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Stanford Law Review

The Inevitability of Critical Legal StudiesAuthor(s): G. Edward WhiteReviewed work(s):Source: Stanford Law Review, Vol. 36, No. 1/2, Critical Legal Studies Symposium (Jan., 1984),pp. 649-672Published by: Stanford Law ReviewStable URL: http://www.jstor.org/stable/1228694 .

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The Inevitability of Critical Legal StudiesG. Edward White*

One of the formulated purposes of this Symposium is to introducereaders of this kind of periodical to the Critical Legal Studies (CLS)movement. I don't think that CLS needs such an introduction.Since the movement's formation in 1977, it has been holding annualconferences, circulating bibliographies, and otherwise acting like aprofessional society. Moreover, business is booming. Attendance atthe annual conference reportedly has been growing; new "converts"declare their allegiance daily; adherents increasingly occupy space inscholarly journals, citing one another's work and supporting one an-other's efforts. Indeed, the current danger for CLS is not that it willbe overlooked or ignored, but that it will become too successful andthereby lose a piercing Critical quality that comes from a sense ofmarginality. A similar phenomenon occurred to the Legal Realistmovement of the 1920's and 30's. When all law professors becameRealists in the sense of accepting the basic presuppositions of Real-ism-that legal "rules" are inherently discretionary and that "neu-tral" judicial decisionmaking conceals subjective value choices-suddenly no one could define what Realism was or tell where it led.If I' were a member of the CLS movement, I would watch out.I don't think, therefore, that one need devote time to recognizingthe existence of CLS. It does seem worthwhile, however, to note thatCLS seems to be moving into a new phase in its history. Particularlysuggestive in this vein have been recent efforts on the part of Criticaltheorists to link their movement with Realism and to suggest thatone of their goals is to reformulate the abortive program for socialchange that some Realists anticipated but, for a variety of reasons,

* Professor of Law, University of Virginia. My thanks to Gary Peller and Jack Schle-gel, who read an earlier draft of this essay. I hope they won't be too tainted by the,association.Since writing this essay I have noticed the appearance of some additional literature onCritical Legal Studies that would have been included in its coverage. See Unger, The CrittcalLegal StudiesMovement,96 HARV. L. REV. 561 (1983); Ball, Book Review, 51 GEO. WASH. L.-REV. 309 (1983) (reviewing THE POLITICSOFLAW:A PROGRESSIVERITIQUE D. Kairys ed.1982)); Levinson, Book Review, 96 HARV. L. REV. 1466 (1983) (same).

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STANFORDLAWREVIEWnever launched.' The self-conscious identification of Realism as aprogenitor of, or an inspiration for, the CLS movement seems to be agrasp at legitimacy. Legitimation through the invocation of a histor-ical progenitor is a common enough lawyer's trick. One could evenimagine the invocation of Realism as a forerunner of Critical theorytaking the form of a palliative message. "When the Realists startedout," the message would go, "the established community regardedthem as kooks and subversives, attacking assumptions (such as theintelligibility of legal doctrine) on which the stability and authorityof the legal system seemed to rest. But as Realist arguments began topenetrate the consciousness of others, their insights came to be seenas useful rather than threatening and were eventually absorbed intothe processes of legal education and professional socialization. More-over, nothing 'subversive' occurred; arguably, the legal professionjust became more self-conscious and sophisticated in its thinking.Hence, if yesterday's subversive doctrines have become today'sorthodoxies, who is to say that the assumptions of Critical theory willnot one day be similarly absorbed?"I can't imagine that many Critical theorists would want to con-vey such a message. For one thing, a central concern of Critical legalscholarship has been to show how mainstream ideologies, such astwentieth-century liberalism, have absorbed protests against the es-tablished order and converted them to their own use. Critical schol-arship on twentieth-century labor law, for example, has argued thatthe notion of capitalist oppression of workers was absorbed in theform of a bargaining unit for workers, and used to further other goalsfavored by management, such as the maintenance of industrial peaceand the promotion of discipline in the labor force.2 Given the strongtendency of prevailing ideologies to perform this function of absorp-tion and conversion, the legitimation of Critical theory might resultin the loss of its identity and the conversion (one might say perver-sion) of its goals.

Nonetheless, the association of Critical theory with Realism per-sists. And I maintain that the association is intended as a kind oflegitimation for Critical theory, though surely not in the form of ab-

1. See Freeman, Truthand Mystification n Legal Scholarship,90 YALE L.J. 1229 (1981);Tushnet, Post-RealistLegal Scholarship,15 J. SOC'YPUB.TCHRS. L. 20, 21 (1980); Note, 'Roundand 'Round he BrambleBush:FromLegal Reahism o CrittcalLegal Scholarship,95 HARV. L. REV.1669 (1982).2. See Klare, LaborLaw as Ideology. Toward a New Historiographyof CollectiveBarganingLaws, 4 INDUS.REL. L.J. 450 (1981); Lynd, GovernmentWithoutRights. TheLaborLaw VisionofArchibaldCox, 4 INDUS. REL. L.J. 483 (1981).

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INEVITABILITYOF CLSsorption and conversion. The summoning-up of the Realists asprogenitors is primarily intended, I suggest, to lend legitimacy to twoareas of CLS concern. One is the idea of tacit ideological conscious-ness. The other is the idea that Critical theory and transformativesocial change can be fused. I want to spend some time on each ofthese ideas and to suggest that the logic of both is threatening to,rather than supportive of, the goals of the CLS movement. I thenwant to consider the relationship between the Realists and the Criti-cal theorists in another context-as part of a general theory of juris-prudential change in American culture. In the course of that lastexcursus, I will devote some attention to certain dimensions of theCLS critique of "liberal" thought.

I. THE TACIT DIMENSION OF LEGAL DECISIONMAKINGPerhaps the most striking contribution of Realist literature wasthe demonstration that legal rules could be manipulated. Legalscholarship prior to Realism had been oriented towards the deriva-tion of comprehensive rules, of reconciling principles, and of predict-

able guidelines for conduct. The scholar's task was that of the"expounder, systematizer, and historian";3he derived general princi-ples from a mass of cases, demonstrated the principles' potential toreconcile contradictory results, and "proved," through an evolution-ary version of legal history, the endurance of the principles over time.The goal of the scholar's search, embodied in the massive treatises ofthe late nineteenth and early twentieth centuries, was to reduce afield of law to a series of coherent principles of general applicability.The Realists demonstrated that such principles were always con-tradictory, that for every principle there existed a potential counter-principle, and that ultimately a methodology that assumed the au-tonomy, permanence, or objectivity of legal rules was incoherent.4Having perfected that critique, Realist scholarship seemed a little ata loss as to what to do next. Some Realists rested on what they tookto be the inevitably contradictory or subjective nature of legal deci-sionmaking and embraced nihilism.5 Others thought that since the3. THE HARVARD LAW SCHOOL ASS'N, THE CENTENNIAL HISTORY OF THE HARVARDLAW SCHOOL: 1817-1917, at 31 (1918) (quoting Charles Elliot).4. See, e.g., Cook, The Logical and Legal Bases of the Conflct of Laws, 33 YALE L.J. 457(1924); Llewellyn, The Rule of Law in Our Case Law of Contract,47 YALE L.J. 1243 (1938);Llewellyn, On Warranty f Quality,and Society, 36 COLUM. L. REV. 699 (1936).5. See, e.g., W. STURGES,CASESANDMATERIALSON THE LAWOF CREDITTRANSAC-TIONS (1930); Sturges & Clark, Legal Theoryand Real PropertyMortgages, 37 YALE L.J. 691(1928). On Sturges' nihilism, see G. GILMORE, THE AGES OF AMERICAN LAW80-81 (1977).

