Can we talk about the assaults on the constitution under covid, shutting down the country, closing schools and businesses...pressuring facebook to censor true posts that could contribute to vaccine hesitancy.? Allowing vaccine mandates for people to keep their jobs. This included mandating an experimental new vaccine even to pregnant women.. The list goes on.
Myself, as a regular Jane, an independent, two time Obama voter, I just tune out this drama about undermining the rule of law. In my view the rule of law was dramatically undermined throughout the covid pandemic and by the Biden administration. It all seems so polticized. I just don't believe democratic whining anymore.
That said, the one thing that upsets me is Trump deporting people who protest against the war in Gaza. That is a clear assault on free speech. If only the Biden administration hadn't also been aggressively assaulting free speech on the subject of covid, transgenderism, etc.. See Matt Taibbi and Paul Thacker's work on the disinformation industrial complex.
I think there's a qualitative difference between urging without mandating that privately owned social media platforms disfavor anti-vaccine messages on the one hand, say, and actual government agents actually hustling someone, a legal resident, into a van to be actually deported because they wrote an op-ed on the other.
Critical legal theory analyzing law and its historic application as a tool of the powerful, may be described as 'cynical' ...but is it *wrong* (in the sense of, 'untrue')? Roiphe doesn't quite seem to say so. If the argument is that it is wrong, or at least incomplete, please make that argument.
As I see it, the Democrats/Progressives in the legal profession have long been waging a war on the "rule of law", using the law in any way they could to advance their far left agenda despite its unpopularity with the American people, and the borderline or actually illegal methods they used to achieve this. Again as I see it, the Republicans under Trump are restoring what used to be "norms" and the actual rule of law, and ending politicized lawfare against anyone who disagreed with progressive ideas and policies. Who used government agencies and adjacent NGOs to censor free speech? Who looked for flimsy pretexts to legally attack Trump and others who stood up against the Left, while defending Democrats who actually did commit the crimes? Who selectively surveilled and prosecuted people standing outside abortion clinics, while doing nothing about people who actually bombed crisis pregnancy centers? I could go on and on, but the "rule of law" has been nothing but a joke to the Left for a long time now, so long that the establishment has become quite comfortable with political lawfare being the new normal. They are very upset that Trump might actually return us to a nation of impartial application of the law, and that some of their own might have to pay for their crimes against the rest of us. That is why they accuse Trump of "assaulting the rule of law", like everything else the Left says, they are projecting their own actions onto the other side.
There was a course called something like "Law and Society" at Cornell Law when I went there in 1958-1961 that used the term critical legal theory or studies and it simply meant what is obvious. Laws reflect the social and hierarchical viewpoints of the legislators. Legislators are not jurisprudential or legal philosophers and can write boneheaded laws. Boneheaded laws conspicuously included laws intended to keep blacks away from whites but also included this example I like: In Idaho, lessees cannot sue for trespass unless authorized by the owner. Critical legal theory doesn't need an agenda more complicated than that.
The analogy of this article is like claiming New York City Mayor John V. Lindsay - who created the Knapp Commission in 1970 to counter widespread corruption within the NYPD - was responsible for a dangerous assault on law enforcement.
Trump's actions are marked by a bald and self-serving assertion of executive power and a populist impatience with such niceties as the rights of the accused. Such actions require a foundation in critical legal studies about as much as Nixon's did, which is to say none at all. From the perspective of legal theory, Trump's far more proximate enablers are CLS's opposites, conservative formalists -- long champions of the unitary executive theory, for example, and the "Constitution in Exile" -- and, sure enough, his two greatest defenders on the Court, Alito and Thomas, are in that mold. That's especially true of Thomas, whose one-time clerk John Eastman was the legal mind, if you can call it that, behind Trump's attempts to overturn the 2020 election and to deny birthright citizenship.
So, if we're picking a theory to blame, how about the one that actually did it? After all, conservative jurisprudence has won many battles and is highly influential today. Critical legal studies, by contrast, always achieved far more success on campus than in court.
But I don't really blame conservative legal ideas any more than lefty ones for the mess Roiphe describes. I don't like critical legal studies, but I'm glad all these theories make the rounds for people to debate. After all, Trump would demonize any court decision that didn't go his way anyway -- he has only one principle. Law firms, meanwhile, are afraid of losing clients, because the president has shown a willingness to punish political opponents in unprecedentedly petty ways. Hence all those deals. It's not that they don't believe in the rule of law. Their cowardice is far more banal.
I graduated from the University of Chicago Law School in 2003 and practiced law, business litigation, at two major firms, in Chicago and New York, for more than a decade following (before changing careers), and I have to say that the story Roiphe tells doesn't resonate with me. Sure, the University of Chicago was hardly a hotbed of lefty legal theory, but it was certainly a hotbed of ideas in a similar demystifying, bubble-bursting vein, such as legal realism and legal pragmatism, ideas that deemphasize formalist theories and theory in general, and rather emphasize law in action on the ground as a practical exercise of power.
