A CRITIQUE OF ADJUDICATION

A CRITIQUE OF
ADJUDICATION
(fin de siècleì

Duncan Kennedy

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts
London, England
 For my mother and father

Copyright © ¡997 by the President and Fellows of Harvard College

All rights reserved
Printed in che United States of America
This book has been digitally reprinted. The content remains
identical to that of previous printings.
First Harvard University Press paperback edition, 1998

LIBRARY 0F CONGRESS CATALOGING-IN-PUBLICATION DATA

Kennedy, Duncan, 1942-
A critique of adjudication: lin de siècle I Duncan Kennedy.
p. cm.
Includes bibliographical references and index.
ISBN o-674-1776o-6 (cloth)
ISBN o-674-17759-2 (pbk.)
i. Judge-made lawUnited States. 2. Critical legal studies-
United States. . Law and politics. 4. PostmodernismUniced
States. 1. Title.

KF8700.K46 1997
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 ACKNOWLEDGMENTS

This book is one of the by-products of a collective intellectual endeavor,

the critical legal studies movement, and the ideas in it developed during
the course of our intense debates over the last twenty years. I am deeply
grateful for what these debates have taught me, although the positions I
take here are sometimes at variance with those that prevailed within the
movement. These ideas also developed in the classroom, and I owe a heavy
debt to several generations of students who have challenged and inspired
me. Nathaniel Berman, Brian Bix, Wayne Eastman, Karen Engle, Aeyal
Gross, David Kennedy, Karl Klare, Frank Michelman, Kerry Rittich, and
Joseph Singer read all or parts of this manuscript in its various stages, and
I thank them for their comments. Thanks also to Eugene Paige and Kevin
Vosen, to Patricia Fazzone, and to Mopsy Strange Kennedy.
Chapter 8 has appeared in a somewhat expanded form as "Scrategizing
Strategic Behavior in Legal Interpretation" in 1996 Utah Law Review 785.
 CONTENTS

i Introduction I

Pari One Ideological Stakes in Adjudication

2 The Distinction between Adjudication and Legislation 23

3 Ideological Conflict over the Definition of Legal Rules 39

Part Two The Problem ofJudicial Legislation

4 The Paradox of American Critical Legalism 73

5 Policy and Coherence 97

Part Three Ideology in Adjudication

6 Policy and Ideology 133

7 Ideologically Oriented Legal Work i57

8 Strategizing Strategic Behavior in Interpretation i 8o

Part Four Consequences of Adjudication

9 The Moderation and Empowerment Effects 215

10 The Legitimation Effect 236
ii Adjudication in Social Theory 264

Part Five Posi Rights

12 Rights in American Legal Consciousness 299
13 The Critique of Rights 315

14 Conclusion: Landscapes along the Highway of

Infinite Regress 339

Notes 379
Index 4,5
 I

Introduction

This essay proposes a theory of the political effects of the American social
practice of organizing law making through distinct adjudicative and leg-
islative institutions. It is a work of general social theory written from a
leftist and a modernist/postmodernist point of view. It represents adjudi-
cation and legislation as parts of political and cultural life, in the hope
that the picture presented will be both convincing and unsettling.
The main question addressed is the role of political ideology, in the
simple sense of, say, "liberalism" and "conservatism," or "states' rights"
and "abolitionism," in the part of judicial activity that is best described
as law making. ¡ argue that judicial law making has been the vehicle of
ideological projects of this familiar kind and of other kinds, but that ideo-
logically oriented legal work is different from ideologically oriented leg-
islative work. I address the grand question of the meaning and effects of
adjudication in society through the development of these differences.
The main vehicle of my analysis is a detailed account of adjudication
that employs a variety of methodologies. The law-making activity of
judges takes place in the context of a structure of legal rules, in the face
oía particular gap, conflict, or ambiguity in the structure. Judges resolve
interpretive questions through a form of work that consists in restating
some part of this structure and then deploying a repertoire of legal argu-
ments to justify their solutions. The most important mode of influence of
ideology in adjudication comes from the interpenetration of this specific,
technical rhetoric of legal justification and the general political rhetoric of
the time.
It is sometimes plain that judges experience themselves as constrained
by the materials to reach particular solutions, even if they work in a me-
dium saturated with ideology. But they always aim to generate a partic-
I
2 Introduction

ular rhetorical effect through this work: that of the legal necessity of their
solutions without regard to ideology. They work for this effect against
our knowledge of the ineradicable possibility of strategic behavior in in-
terpretation, by which I mean the externally motivated, ideological choice
to work to develop a particular restatement and a particular solution
rather than another. As a matter of fact, they seem often to engage in a
form of denial of their own strategic behavior that puts them in bad
faith.
On the basis of this model, I propose three answers to the question of
the effects of adjudication. First, we can at least guess at the difference it
makes to the total corpus of law that so much of it is made by judges
pursuing ideological projects under these peculiar interpretive constraints.
The diffusion of law-making power reduces the power of ideologically
organized majorities, whether liberal or conservative, to bring about sig-
nificant change in any subject-matter area heavily governed by law. It
empowers the legal fractions of intelligentsias to decide the outcomes of
ideological conflict among themselves, outside the legislative process. And
it increases the appearance of naturalness, necessity, and relative justice of
the status quo, whatever it may be, over what would prevail under a more
transparent regime. In each case, adjudication functions to secure both
particular ideological and general class interests of the intelligentsia in the
social and economic status quo.
A second way in which adjudication functions in our politics is
through its relationship to the general idea of rights. The belief that
rights exist is both sustained and threatened by their role in legal dis-
course. I will try to show, from my own "post-rights" perspective, how
the belief in rights has sustained belief in adjudication, and how the cri-
tique of adjudication has sometimes been implicated in the loss of faith
in rights.
Finally, our ambivalent belief in the possibility of legal rationality is
one of the models, along with scientific rationality, for the general insti-
tution of "rightness" in our society. At the most general level, the notion
that there are expert discourses to which a practitioner can pledge faith,
not just outside but against ideology, supports a multitude of depoliticiz-
ing practices oí role specialization. "It's not my job," and "don't politicize
your workplace," are maxims that make sense, at least in part, because
judges model neutrality for all of us. The concluding chapter teases out
some implications for workplace politics of the critique of adjudication
taking place in the distant realm of legal theory.
 Introduction 3

iconology of constraint

The figure of the Judge is important in American culture, carrying mu!-

tiple resonating meanings and associations, under- and overtones of mystic
power. Among the things that define the figure are the duty of interpretive
fidelity and the experience of constraint to which it gives rise. Judges are
supposed to "rise above" and "put aside," to "resist" and "transcend," their
personal interest, their instinctive or intuitive sympathies, their partisan
group affiliations, and their ideological commitments. They are supposed
to "submit" to something "bigger" and "higher" than "themselves."
The Judge is a mythic figure ¡n part because this is understood to be a
struggle, much like a religious or monastic struggle, to renounce what is
natural and also corrupt and banal in human conduct, to depersonalize
him- (or her)self. The Judge has to struggle to achieve his (or her) own
constraint. Anyone can try and succeed at this to some extent, but it is
one of the domains in which we recognize the possibilities of talent, great-
ness, and genius, in which we have an auteur theory of culture.
Constraint is not the only thing we look for. Two other deep images are
those of the Judge as wielder of trained moral intuition and the Judge as
the scourge of corruption. The first sees at a glance the awful complexity
of the most trivial interaction, can't sleep for pondering the quandary of
justice in the particular case. The second cuts through the screen of tech-
nicalities, roots out the truth, punctures the arrogance of arbitrary power,
appeals to first principles and equity, raises up the oppressed, and restores
the just and natural order of things. The first suffers deeply, in silence, his
(or her) responsibility for the blood he (or she) must let with no guide but
frail reason. The second stands up on behalf of all of us to the Klan bomb-
ing of his (or her) house and to obscure warnings from friends in high
places.
The Judge can go wrong by becoming a petty dictator, by surrendering
to corruption, by becoming a bureaucrat, or by failure of heroism. Some
of the Judge's mythic role models are God, the good Father of a large
family, the King, and Solomon. His (or her) more mundane comrades are
the clergyperson, the police officer, the doctor, the therapist, and even the
airline pilot. Describing the Judge in gender-neutral language distorts the
figure, because he is one of the multiple archetypes of virtuous male power,
defined by semiotic contrast with the Mother, the Sybil, the Nurse, the
Virgin Sacrifice, and other images of female virtue and power.
We won't be able to figure out the political consequences of constraint
4 Introduction

in adjudication unless we acknowledge its role in this symbolic complex.

The experience of constraint is real and frequent and must often involve
struggle. Our sense that judges struggle for constraint is one of the things
that lets us "believe in" them. Because they are under strong norms to
behave this way and often do behave this way, we (J) admire and respect
and fear them, and willingly give them power to determine our (my) fate.
But within the very political culture that inculcates this set of feelings
about judges, there is a countercurrent, a worm in the apple, a trahison des
clercs, a subversive or "nihilistic" doctrine aiming to delegitimate judges,
dispel their aura. And then there is a defense, a counter to the critique.
This book is part of the critique, in dialogue with the defense.
Because judges operate under a norm of fidelity to the materials, it is a
fault or a sin or a breach of contract for them to adopt the attitude of
"writing on a clean slate." This distinction between attitudes retains its
importance even though no one ever writes on a clean slate. It seems likely
that judges who operate under a norm of interpretive fidelity will make,
in many and important cases, different rules of law than would judges who
did not see themselves as constrained in this way, and will make different
rules than they would make as legislators.
But my thesis is that some part of judicial law making in adjudication
is best described as ideological choice carried on in a discourse with a
strong convention denying choice, and carried on by actors many of whom
are in bad faith. What difference does it make that so much of our law
making is made under these conditions rather than under those of some
more transparent alternative?
My idea is that real experiences of constraint, represented (by song and
story) in culture, legitimate and reinforce judicial authority in law-making
situations where the imagery of constraint gets at only part of what is
going on. In other words, one of the consequences of the reality of con-
straint is the mystification of choice, controversy, and ideology in adju-
dication, of situations in which constraint is only part of the story.
In Western Europe, including Britain, the Judge is a far less potent
figure than in the United States. His (or her) resonance, mythic and daily
companionship, and charismatic power are real but notably less than here.
But there is a paradox in the comparison. On the one hand, Europeans live
with something much closer to legislative supremacy than Americans, and
this seems to undermine the figure of the Judge, to make him less like
the Father and more like an agent. On the other, the subordination of the
 Introduction 5

judge seems to function to sustain rather than undermine the power of an

hypostasized image of the law.
Subversive doctrine has progressed less far, and perhaps as a consequence
the subordinated judge can function in politics as a criminal prosecutor
with a kind of mystified authority that is hard to imagine here. There is
nothing natural or inevitable about the quantum here or there, and at the
same time we have no simple explanation of the complicated cultural
difference. But that the difference exists is an invitation to speculate about
the way in which the factors that are common or not common in the
cultures play within the judicial persona.

Critical social theory, leftism, modernism, postmodernism

This will be an exercise in a particular kind of social theory. lt is descrip-
tive, one might say hypothetico-descriptive. lt tries to describe a large
hunk of social life, without respecting social science disciplinary bound-
aries. lt psychologizes social phenomena and interprets psychological phe-
nomena sociologically. The perspective is unrelentingly "critical," both in
the sense of attacking existing social and cultural arrangements and in the
sense of internal critique of texts and practices. Some recent practitioners,
obviously at a much more ambitious level than that here, are Jean-Paul
Sartre,' Herbert Marcuse,2 and Michel Foucauk.3
The sensitive reader will detect two tensions in my attempt to perform
in this genre. First, while my presentation certainly falls recognizably
within the tradition and deploys most of its familiar categories, it is a
severely chastened version. My focus includes only a fraction of the totality
at which the masters aimed. The elements from which I construct my
scheme include ideology and legitimation, but in mundane forms: Ameri-
can liberalism and conservatism, reinforcing the status quo rather than
"capitalism." My conclusions are only hypotheses, and even if all proved
correct they would be neither strikingly counterintuitive nor of obvious
use.
In part, this modesty is the consequence of the extensive debate between
the proponents of the critical project and the proponents of Liberalism
(which I capitalize to indicate that I mean to indicate the larger worldview
that includes both American conservatism and American liberalism, both
discussed at length in Chapter 3). As in any debate, I have tried to defuse
or evade what seem the most effective objections from the traditional ad-
6 introdllction

versary, and stolen techniques and characteristic ways of talking whenever

they suit my rhetorical purposes. I grew up in the atmosphere of American
progressive pragmatism and find it difficult to take either the claims or
the methods of the Continental critics at face value. I'm happy to moderate
them as long as I don't have to abandon them altogether.
Second, and more serious, the theory of the consequences of adjudica-
tion, and critical legal studies in general, seem to exist at an uneasy junc-
ture of two distinct, sometimes complementary and sometimes conflicting
enterprises, which I will call, for the duration, the left and the modernist/
postmodernist projects. I use the word "project" here as a term of art, a
term of art that is also a fudge.
A project is a continuous goal-oriented practical activity based on an
analysis of some kind (with a textual and oral tradition), but the goals and
the analysis are not necessarily internally coherent or consistent over time.
It is a collective effort, but all the players can change over time, and people
at any given moment can be part of it without subscribing to or even
being interested in anything like all its precepts and practical activities.
The situated practice part has as much influence on the theory part as
vice versa, but the two never fully conform to one another. It isn't a project
unless people see it as such, but the way they see it doesn't exhaust what
outsiders can say about it. Liberalism and conservatism are "projects of
ideological intelligentsias," and so are modernism/postmodernism, leftism,
and critical social theory.
The goals of the left project are to change the existing system of social
hierarchy, including its class, racial, and gender dimensions, in the direc-
tion of greater equality and greater participation in public and private
government. The analysis includes a critique of the injustice and oppres-
siveness of current arrangements, a utopian part, and a positive theory of
how things got so bad and why they stay that way. The practical activities
cover the range from very cloistered intellectual work, through partici-
pation in electoral or administrative processes, to the micropolitics of or-
ganizing and the micropolitics of family life.
The left project overlapsthat is, is in part the same thing as and in
part different fromthe liberal and conservative projects I describe in
Chapter 3, as well as the "radical" projects of Marxist revolutionaries,
anarchists, black nationalists and radical integrationists, radical feminists,
and gay liberationists. Its relationship to each, and to similar others, is
contested, as is its very existence. One connecting thread is oppositionism,
which is important to leftism in a way it is only sometimes important to
 Introduction 7