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STANFORDLAWREVIEWpersonal values or the power positions of decisionmakers were theprime determinants of legal rules, one could glean insights into howlaw "really" evolved from sociological or psychological studies ofdecisionmakers.6 Still others argued that while generalizations aboutlegal principles were hazardous, one could refine a technique of ana-lyzing specific fact situations. The "law of the case" was always dif-ferent, but the techniques or analyzing the law of the case could bereplicated.7Of the various "affirmative" methodological proposals of Real-ism, studying the underlying values of decisionmakers seems to haveexcited the greatest interest among advocates of Critical theory. ButCLS has substantially enlarged and reoriented the Realists' concernwith values. Rather than focusing on the value orientation of a par-ticular decisionmaker, which may not tell us much about "law,"given the multiplicity and diversity of "lawmakers" in American cul-ture, Critical theory has sought to recreate the tacit value system-the shared assumptions and presuppositions-of mainstream actorsin a legal culture at a point in time. That inquiry has yielded effortsto unpack the structure of Blackstone's Commentaries,8he ideology oftwentieth-century labor law,9 and the assumptions of "mainstreamlegal scholarship."10This reorientation of the Realists' inquiry into values has obviousadvantages for the Critical theorist. First, it frees him" from havingto analyze values within a mainstream framework that conducts de-bate over marginal, unsettled questions (e.g., Shall a given approachto collective bargaining favor management or labor?) but presup-poses that certain fundamental questions (e.g., Is the free market ori-entation of collective bargaining sound?) have been settled. Byinvestigating the premises that mainstream opponents actually share,the Critical theorist not only penetrates to a deeper level of con-sciousness, but also distances himself from the objects of his analysis.He does not have to debate their value orientation; he can totally

6. See, e.g., J. FRANK, LAW AND THE MODERN MIND (1930); Haines, GeneralObservationson theEffectsof Personal,Political, andEconomicInfluencesn theDecisionsofJudges, 17 ILL. L. REV.96 (1922); Moore, RationalBasis of Legal Institutions,23 COLUM.L. REV. 609 (1923).7. The evolution of Karl Llewellyn's thought is relevant here. CompareLlewellyn, SomeRealism AboutRealism-Responding to Dean Pound, 44 HARV. L. REV. 1222 (1931), with K.LLEWELLYN,HE COMMONLAWTRADITION:DECIDINGAPPEALS(1960).8. Kennedy, TheStructure f Blackstone'sCommentaries,8 BUFFALO L. REV. 205 (1979).9. See Klare, supra note 2.10. Gordon, Historicism n Legal Scholarship,90 YALE L.J. 1017 (1981).11. The CLS movement of course includes women as well as men. I have arbitrarilychosen to use male pronouns throughout this essay.

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INEVITABILITYOF CLSJanuary 1984]reject it. 2In one sense, the Critical theorists' reorientation of value analysisconstitutes a methodological advance. To expose subjectivity or evenprejudice in the calculus of a decisionmaker only represented a con-tribution when decisionmaking was assumed to be objective; oncethat assumption was denigrated, the fact of individual subjectivitydidn't seem to lead anywhere, except perhaps to a psychological re-ductionism that traced judicial decisions to "what the judge ate forbreakfast." The exposure of shared, often unexpressed values, bycontrast, leads in two directions. First, it makes actors who tacitlyshare the values aware that their preference (e.g., for industrial peaceor for the capitalist system) may be largely unexamined and is notunassailable. Second, it allows criticism of a legal culture to takeplace at a "total" rather than at a "partial" level. Saying that"Judge A consistently votes for the government in antitrust cases,which explains his antitrust opinions," and that "the government'santitrust policies consistently foster inefficiency" is arguably far lesspenetrating than saying that "antitrust doctrine presumes the valueof 'competition,' which is a code word with false connotations,designed to provide a justification for an inhumane and inherentlydiscriminatory economic order."The strategy that advocates of total criticism seem to haveadopted is one of penetration through distance. This is a strategyfamiliar to intellectual historians, who have used it to show, for ex-ample, that the formation of the American Constitution cannot beadequately understood without a recreation of the starting ideologi-cal assumptions of the framers, such as the inviolability of privateproperty or the hierarchical nature of social organization. Such as-sumptions are thrown into sharp relief by the distance between theframers and contemporary students of their thought. The contempo-rary historian can explore the framers' intellectual universe at adeeper level because he does not share its central premises. Such astance has resulted in some powerful recent recreations of the fram-ers' thought and unpackings of the framers' language.13But can penetration through distance be effective when the ob-jects of the analysis are one's contemporaries? Here the logic of total

12. Cf R. UNGER,KNOWLEDGE NDPOLITICS1975) (discusses need for, and practiceof, total criticism).13. E.g., W. ADAMS,THE FIRSTAMERICANCONSTITUTIONS1980); J. POCOCK,THEMACHIAVELLIANOMENT(1975); G. WOOD,THE CREATIONOF THEAMERICANREPUBLIC,1776-1787 (1969).

