BY OWEN FISS
HARVARD UNIVERSITY PRESS, 2017
BOOK REVIEW CONTENTS INTRODUCTION 1640 1. THE PILLARS AND THE PORTRAITIST 1641 A. Idols: Civil Rights Lawyers and Judges 1643 B. Sympathetic Colleagues in Hyde Park and Nirvana 1647 C. Friendly Critics 1651 D. Legal Cosmopolitans 1653 E. Students 1654 II. REFLECTIONS 1656 A. The Aging of Brown and the Warren Court 1656 B. Yale Law School 1668 1. Legal Realism at Yale 1668 2. Legal Education at Yale and Beyond 1678 C. The Future of Legal Liberalism 1687 D. The Prices Paid 1692 CONCLUSION 1695 INTRODUCTION
Owen Fiss has led an enviable life. The Sterling Professor Emeritus at Yale Law School is a revered teacher; author of dozens of books and articles on procedure, constitutional law, and legal theory; (1) and one of the most cited legal scholars of all time. (2) Devotion to Brown v. Board of Education, (3) the liberalism it fostered, (4) and the Warren Court pervade Fiss's life as a law clerk, lawyer, and professor. They also pervade his writings, even his magisterial Holmes Devise volume on the Fuller Court. (5) In Pillars of Justice: Lawyers and the Liberal Tradition, a book written "to inspire and instruct" the young, (6) Fiss introduces us to his legal liberalism, Yale, and heroes--Thurgood Marshall, William Brennan, John Doar, Burke Marshall, Harry Kalven, Eugene Rostow, Arthur Leff, Catharine MacKinnon, Joseph Goldstein, Robert Cover, Morton Horwitz, Carlos Nino, and Aharon Barak. Each of these individuals shares, Fiss maintains, a devotion to Brown as a transformative event that made law an anvil for hammering out Americans' most sacred ideals. (7) All also lived lives that provide "guidance for anyone who wonders how he or she might achieve something in this world that is worthwhile and good." (8)
While that sounds portentous, the book is anything but. Fiss's generosity of spirit and capacity for friendship shine through on every page. His marvelous portraits are evocative, moving, and sometimes unexpectedly amusing, as when the young Fiss, eager to discuss a case, raced into Thurgood Marshall's chambers one morning and belatedly "noticed [his] pajamas coming through the bottom of [his] slacks." (9) Pillars enlists history and biography to explain our duty to further reason through law. And, since, as Fiss recognizes, "[a] 11 biography is a form of autobiography," (10) his essays tell as much about the author as his subjects.
This Review proceeds in two Parts. Part I explores Fiss's views on his luminaries, Brown, legal liberalism, and Yale. I group the discussion into five categories --civil rights idols, sympathetic colleagues, friendly critics, legal cosmopolitans, and students (who make frequent guest appearances and star in the chapter on MacKinnon and in Fiss's coda, "Toiling in Eden"). (11) Part II discusses the criticisms of Brown, the Warren Court, and legal liberalism that are missing in Fiss's paean. I question Fiss's version of the history of Yale and his ideal of legal education, and maintain that he overlooks the role of legal realism in creating the school, Brown, and legal liberalism. I then query whether legal liberalism remains as viable for the present as Fiss contends. Finally, I query whether his subjects should and can still serve as our models.
THE PILLARS AND THE PORTRAITIST
By situating his encounters in the context of his own autobiography, Fiss enables us to observe one Pilgrim's Progress. We see the embodiment of the meritocratic ideal rebelling against process theorists in the Slough of Despond--i.e., Harvard--then moving forward armed with his heroes' rectitude, faith in reason, and legal liberalism. We witness Fiss's deep attachment to the Warren Court and Brown, watch him championing them against all comers on the right and left, and charging students to restore them. For Fiss, the Warren Court and Yale are the Celestial City. (12)
Born in 1938, Fiss grew up in modest circumstances in a Bronx Sephardic Jewish household. (13) Good grades took him to Stuyvesant High School in Manhattan, then to Dartmouth. (14) At Oxford, he studied philosophy with Gilbert Ryle, H.L.A. Hart, Isaiah Berlin, and other greats, until he wearied of witnessing "the insular quality of the inquiries that then dominated the profession," while reading about the civil rights struggles at home. (15)
His years in law school from 1961 to 1964, however, brought him no closer to the revolution. Fiss enrolled at Harvard "at a time when civil rights and the Brown ruling made only fleeting appearances in the curriculum." (16) His teachers, almost all of them legal process theorists, channeled their patron saint, Felix Frankfurter. (17) Obsessed with the supposedly antidemocratic nature of judicial review--Alexander Bickel's famed "counter-majoritarian difficulty" (18)--process theorists demanded better reasoning, more principled distinctions, and greater fidelity to the judicial role. (19) They mocked Chief Justice Warren for his questions about "whether a particular legal position was 'just.' Sophisticated legal scholars did not speak that way." (20)
Fortuitously, however, Paul Freund, "in his kind, stately way," (21) encouraged Fiss to write about the impact of Brown v. Board of Education on public school desegregation outside the South. (22) Fiss now escaped the intellectual prison of Harvard--as he portrays it--and found his calling. He would develop a legal process theory that enshrined reason and extolled the Warren Court and the Justices who handed down Brown as "public officials situated within a profession, bounded at every turn by the norms and conventions that define and constitute that profession." (23) He would also become an exponent of legal liberalism, trust in the potential of federal courts, particularly the Warren Court, to produce positive, permanent change for the disempowered.
