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The Strange Career of Legal Liberalism

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Overview

Legal scholarship is in a state of crisis, argues Laura Kalman in this history of the most prestigious field in law studies, constitutional theory. Since the New Deal, Kalman says, most law scholars have identified themselves as liberals who believe in the power of the Supreme Court to effect progressive social change. In recent years, however, new political and interdisciplinary perspectives have undermined the tenets of legal liberalism, and liberal law professors have enlisted other disciplines in the attempt to legitimize their beliefs. Such prominent legal thinkers as Cass Sunstein, Bruce Ackerman, and Frank Michelman have incorporated the work of historians into their legal theories and arguments, turning to eighteenth-century republicanism - which stressed communal values and an active citizenry - to justify their goals. Kalman, a historian and a lawyer, suggests that reliance on history in legal thinking makes sense at a time when the Supreme Court repeatedly declares that it will protect only those liberties rooted in history and tradition. There are pitfalls in interdisciplinary argumentation, she cautions, for historians' reactions to this use of their work have been unenthusiastic and even hostile. Yet lawyers, law professors, and historians have cooperated in some recent Supreme Court cases, and Kalman concludes with a practical examination of the ways they can work together more effectively as social activists.
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Editorial Reviews

Gerald N. Rosenberg
THE STRANGE CAREER OF LEGAL LIBERALISM is a fascinating, complex, and rich examination of the intellectual odyssey of liberal legal thought in the latter half of the twentieth century. It covers a vast array of material and subject matter, ranging over modern intellectual trends in anthropology, history, literary criticism, philosophy, political theory, and, of course, law. Its focus, however, is on the legal academy, on "what professors in elite institutions have thought about law" (p. 10). Thus, a great deal of the book is comprised of quotations from leading liberal legal academics. It is, as Kalman puts it, "one legal liberal's intellectual history of legal liberalism..." (9) Kalman defines the term legal liberalism as "trust in the potential of courts, particularly the Supreme Court, to bring about 'those specific social reforms that affect large groups of people such as blacks, or workers, or women, or partisans of a particular persuasion; in other words, policy change with nationwide impact'" (p. 2). That trust was largely created by the Warren Court and Brown was its "paradigmatic event" (2). Working with this definition and understanding, Kalman divides the book into a prologue, two parts containing seven chapters, and an epilogue. Part I, chapters 1-5, "provides an intellectual history of legal liberalism" (9) and Part II, chapters 6 and 7, "investigate[s] how lawyers and historians do their work" (10). More specifically, chapter 1 covers the intellectual understandings of legal writers from the 1930s to the 1970s with particular focus on legal realism, the New Deal crisis, the process theorists, the counter-majoritarian difficulty and, of course, the Warren Court's liberal decisions that formed the foundation of legal liberalism. But, alas for legal liberals, the "'judicial camelot'" (57) of the Warren Court years was not to last. The Great Society was overwhelmed by the war in Vietnam, Richard Nixon was elected and re-elected president, Warren Burger replaced Earl Warren as Chief Justice, and legal liberalism came under attack from law and economics, critical legal studies, and interpretivism. The result was that "by 1980, legal liberalism was feeble" (88). Chapters 2 and 3 explore these changes and focus on legal liberals' turn to other disciplines in their efforts to legitimate legal liberalism. Chapter 4 focuses on the 1980s and, consequently, on legal liberals' foray into hermeneutics and interpretation. The results, however, were far from encouraging: "Whereas legal liberalism seemed fragile in 1980, by the middle of the decade it appeared dead, a historical relic" (131). Into the abyss came history. Chapter 5 examines how some legal liberals turned to history in an attempt to support legal liberalism, with much of the chapter focussing on the republican revival. Part II continues the theme of the turn to history and chapter 6 explores the use of history by law professors and the consternation this caused historians. Chapter 7, befitting Kalman's self-understanding as a legal liberal and an historian, "explore[s] how lawyers, law professors, and historians can work together as activists toward shared objectives..." (10). Finally, a somewhat personalized epilogue argues for the "value of pragmatism in constitutional theory" (236), thus