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STANFORDLAWREVIEWcriticism seems to double back on itself. The very notion that Criti-cal analysis, if properly conducted, can expose the underlyingpreconceptions of mainstream scholarship is derived from a particu-lar theory of the process of intellectual exchange. That theory as-sumes that intellectual discourse invariably has boundaries-theboundaries of culture, time, and place. Some intellectual options arenot considered; some propositions tacitly are designated as beyondreproach, others as unthinkable. Discourse takes place withinboundaries; total criticism seeks to identify the boundaries and tomove beyond them. But if the theory is deterministic in the sensethat it assumes that boundaries will always exist, how is it possible topenetrate the boundaries? That is, why will actors in the scholarlyuniverse listen to those who totally criticize mainstream scholarshipwhen the term "mainstream" is meant to signify a culturally-deter-mined set of constraints that actors "can't help" working within? Itis as if a critic in late eighteenth-century America were to expose theproperty-consciousness of then current social theories and advocatethe acquisition of all private property by the state. Given the prop-erty-consciousness of existing theories, who would listen?Advocates of total criticism seek to evade this difficulty by argu-ing that their theory of intellectual exchange is not that deterministic;it allows for breakthroughs, paradigm shifts, or revolutions, in whichmainstream preconceptions are exposed, found insufficiently fertile,and replaced by new preconceptions. Indeed, one could argue thattotal criticism is a necessary precondition for change because the pri-macy of mainstream scholarship at any point in time rests not on theinherent superiority of its intellectual theories but on the sharedpreconceptions on which those theories rest. And exposure of thosepreconceptions is a prerequisite for change. Developments in earlytwentieth-century jurisprudence serve as an illustration here. Thebreakdown of late nineteenth-century conceptualist methodologies inlegal scholarship was made possible, one could argue, by the tacitabandonment of the idea that experience could be reduced to orderlyprinciples. The collapse of conceptualism came not because it was anineffective methodology-indeed, as a tool for organizing, synthesiz-ing, and making intelligible large masses of data, it was remarkablyeffective-but because a widely shared assumption that data (or ex-perience) could be organized or synthesized in a meaningful way wascalled into question.But history suggests that while scholarly paradigms clearly existand undoubtedly change, they change incrementally rather than

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INEVITABILITYOF CLSradically. Taking twentieth-century American jurisprudence againas an example, one notes the successive emergence of antitheticalparadigms of thought-conceptualism, Realism, and the "neocon-ceptualism" of the present age. But, on close scrutiny, one discoversthat these paradigm shifts have been far from radical. The first at-tacks on conceptualism were launched by scholars and jurists-e.g.,Roscoe Pound, John Wigmore, and Benjamin Cardozo-who sharedthe conceptualists' interest in maintaining order and predictabilityin the legal universe, but were disturbed by the capacity of doctrinalprinciples, once derived, to remain frozen in time and thereby inca-pable of accommodating change.14 Their task had a schizoid quali-ty, and Realism ultimately exposed its internal contradictions, layingblame on the assumption that rules were finite guides to anything.But the Realist critique, which did represent a wholesale abandon-ment of the starting assumptions of conceptualism, had been madepossible by the earlier critics.'5Recent jurisprudential developments are susceptible to a similaranalysis. Between Realism and contemporary neoconceptualismcame the "process" jurisprudence of the 1950's and 1960's.'6 Theprocess critics reacted to the Realist assumption that legal decision-making was discrete and idiosyncratic: They found this disturbinglyrelativistic as a philosophical statement and subversive of the ideathat law could help rational actors plan their conduct. By identify-ing recurrent institutional functions performed by various legal deci-sionmakers- courts, legislatures, and agencies-this group of criticsconcluded that while the motivations of individual decisionmakersmight be idiosyncratic and diverse, the process by which theyreached their decisions had regular and predictable features. Rulesof process, such as the requirements of due process or the techniquesfor confining the ambit of institutional discretion, were promulgated.Such rules prepared the way for the rules of substance derived byrecent neoconceptualistic scholarship, which starts with assertedmaxims about human conduct-e.g., rational persons maximizetheir own utility-and then advances legal rules that comport with

14. See G. WHITE,PATTERNSOFAMERICANLEGALTHOUGHT105-115 (1978) [herein-after cited as G. WHITE, PATTERNS];G. WHITE, TORT LAWIN AMERICA58-62, 118-24(1980) [hereinafter cited as G. WHITE,TORT LAWIN AMERICA].15. See G. WHITE, PATTERNS, supra note 14, at 99-132; G. WHITE, TORT LAW INAMERICA,upra note 14, at 65-83.16. For discussions of the process school, see G. WHITE, PATTERNS,upra note 14, at136-163; Peller, In Defenseof FederalHabeas CorpusReitiigation, 16 HARV. C.R.-C.L. L. REV.579, 670-75 (1982); Ackerman, Book Review, 103 DAEDALUS119 (1974).

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STANFORDLAWREVIEWthose maxims-e.g., efficient breachesof contractsare permissible.17Thus, it has not been the case that paradigmshifts in Americanlegal historyhave resultedfrom total criticismof an orthodoxy. Suchshifts have resulted,rather,from criticism that had retaznedhe start-ing assumptionsof an entrenched paradigm but then interpretedthem in ways that expose their contradictions. In accommodatingdoctrinal rules to changed social conditions, the sociological juris-prudesraised the possibility,seizedupon by the Realists,that doctri-nal ruleswere unintelligiblewithout referenceto the context of theirapplication. In arguingthat the discretebehavior of decisionmakerscould be generalized into rules of process, the processjurisprudesraised the possibility, seized upon by neoconceptualists,that legalruleswere,afterall, intelligibleas generalpropositions. That sort ofincrementalchange is not, I take it, what is proposedby advocatesofCriticaltheory. Indeed, retaining any of the startingpreconceptionsof mainstream scholarshipseems incompatible with the CLS ap-proach. Historysuggests,however,that incremental,ratherthan to-tal, criticismprecipitateslegal change.In sum, I believe that exposureof the tacit dimensionof prevail-ing legal scholarshipfacilitateschange only when the premisesthatconstitute that dimension are retained by critics of the establishedorthodoxy. Yet it seems to be a sinequanonof Critical theory thatestablishedassumptionsbe abandonedwholly beforeany reconstitu-tive work is begun. I suspect that if this commitment to total criti-cism is retained, it will only retard the effectiveness of the CLSmovement. It is as if a labor union were debating whetherto retainits present system of workerrepresentationor move to a system inwhich individual workershad greaterdirect input into bargaining,and, in the courseof the debate,a criticcalled for the completedisso-lution of the union formof representationbecause it exploitedwork-ers. Such a result might eventually emerge if individual workers,gradually given more autonomy over bargaining, came to realizethat they had little need for a union structure. But that resultwouldhave emergedthrough incremental,not total, criticism.The CLSershave an additionaljustificationfor total criticism. Itis illusory,they maintain, to engage in academic criticismas a non-ideological exercise. Mainstreamthought is necessarilyideological;its starting premiseshave distinct ideological consequences. Thus,

17. For examples of neoconceptualistic scholarship of the law and economics variety, seeR. POSNER,THE ECONOMICSOFJUSTICE (1981); Goetz & Scott, Princtplesof RelationalCon-tracts, 67 VA. L. REV. 1089 (1981).

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INEVITABILITY OF CLSthe critic should not only attack the intellectual incoherence of estab-lished thought: He also should attack its ideological ramificationsand propose alternatives. Criticism of academic discourse is to beaccompanied by exhortatory political discourse directed at the "realworld"; theory and practice are to be fused.