I love intellectual history, but it's worth keeping a cool head about the impact of ideas on the ground. Like a plaintiff's lawyer in a case, you have to prove causation. Such ideas *can* be very influential, as conservative legal theories have actually been. Then again, they may not make much difference. There's an argument that universities have succumbed in some academic areas and practices to progressive groupthink and thus blithely and stupidly provoked the backlash they now face. Law firms, however, really did nothing to reasonably provoke the administration's ire. Yes, news flash, many a yuppie lawyer is a liberal. Yes, many a big law firm makes a point to take on pro bono cases, such as immigration cases and wrongful convictions -- worthy noblesse oblige, frankly, encouraged by the bars. But this is not a profession in thrall to radical leftist notions as far as I can tell, but far more conventional "normie" liberal ideas, if that -- there are big "Republican" firms too -- which in any case don't comprise most of what they do -- counseling and defending the legal interests of major corporate clients for fees only such clients could afford to pay. Where critical legal studies, however asinine, fits into any of this eludes me.
The analogy is fair and interesting. However, a causal connection between CLS and Trump's abuses is not clear to me. One possibility is that CLS has added to the general cynicism, so Trump faces less resistance. Evidence is needed.
Also, if you want to put CLS in a broader context, JSTOR shows that many CLS papers mention Critical Theory. Given its name, that cannot be coincidental. And it's not surprising, since Marcuse's fame peaked in 1968, and he was a contributor to CT's development. Furthermore, critical race theory is a direct descendant, and its most foundational paper (Bell, 1980) is pure CLS -- legal decisions only allow racial progress if it's in the interest of whites (his "interest convergence" concept).
But your points about Trump's abuse of the law and law firms are most important, and I urge you to work hard on a writing a simple explanation for a general audience.
This post was an eye opener for me, despite my having earned a law degree in 2005. I went to Fordham, a very good school, but hardly in the top ten. It seems to be faculty at elite institutions that are most prone to such unscrupulous politicization of teaching and scholarship. While earning my history Ph.D. at Columbia I saw far more of this left wing silliness than at Fordham. It’s worth remembering that it was Stanford law students who shouted down a conservative judge in 2023, and the school’s Dean of Diversity, Equity and Inclusion explained to the silenced speaker that his actions had been “hurtful” to the fragile attorney larvae in the audience.
Why does such destructive nonsense flourish at top institutions? Perhaps it reflects the same elitism that led Hillary to dismiss Trump voters as deplorables and lets Democrat politicos defend the indefensible hiding of Biden’s decline from the American people.
Not that Republican elites have any greater respect for the people, but at least they understand that they should pretend to.
Can we talk about the assaults on the constitution under covid, shutting down the country, closing schools and businesses...pressuring facebook to censor true posts that could contribute to vaccine hesitancy.? Allowing vaccine mandates for people to keep their jobs. This included mandating an experimental new vaccine even to pregnant women.. The list goes on.
Myself, as a regular Jane, an independent, two time Obama voter, I just tune out this drama about undermining the rule of law. In my view the rule of law was dramatically undermined throughout the covid pandemic and by the Biden administration. It all seems so polticized. I just don't believe democratic whining anymore.
That said, the one thing that upsets me is Trump deporting people who protest against the war in Gaza. That is a clear assault on free speech. If only the Biden administration hadn't also been aggressively assaulting free speech on the subject of covid, transgenderism, etc.. See Matt Taibbi and Paul Thacker's work on the disinformation industrial complex.
I think there's a qualitative difference between urging without mandating that privately owned social media platforms disfavor anti-vaccine messages on the one hand, say, and actual government agents actually hustling someone, a legal resident, into a van to be actually deported because they wrote an op-ed on the other.
Critical legal theory analyzing law and its historic application as a tool of the powerful, may be described as 'cynical' ...but is it *wrong* (in the sense of, 'untrue')? Roiphe doesn't quite seem to say so. If the argument is that it is wrong, or at least incomplete, please make that argument.
As I see it, the Democrats/Progressives in the legal profession have long been waging a war on the "rule of law", using the law in any way they could to advance their far left agenda despite its unpopularity with the American people, and the borderline or actually illegal methods they used to achieve this. Again as I see it, the Republicans under Trump are restoring what used to be "norms" and the actual rule of law, and ending politicized lawfare against anyone who disagreed with progressive ideas and policies. Who used government agencies and adjacent NGOs to censor free speech? Who looked for flimsy pretexts to legally attack Trump and others who stood up against the Left, while defending Democrats who actually did commit the crimes? Who selectively surveilled and prosecuted people standing outside abortion clinics, while doing nothing about people who actually bombed crisis pregnancy centers? I could go on and on, but the "rule of law" has been nothing but a joke to the Left for a long time now, so long that the establishment has become quite comfortable with political lawfare being the new normal. They are very upset that Trump might actually return us to a nation of impartial application of the law, and that some of their own might have to pay for their crimes against the rest of us. That is why they accuse Trump of "assaulting the rule of law", like everything else the Left says, they are projecting their own actions onto the other side.