Liberalism and Marxism. Another is universalism, which differentiates it

from the political movements based on identity. I don't think it important
for my purposes to try for a tight definition.
But I will try to make myself more intelligible through a few hints
about my personal relationship to the enterprise, meaning to situate myself
among the more or less familiar leftist types or characters. My political
identity has changed a number of times, but it emerged or was induced
in adolescence in the experience of listening to stories of other people's op-
pression, stories to be sympathized with and outraged about, with a sense
of guilt, but without implications for action. Direct experiences of op-
pression occurred in the family (no sisters), a progressive elementary school,
a boarding school, and the neighborhood. In school, there was generational
conflict, tyranny within small groups of boys, and battles/seductions of the
sexes. In the neighborhood, the basic paradox was the reversal of class
hierarchy: lower-middle- and working-class white Catholic kids oppressed
upper-middle-class white Protestants and Jews.
The oppression that happened to other people in the public and eco-
nomic spheres was theorized along a liberal/conservative axis. McCarthyites
oppressed communists (the most "like us" of victim groups); Southern
whites oppressed blacks; communists oppressed liberals and everyone else
in the Soviet Bloc. Nearer to home, blacks and working-class people we
knew or almost knew deserved unlimited sympathy and unquestioning
respect because their lives were harder than ours and because many people
other than ourselves were prejudiced against them.
Oppression in daily life occurred along confusingly cross-cutting,
largely untheorized generational, gender, and neighborhood class axes. The
genteel progressive tradition seemed more a cultural and class attitude,
the creation and possession of a fraction of the intelligentsia, than a pro-
gram (say of the Adlai Stevenson wing of the Democratic Party).
Modernism/postmodernism (mpm), a no less contested concept, is a
project with the goal of achieving transcendent aesthetic/emotional/intel-
lectual experiences at the margins of or in the interstices of a disrupted
rational grid. The practical activity of mpm centers on the artifact, some-
thing made or performed (could be high art, could be the most mundane
object, could be the deconstruction of a text, could be the orchestration of
dinner).
Making and appreciating artifacts are two paths toward transcendent
experience, but they regularly upset the theory of the experience. The
analytics, which in modernism are always ex post, are incorporated into
8 Introduction

the performance by postmodernists and emphasize the omnipresence of

repressed or denied "primal forces" or "dangerous supplements" and the
plasticity of formal media that presuppose that they are not plastic.
Mpm overlaps (both includes and doesn't include) therapeutic ideology;
avant garde movements within modern literature, painting, music, dance,
and so on; French poststructuralism; literary theory; and many others.
Women, people of color, and gays have been numerous in the personnel
of mpm. It shares with leftism the unifying trait of oppositionism but
directed at "official" or "bourgeois" culture, "phallogocentrism," and ra-
tionalism generally, rather than at the political, social, and economic status
quo. Another unifying thread is the attitude of "postness," which I render
prosaically as "loss of faith," toward the rationalizing, universalizing claims
and aspirations of modern elites, whether left or right, personal or political,
intellectual or practical.
I will try later to distinguish this modernism from a number of others.
But an autobiographical snippet may clarify my usage. My parents social-
ized me into the tradition of revolt against bourgeois repression and into
the cult of formal innovation, rather than into the tradition of political
radicalism. The keys were yearning . . . originality . . . the artist. Origi-
nality meant refusal of the claims of convention and group life, and there-
fore loneliness (alienation). Education meant learning to reject bourgeois
essences like "individual," "man," "nation," "class," "race," "family," even
or especially "humanity." E. M. Forster's two aphorisms"Only connect,"
and "If I had to choose between betraying my country and betraying my
friend, I hope I should have the guts to betray my country"say it all, as
long as we are willing to turn them back against "connect" and "friend."
The critique of bourgeois life extended to radical politics. There was a
strand of dandyism, aestheticismand political quietism. Art ¡s compro-
mised and interstitial, as well as oppositional and contemptuous, with
respect to the bourgeoisie. Modernists broke with the revolutionary and
communist traditions because the leftists turned out to be hyperbourgeois
in cultural matters (socialist realism, revolutionary puritanism). They
turned out to hate both the anarchic primal unclerforces and the formal
play of critique, experiment, and innovation.

Critical legal studies

I have pursued my own version of a left/mpm project in the context of
American critical legal studies (cis), which I'd better describe briefly here.
 introduction 9

Cls has existed for me in four quite distinct modes. First, there was once
a "movement" called cts; there still exist a cts "school" and a 'theory of
law" called cts; and there is from time to time a media "factoid" called cis.
By the "movement" I mean a "project" in just the sense I described
abovea goal-oriented practical activity of a loosely identifiable group
carried out in light of an analysis contained in a literature of shifting
content. The people in the cls project were overwhelmingly legal academ-
ics; the goals were contested within the group, but my version was that
we were trying to create a left legal academic intelligentsia as a new social
grouping that would influence both its own workplaces and the general
political culture.
Two practical activities were reforming law faculties, in a left/mpm
direction, and creating a legal academic literature that would develop left
ideas within legal scholarship. Cts was a movement rather than just a
project because the ideas of "change," "growth," and "opposition" were
built into it, in the sense of being conscious collective purposes. A third
practical activity was "building the movement" by recruiting new people,
doing public relations, and developing relationships on the inside. The
social/political/intellectual network that "was" cls in the late i 970S and
early 1980s came apart in the late 19805, for reasons I have tried to describe
elsewhere (including discipline and seduction by the mainstream, gender
and race politics, intergenerational tensions, the advent of postmodernism,
and, doubtless, failures of nerve and leadership).4 But there are various
successor networks that are as active as ever.
Cts as a school of thought is like the movement in that it is a project,
but it is the strictly academic project of developing a network of writers
and teachers who share a set of ideas, rather than the academic/political
project of transforming society by transforming legal education. The mem-
bers of the school share the goal of expanding its membership and influ-
ence, and they critique mainstream legal scholarship more or less aggres-
sively, but they do so without trying to challenge the rules of the game or
the balance of power in their institutions.
The social organization of the school is based on teacher-student and
mentor-mentee relations. Characteristic activities include recruiting and
then helping to advance careers to build the school, the organization of
scholarly events where the far-flung members of the network can exchange
ideas and build collegial relationships, and "representing" cts on academic
occasions when it is seemly that the different schools established in legal
thought should all be present.
 io Introduction

The internal politics are generational and professional. They involve the
anxiety of influence as between and within generations, rivalry for the
ownership of ideas, and dramas of success and failure, heroism and oppor-
tunism, on the ladder of academic appointments. The school, unlike the
movement, is institutionalized at a small number of law faculties and
continues to reproduce itself socially and to develop intellectually over
time.
CIs as a theory of law exists in the very different form oía canon, a list
of texts that "are" cls, along with commentaries and critiques. You can be
the author of a canonical text without ever having participated in the
movement, and you can help define cls as a theory of law by producing an
interpretation that is influential mainly because it is discrediting. Like
many others, I tried to write articles that would constitute a cls canon and
that would "strengthen" it in its competitive relationship with other the-
ories. CIs as a theory of law is very much alive, "on the map" of generally
recognized rival theories, and it continues to develop as people write "cls
articles" and others comment on and critique "the" theory.
Now that a canon is constituted, I have to struggle like other authors
to get my current ideas included. Only texts and not people can be "in"
the canon, and a person's relationship to the historical movement or the
current successor networks doesn't guarantee, though, of course, it does
strongly affect his or her ability to get a new writing canonized. This book
is an attempt to add to the canon and thereby to change what the theory
"is," by developing it, strengthening it, and inflecting understanding of
it in the directions I favor. This implies critiquing and trying to displace
the many ideas found in canonical cls texts that I think are wrong.
Finally, cls existed recently, and may exist again, as a factoid, that is, as
an entity in the "spectacle" that the mass media provide for our amusement
and edification.' In the spectacle, cls "is" what journalists decide it is. A
network participant or theoretician of cls can affect what it is like and
what it does as a character in the spectacle only by meeting the rigid
criteria for what counts as a "story."
The elements in a story within the spectacle have to be both familiar
and simple, at the same time that the narrative as a whole has to be novel,
or at least interesting to the mass audience, and has to be edifying. So cls
could be "scanned" or "parsed" by the media as "sixties radicals at Harvard
in the eighties," for example, but not as "a few people interested in a
combination of New Left, neo-Marxist, cultural modernist, and feminist
ideas inspiring unease among liberal mainstream law professors" (not that
the latter would be "true").
 Introduction ij

The spectacle is a continuing current history of the world, and the

journalists who construct it obey narrative constraints. Once cis developed
a factoid or virtual existence in the spectacle, later accounts of cts "doings"
had to preserve the earlier character (journalists research only what earlier
journalists have said about cis), though in the narrative the character can
change ("cts has lost its combative edge with age," for example). I felt
quite a bit of pride when we early participants in the movement managed
to get into the "real world" of the spectacle. But I was surprised by how
little events on the screen corresponded to what I thought was happening
in the "real world" I had access to off-screen, and by the increasing diver-
gence as narrative constraint took hold. This just shows that I was myself
a typical member of the audience of the spectacle.

Leftism and modernism/postmodernism in c/s

The notions of leftism and mpm are helpful in understanding many of the
debates that occurred within cls when it was a live movement and that
still arise about cls understood as a school and a theory of law. Attacks
from the left, internal and external, often focus on its mpm quality. "Being
right" in the rationalist sense has been a crucial part of leftism, and the
mpm strand in the project is hostile to rightness in all its forms. Other
critiques of the project from the left come from the demand that theory
contribute to a particular model of action in the world, whereas the dan-
dyish, aestheticist, politically quietist mpm strands rebel against that im-
age.
Many critiques of the project from the other direction come from mpm
maximalismfrom the demand to be right in the total rejection of right-
ness, and thereby justify quietism. The reaction is against the project's
apparent demand for commitment. Other mpm criticisms (revalidation of the
subject, failure to see that everything is already within a structure) are also
provoked by its leftism. In mpm, there is often a sense that critique should
be aimed at achieving negative liberty, against various kinds of bourgeois
moralism and hypocrisy. The left strand in the project seems as much of
a threat as the Right.
The reason for the chastened character of current American critical social
theory may be that within it mpm seems to have a "hypercritical" direction
that threatens to annihilate the left strand. Within critical legal studies,
in particular, the critique of adjudication has figured in a development of
ideas that paradoxically reverses its original function, turning it from a
workhorse obviously useful against Liberal legalism into a Trojan horse.
 12 Introduction

Loosed from its host (adjudication), critique has spread through the proj-
ect, attacking all the "precritical" elements that seem necessary to give the
whole a left-wing character.
1 will try to show that there is still something both tenable and left

wing in critical legal theory, in spite of mpm critique, though the showing
requires abandoning or scaling down many left-tending claims that would
have seemed plausible a generation ago. The outcome, as I'm sure the
reader knows already, will be analysis that sometimes seems afraid of its
own implications. So, in Chapter 14, I'll let the left and mpm elements
clash head on. Working on the conflict between them involves changing
the traditional meanings of each, in the hope that the sacrifices will be
repaid in new energy (a typically modernist revivification project).

Subversion

This book is part of the long-running project of the critique of judges,

and for that reason has subversive aspirations. In the argument between
the critics and the defenders, most of what gets said presupposes a common
moral and intellectual framework between the disputants. Nonetheless, it
is not uncommon for defenders to charge critics with betrayal of the ideal
of the rule of law, or with betrayal of Reason itself. (We are no less nasty
from our side, as in the allegations of "apology" I will be leveling shortly.)
These charges have a particular quality, in legal academic debate, somewhat
like accusations of heresy among believers, with an undercurrent of dis-
approval, even condemnation, going well beyond the rather dry, even ab-
strusely intellectual issues that seemed to be all that was under discussion.6
I tend to be surprised, and my feelings are often hurt by this kind of
attack, when it is aimed at me personally, since I most of the time consider
myself to be at heart a "good boy," though rebellious and disrespectful,
and hope to persuade and even to impress, rather than to provoke moral
repulsion. Arguments come to the aid of wounded narcissism. One is that,
as a 1950S liberal, I abhor loyalty oaths and consider it a point of pride to
refuse them. Another is that the idea that some ideas have a bad tendency
is an idea with a bad tendency, to be rejected a priori.
Yet I do think that both the rule of law as an ideal and the ideal of
Reason are deeply implicated in these technical legal discussions. And I
am one of those who see the twentieth as a century of collective devotion
to the shedding of innocent blood, much inspired by evil, including evil
ideas. So here are some thoughts, first about the rule of law, and second
 Introduction 13

about Reason, or at least about "objectivity." In each case, I want to say

that, yes, I am a "believer" but that, in my versions, the ideals in question
have only a little of the radiant authority that Liberal theorists have hoped
for from them,

The ru/e of law

A legal system plays an important part in the systems of government,

production, and social order in general in democratic capitalist countries
like the United States, Belgium, the Czech Republic,Japan, and Australia.
But it doesn't play the same part in each of them, and it plays quite different
parts within each, according to the sector in question. The notion of the
rule of law that I "believe in," in the sense of supporting it as a matter of
political morality, is broad enough so that one can say that it prevails,
though honored sometimes only in the breach, in all of these countries.
This broad notion of the rule of law requires:
That there be justiciable legal restraints on what one private party can
do to another, and on what executive officers can do to private parties;
That judges understand themselves to be enjoined to enforce these re-
straints independently of the views of the executive and the legislature,
and of political parties;
That judges understand themselves to be bound by a norm of interpre-
rive fidelity to the body of legal materials that are relevant to whatever
dispute is before them.
Under the rule of law, citizens automatically have "rights," in the lim-
ited but important sense that they can appeal to judges against other
private parties and against executive officers when they feel that they have
been injured in violation of legal norms. Rights, in this sense, are the
logical corollaries of justiciable restraints on private and public action, and
they "exist," even if there is no Bill of Rights, no institution of judicial
review of legislation, and no legal recognition of the particular rights that
particular countries consider "fundamental."
In other words, this is a procedural or institutional definition of the rule
of law, rather than a definition that builds in or entails a particular sub-
stantive legal regime. I am happy to raise my right hand and swear that
I think that such a procedural/institutional arrangement is a good thing,
by comparison with the arrangement that has prevailed in modern capi-
talist, fascist, or communist regimes without meaningful separation of
14 Introduction

governmental powers, or without meaningful separation between govern-

mental and political party power, or without an effective norm of inter-
pretive fidelity in judging.
But I have two reservations. First, I don't think the rule of law is an
absolute value. It's not an implication of a foundational notion of some
kind, but an instrumental thing. Its value depends on a context of other
modern Western Liberal institutions, so it doesn't make sense to prescribe
it for another kind of society without knowing a lot about it. It sometimes
has to be compromised with ideas like emergency, national security, or
just "substantial justice."
Second, the institution has had and still hasnot as a matter of its
internal logic, but as a matter of its contingent evolution in Western
society and culturea serious down side, the side I will be exploring in
this book. In all the Western systems, the discourse that judges, legal
authorities, and political theorists use to legitimate the application of state
power denies (suppresses, mystifies, distorts, conceals, evades) two key phe-
nomena: (a) the degree to which the settled rules (whether contained in a
Code or in common law) structure public and private life so as to empower
some groups at the expense of others, and in general function to reproduce
the systems of hierarchy that characterize the society in question; (b) the
degree ro which the system of legal rules contains gaps, conflicts, and
ambiguities that get resolved by judges pursuing conscious, half-conscious,
or unconscious ideological projects with respect to these issues of hierarchy.
These alleged defects of the rule of law as practiced in the West are
not, I repeat, inherent in the procedural/institutional definition given
above. We might have the benefits of judicialiry without its current draw-
backs. The notion of "counterfactual legislative supremacy," a situation in
which judges would make less law and legislatures more, will allow us to
explore the down side of the rule of law as we currently practice it, without
calling into question (or for that matter further discussing) its abiding
virtues.