II. THE FUSION OF THEORY AND PRACTICEAt the end of numerous recent CLS articles, one finds varied callsfor "the transformation of social, political, and economicprocesses."'8 The specific steps of this transformation are rarely set

forth in any detail. References are made to "a genuine reconstitutionof society" based on "citizen participation in the community's publicdiscourse,"19or to "a basic rethinking of liberalism and then a re-structuring of our society itself,"20or to a radical expansion of theeconomic power of workers,21or to "the utopian project of experienc-ing . . in social life the radical disintegration of the intellectual andinstitutional constraints of capitalist society."22 One of these refer-ences calls for "a radical scholarship of practice," that would "en-mesh legal scholars . . . in endeavors that, beginning with atransformative objective, would explore the capacity of social struc-ture to respond to efforts towards fundamental change."23 Such "en-deavors" could include the creation by scholars of "situations thatwould blur the boundary between political and legal discourse bysetting up conflict-resolution mechanisms in which community mem-bers served as arbitrators of neighborhood disputes."24Even the above response is notable for its vagueness; indeed, Ithink the utopian proposals made at the conclusion of Critical arti-cles are deliberately vague, since most Critical theorists concede thattheir concrete thinking about utopia has not yet crystallized. Butwhere concrete proposals have been advanced, they appear to have asurrealistic quality. Consider the idea of establishing conflict-resolu-tion mechanisms in "total environments," such as prisons, hospitals,or workplaces. Does this mean that scholars and students with abackground in Critical theory would go into prisons or hospitals and18. Note, supra note 1, at 1682.19. Brest, TheFundamentalRights Controversy. heEssential Contradictionsof NormativeConstitutionalScholarship,90 YALEL.J. 1063, 1109 (1981).20. Frug, The City as a Legal Concept,93 HARV. L. REV. 1057, 1151 (1980).21. See Lynd, supra note 2, at 494.22. Klare, supra note 2, at 482.23. Note, supra note 1, at 1687.24. Id

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INEVITABILITYOF CLSalthough not in the stylized language of today's Critical theorists.When researching he backgroundsof CLS members,one finds thatmanyof them wereundergraduates r law studentsin the late 1960's.This senseof generationalsolidarityhas been made explicit by someCLSers,who see the political experiencesof the 1960'sas crucial tothe group's formation.26One analyst of the CLS movement de-scribes the "intellectualbiography"of its prototypical adherent asincluding"liberal(civil rightsand antiwar)political involvementsinthe 1960's and 1970's" or "radical activi[sm] of the 1960's."27 Andthere is a striking congruence between one central lesson of the1960's-distrust the rhetoricof the establishment n power-and oneanalyticalstrategyof the CLS movement-exposing the ideologicalpresuppositionsof mainstreamthought. In both instances, a cyni-cism about the motivesof those in power,especiallywhen their rhet-oric purportedly is designed to promote ends other than thepreservationof the status quo, yields transformativeproposals, forexample, the assertion of "power to the people" or the creationof "a radical left world view."28There may yet be some importantdifferencesbetweenthe radicalactivismof the 1960'sand that of the Critical theorists. With someexceptions,Critical theory does not seem oriented towardsinfluenc-ing the masses,as evidencedby its use of a vocabularythat would beincomprehensibleo nonspecialists.Moreover,some recentcontribu-tions to Criticallegal scholarshipseem to rejecta conspiratorialviewof legal change-that economic or political elites impose their viewson the populace by hiring lawyerelites to ground particularisticre-sults in appealsto commonvalues-in favorof a view that change isthe productof ideologicalpremiseswhich, while historicallycontin-gent, are deeply and widely held.29 Thus, to portrayCritical theo-rists as simply protesting the sinister machinations of theEstablishmentmay be inaccurate. But thereare echoesof the 1960'sin CLS nonetheless:a markedsensitivityto relationshipsor arrange-ments that are hierarchical in character;a sense that "trashing"(a1960'sterm)or "delegitimation"s liberatingratherthan corrosive;a

26. See,e.g., Parker, ThePast of ConstitutionalTheory-AndIts Future,42 OHIO ST. L.J. 223(1981).27. Gordon, New Developmentsn Legal Theory,in THE POLITICSOF LAW:A PROGRES-SIVECRITIQUE281, 282 (D. Kairys ed. 1982) [hereinafter cited as THE POLITICSOF LAW].28. Kennedy, Crtical LaborLaw Theoy. A Comment,4 INDUS.REL. L.J. 503, 506 (1981).29. CompareM. HORWITZ,THE TRANSFORMATION F AMERICANLAW (1977) withGordon, supra note 27, and Mensch, TheHstory of MainstreamLegal Thought,in THE POLITICSOF LAW, upra note 27, at 18.

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STANFORDLAWREVIEWconcern for the oppressed segments of society; and, above all, a sensethat the university experience, for both faculty and students, quiteproperly ought to arouse awareness of the political character of soci-ety and help one develop techniques for responding to that fact.The experience of the 1960's suggests, however, that universitiesare ill-cast as breeding grounds for political organization. Academiccommunities are notable for their lack of structure, for the precariouscommitment on the part of their members to collective activity, andfor their marginal status as sources of leadership for the public atlarge. Many Critical theorists, even those whose social visions areradically transformative, have sensed that what academics do best isexposit and critize ideas. The chief impact of the CLS movement, asits name implies, promises to be in its exposure of the underlyingpresuppositions of mainstream legal scholarship. The more Criticalscholarship insists on a fusion of theory and practice, the more Criti-cal articles insist on preaching utopian, "counterhegemonic" solu-tions, the less likely it is to attract new converts, especially onesoutside the university.

Even if one rejects the above assertions about the nature of aca-demic communities, one needs to confront the historical inhos-pitability of American culture to efforts to achieve a fusion of radicaltheory and practice. The promise of such a fusion rests on a certainmodel of the relationship of intellectual elites to the culture at large.The model assumes that intellectual elites can have their greatest im-pact on the rest of the culture when they play the role of politicalactivists. But such has not been the case in twentieth-centuryAmerica. While one can see ample evidence that ideas originallygenerated by intellectuals-the idea that skin color is not a reliableor even a relevant index of human ability being perhaps the mostprominent-have penetrated the public consciousness, often withmomentous consequences, there is very little indication that intellec-tuals, especially those espousing radical ideas, have been effectivepublic leaders. Cultural change has come about when originally rad-ical ideas, such as affirmative action, have been converted into effec-tive political slogans by experienced politicians. The radical theoriesof late nineteenth-century economists became the popular slogans oftwentieth-century Progressives; the quasi-socialistic statism of turn-of-the-century political theorists became the all-purpose liberalism ofthe New Deal. Yet part of the Progressives' appeal was as a responseto socialism; part of the New Deal's was as an alternative o commu-nism. What seems necessary to implement the insights of Critical

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INEVITABILITYOF CLStheory is not a fusion of theory and practice, but a conversion ofcontroversial theories into more palatable ones. I suspect that theCritical theorists themselves are neither well-suited nor inclined tomake such a conversion.

