at a law school."

Since CLS focuses on the law's alleged bias, adherents hope to reach out ot those whom they see as suffering from that prejudice. Entitled "Race, Class and Gender," this year's three-day conference attempts to interest minorities and women by including many workshops about feminism and discrimination.

"If you look at this conference, there are enormous numbers of persons who are not white males," Boyle says. "We've done very well. We invited [Harvard Professor of Law Derrick Bell, who is Black], and while he may not be a CLS adherent, he's nevertheless someone who appreciates CLS insight."

"In the last couple of years the CLS movement has gone through a positive transformation, largely through the addition of minority voices that weren't a part of the movement before," Drury says.

Yet while CLS professors--who are predominately white--say they are fighting for more diversity at law schools, outsiders charge the movement itself is exclusive.

"It's a rethinking and an examination of how we view the legal structure of the country, through an absolutely leftist lens," says Debbie J. Israel, a second-year student at Rutgers Law School. "It's as exclusionary in its nature and hypocritical as the right wing and establishment it critiques."

Drury responds, "If you look at law school faculties in general, it's all white males. So almost any movement in law is going to be dominated by white males."

But while Crits strive to unite all of those they see as oppressed, some of the people they hope to attract--including some minority student groups--say they don't want to jump on the CLS bandwagon.

"We did not want to seem as a group of fair-weather radicals," says Sung-Hee Suh, president of the Harvard Asian-American Law Students Association, at an activism workshop. "We felt strongly about excluding any ideological themes. Once the coalition becomes identified as only political or ideological, we're going to lost what support we have. I don't mean to offend anybody, but I don't want the coalition to be contaminated by the CLS stigma."

At the conference, the professors spend a great deal of time exposing novice students to their left-wing theories. Frug, nibbling from a Marriottcatered fruit spread, says that attracting new students is the most important part of the gathering.

"There are a lot of new people in a lot of new things, but that happens at every convention," Frug says. "At every conference, half the people have never come before. The change and growth of [the CLS movement] is people bringing different interests."

And in passing references to different fields of academia, the professors and students say that CLS has sister movements in other areas of study.

"The same kind of thought is going on in all the academic fields," says Mern Horran, a third-year student at American University's Washington College of Law. "They've got CLS under different names in different areas. It's going on in all the disciplines." She cites deconstructionism in literature as one example.

Those who aren't yet convinced of the CLS dogma say they leave with a better understanding of the thinking, but more questions about its applications for practice.

"It's elevated my awareness," Israel says. "I don't know what happens after this. Does everybody go and look for law firms that are CLS-oriented?"