Idols: Civil Rights Lawyers and Judges
Fiss's two clerkships deepened his commitment to this project. Fittingly, his first trip outside New York came as a high school senior in 1955, when he toured the Supreme Court and saw Thurgood Marshall unsuccessfully urging the immediate desegregation of public elementary and secondary schools in the second, remedial phase of Brown v. Board of Education. (24) "A tall Black lawyer--set in a sea of white faces--was addressing the Justices, and all eyes were fixed on him," he writes of that "electrifying" moment. (25) At their clerkship interview eight years later, Marshall, then a Second Circuit judge, teased Fiss about his Harvard education, which the judge referred to "with a respectful disdain," (26) and told stories, as the great raconteur continued to do through the clerkship year. Consequently, Fiss, Marshall's only clerk, uncomplainingly worked "late into the night to catch up on [his] assignments." (27)
During that "thrilling" year, (28) Fiss watched the unassuming Marshall resist Second Circuit powerhouses like Henry Friendly, who disapproved of the Warren Court's criminal procedure revolution. (29) Though it had taken the Senate almost a year to confirm Marshall's appointment, and he lacked the prestigious connections to Wall Street law firms that many of his new colleagues possessed, he bravely defended the Warren Court. (30) Fiss viewed Marshall's 1967 appointment to the Supreme Court as a "transcendent moment" in American history and for liberals. (31)
Alas, Richard Nixon's attack on the Warren Court in 1968 paid off, and the new President, with his four Court appointments, cut short the jubilation. As a result, Justice Marshall spent most of his tenure besieged by the conservative assault on Brown (32) and censuring his colleagues' rightward turn. (33) Think, for example, of Marshall's dissent in Milliken v. Bradley, condemning the majority's refusal to rule that intentional school segregation in one district justified multidistrict busing as an "emasculation of our constitutional guarantee of equal protection of the laws." (34) Yet, displays of temper remained rare. The Justice was a "passionate" but "disciplined" individual who loved the law for its "redemptive possibilities" and never lost sight of it as "a source of radical hope." (35) With Marshall's retirement in 1991, the country lost the twentieth century's "most accomplished lawyer." (36)
If Fiss counts Marshall as the greatest lawyer, he leaves no doubt that William Brennan, for whom he clerked from 1965 to 1966, was the Court's best Justice. While Fiss acknowledges the important roles of the executive branch, Congress, and the civil rights and welfare rights movements, he claims that it was the Warren Court that transformed the nation:
In the 1950s, America was not a pretty sight. Jim Crow reigned supreme. Blacks were systematically disenfranchised and excluded from juries. State-fostered religious practices, such as school prayer, were pervasive. Legislatures were grossly gerrymandered and malapportioned. McCarthyism stifled dissent, and the jurisdiction of the censor over matters deemed obscene or libelous had no constitutional limits. The heavy hand of the criminal law threatened those who publicly provided information and advice about contraceptives, imperiling the most intimate of human relationships and exposing women to the burdens of unwanted pregnancies. The states had a virtually free hand in the administration of criminal justice. Trials often proceeded without counsel or jury. Convictions were allowed to stand even when they turned on illegally seized evidence or on statements extracted from the accused by coercion. There were no rules limiting the imposition of the death penalty. These features of the criminal justice system victimized the poor and disadvantaged. So too did the welfare system which was administered in an arbitrary and oppressive manner. The capacity of the poor to participate in civic activities was also limited by the imposition of poll taxes, court filing fees, and the like. It was precisely these evils that the Warren Court, at the peak of its powers, so readily and ably took on. (37) Fiss credits the Court's success to Justice Brennan, its frequent spokesperson. (38) His abilities as statesman and lawyer made him the consensus-builder among the Justices and the Court's emissary to the profession. His opinions reflected "the vision that infused Brown" and inspired the young. (39) They also showed Justice Brennan's understanding that the more Justices he could enlist on an opinion, the greater authority the decision would command; (40) his concern that the Court speak authoritatively and effectively; (41) his care to avoid confrontations with the executive branch and Congress; (42) his command of the "vast bodies of learning, ancient and modern"; (43) and his doctrinal dexterity. Justice Brennan's clerks marveled at his intellect, quickness, warmth, and irresistibility. (44) Though Audre Lorde warned that "the master's tools will never dismantle the master's house," (45) Brennan used the tools of his trade to do just that.
But despite occasional victories after 1969, like Roe v. Wade (46) and Bakke, (47) Justice Brennan, like Justice Marshall, frequently found his colleagues immovable. During his second life as Associate Justice, Brennan became the epicenter of the resistance to the counterrevolution spearheaded by Justice, and later Chief Justice, William Rehnquist. (48) At law clerk gatherings, Justice Brennan would "wryly announce the tally of his dissents" to cheers, (49) but he reserved his pride for the instances where he had "miraculously" patched together a majority to save a bit of the Warren Court's handiwork. (50)
Save for such triumphs, many law professors and much of the legal profession perceived the Court "as an alien and hostile institution," increasingly inclined to protect the established order and demean its challengers. (51) Fiss believes that this reaction contributed to the popularity of critical legal studies during the 1970s and 1980s, as well as "the nihilism it propagated with the proclamation that 'law is politics.'" (52) That estrangement also explains for Fiss why Justice Brennan received more plaudits at his retirement than any Justice in history, except perhaps Justice Oliver Wendell Holmes. (53) In celebrating Brennan, "people were in part celebrating the liberal tradition that he helped to create and defend and that now seemed increasingly imperiled." (54) Yet Fiss remains committed to the Court's potential and presses us to make Brennan our model. "He resisted, tenaciously, and yet kept the faith--why can't we? (55)
At the Justice Department's Civil Rights Division, where Fiss worked on cases implementing school desegregation and the Voting Rights Act from 1966 to 1968, (56) he encountered two other giants, Burke Marshall and John Doar. They had the task of administering the "civil rights revolution," which was, he explains, "a most unusual, almost paradoxical revolution: a revolution by and through the law." (57) The taciturn Robert Kennedy surprised many when he tapped the equally laconic Marshall, (58) a patrician Covington & Burling antitrust partner, to head the Civil Rights Division. But the choice demonstrated how force of character could transform an ordinary lawyer into a social justice warrior. Marshall filed scores of voting discrimination suits throughout the South and negotiated an end to segregation in many communities. (59) Occasionally, he employed force to desegregate institutions, though his commitment to federalism meant he did so less frequently than Fiss and other activists would have liked. (60) When Fiss and others nevertheless claimed Marshall as "our hero," their paragon resisted. (61) "A hero, according to Burke, is someone who does more than one's duty, a person who acts in a way that no one has a right to expect or demand." (62) Civil rights activists and lawyers who risked their lives did that; he himself, his job. (63) Fiss concludes that if Marshall was not a hero, "it was only because he saw the profession of law in such heroic terms" and as "an emphatically principled" endeavor. (64)
