From Expectation to Experience: Essays on Law and Legal Literature.

• Author: Austin, Arthur

FROM EXPECTATION TO EXPERIENCE. By James Boyd White. Ann Arbor: University of Michigan Press. 1999. Pp. xi, 194. $39.50.

INTRODUCTION

For legal scholars it is the best of times. We are inundated by an eclectic range of writing that pushes the envelope from analysis and synthesis to the upper reaches of theory. Mainstream topics face fierce competition from fresh ideological visions, a variety of genres, and spirited criticism of the status quo. Young professors have access to a burgeoning variety of journals to circulate their ideas and advice while the mass media covets them as public intellectuals.

There is a less sanguine mood; an increasingly vocal group of scholars complain that it is the worst of times and refer to the above paragraph as a proffer of proof. Eclecticism translates to postmodern relativism in law review drama that compares, unfavorably, male aloofness with the female nurturing instincts of "emotional logic"(1) or presents highly charged agony experiences about birthing trauma.(2) Yale publishes photography as art-commentary and ramblings on popular culture.(3) Law professors as storytellers use stream of consciousness to circulate autobiographical tales of the racism and sexism of the callous, liberal, white male hierarchy.(4) Instead of problem solving or providing counsel to judges and practitioners, law professors write for the approval of their new peers in the humanities.(5) Professors Kahn and White reside in the last category.

Ignoring the fracas and obsessed with self, professors gleefully keep churning out the unconnected fluff and more journals surface to absorb it, while critics seethe with frustration.(6) Criticism has been enriched with two new insights -- and challenges. James Boyd White(7) of Michigan Law School seeks salvation in the use of the literary imagination to transform and elevate our vision of law. Paul W. Kahn(8) of Yale Law School proffers an even more dramatic solution: stop the presses -- scholar heal thyself.

Legal scholars are, according to Kahn, like squirrels on a treadmill: they energetically run and run but never go anywhere. We don't know why the squirrels run, but Kahn knows what motivates legal scholars to engage the treadmill -- it's the Holy Grail of reform. Why? Reform is always necessary. It presents the tempting challenge of an abyss -- a bottomless pit of constant failure on a highway of flawed solutions, a road kill that attracts law professors like stink on dung (pp. 7-8).

For Kahn, reform is the inevitable product of the interaction of reason and will. Reason guides the rule of law with rational restraint, analytical deliberation, and logical critique. "[W]e consent to law because it is reasonable" (p. 10). But reason is an empty gesture without popular will, which is necessary to convince the citizenry to consent to the wisdom of reason. Most of the time this is what in fact occurs, and the two effectively "work together to create an almost impregnable redoubt for the rule of law as our deepest cultural commitment" (p. 13). There are, however, times where one of the institutions serves to rationalize deficiencies in the other. For example, the lack of popular support for a government regulation may be overcome by resort to reason, while the irrational may be tolerated by the consent of popular will (p. 13).

As Kahn points out, the commitment to use reason to build popular will/consent prompts professors to dedicate careers to producing reform scholarship. Much of the scholarly focus is devoted to reconciling reason and will in judicial review where courts use reason to develop principles to "obtain the consent of the popular will" (p. 14). Likewise, the use of reason to critique existing laws always turns up glitches and friction, inviting suggestions of corrective reform. Kahn sums up the source of the scholarly motivation: "The rule of law ... is not merely rule under the existing law; it is this whole process of continuous reform" (p. 15).

Juggling reason and will and a virulent addiction to reform scholarship is not the only problem. Instead of functioning as true scholars with impartiality, law professors write as practitioners of reform. They imitate judges by writing article-briefs in the doctrinal form of judicial opinions. They seek to make law work. To Kahn, this reflects the "collapse" of a distinction between the scholar and the object of his study (p. 7). The scholar is in effect the judge manque. All article-briefs follow the same plot: identify a defect in an opinion's reasoning, devise a rationale for reform, and write a new decision-article (p. 28). The inevitable result is a continuous process of classical doctrinalism.(9)

It is not that Kahn completely condemns reform scholarship, but he does argue that an obsessive interest and disquietude with the topic diverts inquiry into more relevant areas and satisfactory results. Judge manque scholarship gives a misleading impression that judicial decisions convey power. In reality, judges mainly speak to the practicalities of achieving an end without ever defining that end. Even the Supreme Court cannot set an agenda for the ends of governance. Brown v. Board of Education,(10) arguably the most important judicial decision in history, has had modest effects on society, race, and governance (p. 132). Kahn's explanation: "They never had the power; they always lacked the will" (p. 133).

