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4-2006

Late Night Thoughts on Blogging While Reading Duncan Late Night Thoughts on Blogging While Reading Duncan

Kennedy's Legal Education and the Reproduction of Hierarchy in Kennedy's Legal Education and the Reproduction of Hierarchy in

an Arkansas Motel Room an Arkansas Motel Room

Franklin G. Snyder Texas A&M University School of Law, fsnyder@law.tamu.edu

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Part of the Law Commons

Recommended Citation Recommended Citation Franklin G. Snyder, Late Night Thoughts on Blogging While Reading Duncan Kennedy's Legal Education and the Reproduction of Hierarchy in an Arkansas Motel Room, 11 NEXUS 111 (2006). Available at: https://scholarship.law.tamu.edu/facscholar/185

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Late Night Thoughts onBlogging While ReadingDuncan Kennedy's Legal

Education and theReproduction of Hierarchyin an Arkansas Motel Room

Franklin G. Snyder*

Blogging is a curious activity. It issolitary, in the sense that most bloggingoccurs when one is alone, but blogging isalso communal in the sense that the veryact involves participating in a larger dia-logue. Sometimes I think it is like thework of a monk of the Middle Ages, alonein his cell with a candle laboriously copy-ing the books that will take their place inthe international dialogues of the day. Atother times, I think blogging is more likespray-painting graffiti at night on top of

the graffiti painted by those who wentbefore you.

My own blogging tends to be doneearly in the morning or late in the eve-ning, and as this piece has to do withblogging, I thought I would write it whileI am doing my blogging. It is being writ-ten in bits and pieces; some at the smallstudent desk in my neat and pleasant lit-tle apartment at Notre Dame, where I amvisiting for the year; some in the den ofmy less neat house in College Station,Texas, where my wife and two sons (ages

* Visiting Professor of Law, Notre Dame Law School, 2005-06; Professor of Law, Texas WesleyanUniversity School of Law in Fort Worth. Thanks to Rachel Arnow-Richman, Ann Mirabito, and Jeff Lipshawfor comments on the manuscript. The views expressed here are not necessarily shared by any of them,especially Rachel, who very much enjoyed the contracts course she took from Duncan Kennedy. I am alsograteful for the hard work of Beth Gaschen and the editors of this journal for their work in fixing (and adding)a number of footnotes.

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5 and 6) live, and to which I commuteback on weekends. Some is written at va-rious places in between, mostly airports,but also (at this moment) the Days Inn inLonoke, Arkansas, which happens to beten hours from South Bend and eightfrom College Station.

According to its Chamber of Com-merce web site, Lonoke (pop. 4,287) has33 churches: 14 Baptist, 5 Methodist, 2Church of Christ, 1 Presbyterian, 1 As-sembly of God, and 9 assorted non-de-nominational Protestant outfits, and aMormon temple.1 The biggest employerin Lonoke is the Remington ammunitionplant.2 The second-biggest employer isWal-Mart. It is hard to imagine a placefurther removed from the elite groves ofacademia.

Yet here I am, 11:00 o'clock at night,sitting at a faux-veneer pressboard tablein front of a Hewlett Packard laptop in alittle room that looks out across the park-ing lot at the 1-40 overpass, enjoying freehigh-speed wireless Internet service thatputs me instantly in touch with as manyresources as any good law library canmuster. Lexis, Westlaw, Hein Online,the Questia library of books, the SocialScience Research Network, Google, FoxSports-all the information a human be-ing could reasonably want, and a gooddeal more, is only seconds away. Thatlaptop is a potent symbol both of moderntechnology and the democratization of in-formation.

Next to the computer on the little ta-ble is a book. Yes, a printed book. It isthe handsome recent New York Univer-sity Press reissue of Duncan Kennedy's1983 Legal Education and the Reproduc-

tion of Hierarchy: A Polemic Against theSystem (LERH).4 It is not only a printedbook, it is the ultimate elite artifact, abook by the Carter Professor of GeneralJurisprudence at Harvard Law School,suitably ensconced between the soberboards and gold lettering of one ofAmerica's premier academic presses. Itis a potent symbol of elite control of theacademic discourse. Everything about itreeks of status. The book blurbs on thedust jacket are from the Bennett BoskeyProfessor of Law at Harvard, 5 the Car-mack Waterhouse Professor of Constitu-tional Law at Georgetown,6 and (hopingfor some bookstore sales, maybe) best-selling author Scott Turow, probably theonly guy who has ever made law schoolsound as scary as Kennedy. 7 The newedition contains four new essays aboutthe original work; all from what the dustjacket reminds us (quite correctly) are"prominent legal scholars."" The reviewof the book on Amazon.com emphasizesthat the work is important enough that it"was reviewed in several major law jour-nals."9 Translation: this book has beentaken very seriously by people who knowabout that sort of thing. Kennedy'sLERH is quintessentially a product of theacademic hierarchy. It is, as I discussfurther below, written by an elite insiderfor other insiders, on a subject that islikely to interest only insiders or insiderwannabes.

The Internet, and that particularpart of it that has come to be known asthe blogosphere, is the opposite. It is aproduct of what may be the most democ-ratizing technological advance since thedevelopment of cheap wood-pulp paper.

Franklin G. Snyder

Only the best and brightest can get theirwords into a NYU Press book. Its mereexistence tells you that it is important.Any bumpkin with $49.50 and a modemcan have a blog.

The insider book rails against thepower of hierarchies and their exclusionof outsiders. On the Internet, outsiders,without muss and fuss, are busy under-mining those hierarchies.

There are two broad hierarchies inAmerican legal education. First, there isthe hierarchy of law schools in whicheach institution has its allotted spot inthe pecking order. Second, there is thehierarchy within law schools. All the va-rious folks on the faculty, who do muchthe same thing, have a wide array of jobstatuses, from Distinguished UniversityProfessor (or its equivalent) down tohumble Legal Writing Instructor. Thereare a few anomalies, but if you know afaculty member's school and title, you canpretty much tell where he or she fits inthe great academic pecking order.

