The recent performance of the Supreme Court may not create confidence in those who like to think of law as a principled bulwark of republican government, but compared with some influential legal scholarship of the past 20 years it’s downright inspirational. If you don’t believe that, take a look at The Top Ten Politically Correct Law Review Articles. Out with comparison and doctrinal analysis, in with provocation and utterly subjective storytelling!
There are justifications for what’s done, of course. If you “know what you know,” and you’re the only one who can know it, criticism of your story is simply an attempt at hegemonic marginalization. No doubt there are problems. If truth is wholly personal, or at most race, class and gender based, it’s not clear what someone else is supposed to do with your story once he’s done genuflecting to you for telling it. He can give you what you want, I suppose, but will that always be practical? Suppose personal stories conflict? Still, such concerns need not interfere with publishing this stuff, treating the people who produce it as “public intellectuals,” appointing them to prestigious academic chairs and advisory commissions, and pretending to hold them in high regard as major contributors to scholarship.
You can’t laugh the articles off by saying they’re extreme cases. These are influential articles, fertile in scholarly progeny, published in top law reviews by academics in prestigious positions. The author of the piece doesn’t seem particularly partisan. If the pieces he describes are thought to constitute legal scholarship, and they are, then something has gone radically wrong in the way law is understood by its academic custodians.
When I was in law school in the late ’70s legal scholarship was pretty uniformly left-liberal, except for a few law-and-economics types like Richard Posner and a fair amount of work that simply attempted to present the state of a field of law for the benefit of practitioners, with maybe a few comments on policy thrown in. When it dealt with political and social issues it tended to be formulaic, manipulative, self-righteous and smug. All of which suggests a few thoughts on what’s happened:
- Some smart people with the moral qualities required to get places in rather unpleasant environments decided it was stupid bothering with the appearance of rational analysis when it’s obvious what’s wanted anyway. Why not just scream about what you want and abuse everyone who stands in your way?
- Some not-so-smart people were hired because of affirmative action and didn’t have what it takes to be intellectually manipulative. Nonetheless, they found they had as many wants as anyone, thought they had a right to be judged by special standards of their own creation, and were accustomed (again, by screaming) to getting their wants and self-defined rights respected.
- Others went along and joined in to some extent or anyway facilitated things because it was what was going on and seemed to be what the best people thought was the proper next step. I imagine that was so with one female academic mentioned in the article, who I remember as a very nice well-brought-up girl from a very respectable liberal family who always did what was expected of her. I have no doubt she continued her very successful career on the same lines.
Still, there’s a lesson to be learned here for right-wingers: don’t shut up but keep making your pitch, if you believe in it, and eventually liberal opponents will find it hard to avoid dealing with you. What you say will become one of the possibilities.