In a recent lament about Bush v. Gore, Bruce Ackerman feared that the patent groundlessness of the opinion would convince many of a proposition he attributed to critical legal studies: that law is simply a form of politics.
This remark reflects two tendencies prominent at the Yale Law School in recent years: first, a preoccupation with a now extinct and never very successful movement of left legal academics, and second, a tendency to conflate this movement with the legal conservatism of Jusice Scalia and his collaborators at the University of Chicago and the Rehnquist Court.
These tendencies ride high throughout Anthony Kronman's brilliant book, The Lost Lawyer. The book is a defense of a distinctive style of legal reasoning – prudentialism – that is elaborated through contrasts with critical legal studies on the one hand, and Chicago-style law and economics on the other. A critical point that distinguishes Kronman's preferred style of legal analysis and rhetoric from the two competitors is that the competitors are self-consciously political. Kronman suggests that the linking of professional discourse and scholarship to politics is a road to "professional suicide."
I doubt if Ackerman agrees. His own work is militantly interdisciplinary, and it unabashedly links legal analysis to political vision. Indeed if there were an academic movement of legal liberalism, Ackerman would be its leader. However, there is no academic movement of legal liberalism. There is nothing in centrist or left-of-center legal scholarship with a level of coherence, mutual engagement, and ideological commitment comparable to those of legal conservatism.
This absence reflects an unfortunate anxiety about politics among nonconservative legal academics. Compulsive crit baiting is a symptom of this anxiety. I think this anxiety is pathological in both political and academic senses.
I want to consider, first, what is at stake in the debate about the political nature of law; second, why conservatives have been so much more successful in escaping the taboo against blurring the line between the two; and third, the influence of the taboo on nonconservative academic work. The taboo is largely tacit and never explicated systematically. So I am necessarily speculating. Nevertheless, I think its influence is real and largely unfortunate.
William H. Simon,
Fear and Loathing of Politics in the Legal Academy,
J. Legal Educ.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/875