So did John Doar. This white Republican worked so hard and with such attention to detail--'"Facts, facts, facts' was his mantra" (65)--that he was absent when his second son was born, and his third waited six weeks before he received a name (Doar eventually chose "Burke"). (66) Doar's courage was remarkable and repeated: He stood with James Meredith as he integrated the University of Mississippi, successfully prosecuted the murderers of civil rights workers, and supervised the march from Selma. After police clubbed, set dogs on, and arrested protestors enraged by the assassination of NAACP Field Secretary Medgar Evers, some responded with bricks and bottles until Doar intervened. Facing the mob, he proclaimed: '"My name is John Doar.... I am from the Department of Justice, and as anybody around here knows, I stand for what is right. Medgar Evers would not want it this way.'" (67) Moved by the bravery that stemmed from Doar's rectitude, the angry crowd dispersed. (68)
Sympathetic Colleagues in Hyde Park and Nirvana
Next to the likes of John Doar, law professors' lives might seem thin gruel, but Fiss, who moved to the University of Chicago in 1968 and Yale in 1974, provides absorbing accounts of his supportive colleagues. He became an apprentice to one of Chicago's few liberals, Harry Kalven, who possessed two qualities rare among academics--authentic genius and a "sunny disposition." (69) A wordsmith, Kalven denigrated McCarthyism, (70) demonstrated endless "faith in the capacity of the law to work itself pure," (71) defended "young turk" professors, (72) and delighted in students. "Can you imagine--a law professor of great scholarly distinction who truly loved students?" Fiss asks, (73) though he later says this description applies to himself as well. (74)
Yale was very different--liberal and quirkier. Fiss was first vetted for a job there in 1966. "Your professors at Harvard say you belong at Yale. What do they mean by that?" began one interviewer. (75) Whether Fiss received an offer, he does not say. He was lucky to spend the late sixties and early seventies elsewhere. During that period--sometimes referred to by survivors as "The Dark Ages" or "The Dark Years" (76--)Yale became a most unhappy place. The students, alive with concerns of the sixties, rebelled against the faculty, (77) sometimes with the support of the younger professors. (78) The senior faculty denied tenure to most juniors in what became known as "the slaughter of the innocents" (79) or "the 'bloodbath.'" (80) Many at Yale became demoralized. When Fiss arrived in New Haven in 1974, Alexander Bickel--Yale's most famous constitutional theorist--was dying, and senior professors were retiring or jumping ship. (81)
Nevertheless, Fiss fell in love with the place. With a convert's zeal, (82) he pelted deans with "fissiles" for the next forty years, "accusing them of betraying the most sacred traditions of the school." (83) To him, Dean Eugene Rostow, who led the school through one of its periodic transformations between 1955 and 1965, embodied Yale's virtues. Though Rostow had branded Korematsu v. United States "a disaster," (84) he always retained "faith in the Court as an instrument of public reason." (85) And, in contrast to Harvard, Yale "embraced" Brown. (86) Under Rostow, Fiss maintains, the school "emerged as a great national institution, a bastion of the liberal tradition" (87) and "an academic law school." (88) Rostow's creative hiring enabled Yale to thrive. (89) He rebuilt and expanded the faculty by hiring dynamos like Bickel, Charles Black, Robert Bork, Guido Calabresi, Ronald Dworkin, Abraham Goldstein, Joseph Goldstein, Leon Lipson, Ellen Peters, Louis Pollak, Charles Reich, and Harry Wellington. (90) The faculty Rostow hired "was as brilliant, diverse, and eclectic a group of legal scholars as has ever been gathered at one law school in the country." (91) As Fiss muses in his essay on Joe Goldstein, Yale also made the scholar "sovereign." (92)
Such an institution can only prevail if professors are good citizens, and Arthur Leff was Yale's "finest." (93) When Fiss arrived at the battered school in 1974, he was astonished to find Leff, one of its most brilliant and beloved members, brewing coffee in the faculty lounge. That was just Leff's "modest way of expressing the central tenet of his theory of citizenship: the highest duty of the citizen-scholar was to talk about ideas with others." (94) So Leff wittily and wisely did. He joined the Legal Theory Workshop that Fiss and Bruce Ackerman launched. To maintain its emphasis on ideas, "it was never allowed to become an adjunct to the appointments process." (95) Only scholars not expected to pass muster for a Yale appointment received invitations to present, and Leff "helped establish the one law that governed the workshop, the law of inverse relationship, which holds that the weaker the paper the better the discussion will be among those in the audience." (96) He also tirelessly commented on others' drafts, including "all thirty-two revisions of Bruce Ackerman's manuscript for Social Justice in the Liberal State"''97 He was the dream reader, rigorous but supportive. (98) Leff behaved this way because he knew that scholarship is "lonely," and prepublication criticism an act of friendship and collegiality. (99)
Scholars like Ackerman and Fiss especially needed this companionship during the 1970s. They believed that "[t]he right of the judiciary to give meaning to our public values" rested on "the processual norms that simultaneously constrain and liberate those who exercise the judicial power." (100) And they came to Yale at just the moment that the Burger Court, law and economics, and critical legal studies began menacing the hegemony of legal liberalism. Like Ackerman, (101) Fiss condemned both movements for endangering the primacy of reason and rejecting "law as a public ideal." (102) Adherents of both schools, Fiss said, resisted "a jurisprudence, confidently embraced by the bar in the sixties, that sees adjudication as the process for interpreting and nurturing a public morality" (103) and did not deserve to participate in the process of defining law's norms. Law and economics, with its emphasis on the efficiency of law, treated Brown and other cases as "a conflict over preferences" and charged judges with "maximizing the satisfaction of these conflicting preferences." (104) Critical legal scholars reveled in exposing law's "(to use their favorite term) 'indeterminacy'" (105) and critiqued simply to promote critique, (106) a "politically unappealing and politically irresponsible" goal. (107) The victory of either movement would mean "the death of the law, as we have known it throughout history, and as we have come to admire it." (108)
So no wonder that Leff witnessed a "growing, and apparently terrifying, realization" gripping his colleagues as he made coffee--"that there cannot be any normative system ultimately based on anything except human will." (109) The hopelessness of finding the objective foundations of justice that would make law fair and impartial, he maintained in 1979, meant "everything is up for grabs." (110) Leff famously continued:
Nevertheless: Napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol Pot--and General Custer too--have earned salvation. Those who acquiesced deserved to be damned. There is in the world such a thing as evil. [All together now:] Sez who? God help us. (111) C. Friendly Critics
Fiss saw Leff's "professed nihilism" as a pose "inconsistent with all that I knew about him." (112) But their colleague, Robert Cover, the eminent legal historian, definitely lost the faith, Fiss sadly acknowledges. Where Fiss celebrated the anti-apartheid achievements of the federal courts because they grew out of membership in an interpretive community whose rules of adjudication bound and disciplined the players, (113) Cover supported those achievements because they suited his politics, and he wanted to see dissenters forced to knuckle under. He publicly accused Fiss of living in the world of the 1967 Warren Court." (4) Moreover, Cover claimed, by treating "the judiciary as a tribune of public reason, capable of giving means to the highest ideals of the nation," (115) his friend refused to recognize its coerciveness. (116) Like all judges and Justices, Warren Burger was a man of violence, Cover contended. While he would play the game of taking judicial mouthings seriously if it did any political good, the Warren Court was gone and Cover saw no reason to promote its despised successor by portraying Justices as sacred priests. The Justices' admirable commitments in Brown reflected their politics, and an opinion simply proclaiming an end to American apartheid would have been just as good, if not better than the one the Court produced. (117) To Fiss, Cover, like critical legal scholars, was destroying the distinction between law and politics (118) and was "betraying" the Warren Court. (119) The "romantic" moment when liberals could count on the federal courts had passed, Cover countered, and was doomed to become "a memory of the sublime sixties.'' (120)
