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The Empire Strikes Back: Outsiders and the Struggle over Legal Education

Arthur Austin
Copyright Date: 1998
Published by: NYU Press
Pages: 236
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  • Book Info
    The Empire Strikes Back
    Book Description:

    Once dismissed as plodding and superfluous, legal scholarship is increasingly challenging the liberal white male establishment that currently dominates legal education and practice. The most significant development since the emergence of the casebook, at the turn of the century, this trend has unleashed a fierce political struggle. At stake is nothing less than the entire enterprise of law and education, and thus a powerful platform from which to shape society. The result, here vividly recounted by Arthur Austin, has been an uncompromising, take-no-prisoners fight for dominance. The challenge comes from Outsiders, a collection of feminists, critical race theorists, and critical legal studies scholars who rely on unconventional methods such as storytelling to give voice to the underrepresented. In the other, demographically larger camp resides the monolithic Empire, consisting of traditionalists who, having developed an effective form of scholarship, now circle the wagons against the outsider heathens. Neither partisan nor objective, Austin is both respectful and critical of each faction. The Empire, he believes, is imperious, closed-minded, and self-perpetuating; the Outsiders are too often paranoid, anti-pragmatic, and overly tolerant of fringe work. Is the new scholarship a vacuous, overpoliticized, soon-to-be-vanquished trend or the harbinger of an important new paradigm? Is reconciliation possible? Anyone with a vested interest in the answer to these questions, and in the future of law, cannot afford to miss Arthur Austin's invaluable volume. Arthur Austin is the Edgar A. Hahn Professor of Jurisprudence at Case Western Reserve University.

    eISBN: 978-0-8147-0515-5
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-xii)
  3. Acknowledgments
    (pp. xiii-xiv)
  4. Note to the Reader
    (pp. xv-xx)
  5. 1 The Outsiders vs. the Empire
    (pp. 1-13)

    The Empire is composed of academic traditionalists—the Kingsfields of legal education. The dominant theme dates to 1870 when Christopher Columbus Langdell introduced the casebook method to Harvard Law School. Since then, the study of law has been conducted according to the scientific model, which relies on rigid analysis to lead the student inevitably to neutral judgments. Scholarship adheres to the doctrinal method that informs decision makers and colleagues with objective analysis of legal problems. Until the appearance of the Outsider movement, the Empire had never been seriously challenged. Now it faces extinction.

    According to conventional wisdom, the prevalence of...

  6. 2 The Empire
    (pp. 14-32)

    “There has not been an indulgence we have not enjoyed. Everything she could have wanted, our marriage has given her.” Yet, despite this glorious life, something was wrong. “This very morning she said to me, haltingly, ‘We must speak tonight after the guests depart.’” Sure that he had lost her to another, he agonized through the day and, when the guests were gone, faced his love, “my fears at their peak, as she said to me, ‘Darling, my loved one, my life, I want to go to law school.’” This is a Ralph Lauren advertisement for fur coats that ran...

  7. 3 Empire Scholarship: What Are They Protecting?
    (pp. 33-62)

    Ignatius B. Moot knew it was a stacked committee. Everyone owed the Dean a favor. Moot’s debt was big time. When that crazy feminist entrapped me on the couch and threatened harassment charges, sexual idiosyncrasies, she said, the good old Dean shut her up with a nice clerkship with one of his buddies. Now it is payback time. It was simple. The Dean needed a Black woman. It was nonnegotiable. The Provost’s word was final—get one or I cut your budget. Moot’s orders were equally direct. A unanimous Promotion and Tenure recommendation for Professor Evelyn Allegory.

    What the hell...

  8. 4 The Greening of Faculty, Students, and Law Review
    (pp. 63-82)

    “That’s what you get from Yale; it’s no accident that that’s where legal realism came from and it was Kingman Brewster, a former law school dean, who capitulated to the radical invasion of the Yale campus.” It was May of 1971 and two of my colleagues were in well-behaved debate over Charles Reich’s bookThe Greening of America.While both were Harvard graduates, they were separated by more than just political generations. Paul Houseman got his LL.B in 1951; Fino finished in 1966. They were good students and after graduation spent obligatory time with white-shoe Wall Street firms. For two...

  9. 5 “CLS Is Dead As a Doornail”
    (pp. 83-111)

    When he left to visit a southern law school, Fino was ensconced in the accepted career groove. He published several long and dense articles with a high footnote density ratio while becoming an irritating bore at faculty meetings. More important, Fino had overcome a pronounced and obviously affected Harvard Stutter as he developed student support by giving high grades. Although the students did not have a clue about what he said in class, they appreciated his fashion—an ascot, crimson blazer with Harvard crest, and a cane.

    What a difference a year can make. The students were the first to...

  10. 6 Critical Race Scholarship
    (pp. 112-133)

    Years ago it was de rigueur for students in London to make sure that everyone could see that they were carrying a copy of Colin Wilson’sThe Outsider. All the students had to read was the first sentence to know that it captured their ethos: “At first sight, the Outsider is a social problem. He is the hole-in-corner man.” While others compromised with the cold intolerant authority of the bourgeois, the student remained outside. “He is an Outsider,” Wilson wrote, “because he stands for Truth.”

    Wilson focused on literature because he knew writers are outsiders in how they live and...

  11. 7 Can Voice and Truth Coexist?
    (pp. 134-155)

    Kingsfield, Williston, and Bok do not write in the first person. It connotes subjectivity, the antithesis of the impersonal style. Resort to the first person blurs the distinction between analysis and whimsy. Kingsfield’s worst nightmare is narrative, the ultimate in first-person perversion. To Kingsfield, narrative includes the parables of Derrick Bell and the autobiographical stories of Patricia Williams. In addition, there are experience dramas.

    Eleven years ago, a man held a an ice pick to my throat and said: “Push over, shut up, or I’ll kill you.” I did what he said, but I couldn’t stop crying. A hundred years...

  12. 8 The Abyss of Legal Scholarship
    (pp. 156-178)

    It is not service to the community, and despite the self-serving spin in the catalogues, it is surely not teaching. The name of the game is scholarship. Publish or perish is a nonnegotiable law of academe. Do it if you want a chance at tenure; otherwise, hit the road. The problem is not getting published (a cynic said: “I am not sure that we have reached the point where you could jot something down on a cocktail napkin and get it published, but we’re close”), but getting it approved by the Promotion and Tenure Committee and ultimately by the faculty....

  13. 9 Comments and Conclusions
    (pp. 179-200)

    Objective and analytical scholarship that contributes to knowledge is a working description of the goal of the legal scholar. The doctrinal methodology incorporates a communication apparatus that extends from law school to practice to judicial decision making. The similarity between a well-reasoned article and a quality appellate decision is no accident. Objectivity and analytical reasoning criteria are practical vehicles for problem solving—the fundamental mission of lawyers. Consistent with this responsibility, the doctrinal model constitutes the most efficient way for law professors to advise judges and lawmakers.

    Doctrinal evaluation is a process that consists of a thorough analysis and exposure...

  14. Bibliography
    (pp. 201-208)
  15. Index
    (pp. 209-214)
  16. About the Author
    (pp. 215-215)