Objeaivity

My project is to represent adjudication as an aspect of what one might call

"socio-legality," using the conceptual media made available by diverse
methodologies. I want the representation to attract an audience and to
have a left/mpm political and cultural impact on it. There is a theory of
objectivity, or of Reason, if you will, that's implicit in these buzz words.
 Introduction i 5

Socio-legality. This is the chaotic mass of data or inputs or phenomena

that I register (observe, collect, measure) and then reconfigure as parts of
my representation of adjudication. It includes legal rules, legal discourse,
the behaviors of legal institutional actors, and social behavior in general
that seems significantly impacted by or to have a significant impact on the
phenomenon of adjudicationin short just about anything is grist for my
mill.
My representation of adjudication is "a very selective picture." This
means that I've experienced lots of choice in deciding about what to in-
clude and how to include it. It means I look for what I want to find and
keep at it until I find it, often changing my criteria of what it is that Im
looking for when what I find initially doesn't fit the picture I'm trying to
make.
But socio-legality also has, some of the time, in particular aspects, the
quality of the objective. When I've registered something, sometimes I can't
help seeing it in a particular way, even if I don't want to see it that way.
What I register as I search can force changes in the representation. The
data don't support the hypothesis. ¡ just can't find what I thought would
be there. The representation doesn't ring true. Things happen that disprove
my theory. Other people come up with representations that "fit the facts
better" or just come up with lots of facts that destabilize my representation.
The conceptual media made available by methodologies. This book is meth-
odologically eclectic. It uses concepts, techniques, and models of perfor-
mance drawn from technical legal analysis, jurisprudence, neo-Marxism,
Weberian sociology, semiotics and structuralism, psychoanalysis, histori-
cist narration, Lewinian field theory, phenomenology, modernist fiction,
and deconstruction.
I have chosen eclecticism in part out of the conviction that each method
that I know at all how to use, and methodology in general, have been
subjected to a critique that undermines any claim their practitioners might
have to get at the truth of the objects they represent. So I don't believe
that my object (adjudication) corresponds, in fact, only and truly, to a
representation made in the "correct" medium. It will transcend or surpass
my representation, and indeed my understanding, no matter what
method(s) I adopt, and that's fine with me. Nevertheless, I don't think the
critique of methodology has come close to invalidating any of my own
collection of methods in a way that would establish that what I do with
them is necessarily a lie.
Second, eclecticism expresses modernist commitment to representation
 Introduction

as a two-way streetI want to get at all of my object, to appropriate it,

eat it, incorporate it into my artifact so it can do its work on my audience.
But I don't want to annihilate its exteriority by reducing it to what can
be represented in any particular method.
Third, I think eclecticism is politically correct. Many believe that each
methodology has a particular political slant built into it (deconstruction
is demobilizing, for example), but I don't agree. I think I can best pursue
my political goals sometimes through one and sometimes through another,
and that others can, too. Using supposedly politically incorrect methods
in ways that show they can be politically correct is a de-reifying move,
increasing practical freedom of action but also affirming freedom in gen-
eral.
A final reason for eclecticism is the iron law of methodology, which I
will try to state in a moment.
Representations. A representation of adjudication is a text that describes
or analyzes or models a part of socio-legality. It makes sense to me to say
that adjudication exists as an objective reality "out there," in the sense
described above: "it" is something that I, as the knowing and representing
subject, am at the mercy of. It makes sense to criticize particular repre-
sentations (other peopl&s) on the grounds that they are false. It doesn't
make sense to me to speak of the representation as objective.
My notion is that the most you can hope for is that your representation
wont suffer the fate of falsification. That happens through external or
internal critique. Your or someone else's references to the object, behind
the back olor around the representation, produce the experience of"doesnt
fit," "won't budge," "there was not in fact any train scheduled to leave at
that hour," that I discussed earlier. Or, the internal logic of the model is
contradictory. But that your representation doesn't get falsified doesn't
mean that it is "true" or that it won't soon be falsified in spite of your best
efforts and good faith.
Given the critique of each methodology that I use, and of methodology
in general, there is no other available meaning for objectivity than "a
representation that hasn't been falsified (yet)." At least that's the conclusion
I draw from the critiques.
What the audience can hope for from (as yet) unfalsified socio-legal
studies is not objectivity, but a "hit," generated by putting ourselves in
relation to the trio of an object (such as adjudication), an author, and a
representation by the author of the object. The goal of modernist rep-
resentation is to produce an artifact, a representation that can pro-
 introduction 17

duce ecstasy in, inform, and perhaps change the audience without having
to be accepted as true in the mirror sense, indeed often by playing on the
limits of representation (that is, of methodology).
The representation as artifact in this modernist mode presupposes that
the audience and the object have their own relationshipthe audience has
its own access to the object (and maybe vice versa, if the object is someone's
behavior). The audience is trying to increase its own understanding, rather
than depending on the representation for everything. It's all in the trian-
gulation.
Contrast the traveler who wants to know when the train will leave and
has no way of knowing except through a schedule. The traveler cares only
whether the representation is true or false. The audience for the artifact,
by contrast, has its own version of the object to check against the repre-
sentation and, if the artifact "works" (big iO, understands itself to gain
rather than lose by radical disconrinuities as well as by striking similarities
between the two. (The artifact is in a metonymic relation to the object.)
Political/cultural impacts. My project for changing the world through
artifact production is left wing and culturally modernist/postmodernist. I
work on the assumption that the things that seem wrong and dead about
the social world are that way in spite of people's deep longing for justice
and liveliness. Also that belief systems constitute all of us in ways incon-
sistent with our own longings and impede our efforts to realize justice and
liveliness by falsely making it appear that they can't be realized or that
they have already been realized. My idea is to participate with others in
producing representations that will be inconsistent with these "legitimat-
ing" but also "constitutive" belief systems.
The test of this practice is whether the representations get appreciated
by an audience that incorporates them into left/mpm political and cul-
tural projects. This goal has a massive impact on the choice of what to
represent and how to do it, including on the choice of methodology. The
reason for this is the iron law of methodology: The more "hard" (capable of
being counted, highly verifiable and replicable, intersubjectively "valid"),
the more "nan'ow" (partial, fragmentary, meaningless). The things that in-
terest me are "broad," like justice and liveliness, so they can be grasped
in their totality only by means that are "soft" (contestable, subjective,
vague).
I think the way to respond to this dilemma is by using che hard/narrow
methods of representation strategically, in the interest of making the soft/
broad methods plausible, and in order to poke threatening holes in what
 Introduction

seem to me false as well as legitimating and deadening representations of

others. We don't believe only statistics, and we don't believe only prose
that sings totality. Why not use both?
To my mind, none of this "undermines objectivity." The object quality
of that which is represented is accessible to the audience, and the repre-
sentation works only to the extent that the audience can hold it and the
object and the author in mind together without experiencing the repre-
sentation as falsified or inert. The artifact is effective not because it is
constructed following procedures that guarantee that it represents objec-
tively (though much of it may be empirical or deductive), but because by
juxtaposing the representation, the author, and the object the audience
experiences a "revelation."

The model of alienated powers

It would be nice to begin (at last!) with a simple revelatory model along
the following lines. Imagine that all questions of law either have or do not
have a "determinate correct answer' when approached as questions of in-
terpretation. A question that does not have a determinate answer will be
decided, but the best way ro understand the outcome is as a choice by the
judge between rival ideological projects rather than between better and
worse interpretations. Then imagine that the participants in the system
believe in the naive rule-of-law theory, according to which judges apply
but do not make law.
What would be nice about this way of looking at it is that it would fit
in with the critical project of Ludwig Feuerbach7 and Karl Marx.8 In such
a critical project, we begin with supposedly conclusive demonstrations of
the internal incoherence of arguments for the existence of an omnipotent
God, or for the claim that the capitalist system operates through inexorable
laws to reward each participant according to his or her social contribution.
But people believe the oppositethat an omnipotent God does exist and
that the market distributes according to contributions. In each case, there
is a false appearance of determinacy in the social world, and the false
determinacy hides a true determination by human agency. In other words,
people "alienate their powers."
One then analyzes the consequences of belief in the false appearance of
determinacy secure in the knowledge that whatever may be going on it is
not what the participants think it is. The next move is to show that things
are really determined by something else. Thus determination by God's will
 Introdkclioa ¡9

hides determination by, say, the need for food; determination by the market
hides determination by class power; determination by law hides deter-
mination by, say, ideology.
The illusion, and the alienation of human powers, contribute to or in-
fluence or partly cause the patterns of social life rather than just mystifying
them. The claim of the classical theories is that people would be less likely
to accept the patterns if they understood that the appearance of determi-
nation by God's will or the market is just a mask for determination by
human beings like themselves. Revealing that the apparent determination
is an illusion or fraud, and that an alternative determination (the need for
food, the logic of capital) is what is really going on, ipso facto discredits
the way things are.
The representation thus includes not only an alternative analysis of what
is really going on but also an appeal to an ethic that discredits what is
really going on. Communism as an affirmative ideal was cast as an appli-
cation of the reigning Judeo-Christian ethic to the world as it looked when
the precepts of classical political economy had been revealed as fraudulent.
The ethical move is thus a second determination: it correctly applies to
the world rendered transparent the principles that had functioned, in the
mystified world where people alienate their powers, as apology.
That left-wing project is the model for this one, in the following sense.
I argue that ideology influences adjudication, by structuring legal dis-
course and through strategic choice in interpretation. I argue that the
denial of the presence of ideology in adjudication leads to political results
different from those that would occur in a situation of transparency. And
I suggest that it would be in some sense "better" to determine our fates
without alienating our powers.
But my version of the critical project is modified in ways intended to
deprive it of pretensions to truth. The first modification is to get rid of
the idea that there is an objective boundary line we can draw between
questions of law that have correct determinate answers and questions that
can be resolved only through ideological choice. The second is to propose
an understanding of the rules that dispose ideological stakes as products
of the interaction between the legal materials, understood as a constraining
medium, and the ideological projects of judges. The rule choices that
emerge from the interaction should be understood neither as simply the
implications of authority nor as the implications of the ideological projects,
but as a compromise.
The third is to reject the idea of simple illusion, or false consciousness,
20 Introduction

in favor of the more complex idea that judges are in bad faith. They "deny"
their ideological projects rather than either putting them aside or lying
about them, so that there is a discontinuity between two levels of their
consciousness rather than between truth and illusion. The fourth is to
explore the ideological consequences of law making through adjudication
in bad faith, without proposing either a substitute determination of what
is 'really" going on or an ethical determination of how we must respond
to the revelation of error.
 PART ONE

Ideological Stakes in Adjudication

 2

The Distinction between Adjudication

and Legislation

this chapter takes up one of the "great dichotomies"' of political theory

in general and legal theory in particular, that between adjudication and
legislation. ¡ have already suggested that the ideological element in ad-
judication is "denied" by many, and that judges operate in "bad faith."
The denial is in part a response to the critique of judging, the "viral"
element in American legal thought. Jurisprudence theorizes denial by ex-
plaining how adjudication can be nonideological, and it is now time to
examine the variety of ways in which it does this.
It is important to distinguish at the outset between denying the ideo-
logical element in judging and denying that judges make decisions that
are important to ideological intelligentsias. I don't think many people
would deny that liberals and conservatives care about what rules the U.S.
Supreme Court adopts about abortion, and care in a way that is well de-
scribed as ideologically motivated. I don't think many people would deny
that ideological intelligentsias care ideologically about which rule courts
adopt when they are working out the details of products liability.
But it is a different matter to claim that the discursive process by which
the rules are made, here appellate adjudication, has ideological content and
significance in its own right. It is different because many liberals and
conservatives believe, some of the time, to some extent, usually in bad
faith, that although there are ideological stakes in rule definition, the
discursive process that disposes the stakes by choosing the rule (appellate
decision) is not or ought not to be ideological. Judges, moreover, always
claim that they themselves are proceeding according to a discursive pro-
cedure that positively excludes ideology, though of course it is common-
place for them to accuse other judges of failing to make this exclusion.

23
24 IDEOLOGICAL STAKES IN ADJUDICATION

There are two quite different conventional ways to state the idea that
appellate court discursive practices for choosing rules do or should exclude
ideology. These will figure heavily in the future discussion. One is to say
that the rule-making process is or ought to be "objective"; the other is to
say, much more modestly, that it ought not to be "personal."
Within legal culture, since the late nineteenth century, there has been
debate about the objectivity of the procedures that judges use in choosing
rules of law. For lawyers, J assert, the main thing at stake in these discus-
sions has been whether or not judges are, or have to be or ought to be,
ideological actors. To say that judicial law making produces rule choices
that are objectively correct s simply to say that it produces rule choices
that cannot be attributed to the ideological sympathies of the judges. It
is sometimes asserted that there are other stakes, like the nonpolitical value
of certainty as a facilitator of legal transactions, but these turn out to be
makeweights in the legal debate, though occasionally appealing to out-
siders.
An amusing sideshow to this debate has been staged by philosophers
(of many persuasions and ideologies) who have been interested in objec-
tivity "in general" and who address the question in law as an analogue to
the question as ir arises elsewhere. Often, they haven't understood the
lawyers' stakes, and so propose that law is objective according to an account
of objectivity that doesn't respond to the issue of the preclusion of ideo-
logical determination, thinking they are thereby clarifying things for us
philosophical illiterates! Because they miss the point, these interventions
don't usually get incorporated into the lawyers' debate.
Stanley Fish made the opposite mistake in his debate with Ronald
Dworkin.3 He seemed to think it should comfort us that, though law is
certainly not objective, there is no way for judges to escape control by
their context. But the mode of "always already constrained" that he pro-
posed was patently a constraint that couldn't exclude ideology.
The parallel debate about whether legal decision making is not or ought
not to be "personal" has the same stakes. Nonlawyers sometimes interpret
the exclusion of the personal as aimed at corruption, or at the random
preferences of judges, say, for litigants wearing blue shirts. But the only
real issue is the personal understood as the ideological. The following
passage is highly typical, not least in its equivocation as to whether judges
"really do not" decide on the basis of personal values, or are only "deterred"
from so doing, so that they can make "massive doctrinal shifts" only
"rarely."
 The Distinction between Adjudication and Legislation 25

(Tihe fact that judges are protected in significant ways from the pop-
ular will . . . makeEs) it inappropriate for them to reach outcomes on
the basis of their personal (and possibly idiosyncratic) values. Despite
all the palaver that this is what judges really do, the truth is that they
really do no:. The institutional constraints I have already mentioned-
combined with the requirement of reasoned decision and a moral ob-
Ligation of candorare checks that deter the imposition of judges' per-
sonal values and that confine the courts to "molecular motions." Mas-
sive doctrinal shifts are rare. When they do occur, they are usually a long
time building, and, if they touch sensitive moral nerves, are at least as
long a time commanding the general acceptance needed to make them
effective.4

I want to state forcefully that at the present time in American legal

culture this version of adjudication (David Shapiro's) is not "mainstream"
because there isn't a mainstream view of the issue. Lawyers vary from
perfect cynicism to perfect late-nineteenth-century Langdellianism, with
a surprisingly large and idiosyncratic range of variations in between. Legal
academics are the same. Legal theorists, who are often professionally con-
cerned with the issue, unanimously reject "nihilism" (whatever that means)
but equally unanimously reject any kind of "formalism.' Their range of
intermediate variants is more organized into schooLs than the random var-
iants of lawyers but no less baroque.
Shapiro's article does represent an orthodoxy, a view that was once
merely common sense but that has become tradition, embattled but
faithful to first principles amidst a sea of heretics, backsliders, and
cranks.
I will not be arguing about whether judges do or should reach out-
comes (make rules) on the basis of their personal or idiosyncratic values,
if we take personal in the sense of "preference between chocolate and va-
nilla ice cream," or preference for litigants wearing blue shirts or carrying
bribes. What I am interested in is the way in which judges' ideological
commitments (including the commitment not to be ideological) enter
into rule making, and the consequences of their presence, if they are pres-
ent, under erasure or denial. It seems clear to me that sometimes judges
choose ruLes on the basis of deduction from other rules, and that some-
times they are (I'm happy to say "improperly") influenced by truly idio-
syncratic factors. But ideological orientation, in the conception ¡ will de-
velop at some length in the next chapter, is never something "merely
personal
26 IDEOLOGICAL STAKES IN ADJUDICATION