III. CRITICAL THEORY AND THE DISINTEGRATION OFLIBERALISM: THREE LIBERAL PRESUPPOSITIONS

Under the view of cultural change advanced in this essay, theCLS movement cannot "win"-that is, have its theoretical insightstransformed into influential practical policies-without "losing"-that is, having its contributions absorbed and converted into policiesthat are more compatible with mainstream thought. In the languageof CLS, this process is one of cooptation. Indeed, it is no overstate-ment to say that Critical theory views the relationship betweenAmerican radicalism and American liberalism, at least since the FirstWorld War, as one of cooptation. In that view, the goals of radicalthought-a mature, affirmative state, a degree of autonomy for theindividual worker, a class-consciousness in labor relations, a realiza-tion of the inherent capacity of majorities to oppress minorities-have been converted into the milder policies of liberalism.Thus, when radical theory has exposed a flaw in existing socialrelations-e.g., that the "freedom" of workers to bargain for theirservices with their employers is a fiction-liberal theory has moved toabsorb and convert the insight-e.g., the legitimation of labor unionsas bargaining agents, but the retention of the freedom-to-bargain as-sumption. While this relationship between radical theory and liber-alism appears to annoy contemporary Critical theorists, I believe thatit is likely either to continue or, at most, to be replaced by a compa-rable relationship between radical theory and some other main-stream ideology. That being so, I think it worthwhile to explore theCLS critique of liberalism in an attempt to determine whether theideology of liberalism is capable of yet another round of absorptionand conversion. Put another way, can liberalism coopt radical the-ory one more time, or have the contributions of Critical theory andother ideologies unfriendly to liberalism exposed contradictions inliberal theory that are so deep as to be irremediable?In my earlier discussion of paradigm shifts in American jurispru-dence, I referred to the modifications of Realism made by the processtheorists of the 1950's and 1960's. I find that three such modifica-tions evolved into central presuppositions of process jurisprudence:the idea that process leads to justice, the idea that advocacy leads to

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STANFORDLAWREVIEWtruth, and the idea that expertise leads to wisdom. Each presupposi-tion, while originally based on an insight of the Realists, can be seenas a strategy to deflect the corrosive implications of that insight; toabsorb and convert it. These presuppositions of process theory forma central dimension of the ideology that Critical theorists call liber-alism.30 I take the emergence of Critical theory to be a testament tothe current inability of the central presuppositions of process theoryto command widespread allegiance. Moreover, the current interac-tion of liberalism and Critical theory, when seen as part of a generalpattern of jurisprudential change in American culture, may fore-shadow the future course of the CLS movement.

All three of the central presuppositions of process jurisprudencehave been exposed and attacked by the CLS movement. Attacks onthe presupposition that process leads to justice31 may be seen as theCritical scholars' way of chastising their precursors, the Realists, forfailing to heed one of their own axioms. Realism asserted that noth-ing could be learned from a discrete legal decision other than that adecision had been made; one could not read the rule accompanyingthe decision as a principle of general applicability. This assertion,when coupled with the Realists' skepticism about the validity ofmoral absolutes, yielded the notion that justice was individualizedand subjective. It was this notion that eventually came to plagueRealism. Subjective decisionmaking was equated with the ideas thatpower, rather than wisdom or goodness, was the basis of law, andthat legal decisions were idiosyncratic. Under pressure, the Realistsretreated, disclaiming relativism and endorsing the idea that a meth-odology of analyzing legal decisions, which was all that some self-styled Realists claimed their movement was, could be generalized.32Legal decisions were discrete, but the process by which they werereached was recurrent.

It was not an extreme step from this concession to the proposi-tion, advanced by scholars after the Second World War, that the reg-ularity and integrity of the process by which discrete decisions were

30. In singling out these presuppositions for analysis, I mean to suggest only that theyare significant features of liberalism which the Critical theorists have attacked, not that theydefine iberalism or that they have been the principal features of liberalism against which Criti-cal theorists have reacted.31. See, e.g., Brest, The Substanceof Process, 42 OHIO ST. L.J. 131 (1981); Parker, supranote 26, at 232-35; Peller, supra note 16, at 669-90.32. See E. PURCELL,THE CRISISOFDEMOCRATIC HEORY159-79 (1973); G. WHITE,PATTERNS, supra note 14, at 141-50.

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INEVITABILITYOF CLSmade had an "inner morality" of its own.33 In other words, proce-dural requirements, such as publication, intelligibility, the presenceof an adequate record, sufficient representation and advocacy, andthe presence of articulate criticism, could prevent subjective decision-making from becoming arbitrary. And, by an intellectual sleight ofhand, reason, as opposed to fiat, became one of the procedural re-quirements.34 Thus, a phenomenon-legal decisionmaking-thathad been conceded to be subjective and discretionary was suddenlyseen as capable of being regularized, constrained by procedural re-quirements, and limited, at least in the case of judges, by the obliga-tion to produce reasoned justifications for results. Moreover, reasonwas not an entirely malleable concept: Some proffered justificationsof results would be rejected as too nakedly subjective or idiosyncratic.So, when all was said and done, judicial subjectivity appeared to beconstrained by an objective requirement of reasoned elaboration.The objectivity of doctrine had been discredited only to be replacedby the objectivity of process. And due process or reasoned elabora-tion was a necessary condition for the achievement of justice: It waswhat made law moral.35

One of CLS's contributions has been to debunk this equation ofreason, process, and justice. With this debunking I wholly concur.Consider the following example. A candidate for tenure at a lawschool has offended a majority of the faculty by his life style. Hewears the "wrong" clothes, he openly engages in unconventional so-cial practices, his interchanges with other faculty and with studentsare often uncomfortably abrasive. On the other hand, the candidatehas met the conventional requirements for tenure at a law school:He has written books and articles, served on committees, and taughtthe average number of courses.Suppose that the candidate is first evaluated by a faculty subcom-mittee whose members, for their own political and personal reasons,have resolved to deny him tenure. Indeed the committee membersare quite explicit about this decision: They openly discuss how bestto accomplish their aim. They resolve to critique his scholarship andteaching in such a way as to suggest that he falls below acceptablestandards for tenure "on the merits." Their evaluation of the candi-33. See, e.g., L. FULLER, THE MORALITY OF LAW (1964); H. HART & A. SACKS, THELEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (tent. ed.1958).34. See, e.g., Fuller, Reasonand Fiat in CaseLaw, 59 HARV. L. REV. 376 (1946).35. See L. FULLER, THE PROBLEMS OF JURISPRUDENCE 705-08, 727-29 (temp. ed.1949); H. HART & A. SACKS, upra note 33, at 168-70.

