2005 Issue

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In Pursuit of the Gold Star: Diary of a Law Student

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By Kristina Brittenham

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Towards the end of my 2L year, I mentioned to a friend of mine that I was planning to turn a paper I wrote for a class into an article for publication. The topic encompasses—rather roughly—outlaw emotions, Brown v. Board of Education, and the things about law school that make me crazy. He was intrigued and wanted to read it. I let him, and he insisted on taking me out for tea and telling me all of his thoughts on the matter.

The essence of our discussion was:

- Friend: Kristina, what you have done here is very interesting, even compelling. But you make so many assumptions when you write that I don’t know where the basis for your paper is.

- Kristina: You mean assumptions like “racism is wrong”?

- Friend: Yes. You begin by assuming your reader agrees with you. So how will you convince a hostile reader that your take on law school makes any sense?

- Kristina: That’s not the point. This is a purge, really, a cathartic purge in which I lay out my own experience. Like other (real) critical theorists, I assume my reader has a basic belief in social justice. If I tried to talk people into that before I wrote about my view, I wouldn’t have any room for what I actually want to say.

- Friend: But that is not a very legal approach, is it?

- And my answer is: No, it is not.

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Rage and Critique: One Jewish Girl’s Story

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By Libby Adler

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The most surprising thing he ever said to me was “Don’t take this the wrong way, but you’re really quite beautiful.”
We were sitting across the table from one another in a bistro in Boston’s Back Bay, enjoying a brief escape from the demands of our studies. In the spring of 1998, we were classmates in the Harvard Law School Graduate Program. Conrad,** a German lawyer earning his doctorate at the University of Frankfurt, was in Cambridge for the year to bolster his academic credentials, and I, an American lawyer, was doing the same, preparing to enter the law teaching market.

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Radicalism and Responsibility: An Introduction to Unbound

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By Zinaida Miller and Brishen Rogers

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It no longer seems revolutionary to say, as Duncan Kennedy did over twenty years ago, that “Law schools are intensely political places.” As Kennedy himself argues in this issue of Unbound, today’s law professors “have correctly and honestly internalized the irreducible political element in law,” and accordingly law faculties feature a rich pluralism of overlapping and conflicting methodologies, political positions, and legal-theoretical commitments.

But has this pedagogical shift done much to make these three years a less alienating or painful experience? We’re not so sure. Law school still trains us to see ourselves as technicians rather than agents; operatives rather than entrepreneurs; managers rather than provocateurs. Many students who arrive with visions of using the law as a tool for social transformation become quickly disillusioned and pessimistic about the possibilities for change, eventually leaving with a diminished sense of agency and an undefined sense of loss for ideals that, in the context of an inflexible system, have come to seem naive.

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We Who Are About to Die?

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By Jennie Lin

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When I wrote my first legal memo, I felt as though I had bludgeoned a small creature to death. I did not know who or what this creature was—my reader? the English language? the art of writing?—but I knew that it was small and vulnerable, and that I had murdered it. I had strung together a massive, bulky chain of prepositional phrases and subordinate clauses, twisted it in my hands, and used it to strangle something very small and good.

Before I came to law school, I spent a year writing stories in San Francisco. I read a book a day and nearly went broke buying all of those books. I lived on a street where trolleys rolled by, bells chiming, and aspiring writers without day jobs congregated at the corner coffee shop to scribble intently into black leather-bound notebooks. I lived in an old apartment with a rooftop I could reach only by endangering my life on a set of rickety, rotting stairs. From the roof I could see the misted ocean. It was an uncomplicated existence.

The following summer, I went to Taiwan to write. In the countryside of Tsaotun I wandered through burning rice fields, a lost, sooty soul followed and half-devoured by a band of ragtag mosquitoes. By day I picked bushels upon bushels of wine-colored lychees on a fruit farm nestled in the mountains. Every few hours I perched on the edge of a concrete irrigation ditch and jotted happily and nonsensically into a notebook. At night I slept on a straw mat on a wooden floor. I had never slept so well.

When I was little, my crazy mother used to tell me bedtime stories about girls who got lost in rural Taiwan when she was my age: they were kidnapped, had their tongues cut out, and were sold as sex slaves. To be sure, this was not a pretty tale, but what really made me shiver at night was the fact that, without tongues, they could not tell a single person who they were. At first they must have wanted to grab the nearest person, shake him without mercy, and shriek their names in his horrified face. But as the years went by, and none of them could assert who they were, did these unidentifiable girls themselves forget?