Kennedy's LERH is the most famousexploration of these hierarchies. There ismore to the book, of course, but for pre-sent purposes its theses are: (a) hierar-chies are bad; (b) the hierarchy of thelegal profession is especially bad; and (c)law schools contribute to the hierarchy ofthe legal profession and thus are alsobad, not to mention miserable places tobe. I do not think it is necessary to gointo more detail here. There are manyinteresting things in the book and someacute observations, and many have found

it "insightful," "stunning," and "vital, in-cisive, and daring."1° Others, of course,have found it "sophomoric agitprop."11But for present purposes, we can skip thedetails and focus on the basics.

Our perceptions of the world, as eve-ryone seems to agree, are shaped to somedegree by our own backgrounds. Ken-nedy has apparently spent his life sinceage ten competing in "deadly earnest" inthe cutthroat world of elite academia.12

He went to Cambridge's famous ShadyHill School, to Andover, to Harvard, andto Yale Law School-all of them, itseems, pretty dreadful places-before go-ing back to Harvard, where he has taughtsince the Nixon Administration. 1 3 LERHis the ultimate alienated-insider take onan institution where the author has spenthis entire adult life.

As it happens, LERH came out thesame year I graduated from law school. Iwas unaware of it until I entered legalacademia in 1997. This is perhaps just aswell, since it might have led me to con-clude that my law practice was dull andsoul-killing work, when in reality I foundit challenging and enjoyable. Nor did Iread it during my early years inacademia. When one is brutally clawingone's way up a soul-killing hierarchy,busily sacrificing everything that is bestabout oneself in the process, it is probablycounterproductive to be told that it willall be dust and ashes when one getsthere. If I had realized just how much ofmy humanity I would have to surrenderto reach my own modest niche in the hier-archy, I might not have tried. Whichwould be too bad, since I enjoy it verymuch.

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Before I entered academia, I clerkedfor a judge on the D.C. Circuit, was an as-sociate and partner in the D.C. office ofLatham & Watkins, then spent fouryears doing mom & pop law as counsel toa small firm in Oswego, New York. Sincejoining the academic ranks, I have taughtat law schools in all four U.S. News

tiers.14 I've also filled most of the variousslots between "legal writing teaching fel-low" and "tenured professor of law." Forthe past year or so, I have been a blogger,as the chief editor of ContractsProfBlog, 15 the "official" blog of the Section onContracts of the Association of AmericanLaw Schools (AALS), and more recentlyas webmaster of its website. I have beenactive in the section and have put on afew conferences that have drawn togethera wide range of scholars at all levels.16

I mention this because it affects theperspective I bring to Kennedy's book. Ihave few advantages over Kennedy as anobserver of legal and academic hierar-chies, but the one I have is breadth of ex-perience.

So, I pick up LERH. It starts off well.What law schools teach is not just"wrong, or nonsense," 7 but "nonsense

with a tilt."18 It is ideological training forwilling service in the hierarchies of thecorporate welfare state, 19 in a classroomthat "suggests at once the patriarchalfamily and a Kafka-like riddle state."20

All this is a little overblown, of course,but most of us remember some of thethings we liked least about law schools,even those who, like me, enjoyed their ex-

perience. I settle down for a good, old-fashioned searing indictment.

After fifty or sixty pages the sleddinggets tougher. Toward the end it even be-comes something of a chore to finish. It isnot so much that I disagree with some ofKennedy's points (though I do), or thatthe writing is not engaging (it is). No,what starts to wear me down is the ap-parent conviction that his own exper-iences and feelings are true anduniversal, and that mine, to the extentthey differ from his, are either the resultof bad faith or denial. Perhaps Kennedyreally was emotionally maimed by hisown "fear of the teacher's disapproval,"his "own status as a non-person" in theclassroom, or his "revulsion" at the So-cratic method. 21 If so, I suspect this hasmore to do with Kennedy and his parentsthan it does with legal education. Butthat does not stop him from casting it assome kind of universal reaction, at leastamong thinking people.

For a while, it is kind of amusing be-ing told that I am probably part of theclass that cannot relate to "working classpeople" or "outsiders" by a guy who hasthe same privileged class status and edu-cation as George W. Bush.22 Or learningthat, as someone who liked law school,liked law practice, and likes teaching, Imust be one of the "mainstream" peoplefor whom "the barrio ... is alien and in-visible."23 I mean, I grew up across thestreet from the Carmelas barrio in Nor-walk, California, and a third of my highschool classmates came from there.24

Just whom are we talking about here?If the reader's own background hap-

pens to parallel Kennedy's, perhaps he or

Franklin G. Snyder

she can recognize the traumas he had to

go through (like having his day ruinedbecause a professor was in a bad mood)

and think them both important and uni-versal. But if the reader's backgroundwas more, well, outsiderish, it is probablyharder to relate. Kennedy was already aHarvard professor writing about howmuch he had to suffer in law school25

back when I was pulling the night shift ata liquor store-convenience mart in LongBeach, California (working alongside aguy who belonged to the Chosen Few mo-torcycle gang), to pay my way throughCal State Fullerton. He was making aHarvard professor's salary when I wasliving next to a family of immigrants inone unheated room in a converted Quon-set hut, adjacent to the largest asphaltrefinery in California.26 Frankly, whethermy professor was having a bad day ornot, it did not make much of a differencein my life. When you have found yourselflying face-down on the floor, feeling a gunat the back of your head while a very agi-tated man keeps screaming "Open thesafe, motherfucker!"27 the "deadly ear-nest" competition of Shady Hill School,Andover, Harvard, and Yale does notseem quite so central to the fate of soci-ety.

Still, the man has a point. There is agreat deal of hierarchy in legal educationand some of it is probably not merely un-necessary but pernicious. Unlike Ken-nedy, I am not one of those for whom allhierarchy is, at best, a necessary evil, andwho distrusts even the division of labor. I

have children who need to listen to mewhen I tell them to look both ways. Ihave students who need to do what I tellthem if they want to learn what I have toteach them and not screw up the lives ofthe people they will represent when theygraduate. I would prefer to be operatedon by board-certified surgeons ratherthan the people who work in the hospitalcafeteria. Like Paul Carrington, one ofthe legal scholars who has a brief essay inthe NYU edition of LERH, I lack Ken-nedy's imagination-I simply cannot en-vision a world without hierarchies. 28 So,I cannot regard them as inherently evil,especially since, as one who teaches con-tracts and business associations, I amaware that they can be liberating. Thehierarchical structure of a business en-terprise or a nonprofit corporation allowspeople to accomplish together what theysimply could not accomplish as an aggre-gation of individuals.