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STANFORDLAWREVIEWdate is tainted by their a priori decisionto recommendagainst ten-ure: They manipulateevidence about his teaching, supply criticismof the candidate'sscholarshipthat gives it no credit for its positivecontributions,dismiss favorable outside commentary as flawed orcorrupt, and collect numerous comments on the candidate fromother faculty membersthat are not comments on his teaching andscholarship,but comments on his personality and lifestyle. Theythen solemnly announce that, after a full evaluation of the candi-date'sscholarship, eaching, and service to the institution,they haveconcludedthat the candidate fails to meet tenure standards.If the motivations of the subcommittee members are never re-vealed publicly, the decisionto deny the candidate tenure,assumingit is upheld after nominal furtherreview by the entire faculty, ap-pears to satisfyproceduralrequirements,even though it is substan-tively corrupt. The liberal equation of process with justice wouldseem to suggesteither that mere compliancewith properproceduresis all thatjustice requiresor that suchcompliancewill revealsubstan-tive injusticeby demandingthe articulation of "good"reasonsfor acourseof action. Indeed, the liberal theory of processseems to sug-gest that if one can find good reasonsto justify a result, the covertmotivations of those elaborating the reasons become irrelevant.Thus, if committeemember A attackscandidate D's scholarshipbe-cause he deploresD's lifestyle,A'sattackis proper,despiteits motiva-tion, if D's scholarship s indeed lousy.Surely there is something wrong here. If Hitler decides that allJews,just becauseof theirreligion,shallbe executedas traitorsto thestate, and one memberof the Jewish community has actually stolenand communicatedstate secrets,does that legitimize his executionfortreason?Or, if all those indictedfortreasonareallowedrepresen-tation, given a formalhearing and a statement of reasons,and exe-cuted as violators of a duly promulgated law, can one call theirexecutionjust? The very idea that procedure eads to justice presup-poses that proceduraland substantivejustice can be separated, sothat a substantivelyunfairresult will be legitimizedif it resultsfromfair procedures. Somehow the promulgation of fair proceduresissupposedto result in the articulationof good reasonsfor decisions,therebyendowingthe systemwith an innermoralityand an inherentjustness. But of course "fair good," and "moral"are substantiveterms. Proceduresdo not makeparticularresultsfair;rather,currentconceptionsofjustice dictatewhat are fairprocedures.And even the

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INEVITABILITYOF CLSfairest of procedures can be manipulated, corrupted, and perverted.Substance rules procedure in negative as well as positive ways.

So the Critical theorists seem to have exposed and devastated onepresupposition of liberalism. The original Realists were right afterall: Process, like doctrine, is there for the manipulating, and it is thevalues of the manipulators, not the rules or procedures they employ,that count. That is not to say that the manipulators are not con-strained: Their values cannot be too much out of synch with thevalues of those affected by their decisions. But how much is toomuch cannot be answered in advance, and the manipulators havethe advantage of power and, often, the wherewithal to summon upreasons that have a persuasive common appeal. Indeed, a willful,energetic set of decisionmakers, such as the late Warren Court, cansuccessfully justify even unpopular results to its constituents bygrounding them in deeply held common values. In such cases, it ishard to say that the decisionmakers are the ones constrained; rather,it is the constituents who, by reasons of power and of a commitmentto common values, are constrained to accept unpopular decisions.Round one goes to the Critical theorists.Round two involves the claim of liberal theory that advocacyleads to truth. This claim is closely related to the first-that processleads to justice-in that it assumes a basic integrity in a proceduralsystem, here the system of adversarial representation. The claim pre-supposes that the effective working of the adversarial system will pro-duce a full airing of both sides of a dispute, and thereby a true senseof what the dispute was all about, which is necessary for a fair resolu-tion.36 Here, again, the corrosive implications of a Realist insightwere deflected by process theory. As noted earlier, the Realist cri-tique of the objectivity of legal doctrine demonstrated that for everyprinciple of law there was a counterprinciple: One could not merelyextract principles from cases and convert them into rules of generalapplicability. The existence of counterprinciples threatened the im-age of law as an impartial mediator of disputes. How was one tochoose from the mass of competing principles? The process theoristssupplied an answer: The adversarial system itself would do thechoosing. Truth was to emerge from the clash of competing argu-ments. Because the adversarial system was itself based on analytical

36. For criticism of this presupposition, see Simon, The Ideologyof Advocacy.ProceduralJusttce andProfessionalEthics, 1978 Wis. L. REV. 29; Simon, HomoPsychologtcus.Notes on a NewLegal Formalsm, 32 STAN. L. REV. 487 (1980).

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STANFORDLAWREVIEWreason, the best arguments were sure to prevail.37We might start here by clearing away some objections to the ad-vocacy-truth correlation that its supporters would dismiss as trivial.One is that the system makes errors. Persons are convicted of crimesthat they did not in fact commit; spouses receive alimony paymentsby successfully concealing the adultery that should have disqualifiedthem. Such errors, however, seem unavoidable because of humanfallibility. They are not intrinsically related to advocacy: Errors aremade and truth is concealed in nonadversarial settings as well. Asecond, assertedly trivial, objection to the advocacy-truth correlationis that the system is skewed because advocates have disproportionateskills. The response is that while a more competent advocate mayprevail even when his client's cause seems on its face to be weaker,the appropriate conclusion to draw is that adversaries need to be rel-atively equally matched, not that truth is ill-served by advocacy.Ultimately, however, the disproportionate skills example illus-trates the vulnerability of the advocacy-truth correlation. Part of thereason the skilled advocate is able to subvert the truth is that hisoverarching concern is winning disputes not discovering truth. Butthe skilled advocate is not the only one uninterested in discoveringtruth; no one playing a central role in the adjudication of legal dis-putes-litigant, lawyer, or judge-has that as his primary concern.The litigants are interested primarily in winning their dispute, thelawyers in helping them do so, and the judge in finding a basis toresolve the dispute. That basis may not be the "truth"; indeed, giventhe primary motivations of the other principal actors, it is not likelyto be the truth. The advocacy system is really designed to further nottruth, but disputeresolutzon-winning and losing. In fact, as anyonefamiliar with litigation knows, truth often can be an impediment towinning, and is sometimes best suppressed if one wants to win. Thebest test of the truth of an idea may be its power to get itself acceptedin the competition of the market, as Holmes once said,38but the besttest of the truth of a legal argument surely is not the fact that itprevailed in court. Round two goes as well to the Critical theorists.CLS has also attacked the third presupposition of liberalthought-that expertise leads to wisdom.39 On this issue, one sees a

37. The swan song of Karl Llewellyn provides an example of scholarship employing thisstrategy. See K. LLEWELLYN,upra note 7.38. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).39. For criticism of this presupposition, see J. AUERBACH,UNEQUAL USTICE:LAWYERSAND SOCIAL CHANGE IN MODERN AMERICA (1976); W. CHASE, THE AMERICAN LAWSCHOOL AND THE RISE OF ADMINISTRATIVE GOVERNMENT (1982).

