18 February 2018


'The Question That Killed Critical Legal Studies' by Richard Michael Fischl in (1992) 17(4) Law and Social Inquiry 779 comments
A short while ago, I attended the 25th reunion of my eighth-grade graduation class. I had been looking forward to getting together with the 70 or so folks with whom I had experienced parochial school during the late 1950s and early 1960s for a host of reasons-not the least of which was that I expected to see my "first love," to whom I had not spoken in well over 20 years. I had long since blown that candle out, but I was intrigued by reports from mutual friends and acquaintances suggesting that she and I had followed remarkably parallel life paths. She, too, had gone to law school; she, too, had gone on to teaching after a stint in practice; she, too, had come to love the classroom and to enjoy scholarly life; and she, too, had evidently succumbed to the entreaties of her colleagues to undertake a multitude of thankless institutional-service tasks - the last a pattern of behavior that perhaps only unexpurgated Catholic guilt could explain. So I was dying to know: Did she still go to church? The Church? To confession? Did she take communion during the Eastertide? Eat meat on Fridays? 
When the moment of truth at last arrived, she had a different agenda. "So," she said after a warm hello, "I hear you're a crit." My mind raced for a response. I couldn't deny it - not, in any event, in this setting, where there was a serious possibility that even a single evasive maneuver might prompt a nearby cock to crow at dawn's first light. Besides, I suspected that she had a highly credible source: a classmate with whom we'd both kept in touch over the years, who is a disciple of the late Allan Bloom and has had a bit of a closed mind himself with respect to my longstanding association with critical legal studies. I opted instead for confession and avoidance, intended primarily to get us off the subject fast. "Relax," I replied, "We're no threat to anyone anymore. Greetings from the dustbin of history." 
"It was bound to fail, Michael," she continued, in the patient and sympathetic tone that has no doubt helped make her the great teacher that by all accounts she has become. "The problem with critical legal studies is that it didn't offer any alternative program. Now I'm no great defender of the rule of law, but what would you put in its place?" "If cls is dead," I replied, "that's the question that did us in." I didn't try to explain, and she didn't seem to mind. (Someone ought to write something about the ways in which the supposedly distinct rhetorical structures of cocktail banter and the Socratic method in some missing mirror meet). Mercifully, the conversation moved on to other and far more agreeable topics, and all of us to a truly remarkable weekend of rich reminiscence and powerful reconnection. But my classmate's question and the kernel of truth contained in my glib response have stuck with me since. This essay, then, is about that question - What would you put in its place? -  and the role that it has played in the reaction of many mainstream legal academics to the critical legal studies movement.
Truth be told, a number of close friends from within cls tried to con- vince me to select a different title for this piece, fearing that irony might be mistaken for eulogy - particularly among those who, for one reason or another, might not mourn for a moment the movement's passing. So let the record show that the rumors of our demise are greatly exaggerated: Having in many ways set the intellectual agenda for legal theory in the 1980s cls scholars and those working in kindred critical/progressive traditions are alive and well, rethinking old issues, exploring new ones, and doing what is for my money the most interesting and important work in legal scholarship today. But if the title is thus somewhat hyperbolic, it nevertheless captures something very real about the relationship between critical legal studies and the rest of the profession. By my estimate, the average non-cls academic will converse politely with a crit for about three minutes before asking - pointedly - some version of my eighth-grade classmate's question. Published reactions to and assessments of our work are scarcely more patient.