How Power Shapes the Law
A debate.
Richard Thompson Ford, Professor of Law at Stanford:
The Trump administration’s lawlessness is without precedent in American history. In its attacks on the independence of legal institutions, from private law firms to federal judges to the Department of Justice, the Trump administration has simply ignored clear legal rules that unambiguously limit its authority and undermined vital constraints that are the foundations of the rule of law: norms of independence, impartiality, and professional consensus about values, methods of analysis, and modes of interpretation.
From around the 1970s, the Critical Legal Studies movement advanced one of the most detailed and sophisticated critiques of a certain conception of the rule of law: namely the conceit that law is ideologically neutral and can be applied mechanically, without involving controversial value judgments. Does this mean, as Rebecca Roiphe recently argued in Persuasion, that CLS paved the way for Trump’s contempt for law?
No, it doesn’t. Professor Roiphe attacks a caricature of CLS: she writes that CLS “assumes that law is infinitely malleable but…nothing more than a lever used by those on top to perpetuate their power.” This description of CLS bears little relationship to the careful, if controversial, work of scholars such as Roberto Unger and Duncan Kennedy, whose photo accompanies Roiphe’s article. While some occasionally made dramatic claims for rhetorical effect, neither Unger nor Kennedy made the lazy claim that the law was infinitely malleable or merely a tool for the powerful. They, along with many others associated with CLS, did argue that the law could be malleable within limits and that it reflected a set of contestable assumptions about how society should be organized—assumptions that favored an unequal distribution of resources and power. They argued that law’s indeterminacy meant that judges rarely simply applied the law to the facts without doctrinally extraneous considerations of social justice, efficiency, prudence, and fairness playing a role, and that those considerations could make the law more or less egalitarian, or more or less conductive to human flourishing. If this claim was controversial when the Crits first made it, it’s common sense today and not just among leftists pressing for social justice: for instance, empirical research shows that party affiliation often predicts a judge’s decisions in ideologically freighted controversies.
Far from insisting that law is infinitely malleable, such that a president could use it to do whatever he wants, much of the jurisprudence of CLS described in detail exactly how and when law was malleable—and when it was not. The Crits were concerned—one might say obsessed—with identifying patterns in when legal rules are hard constraints and when they allow for exceptions, how soft constraints shape decision-making, and how judges react when their own sense of justice conflicts with what the letter of the law seems to require. The Crits demonstrated that law and politics are not completely separate domains because the law is informed by unexamined assumptions about how people should interact, what counts as freedom, and the limits of justice; meanwhile the way we think about political change is influenced by legal concepts such as rights, due process, freedom of contract, injury, and personal responsibility. CLS was also a countercultural intellectual movement that wanted to encourage judges, lawyers, and law students to take responsibility for their own role in shaping the law and to reimagine what might be possible.
Many legal academics found CLS disquieting, but this was because it asked difficult questions about the rule of law, not because it sought to destroy it. Even for people who didn’t agree, CLS contributed a valuable perspective on legal decision-making, the legal process, and the relationship between law and justice (yes, including social justice—it’s a sad commentary on our present moment that anyone would find this scandalous). Even at schools like Harvard and Georgetown where the movement was strongest, CLS was always a very small part of a law school curriculum dominated by conventional courses and informed by the unexamined conventional wisdom that law is ideologically neutral and adjudication is akin to an umpire calling balls and strikes. CLS was part of the healthy intellectual conversation that defines higher education at its best. Until recently, there was no reason to think our legal institutions were so fragile as to be seriously threatened by such critical inquiry.
One of the highlights of my early years at Stanford was a faculty workshop where Duncan Kennedy presented a new paper and my colleague Tom Grey commented on it. Tom was not a Crit—he was a legal pragmatist in the vein of Oliver Wendell Holmes. In their exchange Duncan insisted his new project was a devastating critique of current judicial practice while Tom argued it merely suggested the need for modest reform. One striking thing was that they agreed about more than they disagreed. The two were not mortal antagonists fighting over the fate of the rule of law; they were friendly competitors with differing views about how flawed our legal order was and how to best improve it.
Many of the Crits were next-gen 1960s countercultural radicals—think Students for a Democratic Society—in their political orientation. But their theories of adjudication—what Roiphe attacks—were part of a longstanding and widespread tradition in American jurisprudence. CLS was first and foremost a school of jurisprudence, part of a long line of pragmatic legal thought that began with Holmes, built steam with the American legal realists, and included, in differing ways, jurists as diverse as Earl Warren, John Paul Stevens, Sandra Day O’Connor, Richard Posner, Stephen Breyer, and Elena Kagan. Despite a wide range of political views, they agreed that law was often open to interpretation. Indeed, the claim that law cannot be applied mechanically, without the need for controversial judgment calls, is in and of itself quite unremarkable—any competent lawyer knows and experiences this in their daily practice. Were it not true, the only legal controversies would be over the facts and, accordingly, appellate litigation—where the facts are settled and disputes involve questions of legal interpretation—would be largely unnecessary. The Crits did not seek to destroy the rule of law. Instead, they sought to improve it by providing a more accurate account of how adjudication actually works—how customs and habits only incompletely constrain legal decisions.