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INEVITABILITYOF CLSsignificant difference between the Critical theorists and their prede-cessors, the Realists. While Realist literature emphasized the idio-syncratic and subjective character of judicial decisionmaking,40 theRealists were not thereby led to view human relations either as essen-tially irrational or as dominated by factors, such as power or status,that bore no obvious relationship to rationality. Instead, the Realistliterature that considered the question, "What does one do with thereality of subjectivity?" seems to have answered, "One becomes moreself-conscious about one's own prejudices and more scientific in one'sthinking." That is, the scientifically trained judge would be moreeffective than his untrained counterpart; although both would be sus-ceptible to bias, one would be more aware of it than the other.41The relationship between subjectivity, empiricism, and the socialsciences was a central concern of Realism. And the Realist formula-tion of that relationship doubled back on itself. Realists took seri-ously the idea that studies of human behavior could be conductedscientifically. In fact, their discovery that judging was biased wasmade possible by their belief that certain psychological theories hadbeen validated empirically. In other words, one demonstrated theidiosyncratic nature of human behavior with the aid of an explana-tory theory of human idiosyncrasy that one took to be other thanidiosyncratic. While decisionmaking was subjective, the theories thatrevealed its subjectivity were objective, in the sense that they wereempirically verifiable. There was, then, a curious dichotomy in Real-ism: Legal rules and doctrines were exposed for their false objectiv-ity, but the techniques that exposed them were taken to have beenvalidated objectively. Thus, the Realists' vision of social science washardly Kuhnian:42 They did not take the step from seeing decision-making as controlled by cultural bias to seeing theories that ex-plained decisionmaking as similarly controlled.Scientific analysis thus did not merely reveal the existence of anexplanatory paradigm for Realists, it led to expertise. And expertiseled to wisdom. The Realists trusted properly trained elites, such asadministrative agencies, a "managerial" executive, and a scientifi-cally minded judiciary. That faith perfectly complemented the poli-cies of the New Deal, which emphasized the operation of government

40. One Realist judge wrote a celebrated article revealing that he decided cases on thebasis of "hunches." See Hutcheson, TheJudgmentIntuihtve.The Functionof the HunchinJuditciaDecision, 14 CORNELLL.Q. 274 (1929).41. See J. FRANK, COURTS ON TRIAL: MYTH AND REALITYIN AMERICANJUSTICE(1950); Frank, RealisminJurisprudence,7 AM. L. SCH. REV. 1063 (1934).42. See T. KUHN, THE STRUCTUREOF SCIENTIFIC EVOLUTIONS(2d ed. 1970).

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STANFORDLAWREVIEWby expert commission, the infiltration of federal institutions by aca-demic and professional elites, and the idea of tinkering and experi-menting with government, the way one would tinker with materialsin a laboratory. For the Realists, an ideal state would have to bestaffed and managed by technicians.43Processjurisprudence absorbed and converted the idea of govern-ment experts as social engineers by positing a corollary: Expertise ledto wisdom, to be sure, but wise leaders recognized the limits of theirown expertise. Thus judges needed to be more self-conscious abouttheir biases in order to subsume them in reasoned elaboration. Legis-latures, courts, and agencies ought to be given freedom to make lawand articulate policy, but only within the limits of their institutionalcompetence. Judicial maturity came not only from knowing how todo well what judges should do-articulate good reasons for results-but also from knowing what judges should not do at all-invade theprovince of other branches of government.It has taken a long time for the association of expertise and wis-dom to break down. In foreign policy, for example, the associationsurvived the Second World War because the arbitrary decisionsmade by "experts" about who was to kill and be killed, whose pock-ets were to be lined, and which minorities were to be oppressed werejustified by the "war effort," a mystical entity originating out of theAmerican public's revulsion against totalitarianism, genocide, andthe threat of an invasion by alien forces. Indeed, the significance ofthe war effort construct became clear in the decades in which theexpertise-wisdom association was first challenged, the decades of theVietnam War. There was no comparable war effort mentality but-tressing that war, despite attempts on the part of the Kennedy andJohnson Administrations to manufacture one. It was painfully clear,almost from the start, that the heavy-handed involvement of theUnited States in an Asian nation's civil war bore little resemblance toefforts to resist the spread of the Axis. Vietnam was neither a war tomake the world safe for democracy nor a war to save Asia from Com-munist aggression; it was an attempt to buttress a corrupt, pro-West-ern regime that was being threatened by a corrupt, anti-Western one.

Whether Vietnam was perceived as a different war because it wasdifferent, being a land war in Asia against an elusive enemy that wasnot an "aggressor" in the Nazi sense, or whether it was so perceived43. On the connections between Realism and the New Deal, see generally Frank, supranote 41; Purcell, AmericanJurisprudence etween he Wars.Legal Realismand the Crisisof DemocraticTheory,75 AM. HIST. REV. 424 (1969).

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INEVITABILITYOF CLSbecause a cold war model of foreign affairs had begun to show signsof strain, thereby debilitating the reflexive "us-they" mentality ofWorld War II, are not questions that concern me here. The fact isthat Vietnam was regarded as different, and as lessjustifiable, almostfrom the beginning; consequently, the war effort justifications utteredby those making arbitrary decisions came under more searching scru-tiny. In particular, the ultimately arbitrary feature of all wars-thatsome people get to designate others to do the actual fighting-wasstarkly revealed. Put simply, thousands of young Americans, becauseof the accident of being born in a certain year, were confronted bythe risk of death on the battlefield. And they were not being asked tofight, they were being told. In asking the logical question, "Whyus?", members of this generation were told, "Because of the war ef-fort." But that justification simply didn't wash. The values sum-moned up to buttress it were not the values of World War II:democracy, freedom, equality, survival. None of those values wastruly at stake in Vietnam. And when the "established" generationattempted to act as if they were at stake, its credibility was destroyed.With the loss of credibility came another loss-the loss of the illu-sion that expertise begets wisdom. For the people escalating the war,expanding the armed services, ordering others into combat, and justi-fying those actions by summoning up the war effort concept were theexperts of the generation then in power. They were the "best andbrightest" of their time. But they seemed, at least to those immedi-ately affected by their decisions, to have gotten things all wrong.They used doublespeak; they lied; they covered up; and they appar-ently fooled themselves by subscribing to a model of the world thatsimply did not apply to a civil war in southeast Asia. By the conven-tional standards of their time they had expertise, but where was theirwisdom?