Adjudication versus legislation

The distinction between adjudication and legislation is closely related to

a number of others, and it is impossible to explain it without reference to
them. They include the distinctions between a court and a legislature,
between applying and making law, between law and politics, between
objective and subjective questions, between rights and powers, and be-
tween professionally and electorally accountable officials. In one way of
looking at it, adjudication is what courts do and legislation is what leg-
islatures do. In this version, the distinction is parasitic on the prior one
between the two institutions of court and legislature and is merely de-
scriptive. Whatever courts do is adjudication; whatever legislatures do is
legislation.
It is much more common, however, to see the two as methods of decision
that might or might not characterize any given activity of a court or a
legislature. In the oldest and simplest version of this view, though not in
the current understanding of lawyers, what legislatures do when they leg-
islare is make law, and what courts do when they adjudicate is apply law
to facts. But it is perfectly possible for a legislature to adjudicate and for
a court to legislate. In this version of the distinction, adjudication and
legislation are mutually exclusive conceptsan actor cannot be doing both
at the same time, deciding a question in one way precludes deciding it in
the other, applying existing law to existing facts is different from making
new law to apply to future (or past) facts.
The distinction remains sharp even if we recognize that application will
often require reformulation of the rule before it can be applied to the facts.
We are unsure at first blush how to apply the rule to the facts; we resolve
the question by appealing to the definitions of the words. As long as the
process of reformulation is understood to be "semantic," or "deductive,"
in the sense of looking for the "meaning" of the words that compose the
rule to be applied, it is not, in this understanding, rule making, even if
the case is a hard one. "Questions of law," as conventionally distinguished
from "questions oí fact," fall within the judge's province, in this view,
because they involve objective questions of meaning rather than the sub-
jective judgments that are required when we make the political choice to
apply one rule or another to a given fact situation.
The distinction between adjudication and legislation has often been a
building block in the larger normative theory of Liberalism (capitalized
to distinguish it from "liberalism," the political ideology that is opposed
 The Distinction between Adjudication and Legislation 27

to conservatism). By "Liberalism" I mean belief in individual rights, ma-

jority rule, and the rule of law. Liberal theories of the rule of law require
the separation of powers as one means to protect individual rights in a
regime of majority rule. The separation between legislative and judicial
institutions corresponds exactly to the distinction between legislation and
adjudication as methods of decision. Legislatures should legislate and only
legislate; courts should adjudicate and only adjudicate, even though they
may in fact violate these role constraints.
In this normative view, the law-making process requires value judg-
ments, which are inescapably subjective, and therefore political. Because
law making is political, it should be done by elected officials (possibly
subject to constraints imposed by the people as whole through constitu-
tional law making), operating under a norm of accountability to their
constituents.
Conversely, legislatures should not adjudicate. Adjudication (law ap-
plication) determines the rights of the parties to disputes. Liberals of both
the positivist and natural rights schools agree that the rule of law means
that the parties have a right to determination of their rights, however
established, by a process that is not tainted by the subjective political
preferences of the majority. As I noted above, these writers are concerned
not so much with the eccentric, the truly "personal," as with the ideolog-
ical, what James Madison called "faction."
Adjudication, in the old view, need not be political, because it involves
questions of meaning and questions of fact that are independent of value
judgments (objective). Since the determination of questions of right can
be done objectively, rather than ideologically, it seems obvious that it
should be. Therefore it should be entrusted to trained professionals oper-
ating under a norm of "independent" fidelity to law. Courts constituted to
perform this function should not legislate because they are not elected.
Within this normative vision, the phrase "judicial legislation" has an
invariably negative normative meaning, as in this sentence from a sophis-
ticated journalist commentator on a Supreme Court nominee: 'Although
Breyer's instincts are moderate rather than activist, his pragmatism raises
questions about judicial legislation that might be useful to explore." This
theory takes the rule of law to mean that the exercise of force or violence
against citizens must be justified in two ways: first, by appeal to a norm
produced by the democratic decision-making process that is embodied in
the legislature or the process of constitution making; second, by the ap-
plication of the norm to the facts in a process that is independent of the
28 IDEOLOGICAL STAKES IN ADJUDICATION

very decision process that generated it. Judicial legislation is problematic

because it violates the first requirement, just as the trial of cases in the
legislature would violate the second.
This version of the distinction between legislation and adjudication and
of its place in Liberal theory plays a substantial role in American popular
political culture, but it has little credence among the intelligentsia and
even less in the specifically legal intelligentsia. The reason is that it seems
implausible to describe the actual activity of judges as nothing more than
applying law, at least as the notion of law application is generally under-
stood.
Of course, judges do apply law all the time, in the sense of taking a
norm that everyone involved understands to be "valid" and asking whether
its factual predicates have been proved. But it seems equally obvious that
judges constantly have to do something better described as making than
as applying law. At a minimum, judges often have the job of resolving
gaps, conflicts, or ambiguities in the system of legal norms. In some cases,
no amount of reformulation based on the underlying definitions of the
words composing the arguably applicable rules produces a deductively
valid resolution. When it is agreed that there is a gap, conflict, or ambi-
guity in this sense, then it is also agreed that the judge who resolves it
"makes" a new rule and then applies it to the facts, rather than merely
applying a preexisting rule.6
When identified with the contrast between law making and law appli-
cation, the legislation/adjudication dichotomy seems to admit of no middle
term. But as soon as we shift to this broader notion of legal interpretation,
it follows that adjudication involves both making and applying. But it
does not follow, and is controverted, that judicial law making must be or
is in fact "judicial legislation" and therefore abhorrent to the part of the
theory of the rule of law that requires a democratic (legislative) legiti-
mation for the use of force against the citizen.
American judges vigorously deny that what they do even in "hard cases"
has to be or is in fact judicial legislation, though they often concede that
they make law. They argue for particular rule choices in a rhetoric of
nonpolitical necessity. I think it fair to say, however, that their case-by-
case claims that they are constrained by the legal materials to reach results
to which their politics are irrelevant are not convincing.
First, it is a convention of judicial opinion writing, and a political
requirement of popular culture, that judges represent themselves as neutral
with respect to the content of the law they make. Second, any individual
 The Distinction between Adjudication and Legislation 29

judge making any particular rule has an interest, an interest in his or her
rule prevailing, in presenting the rule choice as not judicial legislation.
Third, many particular claims of legal necessity in judicial opinions are
unconvincing on their face, and therefore raise the question of what is
"really" determining the outcome.
In stark contrast with the view that judges present in their opinions,
the standard practice of sophisticated journalism treats judges, at least of
the Supreme Court, as political actors whose views and alignments can be
analyzed through the conventional vocabulary of politics. Indeed, as in the
following quotation, the journalistic treatment of the Court uses the lan-
guage of ideology with more confidence than would a parallel treatment
of legislative disputes, given the prevailing sense that straightforward left-
right divisions only partially describe legislative politics. Linda Green-
house is describing the 1993 Supreme Court term for the Sunday New
York Times "News of the Week in Review":

[Miany of the decisions [the justices) produced revealed deep divisions

and some bore the marks of raw ideological combat.
[T)he exchange . . . highlighted the Court's current dynamic:
Justices Thomas and Scalia at the extreme conservative end of the Court's
spectrum, and Justices Blackmun, Stevens, Souter and Ginsburg occu-
pying a place that, while certainly not classically liberal, can be defined
as liberal relative to where the Court is today
Justice Kennedy occupied the gravitational center of the Court.'

It is worth noting that in the only substantive argumentative exchange

she mentions, the "liberal" wing attacks the "conservatives" for making "a
'radical' attempt to argue policy rather than law." The judges, in other
words, attack one another for judicial legislation even as the commentators
tell the story in strict ideological terms. A week later, a Boston Globe jour-
nalist portrayed the "general ideological makeup" of the Court on a spec-
trum including the categories liberal, moderate liberal, moderate, mod-
erate conservative, and conservative, and predicted that Stephen Breyer
would be a moderate liberal.8
A large part of American legal academic work is concerned with whether
there is a politically legitimate method of judicial law making through
the interpretation of legal materialsin other words, a middle term be-
tween law application and judicial legislation. This literature is both de-
scriptive and normative. A good deal of it might be described as simul-
taneously reassuring and celebratory. It presents famous judges, for
30 IDEOLOGICAL STAKES iN ADJUDICATION

example, as paragons exactly because they manage to contribute mightily

to law (that is, make a lot of "good" law) without falling into the trap of
ideology. Here is John Noonan, a judge who was first a law professor,
reviewing, for the general intelligentsia readership of the New York Times
Book Review, a law professor's celebratory biography of Judge Learned
Hand:
The craftsman was committed ro neither a conservative nor a liberal
agenda, but to a creed of judicial restraint . . . reinforced by his own
experience of democracy. Judicial restraint was the watchword of liberals
when conservatives dominated the courts; it continued to be the watch-
word of judges like Hand and Felix Frankfurter even after liberals were
in judicial ascendancy. The result is that Hand's opinions do not wholly
please either left or right . . . Political correctness was not his concern.
He sought to produce the right decision.9

A few months later, Vincent Blasi, also a law professor, reviewed a bi-
ography of Justice Lewis Powell in exactly the same vein:
In an age that generated fierce pressures to interpret the Constitution to
serve one or another partisan agenda, Lewis Powell probably did as much
as anyone to keep alive the ideal of judicial independence. Few Justices
in history have succeeded so well at separating their political predilec-
tions from their judgments regarding what the Constitution means.
Justice Powell's performance disappointed many conservatives . . . Be-
cause his view prevailed in a large number of closely contested decisions,
Justice Powell's independence had a major impact on the development
of the law.'°
A letter writer was concerned that the review might mislead the "ed-
ucated layman" into thinking that "independence" was rare rather than
the rule on the Supreme Court, but agreed that Powell's "ability to place
the law ahead of any ideological or political considerations is what made
him a noteworthy jurist."

The jurisprudence of adjudication

Though in neither the reassuring nor the celebratory mode, this chapter
addresses the anxiety implicit in these reviewers' particular choice of praise.
If what makes a judge great is his ability to resist not only other people's
but also his own ideological predilections, then it seems to follow, as the
letter writer sees, that lesser judges dont manage this. In building their
 The Distinction between Adjudication and Legislation 3I

normative theories, legal philosophers take positions about what it is pos-

sible for judges to do and appeal constantly to ideas about what they do
in fact. In the process, they provide a typology of approaches to the ideo-
logical underside" of adjudication.
We can distinguish no fewer than five general strategies for dealing
with the problem. The first, associated with classical positivism through
H. L. A. Hart,'2 is to deny or at least to ignore the possibility ola middle
term, arguing that what is not law application is for all intents and pur-
poses judicial legislation. A basic problem with this approach is that there
is a large number of cases in which the judge at least reformulates the
existing rule of law.
Is it plausible that whenever the judge's reformulation is other than a
deduction from the "core meanings" of words in an earlier valid formula-
tion, we should understand him as behaving as he would if he were a
legislator No one interested in the political analysis of the content of the
legal system would adopt such a hypothesis. lt seems too obvious to argue
that the institutional contexts of adjudication and legislation are so dif-
ferent that identical ideological motives in judges and legislators will pro-
duce very different substantive rule-making outcomes. But the question
is, different in what way?'
The second position, which I associate with Hans Kelsen,'4 Roberto
Unger," Mark Tushner,'6 Gary Peller,'7 and James Boyle,IR collapses the
distinction between rule making and rule application by showing that rule
application cannot be insulated from "subjective" influence, including
ideological influence. It seems to follow a fortiori that the far less struc-
tured activity of resolving gaps, conflicts, and ambiguities is similarly
porous. There are a number of arguments as to why rule application "can-
not be objective," relying on linguistic philosophers as diverse as John
Locke, Ludwig Wittgenstein, Richard Rorty, and Jacques Derrida, but one
example will suffice here.
It is often asserted that "no rule can determine the scope of its own
application," meaning that applying, say, "close the door at five" will re-
quire judgments about whether particulars in the order of events corre-
spond or don't correspond to the concepts "close," "door," and "five." As a
logical matter, the basis for these judgments can't be found in the concepts
themselves. But there are no "objective" tests of correspondence outside
the text of the rule, once one agrees that language is not the mirror of
nature.
It is common to respond (as Owen Fiss'9 has) that when the rule applier
32 IDEOLOGICAL STAKES IN ADJUDICATION

acts, he does so according to something other than a deductive process,

relying on "practical reason," the consensus of the "interpretive commu-
nity," or whatever. The critics reply that whatever method one chooses as
a solution to the "application problem," that is, however one grounds rule
application, that method will not have the demonstrable or objective qual-
ity that would be necessary to guarantee that the decision maker's ideology
played no role in the choice of an outcome.2°
The collapse of even the hardest core of rule application into rule mak-
ing, and its consequent opening to ideological influence, were important
events in the general cultural contests about role constraint and about
"being right." But the collapsing strategy is less important to the enter-
prise we are pursuing herethat of trying to assess the particular character
of judicial as opposed to legislative law making.
lt is already widely recognized in our legal culture that judges make
law through legal interpretation. Moreover, it is obvious that in many or
most cases the application process is experienced by all involved not just
as unproblematic, but also as unproblematizable, no matter how clearly
nondeductive. And we have a choice in formulating norms between using
terms that will be "easy" ("you can vote at age 21") and those that will be
"hard" ("when you achieve good character") to apply. The experience of
core meanings survives the loss of its metaphysical grounding.2' Although
problematic cases of rule application remain common in spite of our best
efforts, they pose less of a problem for the claim of ideological neutrality
in adjudication than does the acknowledged openness of the interpretive
process.
Judges' choices among new rules proposed to resolve gaps, conflicts, and
ambiguities are contestable (and contested) within a distinct normative
discourse of statutory and constitutional interpretation, precedent, and
"policy." This discourse may sometimes falsely presuppose that whatever
rules judges adopt can be applied "neutrally," and it is certainly true that
how rules get applied is sometimes as important as what they "are." In a
common law, but not in a code system, when judges reformulate rules in
the process of applying them in particular cases, the reformulations become
part of the body of "sources" of law in later cases. Common lawyers inter-
ested in judicial law making have always been interested in this process
and in how we might compare it with the legislative process. Showing
that law is made even in the most routine application of rule to facts is
important, but it seems more important to try to figure out how the rules
get made in the first place.
The third position is that while there is no middle term, in the sense
 The Di.ctinction between Adjudication and Legislation 33