Critical legal studies founder and venerable legal historian Morton Horwitz, another longtime sparring partner, had become a buddy at Stuyvesant. Fiss and Horwitz traveled to Washington together on that fateful trip to see Thurgood Marshall. (121) For his part, Fiss placed his faith in the law and the expectation that a discourse locating "fundamental values in the Constitution" and tasking Justices with articulating governing principles would "discipline" them and provide standards by which to judge them. (122) Horwitz did not, (123) and their debate extends to Brown. For Fiss, Brown is law. Judicial review can only be justified by "an appreciation of the role of the judiciary, as a nonmajoritarian institution, to vindicate constitutional principles, including the guarantee of equal protection." (124) Brown embodied the antisubordination principle and "condemned ... any practice, even those that did not make distinctions based on race, that perpetuated the hierarchy among racial groups and that, in particular, subordinated Blacks." (125) For Horwitz, Fiss says, Brown is history. It is "a form of politics and, like any political event," depends on the past's "fortuities." (126) Horwitz rescued Brown's legitimacy--but only by tying the case to the growth of democracy as an ideal after World War II. (127) "In this way Horwitz saved Brown but, I fear, lost the law," Fiss mourns. (128)
Faced with friends' doubts about Brown and the existence of objective foundations of justice, Fiss looked to others outside the United States to enshrine reason in law. (129) In the mid-1980s, he began traveling to Argentina at the invitation of Carlos Nino, a brilliant and exuberant analytical philosopher and public intellectual. (130) Nino advised President Alfonsin during the reinstatement of democracy after the military junta's brutal dictatorship, (131) developed Argentina's human rights policies, and helped plan the first major war crimes trial since Nuremberg. (132) The decision to prosecute the big fish who led the junta while letting the smaller ones off the hook disappointed Nino. (133) Yet just as he played a pivotal role in restoring democracy, in its messiness, to Argentina, Nino worked to bring it and constitutional reform to countless other countries. (134) Fiss loved Nino, who held the position of visiting professor at Yale until his death, (135) "like the brother [he] never had." (136)
Aharon Barak provided another source of inspiration and helped shape Fiss's excoriation of the Roberts Court as the forum of antireason, given its inattentiveness to the freedoms of speech, privacy, and due process during the War on Terror. (13`7) Fiss dedicated A War Like No Other to the legendary Barak, (138) who was spirited out of a Lithuanian ghetto during World War II as a youngster when the Nazis resolved to murder all Jewish children, (139) and who became a professor and dean of the law faculty at Hebrew University, then justice and later President of the Israeli Supreme Court. (140) A Brown fan and "a modern-day apostle of the Enlightenment," (141) Barak created "a body of rulings [that] has become what Brown once was--a beacon for all the world," Fiss writes. (142) His jurisprudence aimed at protecting the human dignity of Israel's citizens and noncitizens that he considers essential to democracy. (143) In contrast to the American courts that caved in Korematsu and have time and again deferred to the government when it cited military necessity after 9/11, (144) Barak claims it is the judiciary's duty to determine the appropriate balance between civil liberties and national security. (14S) For Fiss, Barak's belief that '"law is everywhere'... invite[s] us to imagine that every aspect of our public life, even war, can and should be governed by reason, and reason alone." (146)
Students mostly hearten Fiss too. He had not known many women law students or lawyers or thought much about feminism, he says, before he met Catharine MacKinnon in the 1970s. He had attended three all-male institutions--Stuyvesant, Dartmouth, and University College, Oxford--and gone to Harvard Law School when its dean declared that he restricted women's matriculation because they "were only looking for husbands" and would not practice law. (147) Fiss is ashamed of his and other male students' acceptance of such chauvinism.
"[W]e were living through a great social upheaval, maybe tantamount to a revolution, inspired by a passion for equality--we were the children of Brown. How could we--how could I--have remained silent in the face of practices that so grossly offended the principle of equal treatment?" (148)
He credits the charismatic MacKinnon, then beginning her pioneer work redefining sex discrimination, with helping him to see the relationship between racial and sexual inequality and between sexual inequality and free speech. Since no course on feminism existed, acting "on the assumption--long part of the folklore of Yale--that the best way to learn a subject was to teach it," (149) Fiss was soon leading a seminar on feminist legal theory where MacKinnon's work provoked debate. Once the discussion of sex became so charged that the women asked Fiss and the only other male participant to leave. (150) ("We refused." (131)) Fiss himself wondered about MacKinnon's "attack on the objectivity of the law." (152) While he acknowledged that law had discriminated against women, of course he did not agree that it could never be objective. (153) In fact, he claims that "insofar as feminism is presented as a program of legal or constitutional reform seeking to guarantee women equal protection--to extend Brown to women--it must presuppose the fairness and impartiality of the law." (154)
Ultimately, however, MacKinnon and all his other students in the "Eden" (133) that is Yale provide Fiss a hedge against despair. His colleagues joke that students are the best part of the place, but he recognizes the quip's "kernel of truth." (136) He considers his students his "proudest achievement," (157) and relies on them "to realize [his] deepest dreams and hopes." (158) For Fiss, "the golden age of American law began on May 17, 1954, and continued until the mid-1970s, when a newly constituted Supreme Court began its disheartening project of denying the redemptive possibilities and promise of Brown v. Board of Education" (159) He is certain in his "heart of hearts... that someday soon the golden age of American law will once again come into being and will be carried on the shoulders of a new generation, determined to turn the lessons they learned in the classroom into a living truth." (160) By situating his devotion to the Warren Court and "the golden age of American law" in the context of his own life, Fiss has enabled us to understand why legal liberalism seemed such a revelation to him and why he clings to it so tenaciously.
This book is so good that it seems churlish to observe that a different one could be written about the aging of Brown and the Warren Court, the history of Yale, legal education, the future of legal liberalism, and the sacrifices involved. Yet, it seems appropriate because Fiss so enjoys debating ideas. Fiss knows he possesses the truth, and his affinity for absolutes makes him comfortable commanding what "we" should do and determining who deserves to participate in the conversation without worrying that he seems arrogant. "How can it be that he is such a good friend, sounding board and guide at the same time that he remains so resolute, so adamant, in his rectitude," (161) colleague Robert Burt once mused. The answer, he suggested, lay in Fiss's "personal character, joined with his intellectual commitment to equality." (162) So while mine is a rave review, I also question his quest--in the Fissian spirit.