On the other hand, they can be crueland stultifying. I am perfectly willing toagree that the hierarchies in legalacademia are more pointless and rigidthan they need to be. The hierarchies of,and within, law schools are far less fluid,flexible, and inclusive than those of eventhe elite bar. Some of the leading elitefirms today were, after all, jumped-up re-gional outfits with big ideas when Ken-nedy was writing LERH, and some of theold-line elites (Lord, Day & Lord, CoudertBrothers) have gone the way of the car-rier pigeon. Today, the elite law firmshave partners from virtually every Amer-ican law school, even the ones down atthe bottom that you have never heard of.I suspect there are more lawyers with

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J.D.s from fourth-tier schools at one elitefirm, Skadden Arps, than there are in allof legal academia combined. There is cer-tainly no lawyer in any elite law firm whois treated as comparatively poorly as a le-gal research and writing teacher at mostAmerican law schools.

So let us assume we want to rattlethe law school hierarchy. Let us assumethat the world is teeming with outsiderswho want to shake things up in the acad-

emy. Kennedy's tract has been aroundfor more than two decades. Most of theeditors of this NEXUS issue were proba-bly still spitting up creamed broccoli ontheir bibs when it came out. Yet it ishard to see that law schools have becomeless obsessed with status over those de-cades. Two of the other scholars who con-tribute to the NYU edition, AngelaHarris and Donna Maeda, note how"fresh" Kennedy's "polemic against thesystem" still is. 2 9 This is, I think, a niceway of saying that it has had very littleeffect on anything.

Why? Partly, I expect, because afterall the wind-up, the book's delivery isweak. A student reading LERH may

start looking for a call to man the barri-cades, to take some concrete stops, but allKennedy winds up telling students is"Resist!"3 0 Without some details, this isnot terribly helpful. After all, the stu-dents who are most likely to be irritatedby the modern elite law school, and mostlikely to speak up about it in class, are

probably those that Kennedy calls "cockyconservative women"31 and "right-wingecon jocks,"' 2 whom he would just as soonsee shut up,33 and who probably like hier-archies, anyway. They are almost cer-

tainly in Kennedy's classroom because

Harvard is the most prestigious lawschool in the world.4 Even the left-wingstudents-more intelligent, sensitive,and better educated (they have read moreFoucault than Coase)-are probablythere because Harvard is the most pres-

tigious law school in the world. After all,if they really wanted public service morethan prestige they could have gone to,

say, Northeastern, Texas Southern, theCity University of New York, Howard,the University of the District of Colum-bia, the New College of California, or anynumber of other places with a strong his-toric commitment to social justice overelitism.

There is another factor at work,

though. Despite Kennedy's rhetoricabout how outsiders are "invisible" tomainstreamers, the fact seems to be thatnearly everything outside of Harvard isinvisible to Kennedy. In the years since1983, there has been a near-total revolu-

tion in access to information and to mediafor expressing viewpoints. Yet, for all Ican tell from the new edition of LERH, itis still 1983. The world is still dominatedby the corporate welfare state. If it is noton the network evening news, in the NewYork Times, or in the Harvard Law Re-view, it does not exist. The only way forlike-minded individuals to resist the

overwhelming forces of hierarchy is tofound little Marx study groups inside theelite law schools.3 5

Kennedy's focus is relentlessly onwhat is going on inside the elite law

Franklin G. Snyder

schools. Utterly absent from LERH isthe notion that the hierarchy might bechanged by something outside itself.Kennedy casts this narrow focus in a pos-itive light by saying that he is calling for"interstitial" revolution, within the insti-tution, not from above or below. How-ever, he does not explain why aninterstitial revolution is better thanrevolution from above or below. Perhapsit is because he feels interstitial revolu-tions are somehow more democratic thanrevolutions from below? It is hard to say.A cynic might note that the chief advan-tage of an interstitial revolution is thatthe current cast of characters gets to keeptheir jobs.

But that would be uncharitable andprobably untrue. I suspect the real rea-son for Kennedy's myopia is that thosewho have invested their entire lives in aninstitution naturally assume that whatgoes on inside that institution is vitallyimportant. One can see this in the legaland business worlds from time to time.People inside organizations seem to wantto believe that what are actually secularchanges in supply or demand are some-how due to their own good or bad acts. Itis harder to avoid this tendency when youhave relatively little experience outsideyour own organization. Many legal aca-demics have little with which to comparetheir experiences:

The typical ... scholar attended anIvy League (or comparably selective) col-lege in the 1960s or early 1970s, went onto study at an elite law school, perhapsspent a year clerking for a prestigiousjudge, and then proceeded directly to a po-sition on the faculty of a top-tier lawschool. It must be difficult indeed, in sucha hothouse career, not to think that all the

conditions of one's work have real-worldimport-not to think that one's profes-sional frustrations reflect an oppressivehierarchy, that one's personal satisfac-tions represent a universal ideal, thatevery administrative decision at one's in-stitution is a matter of genuine politicalmoment.3 6

It is natural in such circumstances, asone sympathetic commentator wrylynoted, for something like the "issue of the'no hassle pass'" to become "the issueupon which the fate of capitalism de-pended."

3 7

The NYU edition of LERH contains afacsimile of the first 1983 edition, so thereader can see it the way Kennedywanted it to look. The original book-length version of the work was self-pub-lished by Kennedy on paper specificallycut into an odd shape, set in a quasi-Cou-rier typeface designed deliberately to looklike an IBM DisplayWriter, photocopiedand stapled with an amateurish cover de-sign.