of a method distinct from both application and legislation, judicial law

making is nonetheless distinct from legislation because it is bounded in
its substance. A classic statement would be Oliver Wendell Holmes's: "I
recognize without hesitation that judges do and must legislate, but they
can do so only interstitially; they are confined from 'molar to molecular
motions.' "22 Another would be Felix Frankfurter's list of the doctrines that
confine constitutional adjudication and thereby restrain its political im-
pact (standing, case or controversy, political question doctrine).23 Yet an-
other would be Joseph Rais list of institutional constraints on adjudi-
cation.24
A solution of this kind accepts that what is not rule application is
methodologically indistinguishable from judicial legislation, and perhaps
acknowledges that the nondemocratic character of judging makes this
problematic. A further concession would be that the second-level rules
that confine judicial law making within a "sphere" are open to the same
critique as the judge's first-order rule making. In other words, what guar-
antees a nonideological distinction between "interstitial" and "macro" law
making, or between "political" and "judicial" questions? The minute the
judge is doing something more than applying (searching for the meaning
of) the rules that confine the scope of his legislative law making, he is
engaged in judicial legislation about the scope of judicial legislation.23
The fourth solution addresses this problem by proposing a genuine
middle term between law application and judicial legislation. This is the
method of "coherence" or "fit," through which the judge can make new
rules of law without consulting his own legislative preferences. I associate
this solution with the work of Benjamin Cardozo,26 Karl Llewellyn,27 Lon
Fuller,28 Henry Hart and Albert Sacks,29 Neil MacCormick,° J. M. Fin-
nis,3 and Ronald Dworkin.32 Fit or coherence rule making is distinct from
the method of developing the definitions of the words in legal rules as an
aid to applying them, because it is focused on the choice among different
rules proposed to resolve a gap, conflict, or ambiguity in the legal system
seen as an ensemble of rules. It is clear that the judge is making law. He
does so by treating the whole existing corpus of rules (rather than the
words of a particular rule) as the product of an implicit rational plan, and
asks which of the rules proposed best furthers that plan. If he employs the
method of coherence, he will make law that is not influenced by his per-
sonal convictions, simply because he will follow the rational plan even
when he doesn't agree with it.
The method of coherence permits the judge to do ideological work when
he furthers a particular legal regime by developing it in the face of a gap,
34 IDEOLOGICAL STAKES IN ADJUDICATION

conflict, or ambiguity. The regime may be incomprehensible except as the

working out of an ideological conception, in the sense of a liberal or con-
servative conception. In the familiar case, the legislature has enacted a
comprehensive statute, say the National Labor Relations Act, which self-
consciously rejects a preexisting conservative regime of labor relations and
equally self-consciously adopts a rival liberal regime. The judge who wants
to resolve a case in a way that fits" the statutory scheme has to pursue
the liberal conception. But it is not his "personal" ideology but that of the
legislative (or constitutional) boss that guides him. The coherence concep-
tion permits similar analysis of bodies of case law. The judge does the
ideological bidding of the prior judges, relying on the legislature to change
that ideology if it wants to.
A coherence theorist might believe, as does Dworkin, that the legal
regime taken as a whole is intelligible only as the expression of a particular
combination of political theoretical conceptions. If this is the case, coher-
ence requires the categorical exclusion from the interpretative process of
other political conceptions: "A judge who accepts this constraint, and whose
own convictions are Marxist or anarchist or taken from some eccentric
religious tradition, cannot impose these convictions on the community
under the title of law, however noble or enlightened he believes them to
be, because they cannot provide the coherent general interpretation he
needs."" I find this statement odd (possibly because of my own combi-
nation of Marxist, anarchist, and eccentric religious convictions) but typ-
ical of the narrowing aspirations of coherence theorists (explored below).
The position that there is a middle methodology between law applica-
tion and judicial legislation is consistent with the idea (the third solution
above) that there are rules that constrain the scope of judicial law making
and thereby serve to limit the impact of ideology on adjudication. Indeed,
the method of coherence provides a response to the fear that such rules
only push the problem of judicial legislation back from the interpretation
of substantive norms to the interpretation of the supposedly constraining
rules. The judge who interprets the political question doctrine or the
vaguer notion of "interstitiality" through the requirement of coherence
with prior cases and other rules of the system is enacting "the system's"
ideology of judicial constraint or judicial activism, rather than his personal
view.
One can distinguish two variants of the position that there is a meth-
odological middle term. The English version remains true to its Bentharn-
 The Distinction between Adjudication and Legislation 35

ite positivist heritage by positing that there is a limit to the range of cases
that correspond to the method of coherence. The judges are obliged to
decide all cases that come before them, and some of these are beyond the
middle rangein other words, the law "runs out" and the judge must
legislate. Of course, he does so subject to the various constraints, such as
the requirement of a case or controversy, described above.
In this version, there are two forms of judicial legislation, only one of
which has a negative connotation. If, on the one hand, the judge fails to
perform his function of judicial law making according to the method of
coherence, and particularly if he makes a rule that corresponds to his leg-
islative preference rather than to the preference implicit in the legal ma-
terials, then the rule of law is in jeopardy. On the other hand, where the
law "runs out," he is simply the victim ola contradiction between the role
constraints proposed by popular political culture. He is supposed to decide
the case without judicial legislation, but this is impossible. Since not
deciding is also impossible (walking away means that the defendant wins),
the right thing for him to do is what he thinks is right, leaving it to the
legislature or (in the United States) to the constitutional amendment pro-
cess to correct him if he is wrong.
In the American version, the method of coherence will give a "right
answer" to any dispute over which the judge has jurisdiction. There may
be types of cases for which the adjudicative method is inappropriate
(Fuller,34 Hart and Sacks33), but legal doctrine itself defines these cases and
forbids the judge deciding them, rather than requiring him to do so. The
defendant wins "as a matter of law," rather than by refusal of justice. The
judge never has to legislate, and judicial legislation is always bad. The
conventional judicial rhetoric of constraint by law can be honored, rather
than treated in the positivist manner as a pious fraud. In this version, the
judge can do his job.
With the passage from Cardozo to Fuller and Liewellyn through Hart
and Sacks to Dworkin, there is a noticeable evolution of this position. It
moves in the direction of blurring the difference between the middle term
of coherence and judicial legislation, while at the same time vigorously
affirming its importance. Dworkin and many other modern American legal
theorists concede (even affirm) the political character of adjudication. They
affirm the possibility of "rightness" in even the "hardest" cases, while pro-
gressively abandoning any claim that this rightness is "objective," or de-
monstrable in the sense that any rational practitioner of legal reasoning
36 IDEOLOGICAL STAKES IN ADJUDICATION

would have to accept it, let alone noncontroversial within the canons of
good legal reasoning. They nonetheless retain a sharp distinction between
judging and legislating:
[Liegal practice is an exercise in interpretation not only when lawyers
interpret particular documents or statutes but generally. Law so conceived
is deeply and thoroughly political. Lawyers and judges cannot avoid poli-
tics in the broad sense of political theory. But law is not a matter of
personal or partisan politics, and a critique of law that does not under-
stand this difference will provide poor understanding and even poorer
guidance)6
For Dworkin, a hard case may require judgments of "political theory"
because there may be more than one solution that meets the requirement
of coherence or fit. Moreover, the operation of investigating whether a
proposed solution passes the initial test of fit will be influenced by the
same political theories that the judge appeals to if at the end of the day
he has to choose between outcomes that are equally coherent. There is no
metacriterion for choosing between political theories, or between versions
of coherence influenced by those theories, other than the judge's conviction
that a given theory is the best.
As Gerald Postema points out," this is an extreme "protestant' version
of "rightness" in interpretation. In hard cases, the judge cannot rely on
external authority or even on the idea of objectivity, and cannot hope to
compel the agreement of others; but he is never to succumb to doubt as
to whether the truth he seeks "really exists" outside himself. "[Jiudges
deciding difficult constitutional cases are [noti simply voting their per-
sonal political convictions as much as [sic) if they were legislators or del-
egates to a new constitutional convention."3S If the judge is doing "ordi-
nary politics n disguise," he is "incompetent or in bad faith."9
Contrast, finally, the civil law version of adjudication, a fifth strategy
that combines all of these elements in yet another way. On the Continent,
the official story is that the role of the judge is to apply the relevant Code
to the facts of the case using a presumption of gaplessness. If the case
cannot be resolved by semantic or deductive analysis of the meanings of
the terms in a validly enacted rule, the judge deploys interpretive tech-
niques based on the presumption that the Code is the coherent working
out of a particular conceptual structure. He does the best he can but does
not entertain the possibility that "there is no right answer." In the official
version, the judge can always do his job, though some cases are harder
than others. In this respect, Dworkin is a Continental.
 The Distinction between Adjudication and Legislation 37

But the official version40 denies, first, that the judge will ever have to
go beyond coherence, or fit, into Dworkin's realm of personally held gen-
eral political theory, and, second, that these general theories legitimately
influence the operation of determining coherence in the first place. The
more radical Continental thinkers suggest that it may sometimes be nec-
essary for the judge to appeal beyond the conceptual form of coherence to
the notion of "progress" or "social evolution," but they underplay rather
than emphasize the controversial character of these ideas. Even the Con-
tinentals of the free law school took the convention of judicial necessity
far more seriously than does the current American academic mainstream.4

Typology of Theories of Adjudication

Deduction + judicial legislation Hart
Judicial legislation Unger
Deduction + limiting rules + judicial legislation Raz
Deduction + coherence + judicial legislation MacCormick
Deduction + coherence + personal political theory Dworkin
Deduction + coherence Civilians

It is pretty plain that the development of each of these theories of

adjudication has been part of a broader political project. As soon as we
shift from understanding adjudication as rule application to understanding
it as interpretation, we threaten to destabilize the larger Liberal conceptual
structure that distinguishes courts from legislatures, law from politics,
technical from democratic decision making, and the rule of law from tyr-
anny. The larger structure, whether understood as a prescription or as a
description of reality, plays a central role in ideological controversies
among various conservativisms, liberalisms, and radicalisms, including the
Marxist variants. The question of the role of ideology in adjudication is
an ideological question.
The theory I propose in Chapter 7 is closer to the American model of
a third term between law application and judicial legislation, and to its
Dworkinian variant, than to any of the others in this typology. But I don't
think Dworkin's central distinctions, between "political theory" and "par-
tisan or personal politics," and between rights and policies, can do the
work he wants them to do. Because it affirms the presence of ideology in
all aspects of adjudication, my account resembles the "cnt" strategy of
collapsing the distinction between rule making and judicial legislation,
38 IDEOLOGICAL STAKES IN ADJUDICATION

while rejecting that strategy's reliance on a merely logical (rather than

"internal") critique of judicial practice.
My argument will be that the peculiar American jurisprudential solu-
tion to the problem of judicial legislation is a response to a situation in
which the ideological stakes disposed by judicial law making are very high,
while the internal critique of legal regimes and the judicial opinions that
rationalize them is highly developed. As a preliminary to this political
account of the critique of adjudication, the next chapter offers more precise
definitions of the notions of ideology and ideological stakes than has
seemed necessary up to this point.
 3

Ideological Conflict over the

Definition of Legal Rules

lVt y overall project is to examine the place of adjudication in an ideo-

logically divided society. A basic idea is that much ideological conflict is
about the rules of law. Judges play a large role in developing the rules of
law. But whether they are ideological actors is disputed. To the extent that
they are ideological actors, there has been little attention paid to the ques-
tion of how the organization of a significant amount of rule-making ac-
tivity through actors whose ideological role is disputed, sometimes denied
and sometimes affirmed, affects the outcome of ideological dispute.
All of these terms are fuzzy. I want to make them considerably more
precise by proposing a vocabulary corresponding to a model. First, I define
an ideology as a universalization project' of an ideological intelligentsia2
that sees itself as acting "for" a group with interests in conflict with those
of other groups, and specify liberalism and conservatism as two primary
examples of American ideology. I assert that an important characteristic
of these American ideologies is that they have both a similar general struc-
ture and similar argumentative elements, so that the difference between
them is in the way the elements are deployed or "spoken" with respect to
a range of issues.
When the issues are legal, as they often are, the legal representatives of
the ideological intelligentsia argue them to legislatures, executive and ad-
ministrative officers, judges and juries. We can classify legal issues in a
rough way as involving either rule making (and interpretation) or fact
finding, with a significant intermediate category of 'mixed" questions (was
the defendant "negligent").
With respect to any particular legal question, we can identify the
"stakes" for the participants who understand the question in ideological
terms. These may or may not be distinct from the stakes as the legal parties

39
40 IDEOLOGICAL STAKES IN ADJUDICATION

understand them (defining the rules governing police searches may be a

minor aspect of the defendant's strategy but the major question for "civil
libertarians").
This study is about "questions of law" rather than "of fact," and about
the place in the court system, the appellate level, where judges have final
formal authority to decide them. The activity of appellate courts is most
clearly an instance of law making that disposes ideological stakes but is
carried out in a situation of dispute as to whether the decision makers are
(or should be) ideological actors.
The rest of this chapter elaborates the elements of the model, discussing
(a) groups, interests, and conflicts, (b) ideologies and ideological intelli-
gentsias, (c) liberalism and conservatism, (d) the kinds of ideological stakes
liberals and conservatives see in legal rules, and (e) the way appellate rule
making through adjudication disposes those stakes in practice.

Groups, interests, conflicts

The three concepts of groups, interests, and conflicts are not fully distinct
from one another. Groups are composed of people, and they are continuous
but not identical through time. The idea includes communities in the
strong sense but also groups that have only ideal interests in common-
such as civil libertarians. Interests are enduring orientations of groups to
outcomes for conflicts. The interest may be one held by all groups, some-
thing they compete over, like income or wealth or space; or it may be an
interest in doing something that another group doesn't want done, as
abortion. Ir may be a large or small aspect of group existence. Conflicts
are situations in which it looks as though interests are "at stake," rather
than just the object of discussion or disagreement.
Interests in common can bring people to consider themselves a group.
A group will enter into conflict with another group to protect its interest,
but a conflict between two individuals can cause others to redefine their
interests, or others to come into being as a group. There are no ontological
priorities among the concepts.

Group interests in the evolution of legal rules

Rules of law play an important role in many different conflicts that people
conceive as "between groups." When these conflicts become lawsuits, the
plaintiff and defendant are understood to be stand-ins for groups, even if
 ideological Conflict over the Definition of Legal Rk/es 4'

they themselves have no desire for this to be true and do their best to
avoid it. The group focuses not on the total complex of the parties' good
and bad behavior, extended back in time and implicating everything in
life, or on their guilt or innocence, but on a particular rule that has played
a role in the way the dispute evolved. This rule is a situational element,
quite possibly minor, in the dispute, but it is also part of the permanent
structure of group conflict. The choice of a definition or interpretation of
the rule may be insignificant for the parties, but because the rule appears
again in many other, distant contexts of similarly structured group conflict,
it is significant enough for the groups to fight about.

Ideology is universalization of group interests

When do we call a conflict over the definition of a rule of law an "ideo-

logical" conflict? First, it has to implicate the interests of many people
beyond the litigants, at least in the eyes of the representatives of the many.
Second, the groups must restate their interests in universal terms, present
them as something more than "selfish." The claim must be that other
groups "ought" to yield on the issue of rule definition.
Third, there must be something recognizable as a "body of thought," a
discourse, a sequence of texts, that can be "applied" or brought to bear
over and over again to produce arguments in favor of rule definitions that
will favor the interest. This means an intelligentsia. The intelligentsia
consists of those people who operate the ideology, who develop it, apply
ir, and change it sometimes radically, over time.
In this conception, the ideology is independent of the interests with
which it is "associated," though not so independent as to be altogether
distinct. Dependence and independence operate both on an ideal level and
on a social level. At the ideal level, the body of ideas, the textual tradition,
once constituted has a "life of its own" in the sense that people using it
experience it as capable of going against the interests, and even of reshap-
ing them. What gives ideology its particular character is the tension be-
tween group commitmentwith its elements of psychological identifi-
cation, shared feelings and wants, and self-conscious solidarityand these
requirements or directions or suggestions of the body of texts.
At the social level, the group that develops the ideology, the intelli-
gentsia, is always ambivalently related to the larger group that has the
interests. It has its own interests that arise from the position of ideological
developer, and these can conflict with the general interest of the group.
42 IDEOLOGICAL STAKES IN ADJUDICATION

These intelligentsia interests may themselves be ideologized (the intelli-

gentsia may see itself as having a loyalty to "truth" that is fully indepen-
dent of any loyalty to group interests as perceived by others).
They may also be classic examples of "selfish" interests, like that in the
power within the group that the intelligentsia obtains by virtue of its
monopoly of the universalization project, or in privileges that the society
grants to intellectuals at the expense of others, including those who share
the ideological commitment or the group interest in question.
An ideology is a "project," in the sense defined above. It is not just a
translation of interests into another medium. Rather, it is a mediation
between interests and universal claims. People's understanding of their
interests comes about in the context of universalization into ideology, as
well as vice versa, so ideology can shape interests, as well as vice versa.
Ideology is not a superstructure responding to interests that are "materially
based" or otherwise just "given," nor is it a "pure" domain of ideas.
In this conception, one may be an ideologist without being rigid or
doctrinaire, without understanding the ideology as "correct theory" in a
scientistic manner, or being fanatical. One is an ideologist because one has
made a commitment to working within a complex body of texts, a dis-
course, and accepted the blinders and limitations that inevitably go along
with the advantages of such a commitment, and because the commitment
to the texts goes along with, and sometimes conflicts with, a commitment
to a group or groups in conflict with others.