The Aging 0/Brown and the Warren Court
We begin with Fiss's treatment of Brown and his affirmation that it sparked the civil rights movement through its invocation of the antisubordination principle. (163) In fact, historians of the South believe the civil rights revolution dates back to the interwar period. (164) Nor did Brown spark Martin Luther King's Montgomery Bus Boycott. And where King sought to mobilize civil rights activists through direct action, Thurgood Marshall trusted in the federal courts to end Montgomery's bus segregation and branded the boycott "street theater." (165) Yet the reigning narrative still casts Brown as the cradle of change, (166) even though many academic lawyers aligned with liberalism and the left, including a number of Fiss's students, have articulated their disappointment with Brown and the Warren Court from different political and disciplinary perspectives. Fiss pays these critics little attention.
As a fellow legal liberal, I am also tempted to gild the lily. Marshall's careful design for victory in Brown provided the template for public interest litigation. Thus Pauli Murray likened sex discrimination to racial discrimination during the 1960s and pushed the women's movement to emulate the NAACP's strategy. (167) Thus Ruth Bader Ginsburg made Marshall's "step-by-step, incremental approach" her model when she litigated gender equality during the 1970s. (168) Thus gay rights advocates during the 1960s relied on the race-sexuality analogy to situate themselves as a legal minority. (169) Thus Joe Biden called the Supreme Court's 2015 decision in Obergefell v. Hodges that the same-sex marriage bans violated the Equal Protection and Due Process Clauses the "Brown v. Board of Education" of the gay rights movement. (170) No surprise, then, that Adam Liptak wrote in 2006 that Brown remains law's "sacred text." (171) While early Harvard-trained process theorists argued that Brown deserved better justification, even they swallowed their doubts to worship at Browns shrine. (172)
So while Fiss's claim must sound strange to those growing up in our nonheroic age, he rightly insists that Brown and the Warren Court inspired many (including me) to enroll in law school during the 1960s and 1970s when liberals still dominated the legal academy. The Yale Law Journal's editors observed that Earl Warren "made us all proud to be lawyers," (173) while their Harvard counterparts dedicated an issue to "Chief Justice Earl Warren, who with courage and compassion led a reform of the law while the other branches of government delayed." (174) The Warren Court convinced law students to see the federal courts as the great engine of social change. (175)
Yet time has proven unkind to Fiss's triumphal history. Critical legal studies and law and economics shattered the consensus in the legal academy. Neither the author nor his pillars show much interest in law and economics, except as a danger, (176) and Fiss's target audience is politically left of center. Perhaps a book meant to inspire and instruct that group would have proved even more powerful had it explored the doubts that developed about Brown and the Warren Court and explained why we should disregard skeptics.
Brown initially kindled hope for change. In January 1954, Thurgood Marshall predicted that school desegregation would occur in "four or five years," (177) and he sounded positive even after the Court's declaration in Brown II that desegregation need only occur "with all deliberate speed." (178) ("How the fuck do you have 'all deliberate speed?' There's a contradiction in those terms," a journalist recalled him noting privately. (179)) So, too, despite the lack of progress in integrating Southern schools, (180) Linda Brown said in 1964, "That decision carries my name, and through this decision many of the people of my race were helped to obtain better and equal opportunities." (181) Even the attorney for Kansas eventually sounded happy he lost the case, (182) which journalist Anthony Lewis claimed in 1964 "launched 'the racial decade in America'--ten years of irreversible revolution in the pattern of Negro-white relations." (183)
And, by Fiss's move to Yale at Browns twentieth anniversary, real progress had occurred. Some conservatives had traded in talk that African American Southerners "are, by comparison with the Whites, retarded" (184) for the rhetoric of colorblindness. (185) Fiss recognized early that the right's claim that Brown embraced the antidiscrimination principle imperiled legal liberalism and its insistence that the decision committed the state to battle subordination. (186) But the new language represented progress. By the mid-1970s, many also saw that Brown and its progeny, along with civil rights legislation, had increased the power of state institutions to defeat racial inequality. (187)
From there, it was downhill. By the time Brown turned twenty-five, Linda Brown, now the parent of school-age children, was intervening in litigation challenging the continued Topeka school segregation. (188) Her case had not yet come to trial by the time of the decision's thirtieth birthday, (189) a somber occasion for civil rights activists. (190) She had lost at the district level by Brown's thirty-fifth. (191) By its fortieth, Linda Brown had prevailed at the Tenth Circuit, where a majority ruled that "there is a current condition of segregation in Topeka... causally connected to the prior dejure system of segregation." (192) But by that point, the disenchantment with his landmark decision probably had Earl Warren spinning in his grave--or, perhaps, glumly walking around Heaven "with all deliberate speed." (193)
Leave aside the resegregation that a more conservative Court had permitted, even encouraged, since the mid-1970s, (194) and focus on the original decision itself. One did not need to be a process theorist to find Brown fuzzy. Did it make school segregation or, as the Court subsequently seemed to suggest without explanation, (195) all segregation unconstitutional? Did it put an end to legally enforced segregation or require integration? (196)
By the 1980s and 1990s, moreover, white critical legal scholars less sympathetic to Brown than Horwitz charged that it underscored the peril of the rights-consciousness it promoted. Until then, in a rare instance of accord, liberals and the more radical left both largely cheered the Warren Court. (197) Now the left lambasted it for providing the underclass big promises and little protection. So what if the Warren Court launched the rights revolution? "Rights are indeterminate, rights limit our imaginations, rights inhibit political and social change," (198) contended critical legal scholars. The emphasis on individual rights favored procedure over substance, served as a pressure valve permitting injustice, damaged the development of community, and prevented transformative social change. The legal system awarded an occasional victory like Brown, then handed down a Brown II deferring exercise of the right. (199) Perhaps Brown itself was no win. Since making "separate but equal" truly equal proved costly, the Court preserved the status quo and deprived African Americans of "just cause for complaint" by ruling separate unequal. (200)
Consequently, when Fiss discussed the "we" who "undertook the Second Reconstruction and tried to build the Great Society," derogated critical legal scholars and others who made all normative issues subjective, (201) and declaimed the duty of all to follow the Warren Court in using law to shape equality and public morality, (202) critical legal scholars and postmodernists proved unmoved. (203) Some derogated his use of the constitutive "we" and scorned Fiss for ignoring the extent to which the individual, law, and truth were socially and culturally constructed. Critical legal scholar and feminist Clare Dalton, for example, shunned his invitation "to join his community of faith" as long as she used "his prayer book" at worship. (204) Fiss's "authoritarian strategy... is attempting to force us to relive the past.... and not just the past, but his past as The Law" (205) griped one postmodernist who sought to bury normativity. (206)