It is no accident that the established generation which escalatedthe war in Vietnam was first perceived as being trapped in its ownCold War logic at the same time that the more general theory ofparadigmatic thinking first came into prominence.44 Vietnam was alesson in the confining orthodoxy of "normal science." No onecharged with making decisions in the early stages of that war wasable to step out of the cold war model, the assumptions of which werebeing used to guide the war effort. The lesson of Vietnam was thus a

44. The first edition of Thomas Kuhn's TheStructureof ScientftcRevolutionsappeared, toalmost no comment, in 1962. Reviews and comments began to pick up in the mid-1960's andwere widespread by the end of the decade.

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STANFORDLAWREVIEWpowerful one: What shapes the decisions of human actors is not theirtalent, training, or status, so much as their consczousness.And con-sciousness has its greatest impact not at the overt level, where alter-natives are weighed and priorities are ranked, but at the covert level,where some options are dismissed as unthinkable and others are noteven conceived. It is the tacit presuppositions of a culture's leaders,shaped by their generational experiences and those that have gonebefore, which dictate their decisions, not their expertise. If they arewise, it is solely within the limits of their permissible thought; fewever escape those limits.There is no guarantee, then, that expertise will lead to wisdom.Indeed, there is a sort of guarantee that the reverse will happen if oneassumes that professional communities have strong incentives to re-tain and refine the normal science in which they engage. Thetrained person becomes the socialized person; he becomes accus-tomed to speaking in jargon, reacting to a small, select group of peo-ple, having a clear notion of his own status and power within theprofessional community, and acting accordingly. In this context, oneof the functions of the expert's wisdom is the justification and preser-vation of power for those with expertise. No wonder that the as-sumptions of whole generations are rarely dismissed outright by theirsuccessors: There is a powerful incentive to hold on to assumptionswhether or not life bears them out.

IV. CONCLUSION: SOME INEVITABILITIESThe Critical theorists, to a large extent members of the genera-

tion most directly affected by Vietnam and nurtured on Kuhn, havedecisively parted company with Realism on the association of exper-tise and wisdom. And here they appear to have won another roundover liberal theory; but, in doing so, they have raised an issue that isnot helpful to their cause. If we shouldn't believe in the wisdom ofelites just because they are impeccably trained, why should we be-lieve in the wisdom of Critical legal scholars? Let there be no mis-take about it: Participants in the CLS movement are members of anelite. They are impeccably trained; they earn comfortable salaries;they are associated with academic institutions of high status; theirnames have a certain visibility and prestige. Moreover, part of theirelite status comes from their being designated as the trainers of futuregenerations of lawyers. At the individual level, when one thinksabout how few students one has actually "trained," this last pointseems trivial. In a Kuhnian sense, however, generational educational

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INEVITABILITYOF CLSexperiences are decisive elements of the way one thinks, and thereforethe issues deemed central to one's education are issues that may wellremain central in later life.The Critical theorists therefore cannot have it both ways. In call-ing for the transformation of social institutions, they are calling forthe transformation of a world in which they have been comfortableand prominent. Few of the designated beneficiaries of their calls forchange share their close identification with a hierarchical educa-tional system in which the most prestigious members of the hierarchyget the fewest apparent demands made on their time. How manymembers of the oppressed classes would applaud a world in whichpersons designated law professors got paid rather well for teachingfive hours a week, or perhaps not at all? How many would be in-clined to think that persons living that kind of life have any ideawhat it means to be oppressed? And while some Critical theoristsmight willingly work one month out of a year as janitors or secretar-ies, others might not like to have their salaries equalized even withother law professors, let alone with maintenance workers. There arepowerful forces of self-preservation operating to retard the impact oftransformative proposals, and when one adds to those forces a newlyemergent skepticism about the wisdom of elites, one can readily im-agine a scenario in which Critical legal scholars preach their trans-formative proposals to audiences wearing headsets.The model of jurisprudential change set forth in this essay as-sumes that change is deterministic in two respects. First, one genera-tion's presuppositions znevitablyreplace those of another, so thatorthodox legal doctrine is fated eventually to become obsolete. Lib-eral thought may be on its way to obsolescence; the emergence ofCLS may be indicative of liberalism's decline, and the contributionsof Critical theorists may hasten that decline. As we have seen, theCLS critique of liberalism's presuppositions is a powerful one: I evensense a certain inevitability that liberalism, at least in its pure "pro-cess" form, will lose the fight.But the model I have presented is deterministic in another re-spect. Change will take place only incrementally-that is, only whenthose in power perceive they will be advantaged by the change.While the ideologies of elites may differ, their membership, at least interms of recruitment, training, and advancement, has tended to re-main constant throughout twentieth-century American professionallife. The kinds of persons who become lawyers and law professorsmay change, but their professional roles will remain relatively con-

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STANFORDLAWREVIEWstant. The Critical theorist of the 1980's is not likely to be very differ-ent, in terms of what he does, how much he gets paid relative to otherhighly qualified persons in his profession, or how he increases hisprestige and visibility, from a Realist of the 1930's. And despite"counterhegemonic proposals," he has powerful incentives not toabandon his elite status. Law professors then, as now, started offwriting impassioned critiques of the established order and ended upbecoming deans or federal judges. Absorption and conversion is asinevitable as the passing of orthodoxy.For that reason, the Critical theorists' pleas for social transforma-tions appear incongruous. The most dedicated "rebel from princi-ple"45 is unlikely to elicit successfully a social transformation thatthreatens the very things that made it possible for him to proposethat transformation-the freedom, leisure, and prestige of his voca-tion. The very audience to which his transformative proposals seemdirected-elite law professors and students from prestigious universi-ties-is the one least likely to benefit from them.But when one divorces the utopian proposals of Critical theoristsfrom Critical theory itself, a powerful attack on mainstream liberalthought remains. What will be the effect of that critique? If historyis any guide, liberalism will absorb and convert Critical theory, thusproducing a new synthesis. Or, possibly, liberalism may collapse fromthe weight of its internal contradictions and, over time, a new ortho-doxy may emerge, perhaps containing some of the presuppositions ofCLS. But, either way, very little will have changed, and nothing willhave progressed, let alone have been transformed. Change is neithertransformation nor progress; it is just a series of inevitabilities.

45. See Kennedy, RebelsFromPrinciple. Changing he CorporateLaw Firm From Within, 33HARV. L. SCH. BULL.36 (1981).

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