Given the existence of a multitude of complex forces that impact and shape the compass and motivation of judicial power, scholars are wasting time seeking "right" answers when they aren't there or are mute.(11) Kahn's solution: shift the scholarly focus to new sources by "looking at the legal imagination" (p. 135). Study the varied contingencies and the context of law's culture, its indeterminacies, and influences on it from the "inheritance of remnants from antiquated belief systems, brought into a loose coherence by virtue of certain master conceptions -- e.g., sovereignty, revolution, equality" (p. 137).

THE CULTURAL WAR

Kahn's crusade continues the law academy's paranoid relationship with scholarship. In distancing himself from the reason-will-reform paradigm, he implicitly acknowledges a sense of doubt as to whether law is worthy of serious scholarship. The effort to elevate the scholar above the "practice of law" states the source of the paranoia: the practice of law is a vocation -- something like digging ditches or plumbing -- and cannot support any attention other than descriptive survey, that is, an explication of what lawyers do, why they do it, and suggestions for improvement (reform).

The scholarship paranoia can be traced to Langdell's admission of law as a vocation by his effort to create a science of law by sequencing cases to form the basis for the deductions of legal principles. "Law, considered as a science, consists of certain principles or doctrines."(12) In objectifying law he rationalized the doctrinal method of scholarship that conforms to Kahn's paradigm -- decisions are parsed and synthesized to derive prescriptions to guide judges and lawyers. The objective is problem solving.

The dominance of doctrinalism was assured when the law review network evolved to showcase faculty scholarship. As an editor for the Harvard Law Review, John Henry Wigmore said: "We knew that their pioneer work in legal education was not yet but ought to be well appreciated by the profession. We yearned to see the fruits of their scholarship in print."(13) It opened up a unique system that ignores the discipline of peer review thereby depositing virtual control over substance and methodology in the author.

The first major threat to doctrinalism came from the legal realists who questioned the credibility of the notion that "science" defines legal analysis. Kahn detects realism's failure as a movement in its adherence to the reason-will-reform paradigm, thereby remaining "firmly within the grip of legal practice" (p. 24). Once the realist threat dissipated, doctrinalism flourished, enabling faculty to reap financial rewards and status from being perceived as producing a form of scientific analysis.(14)

In his zest to save legal scholarship from self-destruction, Kahn conveniently opts to ignore the cultural war that engulfed legal scholarship in the 1980s. When law school enrollment dramatically increased in the early '80s, it signaled more than the brain drain about which Derek Bok complained.(15) It provoked the hiring of a new group of young faculty who entered the academy with a new vision. They questioned, to the point of resentment, the rigidity and authoritarianism of the system that produced them. The newcomers included feminists who had their own score to settle. Not only did both groups share a desire for change, they also had more in common with their colleagues in the humanities than with the doctrinally oriented law school faculty. They became Tenured Radicals, and as Crits (Critical Legal Studies) and Fem Crits, they became instigators of a new culture.

In the meantime, the postmodern revolution exploited its dominance of the humanities to gain control of the university community. The quest for truth succumbed to relativism while emotion trumped objectivity as the interpretation of the text became a game of transgressing and demystifying. Postmodern language never escapes from its duplicity and confusion. Led by Tenured Radicals, the once autonomous law schools joined the crusade of chaos. The values that defined the Langdellian paradigm of scientific analysis were swept away, leaving a dwindling group of liberal law professors, along with a few holdouts in the sciences, to stand guard as the last keepers of the old traditions. To make things worse, they had to fight off both Tenured Radicals and incoming students who had been conditioned to postmodernism in their undergraduate experiences.

Although he recognizes Critical Legal Studies' hostility to the liberal system, Kahn...