The "interminable" character of ideological conflict

Ideologies exist not only in relation to group interests but also in relation
to other ideologies. A defining characteristic oí an ideology is that it is
"contested." This means that there is more going on in a debate than a
quarrel over the outcome of a particular interest conflict, and more also
than a focused disagreement in which it is clear to the parties exactly what
is at stake and how one might go about establishing the truth or falsity
of a position. In ideological conflict, it is common to hear things like, "I
disagree with everything you said; I disagree with your whole approach."
Often the two sides will propose different criteria of truth and falsehood
or of verification, so that it is hard to see how either side could possibly
convince the other.
Because the contest of ideologies is "deep" in this sense, we experience
it as interminable, at least in the sense that we think the opponents will
 ideological Conflict over the Definition of Legal Rules 43

go on arguing in complete good faith indefinitely. Each contender has

sufficiently numerous and complex resources that it seems always possible
to repair a damaged position by restatement. If the proponents are com-
mitted as well as in good faith, they will never have to admit final defeat,
though the judgment of others may be that they have been decisively
refuted. The line between a mere ideology and a cult or sect is as blurry
as that between a mere ideology and the disinterested pursuit of knowl-
edge.
The interminable conflict of ideologies at the discourse level is fueled
by the interminable conflict between groups pursuing their interests at
the practical level. The kind of ideological conflict we are interested in
here is over the definition of legal rules. Whether the forum is an admin-
istrative agency, the legislature, or an appellate court, the goal is to achieve
an outcomea particular rule definitionand this outcome is a "stake."
Conflict over stakes is "institutionalized" in the sense that all the par-
ticipants expect there will be an indefinitely extended series of such con-
flicts. The players will remain roughly the same (the opposing intelli-
gentsias, rather than individual litigants), past debates and past outcomes
are relevant to future ones, and when circumstances change, the intelli-
gentsias will modif' their positions to respond, without abandoning their
projects altogether. The intelligentsia is a Neurathian "crew reconstructing
the boat out in the ocean" or in a Lvi-Straussian "bricolage" situation.
Except that there are several boats out in the ocean at the same time

ideological conflict versus dialogue and bargaining

Long-run ideological conflict over the stakes of rule definition therefore

needs to be distinguished quite sharply from two other types of discursive
situation. lt is different from the notion of a Socratic dialogue and also
from the notion of "arms-length" bargaining. In a dialogue, we imagine
that the parties are interested only in deciding the truth of some question.
In bargaining, we imagine that each party is interested in achieving the
most favorable possible consensual division of an object of dispute, but
only in order to avoid the bad consequences of failing to agree.
What long-term ideological conflict over stakes (legal rules) has in com-
mon with dialogue is that the parties have universalization projects, rather
than merely raw demands for satisfaction of their interests. Each claims
that the other ought to agree to its proposed rule definition because its
definition is right in terms of a shared higher order set of norms. The
44 IDEOLOGICAL STAKES IN ADJUDICATION

difference is that both sides expect that a decision will be madethe stakes
will be disposed, the rule defined one way or anotherbefore there is a
consensus on whose view of the truth of the matter is better. And each
party believes that, at the practical level of the stakes in question in each
particular dispute, its group's interests deserve protection whether or not it
is possible to achieve consensus on the truth before a decision is made.
Because the stakes will probably be disposed without agreement of all
affected, the ideological participants have an interest that is merely "stra-
tegic" from the point of view of the truth seeker. They enter in good faith
into the dialogue trying to persuade and open to being persuaded, but
they have to keep always in mind that they are responsible for the concrete
interests of the groups they are representing. They need to win even when
they can't persuade, rather than defining winning as persuading.
Ideological conflict shares with bargaining the situation of having to
decide one way or the other, whether or not the parties can achieve con-
sensus on what is right or fair, and therefore the element of the "strategic"
(versus the dialogic). But in contrast with arms-length bargaining, the
crucial fact of ideological conflict is the existence of neutrals and potential
converts, whether in the electorate, legislature, administrative agency, jury,
or judicial panel. The ideologists assume that over the long run the project
will succeed or fail according to its ability to affect these "swing" people.
In arms-length bargaining, we take it for granted that you know what
your interests are and I know what mine are; in ideological dispute, each
side tries to persuade some, "enough," of the others that what is involved
is a misunderstanding rather than a "true" conflict of interests.
The very universalizing of ideological intelligentsias presupposes that
something more than mere "settlement" is a possible outcome of the con-
flict. But it most definitely does not presuppose even the possibility of
consensus. Indeed, the most common structure for ideological conflict in
modern society seems to be that each side is internally heterogeneous, with
its members arrayed on a spectrum from "completely closed to persuasion
by the other side" to "practically no ideological loyalty at all," and that
there is in most disputes a significant "center" that defines itself as ideo-
logically neutral (of course, this turns out to be an ideology, too). Ideolog-
ical conflict presupposes the possibility of persuasion but also, typically,
the probability that when persuasion has proceeded a certain distance the
definition of the rule, or indeed the overall shape of society, will be decided
against the will of a large number of the participants in the society.
 ideological Conflict over the Definition of Legal Rules 45

The subjects of ideologized group conflict over the definition of rules in our
particular society
A list of the stakes of ideologized group conflict in appellate courts is a
list of the claims of groups, cast in universal terms, that groups have tried
to get resolved in their favor in the courts. There is no list of issues that
are by their nature ideological or that are by their nature legal. The ten-
tative list below of issues that are understood and argued this way is the
product of the particular history of American society and American law.
Although I've organized it into a typology, I don't mean it to be exhaustive;
rather, it should be evocative of what "everyone" knows about American
politics.

t. The legal treatment of groups and their practices:

A status group is a group that is formally identified by law for
different, inferior treatment, or whose former identification is un-
derstood to underlie nongovernmental discrimination. The issue is
that of the boundaries of the domain of formal legal equality. It has
to do with the preliberal hierarchical organization of society, and
also with the use of the preliberal model to constitute new status
groups.
Some status groups of the old order were women, wives, children,
servants, the insane, the poor, slaves, blacks, Native Americans,
aliens, homosexuals, students, and indentured labor. Representa-
tives of the formerly hierarchically inferior groups argue against
"discrimination." They are answered in terms of "protection," or in
terms of "difference" in the group that justifies different treatment,
or in terms of the autonomy of the discriminators.
The issue of tolerance (cultural pluralism) has to do not with the
legal treatment of groups but of practices, ideas, or behaviors that
are important, sometimes even defining, for some group, but dis-
approved by others. Some examples are Mormon polygamy, German
in the schools, bilingualism, cult child-rearing practices, homosex-
ual acts, pornographic speech, abortion, and communist speech. The
terms of argument are free speech and freedom of religion, assembly,
association, privacy, and sometimes property, against the police
power, national security, the state's interest in reproduction, and so
on.
46 IDEOLOGICAL STAKES IN ADJUDICATION

2. A second category of ideologized group conflict over the rules con-

cerns the design of the market, bureaucratic (public and private) and
family systems, and their impact on the relative bargaining power
of groups, some of them holdovers of the old order.
Capital against labor, men against women, black against white,
disabled against abled, and so on.
Consumer against seller (including landlord/tenant, malpractice,
and many corporate conflicts between shareholders and financial and
management interests).
Environmental protection.
3. A third category has to do with the choice between authoritarian
and participatory/therapeutic approaches to the exercise of legitimate
authority within whatever framework is established in the above
categories.
Force against the body: capital punishment, wife and child abuse,
corporal punishment in schools, forced labor, forced sterilization,
blood transfusions and caesarian sections, body searches.
Due process rules governing interactions between the government
and citizens (when is there a right to a hearing, for example) with
equivalent rules for private bureaucracies, such as employment at
will, tenancy at will, parental discipline of children, labor partici-
pation in management decisions.
Choices between retributive/deterrent and rehabilitative approaches
to discipline in all contexts, from schools to business to family law
to criminal law.
4. Finally, a fourth set of conflicts involve the rules that define collective
decision-making procedures in public and private life. The question
is the procedural legitimation of power, rather than the authoritarian
or participatory/therapeutic mode of its exercise. The issues may arise
on the grand scale of voting rights, federalism, and judicial review;
at the Level of corporate or union or workplace governance; or at the
microlevel of compulsory terms in suburban subdivision association
charters, condominium agreements, or family property arrange-
ments.

Liberalism and conservatism

In general political debate, it is common to define liberalism and conser-

vatism as preferences for a larger or a smaller role for "government." This
 ideological Conflict over the Definition of Legal Rules 47

definition isn't very helpfül for understanding these ideologies in the ap-
pellate courts, because the courts have relatively little to do with many
issues of governmental size that dominate in the legislatures, and because
the issues they do address evoke a much more complex set of liberal and
conservative positions.
American liberalism in the courts might be roughly defined as the proj-
ect of eliminating status-based inequality, both in formal legal treatment
and in private market treatment; promoting cultural pluralism (tolerance);
promoting legal rules that increase the relative shares going to workers,
other disfavored groups, consumers, and environment lovers, at the expense
of the owners of enterprises; promoting a participatory/therapeutic frame-
work for the exercise of legitimate authority; and promoting participatory
conceptions of democracy. Conservatism means arguing for preserving the
preliberal status distinctions, repressing various kinds of deviance, pre-
serving or increasing the relative shares of enterprise owners in their deal-
ings with workers, consumers, and environmentalists, defending authori-
tarian means in the exercise of authority, and resisting participatory
conceptions of democracy in favor of established institutions.
Both liberalism and conservatism are ideologies because these quite con-
crete positions in group conflicts are backed up by more or less elaborate
universalization projects, which allow advocates to claim that each of the
more particular positions is an instance of correct application of general
principles. The general theories can be roughly grouped as relying on
rights, morality, and social welfare, and what is most striking about lib-
eralism and conservatism is their virtually total agreement on what those
principles are. Both sides favor majority rule, individual rights, and the
rule of law; both embrace Judeo-Christian moral codes; both favor a reg-
ulated market economy with safety nets.
Both ideologies incorporate the same specific sets of standardized ar-
guments in each of these modes but apply them differently. Chapter 6
introduces the legal versions of these "flippable" arguments.
In each substantive area, there are familiar symmetrical tensions within
liberal and conservative positions:

i. Liberals favor formal equality of status, while conservatives argue

that formal equality ignores real differences; but on racial, gender,
and economic issues, liberals argue for "compensatory" status differ-
entiation to promote substantive equality while conservatives focus
on formal equality.
48 IDEOLOGICAL STAKES IN ADJUDICATION

Liberals abhor paterrialist justifications for status inequality and the

repression of deviance, but they favor paternalist economic regula-
tion; conservatives do just the opposite, favoring paternalism on so-
cial issues but rugged individualism in the market.
Liberals tend to favor legalism, technicality, and formality when as-
sessing the actions of strong parties, while favoring paternalism, in-
formality, permissiveness, and in general the participatory/therapeu-
tic approach when dealing with "weak parties"; conservatives tend
to do just the opposite, emphasizing the difficulties of the authority's
job and the need for strictness for those they see as deviants.
Liberals deploy a populist, majoritarian, participatory rhetoric
against "entrenched interests" of all kinds, while conservatives de-
fend privilege; but, except in the case of private property, liberals
also deploy an antimajoritarian rhetoric of individual rights, while
conservatives argue for the "rights of the community" against devi-
ants, except in the case of private property.

There is a kind of pyramid here:

I. At the level of specific conflicts, the two sides are opposed.

At an intermediate level, they each deploy arguments for and against
equality, paternalism, the participatory/therapeutic approach, and
majoritarianism. They cast these arguments for and against in vir-
tually identical form; but on some issues conservatives deploy the
pros, the liberals the cons, while on other issues the liberals are the
pros and the conservatives the cons.
At the most abstract level, liberals and conservatives embrace the
same abstract rights, morality, and social welfare premises.

The crucial part of the pyramid is the middle term. In disputes about
what rules are best, a surprisingly small set of arguments makes up the
whole lexicon, and these arguments get (a) used over and over again in
one context after another, and (b) switched back and forth between liberals
and conservatives. Of course, each particular rule conflict is different from
every other one. An enormous amount of the discourse is concerned with
figuring out just how this particularity should change the way the stereo-
typed argument comes out. But these very specific disputes, themselves
interminable, play out within a strikingly stable, simple, large ideological
framework.3
 Ideological Conflict over the Definition of Legal Rukr 49

Epistemes, paradigms, contested concepts, and conceptions

Although it is interminable, I don't think it's helpful to describe the
conflict between liberalism and conservatism as "epistemic,"4 or a matter
of "paradigms," just because so much is shared between the two sides.
What is shared is, first, the abstract premises about majority rule, rights,
and the rule of law and, second, the vast repertoire of rights, morality, and
social welfare arguments about what particular definitions of rules are best.
In epistemic conflict (or "paradigm" conflict) people talk past each other
because they operate out of different "consciousnesses," each side "experi-
ences a different world," in the strong sense of not having access to the
world of the other. It's not just that they don't agreethey aren't "speaking
the same language."
In liberal/conservative conflict, there is sometimes an experience of the
interlocutor as "other" in a profound way, and the language of episteme,
paradigm, and consciousness may be useful in capturing that experience.
But it is not to be taken literally because it is possible (and it happens all
the time) to "enter into" the world of the adversary, to grasp the "logic"
of the position, and so on. Indeed, the more common experience is to know
"exactly what they'll say" in response to one's own ideological statement,
and to know also, one thinks, exactly why they'll say it.
Another problem with this way of looking at ideological dispute is that
it puts the overwhelming emphasis on the cognitive dimension of conflict,
to the neglect of the experience of collective commitment, group mem-
bership, and common purpose, that Sartre tried to get at through the ideas
of the project and the "fused group." Liberals and conservatives do "see
things differently," but they also "feel" different things and "want" differ-
ent things. They "identify" with different real and imaginary groups. Al-
though, I hasten to add, I don't mean to suggest that the domains of feeling
and wanting and solidarity are different in kind because profoundly ara-
tional in a way cognition is not.
Indeed, I think one explanation of the popularity of epistemes and par-
adigms as accounts of human conflict comes from their promise that we
can avoid experiencing the Other as different at the levels of feeling, want-
ing, and solidarity. Seeing the Other as cognitively different is easier than
seeing the Other as different at levels simply beyond reason and even
beyond communication through language. If you believe that cognition is
potentially rational but everything else is arbitrary, the radically other
50 IDEOLOGICAL STAKES IN ADJUDICATION

Other is terrifying because potentially evil (rather than someone who "just
doesn't get it"), and can't be dealt with in case of disagreement except by
force.
I don't think liberalism and conservatism are epistemes or paradigms,
because they have wanting, feeling, and solidarity dimensions. But these
are not outside discourse, and a good deal of ideologized group conflict
consists of appeals to wants, feelings, and solidarity on the other side.
We can also capture something of the experience through W. B. Gallie's
notion of a "contested concept" and Dworkin's reformulation of it as a
"conception" of a concept.6 The concepts include majority rule, rights, the
rule of law, equality of opportunity, Judeo-Christian morality, and a reg-
ulated market with a safety net. A large part of the discourse is easy to
interpret as conflict over how to interpret these abstractions, rather than
over what normative premises to adopt in the first place.
But neither "contested concept" nor "conception" adequately describes
ideology in the sense of liberalism and conservatism. First, they leave out
the things that are experienced as otherness in the interlocutorthe very
things grasped by the notion of an episteme or paradigm. Second, they are
no better than episteme or paradigm at grasping the noncognitive dimen-
sion of conflict. Indeed, Gallie and her followers, including Dworkin, often
seem to be attracted to the notion of the contested concept because it
allows us to understand ideological conflict as a philosophical discussion
(in the dialogue rather than the bargaining mode) gone wrong, rather than
as some other kind of conflict.