Why? After all, by 1983 Kennedy hadbeen a tenured faculty member atHarvard Law School for seven years, andhis influential Critical Legal Studies(CLS)-oriented work had already ap-peared in journals such as the HarvardLaw Review, the Stanford Law Review,the Yale Law Journal, and the Universityof Pennsylvania Law Review. Portions ofLERH first saw the light of day as an es-say in a book published by a reasonablyprestigious commercial press.38 Thatbook sold well enough that it has gonethrough three editions and is still inprint. Kennedy also published a some-

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what different version in that bastion ofthe Establishment, the Journal of LegalEducation (JLE),39 the official peer-re-viewed organ of the official "learned soci-ety" of legal education, the Association ofAmerican Law Schools (AALS). SinceJLE is, I believe, the only law review au-tomatically distributed personally toevery law professor in the country, everylaw professor in the country already hada copy of Kennedy's ideas on his or herdesk, accompanied by the official impri-matur of the AALS.

However, as Kennedy writes in a newAfterword in the NYU edition, he wantedto publish a longer version.40 There is notthe slightest doubt he could have pub-lished it in a law review, probably an eliteone. He probably could have published itas a book, since he has had no difficultygetting his later books published by theperfectly respectable Harvard UniversityPress. 41 Instead, he decided to publish ithimself. He did not do it as a capitalistmight, to make money. He did it in whatseems to have been a deliberate decisionto make his ideas appear marginal and tolimit their circulation.

The form of self-publication was ex-tremely important to him. The ordinaryoutsider, eager to have the work takenseriously by insiders, normally opts toproduce the most professional-lookingthing he or she can afford. But Kennedydid not want the professional look:

I was reading lots of books about rev-olutionary movements at the time, tryingto figure out how they worked before theybecame oppressive governments, and sowas exposed to pamphlet literature as anidea. Through an Office of InformationTechnology, Harvard Law School was for

the first time making word processingavailable to its faculty. I was influencedby the cult of the handmade artifact, inwhich I was indoctrinated at Shady HillSchool in Cambridge during the 1950s,and by the ideology of the pamphlet itself,my own ideology of the time, affirming thedesirability and possibility of the 'revolu-tion of civil society' carried out without of-ficial media, 'interstitially' rather thanfrom above or below the institutionswhere we work.4 2

Look at the paradox. Here we have theultimate insider, using the resources ofthe richest and most influential univer-sity in the world, publishing ideas thathave already seen the light of day in acommercial book and a peer-reviewed lawjournal, and would be eagerly accepted bya hundred other respectable publications.Yet, he is working hard to make it looklike the clandestine works of somehunted Spanish anarchist who is just onestep ahead of Franco's secret police.

Janet Halley, another of the scholarswho has an essay in the NYU edition,compares reading Kennedy's originaltract to her experience reading theephemeral radical tracts of rebel Puri-tans in 17th century England.43 Ulti-

mately, there is not much comparisonbetween the two. The Puritans were out-laws who had to move their presses everynight to avoid being captured by the gov-ernment licensing authorities. They pub-lished hurriedly and ungrammatically oncheap paper because they did not havetime for editing or access to better paper.

I expect that the same is true for Rus-sian Bolsheviks, the samizdat publishersin the former Soviet Union, and othermarginalized groups. These groups, likeall outsiders, do not publish crude pam-

Franklin G. Snyder

phlets because they like publishing crudepamphlets. They publish them becausethey lack access to more established or-gans of communication. The pamphlet isnot an ideology; it is a technology. It isthe one you use when you cannot get yourwords out in any other way. But for Ken-nedy, the form of the pamphlet was to beextremely important. He did not want itto look typed (which would be too out-sider) or printed (too insider) so he set-tled on something in between, the look ofan IBM DisplayWriter. Here is his think-ing:

The pamphlet tells us that it is an ar-tifact because it is much more in printthan a typed manuscript, while definitelynot appearing to have been commerciallyproduced. LERH was accordingly square,7" x 7", so that it could be made of 81h" x14" (legal size) sheets folded in half andthen cropped .... A square bound backwould have cost a lot more and suggestedpublication, sale on bookstore shelves,and placement in libraries, rather thandistribution on the street ....

The front and back covers are hand-lettered, using Letraset stick-on lettersand graph paper, with minimal adjust-ment of letter size to space .... The coverlooks a little like the layout of pre-WorldWar I French socialist poster art and a lit-tle like Mao's 'Little Red Book,' in themode of self-mockery. The Broadwaytypeface contradicts the Commie red. Myname in Times New Roman is a reassur-ing gesture. AFAR [the name listed aspublisher] might mean that the author iscoming from a place that is a long wayfrom 'the mainstream'. . . and it might bea reference to Lenin's 'Letters from Afar,'written in Switzerland before theGermans sent him back to St. Petersburg.... But another possibility is an acronymlike those of the guerilla groups that mul-tiplied in Latin America in the sixties andseventies (e.g., the FARC): perhaps'Armed Forces of Anarchist Revolution,' ormore consistent with the text, 'AmericanFront for Anarchist Resistance.' a

There are several oddities here. Why isone who is seriously calling for revolutionmocking himself? Did anybody ever no-tice the difference between the Broadwayand Times New Roman typefaces? Mostcuriously, to get that published-on-scrap-paper look, Kennedy had to take normalpaper and crop it down to the offbeat size,throwing the remainder away. Try to im-agine Janet Halley's rebel Puritans wast-ing paper.

To cap things off, despite the rhetoric,the final book was not even actually dis-tributed "on the street." The only placeyou could buy it was off the shelves ofthat haven of oppressed outsiders, theHarvard Bookstore in Cambridge.

Okay, it is easy to make fun of this.Watching Kennedy do "outsider" is likewatching Marie-Antoinette do "milk-maid." I sense the good will, but downdeep I know that Kennedy is not going tohave to hide from the police in some Parissewer, any more than the Queen, after aday of playing with the cows, is going tospend the night in a bug-infested hayrick. It is like the portrait photo of Ken-nedy that Harvard published on his 1996investiture as Carter Professor of Gen-eral Jurisprudence: t-shirt, leatherjacket, and shades4--just like my oldbiker comrade from the Stop-N-Go inLong Beach.

Nothing about LERH suggests thatKennedy is interested in real dialoguewith real outsiders, that is, from outsidethe Harvard walls. Curious, I visit hiswebsite. 46 Yes, despite my comments

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about the way Kennedy seems to have ig-nored technology, he has one. The en-trance portal, in stark black and white,shows a gargoyle face with "enter" in itsmouth, and, in large letters, merely thelegend:

Duncan KennedyCarter Professor of General Jurisprudence

Harvard Law School4 v

Clicking on "enter" in the gargoyle'smouth, brings up the home page, wherethe lettering is designed to look like atypewriter, the old fashioned manualkind where the letters are uneven andclogged with ink, like the Woodstock thatAlger Hiss or some federal agent mighthave used to type the Pumpkin Papers.