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The Social Justice Element in Legal Education in the United States

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By Duncan Kennedy

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In this lecture, I offer an intellectual historical narrative of debates about the role of social justice in legal education in the United States from around 1900 to the present. I would be surprised (not unpleasantly) if Sir Elwyn Jones had ever turned his attention to this topic. Nonetheless, my hope is that this lecture would have interested him. The struggle for social justice in which he was a deeply committed participant was, in his time and today, an international affair, and also a project that crosses the boundaries of institutions, coming to bear within the bar and in the legislature, as well as on shop floors and, emphatically, in educational institutions. But whatever Sir Elwyn would have thought about it, I hope it will be of some, however limited, use to those of you who are contemplating the creation of a law faculty at the University of Wales at Bangor.

I have some knowledge of British law faculties, although only of English ones and only relatively recent knowledge of those; I cannot claim enough knowledge to say anything about British legal education, and I can say even less about what Welsh legal education actually looks like today or might look like as developed in a new law faculty. That is the reason I have chosen a topic over which I hope I can assert confident ownership. It would be wonderful (although it seems unlikely) if in the question period, someone should say, “Well, I think you have it completely wrong about what happened in American legal education in the 1920s.”

The notion that there is a special category of justice called “social justice” is a late 19th century and early 20th century idea. People didn’t talk about social justice in the 18th century. The term is associated with the development of intense conflict between social classes all over the industrializing world at the end of the 19th century; its primary reference was originally to the idea of justice between a proletariat and “owning” classes, whether aristocratic, large land-owning, or bourgeois.

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The Politics of Injury: A Review of Robin West’s Caring for Justice

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By Janet Halley

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In Caring for Justice, Robin West argues that patriarchy operates by harming women on every conceivable dimension but especially in sexuality and reproduction; that women nevertheless gain access in both domains to an ethic of care that is redemptive for the world; and that bringing that ethic fully to bear as the sublime mode of justice will turn law to the remedy of harm and the promotion of care. West’s aim is to redeploy women’s experience of harm into an ethic of care that will—through law—“heal the world” (280).

In many ways West’s argument is highly distinctive. But it shares many features with other left-multicultural identity-political subordination-theory (LMIPST) projects, and therefore has considerable exemplary value as well. You can find in some critical race theory, gay identity politics, disability rights projects, indigenous-nationalist projects and human rights projects not only a firm and admirable resolve to work for emancipation, but a tendency to see emancipation in the following terms:

  • an imagery of subordination that replaces domination, exploitation, expropriation, oppression, etc., with harm and injury
  • a natural or infantile default of “no injury” so that injury is imagined as an intervening event—a “trauma”
  • a subordination binary, with a superordinate and a subordinate group imagined as diametrical opposites
  • a strong experiential divide between these groups, with an identity practice making shared injury or harm a marker of subordinated group membership and the predicate for authority to speak for the group
  • a framing of harm and injury as ethical wrongs, and a substitution of power by ethics as the keyword in the vocabulary of emancipatory transformation
  • a insistence that harm has a redemptive dimension that produces distinctive access to ethical insight
  • in ethics, therefore, a strong form of subordinated-group exceptionalism and supremacism
  • a requirement that emancipation will be achieved only by a transformation of the superordinated-group-members’ “hearts and minds”
  • a view of law both as a tool of injury on the one hand, and on the other as the super-legitimate site for “sending the message” that injury is unethical, and as a pivotal device for addressing injury and for changing hearts and minds
  • a vision of the ideal rule structure as a transparent representation of the ethics to which the subordinated group has distinctive access.

Not everyone doing a LMIPST project thinks this way, but many do. West is surely among them. So I offer the following close reading of substantial parts of West’s argument to show the internal coherence of one version of the emancipatory imaginaire which I’m calling, for shorthand, the politics of injury. I also suggest some reasons why one might want to bring some skepticism to the social theory embedded in these politics. And finally, I will suggest that two of the chief, if not the chief modes of legal argumentation in the US today—rights argumentation and policy balancing—may ratify and intensify social and cultural tendencies to see the politics of injury as true and just. If such constitutive forces are indeed in play, and if as critically inclined leftists we are prepared to regard injury politics with skepticism, then we might well want to bring some skepticism, as well, to those elements of legal argumentation.

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Is Anything “Left” in International Law?

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By Thomas M. Franck

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There is a certain lack of resonance, in my field of international law, to the political concepts of “right” and “left”. Within this discursive void, we may find a tale of some more general importance to lawyers and others concerned with the role of norms in the making of social policy.

To me, the “right” is that grouping in the political spectrum which cleaves most urgently to traditional institutions, rules and values. It is the party of the conservators. The “left,” by way of contrast, is the party of radical social change, of revaluation of received wisdom, and of traditional laws and institutions.

To the right, the term “old” has a valuable cachet; to the left it does not.

To the left, “because this is the way we’ve always done things” is not an explanation validating a policy; to the right it is a hefty source of validation.

Unfortunately, this way of understanding the difference between left and right leads to some very peculiar results when when one tries to apply it to the contemporary ideological landscape of international law.