concluding that "law professors should pursue and be wary of interdisciplinarity" (p. 239). The great strength of this book is the copious presentation of the thinking of leading legal liberals. Kalman cites and quotes not merely law review articles and other published writings, but also public speeches, remarks at conferences and symposia, and correspondence. The reader sometimes feels almost like a voyeur, gaining a close-up view of the agony and ecstasy which legal liberals experience in their myriad attempts to defend their beliefs. The reader sees vividly, too, the modern tension between legal training as a form of vocational education and legal training as part of the intellectual life of the modern university. Kalman describes how legal academics pick up one discipline after another in a seemingly faddish and unsatisfying attempt to connect to the rest of the academy. THE STRANGE CAREER also does a good job in differentiating the work of lawyers and legal academics from the work of other academics. In the last two chapters of the book in particular Kalman points out that the quintessential piece of legal writing is the brief. Focussing on history but applicable more broadly, Kalman argues that when legal liberals turned to other disciplines they did so for "advocacy purposes" (185). Lacking both training in the disciplines so "appropriated" (185), and a commitment to understanding the particular issues of the appropriated disciplines as ends in themselves rather than as means to legal advocacy, Kalman writes that such interdisciplinarity "perplexed -- and, at times, infuriated" those trained in the appropriated disciplines. There is, however, a downside to the richness of Kalman's presentation. The inevitable result of covering so much ground is that at times the book looses focus. Kalman is at her best when she is writing about history. Indeed, much of the book, and particularly the last three chapters, is about historians and the use of history. To be true to her subject, legal liberals, perhaps Kalman had no choice but to explore so many disciplines. But the result is that many readers may find the book tough going. THE STRANGE CAREER will probably be most useful and interesting to historians and legal academics. Political scientists may find the book less useful because political science literature is practically invisible in both the text and the notes. On the one hand this omission seems strange since the defense of legal liberalism, the defense of the judicial activism of the Warren Court, is in large part an attempt to defend law from politics. Although legal liberals are driven by politics, they engaged (and engage) in an attempt to differentiate legal liberalism from politics. In the view of many political scientists, this is a grand exercise in denial. But on the other hand, legal liberals never seemed to take much notice of the political science literature. So perhaps its omission is in keeping with Kalman's focus. STRANGE CAREER is also a tough read because it is, in reality, two books. The first, in the text, covers 246 pages while the second, in the endnotes, covers 114 pages of very small type. I understand that use of long and detailed endnotes is the style of historians but in this case it makes for difficult reading. The difficulty is heightened by the length of many of the notes. For example, note 70 in chapter 7 continues for over three pages! Historians may have a preference for lengthy notes, but the lack of a bibliography is inexcusable. If by chance the reader is interested in following up on a citation, (s)he must search back through the chapter notes to find the initial full reference to the material. But even this arduous process is sometimes unsuccessful because not every abbreviated citation has a full reference in the chapter in which it appears! I don't know if Kalman was given a choice about including a bibliography, but if we wish others to make use of our work, we authors can not accept this form of citation. Shame on Yale University Press! In sum, THE STRANGE CAREER OF LEGAL LIBERALISM is about the strange goings-on in law schools since the Warren Court. For those interested in how legal liberals coped with the world around them, it is a must read.
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Product Details

  • ISBN-13: 9780300076479
  • Publisher: Yale University Press
  • Publication date: 8/28/1998
  • Edition description: New Edition
  • Pages: 384
  • Product dimensions: 6.14 (w) x 9.24 (h) x 0.82 (d)

Table of Contents

Acknowledgments
Prologue: Faith of Our Fathers 1
Pt. I The Spell of the Warren Court
Ch. 1 Times to Remember 13
Ch. 2 "Law And" 60
Ch. 3 Interlude: Thinking about Thinking 94
Ch. 4 Crisis 101
Ch. 5 The Turn To History 132
Pt. II Lawyers and Historians
Ch. 6 Lawyers v. Historians 167
Ch. 7 Trading Places 191
Epilogue: Liberalism, History, and Law Professors 230
Notes 247
Index 361
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