What is on the site? Kennedy. AllKennedy, in fact, all the time. Visitorscan read his short biography and there isa rather arty photo of a man taking aphoto of Kennedy.4s The blurred back ofthe photographer's head dominates theforeground, with Kennedy in the back-ground holding an umbrella. There is noexplanation for the umbrella, since itdoes not seem to be raining.49 Presuma-bly, the structure of the photo is designedto remind you that the photo is an arti-fact, not reality, in case you were con-fused. There is the page with hispublications, which can be viewed eitherchronologically, to see the development ofhis ideas, or alphabetically.5° There arelinks to online texts of most of them,though not to the self-published LERH,which readers presumably must buy.There is even a link on each page so thatvisitors can e-mail the page to someonewhom they think will be interested.

But there is no link to Kennedy; no e-mail address, no button to send him amessage. This seems odd for someonewho ostensibly wants to reach out to out-siders. Maybe visitors want to tell himhow much they appreciate his work, howit changed their life. Maybe they have aquestion. Maybe they want to respond toone of his claims that they think iswrong. Maybe they just want to act outtheir rage at their own otherness andvent on one of the exploiting class.

Tough luck. They can't. A visitor toKennedy's website can read what Ken-nedy has to say to them, but Kennedy hasdesigned his website so that visitors can-not communicate with him. It is eerilylike his description of the "traditional"law teacher. To use his own metaphor,one can either "sit at [his] feet" and bementored by him,51 or leave. His websiteis like law school, only worse, for at lawschool at least a student can talk back tothe teacher.52

This is, it seems to me, all of a piecewith LERH. He is inside, the ordinaryreader is not. His mission is, in fact, notreally related to outsiders. He is not in-terested in shaking up the world to helpoutsiders-or at least to get involved indoing so himself. He wants to shake upHarvard. Twenty years after LERH, heis still looking inward:

It would be a good idea to find a wayto hook up with one another and kickagainst the traces of the present-by ana-lyzing and protesting inside law school,against law school .... Resistance is anattitude that turns into an activity, thatbecomes a habit, and pretty soon it's likethe habit of exercise and you feel boredand un-used when you aren't makingtrouble for someone somehow.

5 3

Franklin G. Snyder

Kennedy's primary interest is not build-ing bridges with the outsider, but bat-tling the Harvard administration.

Meanwhile, far from the Charles

River, things are changing. Perhaps themost curious thing about the new edition

of LERH is that with all the vast social

and technological changes that haverocked the legal profession, Kennedy

writes that he "had a better idea" in 1983of how he might build "student-faculty co-alitions" than he has today.54 When Ken-nedy wrote LERH, the only online legalresources were Lexis and Westlaw, bothof which were largely inaccessible to any-one outside a law school or a successfullaw firm. Today, vast amounts of legalmaterials are free on the Web for anyone.

Websites collect and offer this informa-tion, giving those who provide legal ser-vices to ordinary people access to morelegal resources than even an elite lawfirm could have mustered when Kennedywrote.

The possibilities for organizing out-

siders have, moreover, exploded. E-mail,websites, and listservs offer a powerfulway to get information out instantane-

ously and cheaply. For example, the So-ciety of American Law Teachers has comeinto being since Kennedy wrote LERH.It is the largest independent group ofAmerican legal academics, and its goals

are "creating and maintaining a commu-nity of progressive and caring law profes-

sors dedicated to making a differencethrough the power of law," and "challeng-ing faculty and students to develop legal

institutions with greater equality, justice

and excellence." 55 This is precisely thesort of thing that Kennedy seems to becalling for. SALT is a remarkable andegalitarian group whose leadership

comes from every law school strata, andwhose members are united chiefly bytheir shared commitment to progressivevalues. Meanwhile, on the other side of

the spectrum, the Federalist Society hasused technology to build a network ofmore than 25,000 lawyers, academics,and students committed to their very dif-ferent vision of legal education.56

The ability of the institutions, partic-

ularly the elite ones, to control the dia-logue of legal education has decreased

dramatically. Even the information thatpreviously circulated largely amongfaculty at elite institutions-drafts ofworking papers destined for the Yale Law

Review, for example-are now posted onthe Social Science Research Network(SSRN) where anyone can view them for

free . 7 The 114,70058 or so papers onSSRN allow even those without access to

a good law library the chance to read andcomment on the latest legal thinking.Furthermore, the absence of a peer-re-viewer or a law-journal gatekeepermeans that nearly everything is pub-lished, regardless of the author's identity.If it is interesting and well done, peoplewill read it regardless of the status of the

writer. Papers by unknowns routinelyget more downloads than those regardedby peer-reviewers as top in their field.Downloads, of course, are not a measureof quality, but they are a testament to the

ease with which relative outsiders canreach an audience.

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The Law Professor Blog Network, 59 ofwhich ContractsProf is a member, wasnot designed to change the world. Itsgoal was to provide resources to lawteachers and, I suspect, to make a fewbucks for the founders. It is deter-minedly apolitical, but its mere existenceis breaking down barriers between lawschools and within law schools. The blog-gers on the network, at this particularmoment, come from every tier of Ameri-can law schools: Arizona, Ave Maria, Cal-ifornia-Davis, Cincinnati, DePaul,George Washington, Georgia State, Hof-stra, Louisiana State, Minnesota, Missis-sippi, Missouri-Kansas City, Nevada-LasVegas, North Carolina, Northern Ken-tucky, Ohio State, Roger Williams,Southern Illinois, Southern Methodist,Temple, Texas, Texas Tech, Texas Wes-leyan, Tulane, Wayne State, Widener,Willamette, and William Mitchell.

Not only is it an eclectic mix ofschools, but the bloggers themselves varyin status from holders of named chairs atelite institutions to those who are noteven on the tenure track at their fourthtier schools. Some are even (gasp) legalwriting teachers. We have folks who arenoted experts in their fields, and otherfolks who are near-complete newcomers.Yet in an important sense, we are equalhere-no one controls what we write. Weare not vetted. We write, and we arejudged on what we write.