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Political Identity as Identity Politics

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By Richard Thompson Ford

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Identity politics is nothing new. In a sense—apologies to the late Tip O’Neill—all politics are identities; all identities, political. Of course, when we use the phrase “identity politics” we mean something more specific. We don’t mean to evoke people who identify as Democrats, Republicans, Leftists, Conservatives, Libertarians, even when these identifications are an all-consuming obsession as often enough they are. Identity politics suggests a political orientation built around a (pre-existing) social identity. This seems to imply that the identity comes before the politics: we begin with identities whose shape and character are, or at least could be, pre-political and then we opt to get political about them.

Stated this way it’s clear what the argumentative next move is. Of course this can’t be right; the identities don’t precede the politics, they are a product of politics, social identities are inherently and irreducibly political, existence precedes essence, the personal is political, is always already political, [insert your favorite postmodern, critical, existentialist or phenomenological catch phrase here]. And hence it can’t be right to single out “identity politics” for scrutiny; in fact, the whole category must be abandoned, we should bludgeon, jail or at least chastise and mercilessly ridicule anyone who ever uses the term again, etc., etc., blah, blah.

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Out of the Past: Time and Movement in Making the Present

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By Christine Desan

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The vocabulary of time is exhausted: from the “post-modern” to “Generation X,” it expresses fatigue with the sequence of our efforts. We have mapped our steps with any number of methods—millennial to scientific, Enlightened to romantic, Marxist to positivist, Whig to progressive, neo-Whig to neo-progressive, soup to nuts. History, however, may have escaped us long ago. This essay experiments by taking seriously the possibility that coherence is a temporal event, a movement that clarifies experience over time by sacrificing past uncertainty to a comprehensible present. Such an approach, developed in a concerted way, could reveal from a different angle the way the constitutional order of a community unfolds, endures, or changes.

The conventional approaches to time are familiar. As a matter of historical narrative, we debate a particular trajectory. Most frequently in legal histories, it is a national or state story, but it can also describe the experience of a group—women, the working class, the African-American enslaved. This narrative, which may be celebratory or critical, progressive or nostalgic, a tale of inclusion or exclusion and oppression, operates against a baseline, a shared memory of the way things were before. It maps out a later equilibrium; in the best accounts, we understand a set of debates about alternatives that will write a community’s future—as hewing to national or local power, libertarian or protective possibilities, communal or competitive theories. Contested as it may be, the equilibrium is implicitly unitary: a particular order prevails or, at least, predominates. In the standard account of the American system, for example, a constitutional design is formed in popular conventions, elaborated by legislatures, implemented by the executive, interpreted and adjusted by courts. The resulting narratives may assume that government officials represent popular constituencies, or explore the myriad ways in which courts and legislatures reflect social forces, including the clash of interests, the power of ideas, and discrepancies in power. Change occurs in these histories in a variety of ways: formalists at one pole may highlight moments of constitutional amendment while realists sketch the transformations effectuated in constitutional doctrine by judges in common law fashion. Many attend to the issue whether and how people participate in constitutional formation. In each case, the issue remains to identify the underlying design of government, put into place by the relevant authorities in exchange with others around them. Agency, the act of decision and its distribution, obsesses author and audience alike. Time, in this account, is a shared record of those determinations, a path of steps that traces the life of a community.

The structure of these histories comports with our current theories of constitutional decision-making. The mainstream approaches from rights theorists and utilitarians alike manage past and future as a positivist sequence, running through the present moment. In that alternative, the character of change is imagined in common instants. We are invited to consider or participate in ideal worlds of deliberation, individual exchange, or preference evaluation. Decision is the focus there, as opposed to movement, in the sense of experience, learning, or reaction. Decision is, of course, dramatic—institutions, patterns of authority, practices, worlds change with states of mind. Reason chooses, and an imagined politics—an applied process of agency or will—replaces the contextualized processes recorded in the historical narratives. That politics transforms the program, here as there. Time, again, maps a decisional sequence along an axis of past to future.

On closer look, the passage of time in these accounts has a curious quality. As suggested by the motif of the graph, it appears as a series of moments. When we contemplate the past, it is as if we seek to confront and ordain the reality of those points. In turn, we seek to understand something about the path of our community.

The present essay suggests, although very speculatively, another approach to the problem. It argues that, at least for this moment, we should conceive time within constitutional experience quite differently. Rather than conceiving time as a series of points, we should think of time as movement, the creative manufacture of the present out of the past. Rather than considering the path that may be created by a series of points, we should consider the qualities that might attach to a phenomenon of movement, to our own predicament as beings constantly losing a set of possibilities and always getting the present ground. The essay attempts in that way to change the focus of inquiry. The question is no longer whether or what has been chosen in a regime assumed to be unitary. Rather, the question is how the passage of time instills a sense of the present, how the experience it produces reiterates a particular conception of constitutional authority, and how the character of that order as coincidental should affect our assumptions about human action, including agency and consent.

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