Ontology of liberalism and conservatism

The fudged notion of a project may be preferable to the more precise terms
paradigm, episteme, and conception, but it has its difficulties. The idea is
that a person entering American political life finds it organized, loosely,
into ideological intelligentsias, which are self-conscious groups that iden-
tify with particular interests, while proclaiming particular normative ab-
stractions, and which have, historically, worked for the adoption of specific
positions on issues that supposedly reflect both the interests and the uni-
versal norms. An ideological project so conceived is not reducible to any
of its components: it is not just the abstract commitments, nor just the
positions, nor just the list of people who have at one time or another called
themselves liberals or conservatives, nor just the underlying group interests
that get universalized.
 Ideological Conflict over the Definition of Legal Rules 5I

The reason for refusing these reductions is that as a matter of common

observation, and typically of what we commonly mean by ideology, there
is neither a tight, compelling logical connection 'downward" from the
abstract norms to the particular positions and then to the group interests
nor a tight, compelling connection "upward" from interests to positions
to norms. At the social level, there is no algorithmic definition of what it
means, in terms of adherence to principles or positions or in terms of group
commitment, to "be" a liberal or a conservative. J will focus here on only
one of these aspects, namely, the problem of the coherence of the abstract
normative position and of the set of practical positions that supposedly
flows from it.
Both the ideologies as systems of discourse, and the people who develop
them to meet the endless flow of new issues, are open to critique as inter-
nally inconsistent or contradictory. While within each project there is a
constant push to reconcile contradictions and develop theories of what
makes or should make the ideologies internally coherent, there is no con-
sensus either about how to do this or about whether it has been achieved.
In this situation it makes sense to ask what "determines" the liberal or
the conservative position on a new issue, say, on campus hate speech. If
each ideology employs the same abstract principles (rights, majority rule,
the rule of law, Judeo-Christian morality, regulated market with safety
nets), and each switches back and forth between a small set of lower-level
arguments (such as those for and against paternalism), then it would appear
that it will be an open question how to apply the ideology when a new
case arises.
Unfortunately, this understates the difficulty in deciding what liberal-
ism and conservatism "are." Not only do the sides switch back and forth,
between, for instance, favoring formal or substantive equality on different
issues (bedroom versus boardroom, for example), liberals and conservatives
are also each committed to not "going too far" to the left or right.7 Liberals
carry their commitments to substantive economic equality and formal
status equality only to a point, and at that point they quite abruptly "flip"
and rejoin their adversaries in the name of moderation.
They begin to speak of children, for instance, in a rhetoric that is pa-
ternalist and sentimental rather than rights oriented and egalitarian, and
of the dangers of "leveling," or "class war," or even mere "redistribution"
in economic policy. At this point they sound like conservatives, except
that they "draw the line" further to the left. Conservatives are the same
on the other side: at some point, when the safety net has been, from the
52 IDEOLOGICAL STAKES IN ADJUDICATION

liberal point of view, all but abolished, conservatives draw back from the
abyss and adopt the very welfare state rhetoric they have been busily de-
nouncing as crypto-communist.
As a result, two kinds of potential incoherence constantly threaten each
camp: there is (a) the problem of reconciling positions in different domains
(for conservatives, their antipaternalist economic rhetoric with their pa-
ternalist social issue rhetoric), and (b) the problem of explaining, within
a given domain, why they draw a particular line rather than take the
position to its logical extreme" (for liberals, why they don't favor the
outright redistribution of wealth, for example).
For the observer/theorist (me) who wants to use liberalism and conser-
vatism as interpretive tools in constructing an account of how adjudication
works and what effects it has, the vulnerability of the two ideologies to
the charge of incoherence poses a classic methodological problem. One of
the meanings of mpm is a preference for one type of solution over another.
I doubt that there are "true," coherent versions of liberalism and con-
servatism for use in analyzing what lies "behind" the "objective" or "im-
personal" rhetoric of judges. While it is always possible that liberal and
conservative theorists will find (or have already found without my knowing
it) abstract formulations that would allow us to speak of the ideologies as
"requiring" this or that position on a particular issue, this seems highly
improbable to me. So how can I use liberalism and conservatism as ele-
ments, as conceptual tools for understanding adjudication, if my own view
is that each, when viewed as a "philosophy," is an internally contradictory
hodgepodge?
I am equally skeptical about coherent, operational definitions of liber-

alism and conservatism "from the outside," that is, using external factors,
like the supposed objective interests of particular groups or the supposed
rational implications of particular (coherent) premises. Such definitions
allow the outside observer to categorize motives or actions, for his or her
own purposes, as ideological or not, and then as liberal or conservative,
without referring to the contested dimension of internal coherence. But
an external definition is unlikely to be useful for our purposes because we
are interested in the very phenomena of self-consciousness, phenomena like
denial, that external definitions try to avoid.
To treat the ideologies as "projects" is to acknowledge or assert the
incoherence of their theory components, hoping that we will nonetheless
be able to distinguish liberalism and conservatism for our particular pur-
poses because there are factors other than internal coherence that "stabilize"
them. By a "stabilizer" I mean something that contributes to our sense
 ideological Conflict over the Definition of Legal Rules 53

that we are talking meaningfully when we say that someone "is" a liberal,
or that a position "is" liberal, or that "liberals, but not conservatives, face
a hard choice on a particular issue." The basic idea is that the project is
an entity stable enough to be useful in analysis because it is more than a
theory: it is also a self-conscious group activity with a history and a prac-
tical dimension.
Some of the stabilizers that allow us to think we know what we are
talking about when we talk about liberalism and conservatism are the
following:
i. Self-conscious consensus: it's liberal to come out a particular way on
a new issue if liberals say it's liberal, and we are reassured if conser-
vatives say it's liberal too.
History: it's a liberal position if people who called themselves liberal
thought at some point in the past that it was entailed by liberal
premises and incorporated it into their program as such.
Structural position vis-à-vis alternatives: it's liberal if it is situated
between a well-defined conservative position and equally well de-
fined communist or anarchist positions; it's conservative if it is sit-
uated between a well-defined liberal position and fascist or ultra
free market positions.
Local coherence: it's liberal if it is so close to a lot of similar, well-
defined liberal positions that it would be bizarre to go the other way,
given how much is settled in the vicinity.
I hope it's obvious that I'm not claiming anything faintly "scientific"
or "objective" about this way of using the terms "ideology," "liberalism,"
and "conservatism." There will be plenty of room for disagreement, after
meticulous application of all the tests I've laid out, about whether any
particular person or position is one thing or the other. But I do want to
claim that the general notion of a project, and the particular elements I've
specified, fit the common usage of the three terms in present-day American
political culture.
More important, when members of the liberal and conservative ideo-
logical intelligentsias elaborate, to different ends, their common commit-
ment to the rule of law, they routinely contrast "legality," as a motive for
decision, with "ideology." When they do so, I think they mean ideology
in the sense I've been developing here. In other words, my claim is to have
given a kind of anthropologist's description of the typical usage of a cul-
turally significant term.
Finally, I think that liberalism and conservatism, so defined, are suffi-
54 IDEOLOGICAL STAKES IN ADJUDICATION

ciently powerful as analytic tools to make it worthwhile to use them myself

in trying to understand how our particular social order works. It's not just
a question of the anthropologist learning the way words are used in the
local culture. As a participant, as an ideologist, albeit neither a liberal nor
a conservative, I orient my practical, programmatic activities on the basis
of predictions: the liberals will do this, the conservatives will do that. For
purposes of social theory, in this book I think it useful to try to figure out
how the institution of adjudication functions on the terrain of ideology
thus defined.

Ideological preferences

A liberal or conservative ideological preference is a tendency to choose

legal rules associated with liberalism or conservatism. A preference may
be obvious or hard to discern, it may be acknowledged or denied, and it
may be conscious, unconscious, or half-conscious. A preference, in common
usage, is more than a factual pattern (though sometimes economists use it
in this very limited sense). When we impute a preference, we suppose we
are giving an explanation or an interpretation of patterned action, by at-
tributing it to a psychological disposition of the actor.
When we are inquiring into the existence of a preference in this psy-
chological sense, we consider past choices among what we think were
alternative possible legal rules, and we also use the evidence of the judge's
choice among available argument-bites or rhetorical tropes that have ideo-
logical connotations. As I will argue in Chapter 6, there are legal argu-
ments that directly or analogically translate general political into legal
discourse. The rhetoric of self-reliance is conservative; that of sharing,
liberal. The rhetoric of self-realization is liberal; that of communal au-
thority, conservative. These are markers from which we infer ideological
preferences.
When we believe that a judge has an ideological preference, say, for
liberal or conservative rule choices, we often speak of "ideological motives"
for and "ideological influence" on particular outcomes. I use these expres-
sions with some misgivings, because they are ambiguous in two ways.
First, they indicate that an actor has a preference or predisposition to
choose the outcomes that are associated with an ideology, but do not in-
dicate an internal commitment to the ideology as a project. Second, "mo-
tive" and "influence" can be established only by interpretive procedures,
rather than proved or substantiated through more positive methodologies.
 Ideological Conflict over the Definition of Legal Rules 55

While a pattern of liberal outcomes can be "proven' if we have a suf-

ficiently tight definition of liberalism, the imputed preference or dispo-
sition or "sympathy" cannot. But proof is also unnecessary for the purposes
of this particular inquiry. People impute "ideological motives" to actors
all the time, in the sense of preferences. In fact, a "hermeneutic of suspi-
cion," or search for the hidden ideological motives in judicial opinions that
present themselves as technical, deductive, objective, impersonal, or neu-
tral, has been for a hundred years the most important characteristic of
American debates about adjudication.
In legal discourse, the evidence for the imputation is almost never a
"smoking gun" in the sense of an admission of intent. In judicial opinions,
judges always "deny," in the common sense of the term, that they are acting
out of ideological motives. That is, they explicitly claim that the outcome,
their disposition of the stakes of law by choosing one particular resolution
of a question of law, of rule definition, rather than another, was reached
by following impersonal interpretive procedures that exclude the influence
of their personal ideologies. This is obviously a matter of convention and
tells us little about what is "really" going on.
In most cases, the only basis for imputing preference, motive, or influ-
ence is "interpretive," meaning that the opinion makes more sense if we
interpret it as ideologically motivated than it does if we take it at face
value. You can't "prove" that it makes more sense; you can only argue your
interpretation by showing that the opinion is contradictory or inconclusive
when taken on its own terms, but seems at least intelligible if not per-
suasive when understood in terms of ideological preferences. There is no
attempt to show by direct evidence what the judge was thinking. lt is a
question not of proof but of the plausibility of a "reading."
The other ambiguity in the notion of an ideological motive concerns
the degree of commitment implied by the term. I asserted, many years
ago, that Sir William Blackstone had an "apologetic motive" in describing
the English legal system. Some readers inferred that I was arguing a con-
spiracy theory of the type that liberal and conservative theorists have often
detected in Marxist accounts of capitalist institutions. I was perhaps ar-
guing that legal discourse was a deliberate mystification, cloaking a cap-
italist ideological agenda in neutral terminology in order to mislead the
masses about what was really going on.8
But one can identify an ideological preference, or motive, or influence,
without asserting that the actor subscribes to the ideology in question as
a project, in the sense of having an inner commitment to it as something
56 IDEOLOGICAL STAKES IN ADJUDICATION

to further or defend against its opponents. The preference, inferred from

the actions that it motivates or influences, is no more than a predisposition
in the making of choices in particular cases. A particular actor might be
accurately described as much more than predisposed in choice situationsW
as a true believer, for example, or an "ideologue," or someone who is "po-
litically correct"but that would require a lot more evidence and of a
different kind than just a pattern of outcomes and the use of ideologically
identifiable argument-bites.
In Chapter 8 I offer an account of judicial behavior that suggests that
the best way to understand ideological preferences in judicial conduct is
as half-conscious or in Sartrean "bad faith." Again, I think the idea of a
half-conscious dispositionone that is "denied," in Anna Freud's sense,
by the judge to him- or herself, rather than either "repressed" outright or
consciously conspiratorialfits the commonsense usage of American po-
litical discourse. We speak of a judge's liberal or conservative ideological
"bias" in just this sense of half-conscious orientation. And we don't think
it necessary to "substantiate" the imputation except through the interpre-
tive technique described above.9

Liberalism capitalized

The abstract normative part of Liberalism capitalized, that is, of the larger
unit that includes liberalism and conservatism, is made up of the theo-
retical commitments that liberals and conservatives share, including
rights, majority rule, the rule of law, Judeo-Christian morality, and a reg-
ulated market economy with safety nets. But the Liberal center also defines
itself by semiotic contrast to its "opposite numbers," communism and
anarchism on the left and fascism and Manchesterism on the right.
We can and will look at the effects of the institution of adjudication
(judicial law making in a condition of contest about the role of ideology
in the process) on the political conflict between liberals and conservatives.
But the institution, thus contested, also has at least putative effects on the
conflict between the liberal/conservative "center," the larger party of Lib-
eralism, the party of "moderation" in the modern West, and the whole
spectrum of outlying, more radical, left and right ideologies.
I will not use the term "ideology" to describe Liberalism because I want
to reserve it for the more specific universalization projectsliberalism,
conservatism, communism, anarchism, fascism, Manchesterism, feminism,
and nationalismthat are commonly denoted by the term in American
political discourse. I am going to be arguing, first, that the central problem
 ideological Conflict over the Definition of Legal Ru/es 57

for theories of adjudication in the United States is that of its relationship

to ideology in this sense (Part Two) and, second, for a particular response
to that problem (Part Three). Referring to Liberalism as an ideology risks
confusion of this discussion, both because American political discourse
does not treat Liberalism as an ideology (indeed, it is often understood to
be the opposite of an ideology), and because the ideological analysis of
Liberalism plays such an important part in the very different neo-Marxist
theorization I will discuss in Chapter 'i.
ii there a critical position "outside ideology"?

Of course not. I approach this study from my own left/mpm ideological

point of view, with the blinders that go with that position. That doesn't
make it impossible to communicate with people occupying other positions,
since as I've been saying ideological conflict has elements of the dialogical,
is not episremic, and doesn't presuppose that one's interlocutor is irre-
mediably the creature of, say, class position.