While our primary target is lawprofessors, we are actually read far be-yond that circle. My own blog, Contracts-Prof,60 is regularly read by judges,lawyers, law students, and others lookingfor information about contract law. Dur-

ing the semester we get 500 to 600 read-ers a day, small by Internet standardsbut huge compared to the ordinary audi-ence for what law professors write. Manyof our readers are not even in the U.S.We get quite a few from the countries ofEastern Europe and the former SovietUnion, not to mention common law juris-dictions like India, Malaysia, Singapore,Hong Kong, and Australia. And we areactually pikers at ContractsProf-someof the LawProf blogs have had a millionor more visitors in less than two years.61

This is precisely the sort of thing a re-former would be expected to rejoice in-areal connection between law schools andthe rest of the world.

If one is looking for is a direct ideolog-ical battle over the hearts of law schools,well, that is going on in the blogs, too.There are many law professor blogs witha clear ideological bent. The bloggers atthe leftish Balkinization blog62 includefaculty from Harvard, Princeton, GeorgeWashington, Georgetown, Maryland, Tu-lane, St. John's, even a partner with a bigNew York law firm. At the rightishVolokh Conspiracy, 63 the authors arefrom UCLA, Northwestern, Duke, GeorgeWashington, Boston University, Temple,and George Mason, along with the headof a public interest advocacy group and asolo practitioner who does appellatework.

Both of these popular blogs have acomment feature that allows readers toengage directly with the writers with lit-tle moderating and few barriers. Somereaders are supportive; some are hostile.Some make intelligent comments; othersare idiots. The point is that these law

Franklin G. Snyder

professors are, regardless of status, en-gaged with each other and with outsid-ers. They read each other's blogs andwhat their readers are saying aboutthem. One of the most fascinating exper-iments on the web is the Becker-PosnerBlog, 6 4 where anybody with a keyboardcan fawn over, sneer at, argue with, orcorrect two of the most influential cur-rent thinkers on law, Judge Richard Pos-ner and Nobel laureate Gary Becker.Posner and Becker will even respond tothe comments, at least to the saner ones.

All of this occurs outside the officialchannels of legal education. It is not com-fortably under the thumb of the hierar-chies. This obviously bothers somedefenders of the old guard. Blogging is "apublishing medium with no vetting pro-cess, no review board, and no editor,"' 65

says one writer, who obviously thinksthis is a very bad thing. "The author isthe sole judge of what constitutes pub-lishable material, and the medium allowsfor instantaneous distribution."66 Themere fact that a professor has a blog-and thus has access to an audienceoutside the control of the institutions-isa potential danger to the powers that be:

The content of the blog may be lessworrisome than the fact of the blog itself.Several [hiring] committee members [atthe writer's school] expressed concernthat a blogger who joined our staff mightair departmental dirty laundry (real orimagined) on the cyber clothesline for theworld to see. Past good behavior is noguarantee against future lapses of profes-sional decorum.67

That danger has prompted some reac-tions from the defenders of the hierar-chies. There is a widespread suspicion inthe blogosphere that University of Chi-

cago political science professor DanielDrezner may have been denied tenure inlarge part because of his popular blog.68

Chicago Law School subsequently cre-ated its own blog under its own supervi-sion, strictly for its own facultymembers-though not, apparently, forthe humble Bigelow Fellows who teachlegal research and writing.6 9 Some ex-perts even caution untenured faculty notto blog for fear it will undercut theirchances for tenure. Academics, neverknown for their courage in the face of en-emy fire, have taken the message toheart. "If any senior faculty had ever ex-pressed disapproval about my blog," saidone, "I would have stopped blogging im-mediately, as wimpy as that mightsound."70 He explained that he would notwant to jeopardize his job just to saywhat he really thought about things.71

However, these kinds of rear-guardactions are likely to fail. They have failedin the past. Once Protestant heretics dis-covered the printing press nothing theCatholic Church could do would put thegenie back in the bottle. Once the colo-nial printing presses could operate freefrom Crown licensing, the way for revolu-tion was paved. Any wholesale destruc-tion of information controls spells serioustrouble for existing hierarchies.

Does that mean that the hierarchieswill go away? No. Will they get less in-sanely status-conscious and more egalita-rian? It is hard to say. There are goodreasons to believe they may get less sta-tus-conscious, as they grow more open to

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outsiders, but that does not mean theywill become more egalitarian. Even with-out the near-total control of the dialoguethat elite institutions have hitherto en-joyed, the elite institutions still have apowerful advantage: money. Recent ex-perience outside academia suggests thatwhen tight-knit old social hierarchies areundermined, they are not replaced byegalitarian institutions, but by marketforces. These bring outsiders in, but theyalso increase the disparity between win-ners and losers. The passing of the oldwhite-shoe law firm ethos, with its eliteculture and lockstep compensation, hasonly increased the income disparitiesamong and within law firms, even as it isopened the doors for outsiders to climb tothe top of such firms.72 The decline of in-sider-dominated corporate boards and in-creased diversity on those boardsresulted in more compensation for corpo-rate CEOs, and a greater disparity be-tween managers' and workers' pay.73 Soit is entirely possible that in the bravenew world of the 21st century, places likeHarvard and Yale will simply buy up thepeople best at dominating the new order.That may even increase their dominanceover the rest of legal education.

Or maybe not. The new technologymight truly lead to a breaking down ofcaste. Those whose work rises to the topin this new world might have receivedtheir J.D.s from relatively humbleschools. Elite institutions may find thata J.D. from them can no longer becounted on as a proxy for outstandingwork-there may be good scholars whodid not go to elite institutions. Similarly,scholars and teachers who are products of

the elite institutions may come to realizethat today they can do the kind of cut-ting-edge work they want at law schoolsalmost anywhere in the country. They donot need to be in Cambridge or New Ha-ven or Palo Alto to be major players inthe scholarly game. Institutions maycome to realize that those at the bottomof their own internal hierarchies areoften fully the equal of-and even supe-rior to-their own tenured professors.

