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The Strange Career of Legal Liberalism

The Strange Career of Legal Liberalism

Copyright Date: 1996
Published by: Yale University Press
Pages: 384
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  • Book Info
    The Strange Career of Legal Liberalism
    Book Description:

    Legal scholarship is in a state of crisis, Laura Kalman argues in this history of the most prestigious field in law studies: constitutional theory. Since the time of the New Deal, says Kalman, most law scholars have identified themselves as liberals who believe in the power of the Supreme Court to effect progressive social change. In recent years, however, new political and interdisciplinary perspectives have undermined the tenets of legal liberalism, and liberal law professors have enlisted other disciplines in the attempt to legitimize their beliefs. Such prominent legal thinkers as Cass Sunstein, Bruce Ackerman, and Frank Michelman have incorporated the work of historians into their legal theories and arguments, turning to eighteenth-century republicanism-which stressed communal values and an active citizenry-to justify their goals.Kalman, a historian and a lawyer, suggests that reliance on history in legal thinking makes sense at a time when the Supreme Court repeatedly declares that it will protect only those liberties rooted in history and tradition. There are pitfalls in interdisciplinary argumentation, she cautions, for historians' reactions to this use of their work have been unenthusiastic and even hostile. Yet lawyers, law professors, and historians have cooperated in some recent Supreme Court cases, and Kalman concludes with a practical examination of the ways they can work together more effectively as social activists.

    eISBN: 978-0-300-14730-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. PROLOGUE Faith of Our Fathers
    (pp. 1-10)

    This book grew out of my insomnia. For years I staved off wakefulness by reading law reviews. One article in the middle of the night seemed the best soporific. Law review articles no longer serve my purpose: they have become too interesting.

    Why? Law professors, who have long ignored the work of historians as important as Charles Beard and Richard Hofstadter, now seem fascinated by them. The debate between Gordon Wood and J. G. A. Pocock is refought in the law reviews. Even more important, legal scholars have enlisted history, as they have drafted other disciplines, in their battle on...

  5. PART I The Spell of the Warren Court

    • CHAPTER 1 Times to Remember
      (pp. 13-59)

      Although legal and political liberalism have been longtime allies, and legal realism affected both, they have had different careers. Unlike liberalism in politics and other disciplines, however, liberalism in law emerged from the 1960s intact. Only the question of rationalizing legal liberalism remained.

      When law professors write history, they mark legal realism as the jurisprudential divide between the old order and modernity. Adopting a “generous” definition of legal realism, William Fisher, Morton Horwitz, and Thomas Reed recently described the “heart” of the movement as “an effort to define and discredit classical legal theory and practice and to offer in their...

    • CHAPTER 2 “Law And”
      (pp. 60-93)

      This time, law professors looked outward to other disciplines. Economist Paul Samuelson observed that though law schools had long been “an alien and unassimilated element in the body politic of the university,” they became part of it “for the first time” in the 1970s. Because of the job crisis among academics, individuals who might once have opted to become humanists or social scientists were choosing to join law faculties. Tenured professors in the humanities and social sciences may have earned more and taught less than they did in previous decades. The young were not so fortunate. Earning a doctorate consumed...

    • CHAPTER 3 Interlude: Thinking about Thinking
      (pp. 94-100)

      In 1981, Yale Law School sponsored a conference on “Legal Scholarship: Its Nature and Purposes.” The very fact of the conference indicated that anxiety had been building for some time, but I date the beginnings of palpable angst among law professors to that gathering. Leon Lipson of Yale suggested the new sensibility among academic lawyers when he joked “anything you can do, I can do ‘meta.’ ” A generation earlier, the notion of scholarship about legal scholarship, a symposium on “meta-law,” would have struck law professors as absurd. “[S]ymposia like this one are convened when it seems that something has...

    • CHAPTER 4 Crisis
      (pp. 101-131)

      In the 1980s, law professors were forced to confront different disciplines. They continued trying to coopt them. But they did change the way they thought about the way they thought. Combined with their divergent politics, the ensuing crisis polarized the legal academy.

      Though law professors might have learned more from Kuhn, he and the historians seemed old-hat to some. Kuhn had praised historians for trying to recreate the past as it would have seemed to those who lived through it. “Consciously or not, they are all practitioners of the hermeneutic method,” he declared. Theirs, however, was a nineteenth-century romantic hermeneutics...

    • CHAPTER 5 The Turn to History
      (pp. 132-164)

      “Wouldn’t it be foolish for lawyers to ignore the ‘republican revival’ amongst American historians?” Bruce Ackerman asked recently. Lawyers did not. And it may be foolish for them to hope republicanism will help them find the answers they seek.¹

      While law professors bickered, the Reagan administration was transforming the judiciary through the appointment of conservative judges and yoking its own activism to a “jurisprudence of original intention.” According to originalist jurisprudence. Attorney General Edwin Meese said, “Where the language of the Constitution is specific, it must be obeyed. Where there is a demonstrable consensus among the Framers and ratifiers as...

  6. PART II Lawyers and Historians

    • CHAPTER 6 Lawyers v. Historians
      (pp. 167-190)

      For many years, a gulf separated lawyers from historians. We historians (for as a historian, I now explicitly become one of the subjects of my story) assumed that we were the only ones with expertise on our turf. “Lawyers are arrogant,” we sniffed, “and they think they can do anything—even write history.” Their reaction to Pocock, we believed, showed their susceptibility to what Tushnet has called “the ‘lawyer as astrophysicist’ assumption: We are people who have a generalized intelligence and can absorb and utilize the products of any other discipline in which we happen to become interested.” In practical...

    • CHAPTER 7 Trading Places
      (pp. 191-229)

      Many of the criticisms that historians make of lawyers’ history are indeed irrelevant to the lawyer’s task. At least the immediate interest of historians is always in “historicizing” the past as much as possible, tamping it down firmly into departed times and places. For lawyers, this method is useful only half the time, when they want to get rid of some practice justified by tradition. At other times they want not to deaden the past but to make new, mythic, traditions out of it to use in current argument. It is pointless to say that such myths are “inaccurate” from...

  7. EPILOGUE Liberalism, History, and Law Professors
    (pp. 230-246)

    As a high school senior in 1970–71, I read Tom Wolfe’sRadical Chic. I recall laughing aloud at the description of wealthy, white New Yorkers affirming the Black Panthers’ struggle with shouts of “Right on!” I owned a tie-dyed cashmere turtleneck, and I had a classmate and friend who faithfully drove her Mercedes to sds meetings. But rich people’s radicalism seemed ridiculous to me. “Limousine liberalism,” however, a recently coined and equally sarcastic reference to upper-class and upper-middle-class liberals, made more sense. I came to maturity too late to understand why liberals would have linked reform at home to...

  8. Notes
    (pp. 247-360)
  9. Index
    (pp. 361-375)