Also left unmentioned by Fiss is that by the 1990s, many African Americans doubted Brown. To be sure, some critical race theorists like Patricia Williams affirmed the value of rights, and implicitly, Brown. (207) Others, however, claimed that integration just deepened antagonism between the races because, as Alex Johnson said, Brown "fails to acknowledge the existence of a unique African-American community with its own nomos and values." (208) Critical race theorist and former NAACP lawyer Derrick Bell came to recognize law's inability and refusal to erase racism. (209) School desegregation devastated black administrators, teachers, schools, and communities, some now contended. (210) Justice Clarence Thomas wrote that Brown's suggestion that "black students suffer an unspecified psychological harm from segregation" reflected "an assumption of black inferiority." (211) Meanwhile, after braving white mobs to desegregate Central High School in Little Rock and prompting the litigation leading to Cooper v. Aaron, (212) Elizabeth Eckford announced she no longer believed "integration was one of the most desired things" and appreciated her "blackness" now. (213) Little Rock police shot and killed her son, Erin. (214) At fifty-one, Linda Brown now admitted she was disheartened and tired. (215)
So, too, we do not hear from Fiss that legal historians piled on as Brown's fortieth birthday neared. Civil rights reform was Cold War policy, maintained his former student, (216) legal historian Mary Dudziak. (217) Brown reflected liberals' realization that racism undermined America's anticommunist crusade and democratic pretensions, (218) and the forces that made Brown possible meant that the image of change proved more important than reality. (219) Michael Klarman contended that Brown halted the mellowing of race relations in the South and hardened white resistance. (220) Given such dour evaluations and the sense that it had received quite enough attention already, other legal historians of the civil rights movement began moving beyond Brown. (221)
Meanwhile, political scientist Gerald Rosenberg contended that Brown did nothing positive at all. Why did lawyers cling to their "endless attempt to canonize" (222) it and ignore fruitful ways of achieving change, like involvement in electoral politics and grassroots mobilization? (223) In The Hollow Hope: Can Courts Bring About Social Change?, Rosenberg presented data to argue that they "seldom" could. (224) As he acknowledged, that was a tough sale to make to law professors. (225) Some professors, including Fiss, ignored the noise and continued lighting candles to the Warren Court, legal liberalism, and judicial activism as the decision entered its fifth and sixth decades. (226)
Some, but by no means all. When Fiss's colleague, Jack Balkin, asked "the nation's top legal experts" to rewrite Brown close to its fiftieth anniversary, all revised it substantially. (227) One would expect nothing less from law professors, but the eagerness to tamper with "sacred text" proved striking. (228) And although former NAACP Chairman Julian Bond insisted that Brown was "the cause for sober celebration, not impotent dismay," (229) Charles Ogletree concluded that "the important goal of full equality in education following slavery and Jim Crow segregation was compromised from the beginning." (230) Lani Guinier similarly grieved that the brilliant Brown lawyers proved "unable to kindle a populist revolution" that taught Americans racism was evil. (231) Perhaps instead of focusing on ending de jure school segregation, Marshall and the Supreme Court should have devoted their energies to making separate education for African Americans genuinely equal to that provided to whites, (232) or focused on eradicating the state-sponsored residential segregation that existed throughout the United States. (233)
Fiss also neglects the broader critique of the Warren Court emerging by the twenty-first century. Consider criminal procedure and sex discrimination. Even had its successors not gutted Miranda (234) and Mapp, (235) the Warren Court's attempts to reduce the gulf between rich and poor defendants increased the divide, according to William Stuntz. (236) Its efforts launched an army of diligent but overworked public defenders who relegated indigent clients, a disproportionate number of whom were black or brown, to "prison America" (237) by prompting them to accept guilty pleas that reduced the period of their incarceration instead of fighting for acquittals. (238) In focusing on regulating police behavior and criminal procedure instead of substantive criminal law, the Warren Court made criminal trials "more elaborate." (239) The rush toward plea bargaining, however, which it largely ignored, (240) and which the Burger Court promoted, (241) made trials less frequent. (242) The Warren Court's concentration on policing the police also made crime a political flashpoint and prompted legislators competing for the "tough on crime" moniker to define crimes and sentences more punitively to cause the mass incarceration of people of color and the poor. (243)
Further, as Justin Driver noted, the Warren Court sometimes demonstrated a constitutional conservatism that liberals overlooked. (244) In the realm of sex discrimination, it handed down Hoyt v. Florida, (245) holding that a state statute automatically exempting women from juries did not violate the Equal Protection Clause. Given Brown, feminists made a smart strategic decision to litigate sex discrimination by analogizing it to racial discrimination. (246) But Fiss's student, Serena Mayeri, showed that, at the same time Fiss was meeting MacKinnon in the mid-1970s, the troubled economy and rise of conservatism were exposing the limitations of the race-sex analogy. (247) It turned out that in key decisions, like Geduldig v. Aiello (248) and Personnel Administrator of Massachusetts v. Feeney (249) the Court used the race-sex analogy to women's disadvantage. (250) And though Fiss counts Roe and Bakke as partial wins, (251) the courtroom successes of abortion and affirmative action contributed to backlashes against both. (252)
These trends raised the question of whether relying on the federal courts to achieve social change was in fact a good strategy--or made sense only when Congress and the President saw themselves as the judiciary's partners and the Court's work reflected majority will. Indeed, borrowing from political scientists, some scholars in the twenty-first century argued that Fiss and other cheerleaders got it wrong. The Warren Court was not nonmajoritarian or countermajoritarian, but majoritarian and possessed substantial support. (253)
Although Fiss shows some awareness of this possibility, (254) he suggests that "in 1968, history took a new turn" (253) and conservatism triumphed when the Senate thumbed its nose at the Court by rejecting LBJ's nomination of liberal Justice Abe Fortas as Chief Justice. Thus Nixon was able to name Warren's successor, a disaster for legal liberalism, given the Burger Court's "crucial role in establishing the conservative legal foundation for the even more conservative Courts that followed." (256) But that implies the inevitability of Chief Justice Warren Burger, when in fact, many--and crucially, many in the Senate--still backed the Warren Court and legal liberalism. Fortas was vulnerable, not just because he sided with the Warren majority, but because of his role as presidential adviser from the bench and his financial indiscretion. (257) Had LBJ nominated Brennan or another liberal instead of Fortas, confirmation might have occurred, (258) Nixon might have had but three vacancies, and constitutional law might have followed a liberal direction longer. Talk about lost opportunities!
Yale Law School
If Brown, the Warren Court, and legal liberalism are close to Fiss's heart, so too, of course, is Yale. In this Section, I query his version of the school's history, beginning with his dismissal of legal realism and his claim that Eugene Rostow made the modern school "a bastion of the liberal tradition." (259) 1 also question his vision of legal education.