As I say, I do not know which of thesewill come about. As a pessimist, I am in-clined to bet on the money. Them thathas, usually gets. But I would not mindbeing wrong.

Where does LERH and its call fit intoall this? For some reason I'm reminded ofan old book by Hilaire Belloc, 74 in whichhe is recounting the history of Christian-ity. The early years of the seventh cen-tury marked its near-absolute triumph asthe new State religion. The Christian hi-erarchy, united to the Byzantine throne,held sway throughout the whole of theold Roman Empire. Here and there, inplaces like Alexandria, Antioch, and Da-mascus, I imagine there were educatedand sophisticated Byzantines wholoathed the hierarchies. I can see themwriting to each other and organizing lit-tle Gnostic study groups to keep alivetheir desire to overturn the whole mess,to "make trouble" for the hierarchs. Theyare, like Kennedy some fourteen centu-ries later, advocates of interstitial revolu-tion, inwardly focused on their owninstitutions.

Meanwhile, out in a desert peninsulathe Romans never found it worthwhile to

Franklin G. Snyder

conquer, the Prophet Mohammed is hav-ing a vision of the Angel Gabriel.

Notes

1 http://www.lonoke.com (follow "AreaChurches" hyperlink; then click on any of desiredchurch hyperlinks) (last visited Apr. 11, 2006).

2 Arkansas Department of Economic Develop-ment Home Page, http://www.1800arkansas.com(follow "Reports and Publications" hyperlink; thenfollow "Major Employers by County" hyperlink;then follow the "Lonoke County" hyperlink) (lastvisited Apr. 11, 2006).

3 Id.4 DUNCAN KENNEDY, LEGAL EDUCATION AND THE

REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST

THE SYSTEM (New York University Press Critical ed.2004) (1983). (hereinafter LERH). All citationsherein are to this edition. I will include the originalpage numbers of the facsimile edition in parenthe-ses.

5 Lani Guinier is the Bennet Bosky Professor ofLaw, Harvard University.

6 Mark Tushnet is the Carmack WaterhouseProfessor of Constitutional Law, Georgetown Uni-versity.

7 See SCOTT TUROW, ONE-L (Farrar Straus &Giroux 1977).

8 Inside Dust Jacket to DUNCAN KENNEDY, LE-GAL EDUCATION AND THE REPRODUCTION OF HIERAR-

CHY: A POLEMIC AGAINST THE SYSTEM (New YorkUniversity Press Critical ed. 2004) (1983).

9 http://www.amazon.com (search "DuncanKennedy's Legal Education and the Reproduction ofHierarchy"; then scroll down to "Editorial Reviews")(last visited Apr. 11, 2006).

10 As do Mark Tusnet, Lani Guinier, and ScottTurow, respectively, on the back of the dust jacket.Mark Tusnet, Lani Guinier, Scott Turow DustJacket to DUNCAN KENNEDY, LEGAL EDUCATION AND

THE REPRODUCTION OF HIERARCHY: A POLEMIC

AGAINST THE SYSTEM (New York University PressCritical ed. 2004) (1983).. 11 NEIL DUXBURY, PATTERNS OF AMERICAN JURIS-

PRUDENCE 493 (Oxford University Press reprint1997).

12 Duncan Kennedy, How the Law School Fails:A Polemic, 1 YALE REV. L. & Soc. ACTION 71, 80(1970).

13 http://www.duncankennedy.net/biography.

(His only period outside it was a year clerking forJustice Potter Stewart on the U.S. Supreme Court,

and a couple of gigs visiting at other Boston lawschools) (last visited Apr. 11, 2006).

14 For those too young to remember, what is nowthe 100-school "first tier" used to be made up of the"first" and "second" tiers.

15 ContractsProf Blog, http://lawprofessors.typepad.comlcontractsprofiblog (last visited Apr. 11,2006).

16 See, e.g., Symposium: The Common Law ofContracts as a World Force in Two Ages of Revolu-tion: A Conference Celebrating the 150th Anniver-sary of Hadley v. Baxendale. 11 TEX. WESLEYAN L.REV. 225, 225 (2005).

17 Kennedy, supra note 4, at 15 (i).18 Id. at 16 (ii).19 Id.20 Id at 19 (3).21 Kennedy, supra note 12, at 80.22 I.e., Andover, Yale, and Harvard.23 Kennedy, supra note 4, Introduction at 1-4.24 For a history of Carmelas through the me-

dium of interlocking short stories by a guy from myneighborhood, see DANIEL HOUSTON-DAviLA,

MALINCHE'S CHILDREN (University Press of Missis-sippi 2003). For information on the other two bar-rios in Norwalk, Varrio Norwalk and One-Ways, seeJAMES DIEGO VIGIL, BARRIO GANGS: STREET LIFE

AND IDENTITY IN SOUTHERN CALIFORNIA (Universityof Texas Press 1988). Vigil worked as a youth coun-selor in all three.

25 Kennedy, supra note 12.26 The Paramount Refinery is still in operation.

You can get details and see a nice picture of the ar-eas at http://www.ppcla.com (follow the "Locations"hyperlink; then follow the "Paramount" hyperlinkfrom the map provided) (last visited Apr. 11, 2006).

27 I certainly would have opened it if I couldhave, a point which I kept trying to make to theguy, but there was a time lock.

28 Paul Carrington, Reproducing the Right Sortof Hierarchy, Commentary to DUNCAN KENNEDY, LE-GAL EDUCATION AND THE REPRODUCTION OF HIERAR-

CHIES: A POLEMIC AGAINST THE SYSTEM 145-47 (NewYork University Press Critical ed. 2004) (1983).

29 Angela Harris & Donna Maeda, Power andResistance in Contemporary Legal Education, Com-mentary to DUNCAN KENNEDY, LEGAL EDUCATION

AND THE REPRODUCTION OF HIERARCHIES: A POLEMIC

AGAINST THE SYSTEM 168 (New York UniversityPress Critical ed. 2004) (1983).

30 Kennedy, supra note 4, at 16 (ii).31 Kennedy, supra note 4, Introduction at 3.32 Id. at 5.33 Id. Kennedy seems saddened by the fact that

that good left-thinking students sometimes see

NEXUS

their "solid contempt" for "the cultural and intellec-tual style of right-wing youth" evaporate in class-room discussions, when they discover that there is'absolutely no way" that they will "catch up" withthe right-wingers. It's not clear why such studentsare so far behind those with economics backgroundsthat they are intimidated. Nor is it clear why con-servative women and econ jocks manage to resistthe hierarchical power of the professor more thanleftist students.