What does CLS have to say about the Trump administration’s assault on the rule of law? Arguably it predicted some of the ways the administration has found thin legal cover for what is essentially a lawless power grab. But for the most part, jurisprudence—CLS included—doesn’t have much to say about blatant lawlessness. Just as a scholar of admiralty law would not analyze the behavior of pirates on the high seas and a fine art critic would be unable to comment on the appeal of a mud-wrestling match, people dedicated to exploring the complexities of jurisprudence within a reasonably well-functioning legal system simply do not speak to the phenomenon of blatant law-breaking, whether by private citizens or by government officials who abuse the public trust. If the CLS movement is guilty of anything in relationship to Trump, it is a vice shared by almost everyone else inside the legal academy (and outside it for that matter): they didn’t anticipate such a complete disregard for the basic shared practices of the legal system; they took the resiliency of the legal order for granted. But this no more discredits CLS than a brutal unprovoked military assault would discredit a critic of Cold War espionage and propaganda.
Professor Roiphe concludes that “having cast the law as nothing more than a tool of the powerful, it is hard to turn around and criticize the legitimately elected president for using it as… just that.” This is a non-sequitur. Why wouldn’t the Crits take Trump’s abuses as a vindication of their most strident critiques? To take an analogy from history, the critics of the Constitutional doctrine of “separate but equal” during the Jim Crow era cast the law as a tool of white supremacy, but it wasn’t hard—or inconsistent—for them to criticize the proponents of poll taxes for using it as… just that. It seems Professor Roiphe’s objection boils down to a conventional complaint about any comprehensive critique of the status quo: attacking existing institutions runs the risk of opening the door to changes for the worse. Fair enough, but it is worth noticing that this charge could be leveled at any forceful criticism of existing institutions: for instance, this was precisely what those who favored accommodating racial segregation, such as Booker T. Washington, said against radical reformers such as W.E.B. Du Bois. Radical critique may be disquieting, it may even be risky, but it certainly has its place in improving our legal institutions and our society.
Ironically, Trump’s assault on the rule of law proves, not that CLS was too cynical, but perhaps that it was not cynical enough. CLS assumed that the greatest threats to equality and liberty would be subtle and clandestine, demanding a sophisticated methodology to bring them into the light of day. But it doesn’t require a nuanced analysis to understand how the Federal Society and the Republican Party stacked the Supreme Court with movement conservatives, nor must we resort to an elaborate account of judicial methodology to understand why a Trump lackey like Aileen Cannon undermined the prosecution in the classified documents case; similarly, no fancy jurisprudential theory is needed to explain how Pam Bondi has politicized the Department of Justice or why the Department of Education’s violation of unambiguous procedural rules in its crusade against higher education is illegitimate.
CLS emerged at a time when American institutions were still interested in soft power, of which belief in the evenhandedness of the law is one of the most potent examples. CLS wanted to lift the veil that masked the hidden biases and unexamined value judgments underlying seemingly unbiased decisions. It has little to say when the powerful themselves rip the veil off and begin an open march toward autocracy.
Richard Thompson Ford is Professor of Law at Stanford. His latest book is Dress Codes: How the Laws of Fashion Made History.
Rebecca Roiphe, Professor of Law at New York Law School:
In his response to my article, Law ≠ Power, Richard Ford argues that Critical Legal Studies did not pave the way for President Trump’s unprecedented attack on the rule of law. While Ford makes some interesting points, he both mischaracterizes my argument and minimizes the radical nature of the CLS movement.
I did not argue that CLS paved the way for Trump’s attack on the rule of law. The causes of Trump and his movement are far more complex and cannot be so easily summarized. I did make the more modest argument that it left the legal system vulnerable to such a populist attack. I think this argument is more than defensible for the following reasons.
First, CLS was not simply a movement based on the uncontroversial observation that law and politics are not entirely distinct. The legal realists made that argument almost a half-century earlier. While, of course, as Ford points out, the two movements had some elements in common, they also differed in significant ways. CLS sought to distance itself from legal realism, dismissing the movement as indistinct from the formalism which preceded it. To put it succinctly, realists believed the law could be perfected or at least significantly improved; CLS did not.
CLS was born in a moment when the Left had grown tired of reform and disillusioned with liberal democracy. At least some members of CLS were avowedly opposed to the rule of law. For example, Roberto Unger wrote in his book, Knowledge and Politics, “No coherent theory of adjudication is possible within liberal political thought.” While it is hard to pin down his alternative, he advocated some sort of creative escape from liberal consciousness that would free individuals to think more creatively about society. As one of the founders of the movement, David Trubek, explained: CLS “challenged the ideal of the rule of law as the cement for American society and a force for equality.”
Second, Ford minimizes the effect CLS had on legal education and the profession generally. Most proponents of CLS later claimed that the movement failed. When they made this observation, they were referring to the more radical proposals. But for our purposes, the more important historical point is the way in which CLS succeeded. Law schools ceased to emphasize how lawyers benefit society by playing a role in a critical process—one which helps mediate diverse interests and holds powerful actors to account. Instead, law schools and the profession itself began to focus on how lawyers can use the system to advance substantive social justice goals on behalf of marginalized groups.
If the purpose of law and lawyers is to retool the malleable elements of the law to advance the interest of certain groups over others then there is very little principled argument left that they ought not to be used on behalf of an elected majority to advance its own goals, whatever those may be.
Rebecca Roiphe is the Joseph Solomon Distinguished Professor of Law at New York Law School. She is writing a book on the history of legal education in America since 1970.
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The lack of any reflection on the last decade of coordinated lawfare clearly designed to eliminate Trump as a political candidate is telling in this article. Note too all the reference to this assessment of power and law from Ivy League law schools.
We are in a clash of civilization between our elites and everyone else. The judicial system is dominated by the elites... people that lack intellectual honesty or self-reflection to admit their own corruption of law and democracy for power... but are quick to accuse everyone else of doing it.
If CLS had remained a thought experiment for jurisprudential theorists, Ford would have a point. But the last two paragraphs from Roiphe tell the whole story.