There was a course called something like "Law and Society" at Cornell Law when I went there in 1958-1961 that used the term critical legal theory or studies and it simply meant what is obvious. Laws reflect the social and hierarchical viewpoints of the legislators. Legislators are not jurisprudential or legal philosophers and can write boneheaded laws. Boneheaded laws conspicuously included laws intended to keep blacks away from whites but also included this example I like: In Idaho, lessees cannot sue for trespass unless authorized by the owner. Critical legal theory doesn't need an agenda more complicated than that.
The analogy of this article is like claiming New York City Mayor John V. Lindsay - who created the Knapp Commission in 1970 to counter widespread corruption within the NYPD - was responsible for a dangerous assault on law enforcement.
Trump's actions are marked by a bald and self-serving assertion of executive power and a populist impatience with such niceties as the rights of the accused. Such actions require a foundation in critical legal studies about as much as Nixon's did, which is to say none at all. From the perspective of legal theory, Trump's far more proximate enablers are CLS's opposites, conservative formalists -- long champions of the unitary executive theory, for example, and the "Constitution in Exile" -- and, sure enough, his two greatest defenders on the Court, Alito and Thomas, are in that mold. That's especially true of Thomas, whose one-time clerk John Eastman was the legal mind, if you can call it that, behind Trump's attempts to overturn the 2020 election and to deny birthright citizenship.
So, if we're picking a theory to blame, how about the one that actually did it? After all, conservative jurisprudence has won many battles and is highly influential today. Critical legal studies, by contrast, always achieved far more success on campus than in court.
But I don't really blame conservative legal ideas any more than lefty ones for the mess Roiphe describes. I don't like critical legal studies, but I'm glad all these theories make the rounds for people to debate. After all, Trump would demonize any court decision that didn't go his way anyway -- he has only one principle. Law firms, meanwhile, are afraid of losing clients, because the president has shown a willingness to punish political opponents in unprecedentedly petty ways. Hence all those deals. It's not that they don't believe in the rule of law. Their cowardice is far more banal.
I graduated from the University of Chicago Law School in 2003 and practiced law, business litigation, at two major firms, in Chicago and New York, for more than a decade following (before changing careers), and I have to say that the story Roiphe tells doesn't resonate with me. Sure, the University of Chicago was hardly a hotbed of lefty legal theory, but it was certainly a hotbed of ideas in a similar demystifying, bubble-bursting vein, such as legal realism and legal pragmatism, ideas that deemphasize formalist theories and theory in general, and rather emphasize law in action on the ground as a practical exercise of power.
I love intellectual history, but it's worth keeping a cool head about the impact of ideas on the ground. Like a plaintiff's lawyer in a case, you have to prove causation. Such ideas *can* be very influential, as conservative legal theories have actually been. Then again, they may not make much difference. There's an argument that universities have succumbed in some academic areas and practices to progressive groupthink and thus blithely and stupidly provoked the backlash they now face. Law firms, however, really did nothing to reasonably provoke the administration's ire. Yes, news flash, many a yuppie lawyer is a liberal. Yes, many a big law firm makes a point to take on pro bono cases, such as immigration cases and wrongful convictions -- worthy noblesse oblige, frankly, encouraged by the bars. But this is not a profession in thrall to radical leftist notions as far as I can tell, but far more conventional "normie" liberal ideas, if that -- there are big "Republican" firms too -- which in any case don't comprise most of what they do -- counseling and defending the legal interests of major corporate clients for fees only such clients could afford to pay. Where critical legal studies, however asinine, fits into any of this eludes me.
The analogy is fair and interesting. However, a causal connection between CLS and Trump's abuses is not clear to me. One possibility is that CLS has added to the general cynicism, so Trump faces less resistance. Evidence is needed.
Also, if you want to put CLS in a broader context, JSTOR shows that many CLS papers mention Critical Theory. Given its name, that cannot be coincidental. And it's not surprising, since Marcuse's fame peaked in 1968, and he was a contributor to CT's development. Furthermore, critical race theory is a direct descendant, and its most foundational paper (Bell, 1980) is pure CLS -- legal decisions only allow racial progress if it's in the interest of whites (his "interest convergence" concept).
But your points about Trump's abuse of the law and law firms are most important, and I urge you to work hard on a writing a simple explanation for a general audience.
This post was an eye opener for me, despite my having earned a law degree in 2005. I went to Fordham, a very good school, but hardly in the top ten. It seems to be faculty at elite institutions that are most prone to such unscrupulous politicization of teaching and scholarship. While earning my history Ph.D. at Columbia I saw far more of this left wing silliness than at Fordham. It’s worth remembering that it was Stanford law students who shouted down a conservative judge in 2023, and the school’s Dean of Diversity, Equity and Inclusion explained to the silenced speaker that his actions had been “hurtful” to the fragile attorney larvae in the audience.
Why does such destructive nonsense flourish at top institutions? Perhaps it reflects the same elitism that led Hillary to dismiss Trump voters as deplorables and lets Democrat politicos defend the indefensible hiding of Biden’s decline from the American people.
Not that Republican elites have any greater respect for the people, but at least they understand that they should pretend to.
www.savedemocracyinamerica.org