34 Apologies to Yale, but there it is.35 Kennedy emphasizes that he means a "Marx"

study group, not a "Marxist" study group. Kennedy,supra note 4, Afterword at 203.

36 Louis Menard, Radicalism for Yuppies, in THEEIGHTIES: A READER 254, 258-59 (Gilbert T. Sewall,ed. 1997). Menard is here talking about CLS-ori-ented faculty, but the same description appliespretty much across the board, particularly at themost elite institutions.

37 Nathanial Berman, Against the Wrong andthe Dead: A Genealogy of Left/MPM, 22 CARDOZOL. REV. 1005, 1008 (2002). The "no-hassle pass" isKennedy's practice of allowing students who don'twant to talk in class to pass when called on.

38 See Duncan Kennedy, Legal Education asTraining for Hierarchy, in THE POLITICS OF LAw: APROGRESSIVE CRITIQUE 54 (David Kairys ed. 1982,2nd ed. 1990, 3d ed. 1998). This first edition waspublished by The New Press, subsequently part ofPantheon Books, a part of the Random HouseGroup (which published the second edition). Thecurrent third edition is by Basic Books, a division ofthe Perseus Books Group.

39 See Duncan Kennedy, Legal Education andthe Reproduction of Hierarchy, 32 J. LEGAL EDUC.591 (1982).

40 Kennedy, supra note 4, Afterword at 209.41 See DUNCAN KENNEDY, A CRITIQUE OF ADJUDI-

CATION: FIN DE SIPCLE (Harvard University Press

1997).42 Kennedy, supra note 4, Afterword at 209.43 Janet Halley, Of Time and the Pedagogy of

Critical Legal Studies, Commentary to DUNCAN

KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION

OF HIERARCHIES: A POLEMIC AGAINST THE SYSTEM

185, 185-86 (New York University Press Critical ed.2004) (1983). Not that Halley actually comparesKennedy to the Puritans; her quite reasonable pointis that in both cases we have to try to recreate aworldview that seems to have vanished.

44 Kennedy, supra note 4, Afterword at 210-11.45 See Peter Goodrich, Duncan Kennedy as I Im-

agine Him: The Man, the Work, his Scholarship,and the Polity, 22 CARDOzO L. REV. 971, 973 (2001).

46 http://duncankennedy.net (last visited Apr.11, 2006).

47 Not that he puts much stock in hierarchical ti-tles, of course.

48 http://www.duncankennedy.net/biography(last visited Apr. 11, 2006).

49 A Sixties reference, perhaps? Maybe Bob Dy-lan's A Hard Rain's A-Gonna Fall? CreedenceClearwater's Who'll Stop the Rain?

50 http://www.duncankennedy.net/bibliography(last visited Apr. 11, 2006).

51 Kennedy, supra note 4, at 78 (62).52 Perhaps this is because Kennedy doesn't want

to get inundated with crank mail. But this seemsunlikely, given that his e-mail address and tele-phone number are there on the Harvard Law website.

53 Kennedy, supra note 4, Introduction at 7.54 Id.55 SALT, Society of American Law Teachers

Home Page, http://www.saltlaw.org (last visitedApr. 11, 2006).

56 The Federalist Society Home Page, http:/!www.fed-soc.org (last visited Apr. 11, 2006).

57 SSRN, Social Science Research NetworkHome Page, http://www.ssrn.com (last visited Apr.11, 2006).

58 Id. (The SSRN eLibrary consists of two parts:an Abstract Database containing abstracts on over114,700 scholarly working papers and forthcomingpapers and an Electronic Paper Collection currentlycontaining over 86,500 downloadable full text docu-ments in Adobe Acrobat pdf format) (last visitedApr. 11, 2006).

59 Law Professors Blog Home Page, http://www.lawprofessorblogs.com (last visited Apr. 11, 2006).

60 ContractsProf Blog Home Page, http://lawprofessors.typepad.com/contractsprof blog (last vis-ited Apr. 11, 2006).

61 See Sentencing Law & Policy Blog, http://sen-tencing.typepad.com (1,174,458 visitors since June28, 2004); Tax Prof Blog, http://taxprof.typepad.com(1,359,179 visitors since April 15, 2004) (last visitedApr. 11, 2006).

62 Balkinization, http://balkin.blogspot.com (lastvisited Apr. 11, 2006).

63 The Volokh Conspiracy, http://volokh.com(last visited Apr. 11, 2006).

64 The Becker-Posner Blog, http://www.becker-posner-blog.com (last visited Apr. 11, 2006).

65 Ivan Tribble, Bloggers Need Not Apply,CHRON. HIGHER ED. (July 8, 2005), available athttp://chronicle.com.

66 Id.67 Id.

Franklin G. Snyder

68 Daniel W. Drezner, http://www.danieldrezner.com/blog (last visited Apr. 11, 2006).

69 The University of Chicago Law School FacultyBlog, http://uchicagolaw.typepad.com (last visitedApr. 11, 2006).

70 Scott Jaschik, Too Much Information, INSIDEHIGHER ED. (October 11, 2005), available at http:/!www.insidehighered.com/news/2005/10/11/bloggers(last visited Apr. 11, 2006) (quoting Jeremy Freese).

71 Id.72 Just a few days ago, as these words were writ-

ten, the partners at London's Clifford Chance votedto change its venerable lockstep compensation sys-tem, under which its highest paid partners got 2.5times as much as its least-paid partners, in favor ofa new system which, in the U.S. at least, will boostthe ratio to 4:1. The firm did so after it saw its NewYork office lose much of its top talent to other firms.See Anthony Lin, Clifford Chance Partners ApproveReform of Lockstep Compensation System, N.Y.L.J.,Dec. 19, 2005.

73 See Franklin G. Snyder, More Pieces of theCEO Compensation Puzzle, 28 DEL. J. CORP. L. 129(2003).

74 HILAIRE BELLOC, THE GREAT HERESIES (1938).