Legal Realism at Yale
Oddly, "legal realism" receives just one mention in Pillars of Justice, where Fiss writes it off as a "school of thought that advanced the unremarkable proposition that judges are people and are subject to the same impulses that govern all of us." (260) By dismissing realism, whose history and impact on Yale and the legal academy I briefly summarize, Fiss skews Yale's and legal liberalism's histories. Admittedly, I have a dog in this fight because I have written two books about Yale that place legal realism at the core of its identity, (261) but to think of Yale without legal realism is akin to imagining Harvard without process theory.
Fiss's dismissal of legal realism is also strange because law professors tend to treat realism as the jurisprudential divide between the old order and modernity. Adopting a "generous" definition of legal realism, (262) academics describe as "realist" anyone who participated in undermining classical legal thought (263) by developing "a more philosophically and politically enlightened jurisprudence." (264) Thus Holmes marked himself a legal realist when he proclaimed that "[t]he life of the law has not been logic: it has been experience" (265) and pilloried Harvard's Christopher Columbus Langdell as "the greatest living legal theologian," whose "ideal in the law, the end of all his striving, is the elegantia juris, or logical integrity of the system as system." (266) (Langdell had declared law a science and that all available materials of that science were contained in printed books; (267) then, as dean of Harvard, he turned students towards a close reading of appellate opinions that forced them to derive a few fundamental rules, principles, and concepts that the clever lawyer and judge could reconcile. (268)) The realists also encompassed sociological jurisprudents during the early twentieth century like Roscoe Pound and Felix Frankfurter of Harvard, Benjamin Cardozo, and Louis Brandeis. (269) This camp further includes those who labeled themselves realists during the movement's heyday in the late 1920s and 1930s. (270) Seen in this broad way, realism set the agenda for modern legal thought. (271)
Whether or not you accept this big tent definition of legal realism, (272) it was not jurisprudentially distinctive. Well before the realists, Pound urged lawyers to switch their focus from law in books to law in action, (273) the effects of legal doctrine and the social sciences illuminating them, in his famous--and unoriginal (274--) call for the proto-realism he named sociological jurisprudence. (275) But in a turnabout, (276) Pound made every effort to keep sociological jurisprudence from tainting legal education when he served as Harvard Law dean from 1916 to 1936. (277) At the same time, the prospect of legal certainty dwindled as an intellectual revolution against abstraction after Darwin's discovery of evolution shifted the spotlight from the study of structure to operations, or function, (278) and litigation exploded, along with the casebooks revealing a welter of conflicting precedents. (279)
Enter the Yale realists to ride to the rescue, which makes Fiss's minimization of their work all the more confusing. After promising beginnings at Columbia (280) and Johns Hopkins petered out, (281) Yale led the charge. Taking the helm in 1927, twenty-seven-year-old Dean Robert Maynard Hutchins launched Yale's venture into realism--and product differentiation. He hired three professors without law degrees--a psychologist, a political scientist, and an economist--and announced that faculty and students would engage in interdisciplinary scholarship. (282) Stuck in a backwater between two great law schools in two great cities, he had to do something to win attention for Yale.
Hutchins's successor, Charles Clark, who steered the law school through the 1930s while drafting the Federal Rules of Civil Procedure, inherited and added to a marquee of figures who gave the school its identity. Call the roll of professors ranked as realists during the 1920s and 1930s, and you find many at Yale, in addition to Clark and Hutchins: Thurman Arnold, Walter Wheeler Cook, William O. Douglas, Abe Fortas, Jerome Frank, Leon Green, Walton Hamilton, Karl Llewellyn, Underhill Moore, Wesley Sturges, and Leon Tulin. All legal realism required was the visibility it received when Frank attacked the fruitless search for legal certainty by Pound and his fellow Harvardian, Joseph Beale, in the controversial 1930 book, Law and the Modern Mind. (283) Meanwhile, Llewellyn asserted that '"sociological jurisprudence' remains bare of most of that [which] is significant in sociology." (284) Given the pettiness of academic politics, the charges and countercharges between Pound and the realists escalated until Llewellyn and Frank read what had come before out of the canon and spawned a false sense of rupture between the realists and their intellectual progenitors. (285)
Irreverence and impertinence pervaded the realist corpus during the 1930s. Langdell and Harvard proved irresistible targets; "Pound-pounding," (286) an indoor sport. Realists condemned the American Law Institute's Restatement, which worked to lessen legal uncertainty by clearly and simply restating the law and its correct principles. (287) Many of its authors were Harvard professors, including Beale, who reduced the field of conflicts to the principles of vested rights and territoriality. (288) The realists mocked him in doggerel and with neologisms ("ibealistic," "Bealy-mouthed"). (289) The realists made scholarship fun--if you were not their quarry.
But legal realism at Yale had a serious side. It sought to increase law's predictability by acknowledging that legal rules and principles, as traditionally derived by the Restatements authors and others, did not guarantee legal certainty, and by demonstrating how those rules and principles actually took shape. (290) By highlighting the role of human idiosyncrasy in judicial decision making, focusing on factual context, and borrowing from the social sciences, most realists hoped to make law a more predictable, efficient policy tool. (291) They distinguished between the judge's decision about a case and his opinion, which they sometimes treated as its rationalization. (292) They preached functionalism and the classification of doctrines, rules, principles, and concepts by factual context. (293) A realist scholar, for example, might observe that in contractual disputes, whether the activity involved building a house or providing services routinely affected the judicial determination of whether substantial performance had occurred. (294) Classification according to facts, then, could restore order from chaos and make the future course of law clearer. In emphasizing factual context as well as legal concepts, realists created a new legal geography. (295)
Once they saw the notion of a rational man operating in a free market ruled by an invisible hand was fantasy, confronting the myth of laissez-faire and realizing private law was public law logically followed. (296) The realists' assault on the boundary between public and private was part and parcel of their functionalism, and grew from their concern with marketplace operations. (297) Private law interested them more than it did Frankfurter and other predecessors, (298) and in observing that coercion is at the heart of all bargains, public or private, realists also transformed the distinction between public and private into a continuum. (299) The use of institutional economics by Columbia's Robert Hale and Yale's Walton Hamilton to shatter this distinction pointed to another realist goal that would haunt Yale Law School and legal scholarship: "integrating" law with the social sciences and enlisting interdisciplinarity in making law a policy tool. (300) Hutchins and Clark used such empirical methods to discover "the actual operation of the law" and to justify the school's smallness and selectiveness. (301)
Pace Fiss, then, realists pointed to the role idiosyncrasy sometimes played in decision making, preached that factual context was as important as legal doctrine, and promoted the social sciences. Their jurisprudential program should have caused no consternation among lawyers and judges who had lapped up Pound, Brandeis, Frankfurter, and Cardozo. But it did. Traditionalists and sociological jurisprudents portrayed the realists as nihilists who undermined the usefulness of legal rules without putting anything in their place, (302) explained judicial opinions on the basis of what judges ate for breakfast, (303) and imbued all decisions of authorities, no matter how illegitimate, with the authority of law. (304)
Most importantly for Yale's history, the realists shocked many by combining pedagogy and politics. They worked to transform traditional legal education, which Harvard left alone, (305) and became linked to the Roosevelt Administration. (306) At the same time that he scandalized white Southerners as General Counsel of FDR's Agriculture Adjustment Administration, (307) for example, Jerome Frank bellowed that legal realism made the New Deal possible (308) and baited Harvard by branding Langdell "a brilliant neurotic" who seduced American legal education by introducing the case method. (309) "To study... eviscerated judicial expositions as the principal bases of forecasts of future judicial action is to delude oneself" (310) and was like training "prospective dog breeders" with "stuffed dogs," Frank claimed. (311) He advocated the case method's replacement with a clinical-lawyer school that would place the clinic and office at the core of the curriculum and include academics who had practiced law for a significant period. (312) His Yale contemporaries treated Frank as a beloved iconoclast and did nothing for the moment to implement his expensive program. (313) But clinical education became important in the academy, (314) especially at Yale, (315) and the school later named its primary clinic after him. (316)
While sharing Frank's Harvard-bashing, (317) most Yale realists sought a modest makeover of education that kept appellate opinions and legal doctrine central and created an agenda for the future. Where traditionalists reveled in using analytical skills to teach students that all cases were "consistent," realists employed theirs to reveal inconsistencies and to prove that law was neither easily predictable nor determinate. (318) At a time of constitutional and administrative law ferment, realists showed their students that law was not autonomous and that social, political, and economic forces all shaped and were shaped by public and private law. They gave old courses new "functional titles": Corporations and Agency became yoked together in Business Organizations. (319) They exalted the functional approach in their casebooks, where they sometimes organized topics according to fact pattern, instead of legal concept (for example, by relegating Mrs. Palsgraf to the section on traffic and transportation, instead of proximate cause). (320) They flirted with the social sciences by changing the titles of their casebooks from '"Cases on X' to 'Cases and Materials on Y'" (321) and conducting expensive, frequently dreary, empirical research into legal institutions. (322) Though most agreed that realists made ineffective use of the social sciences, (323) with but few exceptions, (324) they did put interdisciplinary legal research and education front and center on the agenda. Future academic lawyers worked at integrating the law school with the university. That so many now possess a PhD and JD is just one testament to realism's impact. (325) The realists created the template for the modern law school and set the agenda for contemporary legal education.
Thus, Yale realists dressed up law study in the 1930s, when their school found its contemporary niche as the anti-Harvard, a boutique spot for legal intellectuals and policy wonks. (326) Naturally, Cantabridgians criticized them, and Frankfurter complained that their "overjazzing" of legal education and their "smartaleck, wisecracking" cynicism just reflected their Harvard inferiority complex. (327) Reasonable people can disagree about whether Frankfurter was right, but the realists breathed new life into Yale.
Yale became a liberal bastion and the center of the academic study of law during the New Deal, not during Rostow's deanship, as Fiss claims.
While academics elsewhere also joined the New Deal, Charles Clark differed from most deans by glorying in Yale's association with it. (328) The faculty defined itself by its progressive politics, legal thought, and approach to education. Postwar professors continued laboring in a deep-rooted vineyard. They championed civil liberties and civil rights by, among other things, (329) joining with the NAACP to litigate Brown; (330) bringing early decisions championing the right to birth control; (331) defending communists and government employees accused of disloyalty during the Second Red Scare; (332) and urging abolition of the House Committee on Un-American Activities. (333) As in the thirties, their controversial work took guts, (334) and Yale Law professors' politics tested its university's presidents. (335)
Since legal realism gave Yale its mystique, it is no wonder that the school has absolutely reveled in its relationship to it. As Rostow, himself "a shovel-carrying [l]jegal [r]jealist" who joined the faculty during the heady 1930s, (336) maintained, the movement had long "represented the prevailing approach to legal studies at the Yale Law School to a greater extent than has been the case in any other law faculty of the world." (337) Ronald Dworkin told the New York Times in the 1960s that "if you wanted to get rid of realism at Yale you'd have to flush out the place for three years and fumigate the halls." (338) Look on Yale's website today and you will find the boast that legal realism has made doctrine "less conceptual and more empirical" and "has reshaped the way American lawyers understand the function of legal rules and of courts and judges." (339)
Acknowledgment of the significance of realism to Yale is missing from Pillars. While Fiss's particular brand of process theory played a role in creating legal liberalism and the contemporary Yale, legal realism did as well. Indeed, legal realism sustained Brown and the Warren Court until Fiss and others remodeled process theory to celebrate them. Why does Fiss think Yale "embraced" Brown? For better or worse, it was the ultimate realist opinion. (340) It was functional because the Court justified it by stressing the special nature of education. (341) It relied on social science, though its (in)famous footnote 11 proved flawed. (342) It showcased law's potential to change policy. Indeed, Kenneth Mack has shown the great civil rights lawyer Charles Hamilton Houston, Thurgood Marshall's mentor, was steeped in legal realism, (343) yearned to integrate law and the social sciences, (344) and called for "the functional teaching of law." (345) Legal liberalism certainly encompasses more than legal realism, but realism constitutes one crucial "pillar" of legal liberalism.
Why would Fiss want to ignore Yale's realist history? One reason is that he is a product of Harvard, an institution that, paradoxically, has historically shown little sympathy for legal realism while marginalizing Yale's contribution to it. (346) Further, as Arthur Leff said, realism remained frightening even after the New Deal. (347) It was partly the realist legacy that left professors despairing about the possibility of objective foundations of justice. (348) Some worried that realism unduly empowered unsympathetic judges and justices, especially after legal liberals lost the Court in 1969.
Moreover, Pillars is aspirational. Fiss's Harvard professors turned to legal process theory as a way to discipline law in the post-realist world. They sometimes implied that much as they approved of the Warren Court's politics, students must "choose between rejecting progressive judicial positions for lack of coherent, principled rationales and abandoning the commitment to principle in frank or disguised result-orientedness." (349) Like other legal liberals, (350) Fiss has worked ceaselessly to prove his teachers wrong. Indeed, during the 1970s, thanks partly to him, Yale emerged as the center of "the new legal process," a politically liberal and avowedly reformist version of legal process theory that concentrated on continuing the conversation in search of public values. (351) The new legal process tamed the insights of legal realism, (352) and expanded without exploding the traditional legal process ideal...