The stakes of ideological intelligentsias in appellate adjudication

My goal in the rest of this chapter is to distinguish the various kinds of

stakes that ideological intelligentsias perceive in adjudication, and to jus-
tify their preoccupation with judicial rule making against various kinds
of skepticism about its importance.
They care about particular rules both because rules forbid and require
conduct that has intrinsic ideological significance, and because rules figure
as "rules of the game" in cooperation and conflict over the production and
distribution of the good things of life.t0 They also care about the judiciary
as a forum in which they pursue their discursive project by trying to
persuade judges to be liberals or conservatives, with the hope that to the
extent they are successful judges of their persuasion will influence the
general public to be more liberal or conservative. I think it is worthwhile
to take these distinctions apart into quite small pieces.

intrinsic versus instrumental ideological interests

in the content of legal rules

First, the rules of lawthe formal contents of the legal systemaffect

behavior that is good or bad; right, wrong, or indifferent; and fair or unfair,
all according to one's ideological position. Liberals and conservatives view
58 IDEOLOGICAL STAKES IN ADJUDICATION

laws about strikes, abortion, government support for the arts, and
thousands more issues this way. When the legal stakes in an appellate
lawsuit include the choice between definitions of a rule of law, and the
rule choice concerns behavior about whose value there is ideological dis-
agreement, then the legal stakes are also ideological stakes. I call these
stakes the "intrinsic" interest in the rules.
Second, the rules of law affect behavior in ways that in turn indirectly
affect the distribution of the good things of life other than compliance or
noncompliance with the rule in question, good things oí life whose distri-
bution is a matter of ideological dispute. The intelligentsias view rules
about, say, the regulation of truck weight on interstate highways as im-
portant because of their impact on the relations among different industries,
consumers, and taxpayers. We care about these rules less as "norms of
conduct" than as "rules of the game" of economic or gender or racial or
regional conflict. The rules affect outcomes that ideological intelligentsias
care about by changing the balance of power between groups, their ability
to get more or less for themselves in their relations of conflict and coop-
eration in the production of everything from steel to domestic life. I call
this set of concerns the "instrumental" interest in the rules»
These two ways of looking at rules are not mutually exclusive. One can
analyze the law of strikes from the point of view of the morality or im-
morality of striking or from the point of view of the effect of legalizing
strikes on the distribution of surplus between labor and capital. lt has been
common to classify rules according to whether they "are" afone or another
kindso that some crimes are malum in se, others malum prohibitum,
some rules are based on natural rights, others on what Blackstone called
"the convenience of civil society" and what today might be called "policy,"
some rules aim at compliance for its own sake (criminal and injunctive
sanctions), others merely attach legally defined prices to conduct (dam-
ages). I am proposing not a classification of rules but a classification of
ideological motives for interest in particular rules.
Sometimes it is clear that the actual motive of the rule maker was of
one type and not the other. Members oí parliament required the eating of
fish on Friday to promote the fishing industry, and indirectly Britain's
military sea power, rather than because they believed that it was intrin-
sically wrong to eat meat on that particular day. In the extreme case of
rules oía game, the definition of the rules has absolutely no intrinsic moral
or rights or utility significance: the height of the hoop in basketball,
whether a pawn can take diagonally. At the other extreme, we wouldn't
 Ideological Conflict over the Definition of Legal Rukr 59

endorse the permission of murder even if it were shown that the murder
rate wouldn't change and that there would be a large, desirable increase
in the equality of the distribution of wealth.
This distinction between motives does not correspond to that between
utilitarianism and rights or morality as normative criteria. One can care
about a rule seen as a norm of conduct because one judges it bad according
to utilitarian ethics, and one can disapprove of the distributive conse-
quences of a rule seen as a "rule of the game" because, say, it leads to
homelessness, which violates people's right to shelter or is otherwise im-
moral social policy.2
When we look at legal rules intrinsically, it is natural to ask questions
about compliance and to see norms that achieve high levels as "more suc-
cessfùl" than ones that don't. When we look at legal rules as rules of the
game or instrumentally, we ask about how this definition of the rule, as
opposed to some variant, would affect the distribution of good things not
just between victim and violator, but among all the people who will be
affected overall by the change in behavior. We ask questions like, how will
deregulation affect airline prices and levels of service? The issue of com-
pliance comes up not ro measure the success of the rule but as part of the
calculus of effects. A littering prohibition that significantly reduces lit-
teringeven if it is obvious that people continue to litter all the time and
that an individual litterer doesn't see the legal prohibition as likely to ever
be applied to himcan be a big success.

Against rule skepticism

Both kinds of interest in rules depend on two important presuppositions.

First, we assume that it is possible to know what the rules of law are, both
in the sense of identifying them and in the sense of understanding how
they are supposed to affect behavior when we apply them. Second, we
assume that the legal rules do in fact affect behavior, in two ways: by
influencing "coercively," that is, by changing the "price" of conduct; and
by influencing through "legitimation," that is, by changing people's be-
havior not through modifying the state-imposed price of conduct but by
inducing change in people's valuation of conduct, making them think
things are bad or wrong that they previously thought were good or right,
and vice versa.
J think both presuppositions are plausibly accurate, and as an observer!
activist I use them in my own political assessments. This means that I
6o IDEOLOGICAL STAKES IN ADJUDICATION

don't find legal realist rule skepticism convincing, if it is (fancifully) in-

terpreted to mean that the meanings of rules are necessarily so indeterminate
in practice that it isn't possible for actors and observers to predict accu-
rately what they are and how they will be applied in particular cases. Like
the other crits who have worked on the internal critique of legal reasoning,
I've argued all along that legal rules can be easy to identify as "valid" and
easy to apply across a vast range of cases.' Indeed, we have made from the
beginning an even more extravagant claim. It is often possible to predict
with at least tolerable accuracy how the choice of one rule over another
possibility will affect the behavior and the interests of large numbers of
people, including many who will never have the occasion either to obey
or disobey it.'4
It is because they are usually knowable (we can identify which ones are
"valid"), because we can usually apply them ourselves in ways that we
anticipate will correspond exactly to the way others will apply them, and
because we can predict their consequences for various conflicting interests,
that we see rules as disposing of the ideological stakes of law. At the same
time, the whole point of the critique has been the claim that in many cases
in which the ideological stakes are high, legal actors have had a choice
between two (or more) interpretations or definitions of a particular rule,
and that the choice has had the effect of disposing of the ideological stakes.
For the moment, it is enough to define having a choice to mean that
knowledgeable observers attached, before the fact, a substantial probability
to each of two ideologically opposed alternative rule definitions, or that,
though each put a very high probability on one rule winning rather than
the other, they disagreed about which that would be. I say "for the mo-
ment," because Part Three addresses the subjective or phenomenological
aspect of this situation. Because ideological intelligentsias understand the
outcomes (rule definitions) as in this limited sense indeterminate, they
invest enormous resources in trying to influence them, and it seems worth-
while for people like me to try to figure out how the judges actually decide.

Rules, not rule application

Out of an excess of caution let me reiterate that I am here discussing the

choice between rules of law and the effects on ideologized group conflict
of such choices. It is easy to confuse the choice between rules of law with
the choice between "outcomes" in the conventional sense of "who won" (as
between the litigating parties). Liberal and conservative ideological intel-
 Ideological Conflict otr the Definition of Legal Rides

ligentsias sometimes care about who wins a lawsuit because the lawsuit
itself, the final judgment, will dispose significant stakes. For example, a
single lawsuit that stops the construction ola nuclear power plant may be
important ideologically, even if the basis for stopping construction is so
idiosyncratic to the facts of the particular case that it is unlikely that any
rule laid down in the case will be important in any future environmental
conflict.
But I deal here with ideological interest in the way rules affect the
interests of groups. Who wins a particular lawsuit may be insignificant
from this point of view, even ¡f the parties are unquestionably members
of the groups in question, and even if the suit disposes important stakes
as between the parties. The lawsuit is of interest for my analysis only if it
is important beyond the interests of the parties, because in the course of
it a judge makes a decision defining a rule in a way that predictably affects
ideologized group conflict for the future.
It is often roughly accurate to distinguish between a rule and its appli-
cation, meaning by "application" the decision whether the factual predi-
cates in the rule that trigger the rule's sanction actually occurred. Did the
defendant strike the plaintiff, or was the defendant somewhere else at the
time? Where application means fact finding in this straightforward way,
application will have ideological significance only where the intelligentsias
anticipate that fact finding is a matter of choice, in the sense of being open
to ideological "bias." This is especially likely in cases with "mixed ques-
tions of law and fact" (was the defendant negligent?). Juries in rape trials
may tend over a large number of cases to reason along highly predictable
ideological lines in deciding whether there was "force" or "consent."
This book doesn't deal with the disposition of ideological stakes through
the application of valid, open textured standards of this kind. It is about
the ideologically motivated choice among standards, or the ideologically
motivated choice to modify an open textured standard like "consent" in
order to change outcomes in an ideologized group conflict, by presuming
force unless there has been an affirmative indication of consent, for ex-
ample. In other words, it is about adjudication of questions of law, under
the final authority of appellate courts.
When there are a number of possible legal rules that a court might
adopt to resolve an uncertainty in the law revealed in a particular case,
more than one of these may result in the particular defendant losing. From
the defendant's point of view, it makes no difference which of these turns
out to be valid law for the future. But from the point of view of the
62 IDEOLOGICAl. STAKES IN ADJUDICATION

intelligentsias, that choice may be so important that liberals can in one

sense "win" even though the litigant who represented their interests loses.
For example, the court may define a particular police search as consensual
and admit the evidence, while enunciating a standard (say, requiring dis-
closure of their motive) that is more favorable to defendants than an al-
ternative that might well have been adopted.

Validity and prediction

I am worried that the reader may think that this approach to the ideolog-
ical stakes of law depends on a controversial definition of "law." I don't
think this is so. I would like my theory of ideology in adjudication, pre-
sented in Part Three, to be intensely controversial but effective in part
because constructed of commonplace plausible elements. To this end, let
me reiterate my definition of "validity." What I mean by a "legal rule" is
a rule that is "valid" in the very limited sense of being agreed by just about
everyone to be in force, meaning in force in the very limited sense of
expected by just about everyone to be applied by the top court in a juris-
diction when lawyers argue it to that court. I am quite sure that there are
such rules, as for example that in Massachusetts you can't vote until you
are eighteen (an easy case), and that past consideration is generally not
effective to make a promise binding (a harder case). This is just "what I
mean" by "legal rules," the delimitation of a field of study, rather than an
attempt to solve a problem of legal philosophy.
My notion is that if we restrict ourselves to rules that are pretty clearly
valid in this sense, we will have a large set with massive consequences,
and plenty to do without even considering situations in which it is not
clear what rule is validuntil, that is, we try to figure out how new rules
get validated ("made") in such situations. When we take up that question,
we will abandon prediction theories for the obvious reason that judges
don't decide what the rules are by predicting what they will decide the
rules are.!5

The effea of rules on conduct

As to the effect of valid legal rules on conduct, my notion is that it is an

empirical question, since it is obvious that a rule can be valid but unen-
forced, and even that there can exist highly effective (on conduct) rules
that flatly contradict the legal rule that purports to cover the situation in
 ideological Conflict over the Definition of Legal Rules 63

question. Nonetheless, it is possible to generalize about how valid legal

rules influence what goes on in the world. The choice oía legal rule may
influence conduct by fixing in one way or another "costs" or "benefits" as
consequences to particular conduct. Social actors seem sometimes to mod-
ify their behavior on the basis of a prediction theory of what the courts
will do in fact. And they may be "bad men" as well, meaning that they
obey rules only to the extent that the anticipated costs and benefits of
obeying, in a short-run, individualistic, amoral calculus, exceed the costs
and benefits oí disobeying.

Normative effects

But social actors also seem to respond to enactment or validity in a quite

different way. They undergo "normative effects." First, it seems reasonable
to assume that if they believe it to be "the law," some people are more
likely to obey a given rule that they disagree with, or that costs them
something to comply with, than they would if they believed they were
facing identical practical sanctions applied extralegally. Some large number
of people believe that one "ought to" obey the law even if it is most
definitely not in one's interest to obey and even if one disagrees with the
law. I take it that consequently they sometimes do obey against their
interests and in spite of disagreement, where they would not obey a norm
they believed not to be enacted as law. This is the "obedience effect" of
validity.
Second, it seems reasonable to assume that when American judges make
law, people tend to conform their normative views to the norm declared
by the judges. Some people, at least, believe that if the law requires some-
thing, that is in itself an argument for agreeing with the requirement. A
valid judicial declaration, in this view, has two quite different political
effects: it invokes the norm of obedience to law, and it induces a change
in the audience's idea of what it is "right" to do or not doit has a
"conversion effect."
Do these effects exist in fact? Have they been, or could they be, dem-
onstrated empirically? These are open questions, to which I will devote
some attention in Chapter i i. But I don't think it is in doubt that the
participants in past and present debates take for granted, perhaps mistak-
enly,'6 that they are, if not real, at least sufficiently plausible so that some-
thing more than the predictions of "bad men" is at stake in theoretical
discussions of adjudication. Without trying to answer the factual question
64 IDEOLOGICAL STAKES IN ADJUDICATION

about the reality of the effects, it may be helpful to flesh out the hypothesis
of their existence in order to make it more plausible that they have been
a major factor, though only implicitly, in the discussion.
For some part of the audience, according to the common understanding,
the effects are independent of whatever is said in justification of the legal
result. They come just from reading about the outcome in the paper,
without knowing anything at all about how the court justified its decla-
ration of what the law is. A famous historical incident has been taken to
instantiate the obedience effect. In the Pullman strike of 1895, the railroad
obtained, in an atmosphere of intense polarization and potential violence,
a lower-court injunction against virtually all concerted activities the work-
men were carrying out. The workmen obeyed the injunction, without the
slightest knowledge of its (technically highly questionable) basis in legal
reasoning, and, to the astonishment and delight of conservative opinion,
simply "went home."
The conversion effect of validity is taken to operate, for part of the
audience, in the same "blind" waythat is, people come to believe in the
moral or political or social rightness of a norm just because it has been
promulgated as law, without regard to the reasons offered. But conversion
effects are less "all or nothing" than obedience effects. You either obey or
you don't, but you can disobey and still undergo the conversion effect. It
may still "work," even though the person in question is clear in his or her
mind that the new rule is wrong, by weakening that belief. The effect may
weaken belief simply by showing that what seemed obvious is in fact
controversial (the Supreme Court disagrees with me), or by making belief
more fragile (if the Supreme Court disagrees, maybe I'm wrong), or by
opening the way to a future change (flow I see what they were driving at),
and so on. Note that both obedience and conversion effects, as I've defined
them, are independent of what the judges say in explanation of their rule
choices.

Summary of rule stakes

Ideological intelligentsias have interests in appellate adjudication because

appellate judges define rules in situations where (a) their decision is not
predictable in advance with certainty on the basis of professional legal
knowledge, and (b) the choice of a rule will dispose significant ideological
stakes. Rules dispose significant ideological stakes either intrinsically or
instrumentally. In either case, the nature and size of the stakes are depen-
 Ideological Conflict over the Definition of Legal Rules 6

dent on our hypotheses about the effects of the rule in question on conduct.
Rules affect conduct both by affecting prices for bad men working on a
prediction theory of law and by normative effects, which induce changes
in conduct by inducing blind obedience or blind normative conversion to
the rightness of the valid.
Before taking up ideological stakes in appellate adjudication as it func-
tions as a "forum" for ideological conflict, I want to contrast this more
positivist part of the theory with the "dispute-resolution" approach to the
sociology of law. It seems necessary to justify my focus on appellate ad-
judicationand I mean justify it rather than apologize for itbecause the
American tradition in the sociology of law has made it a point of pride to
downplay its significance in favor of what trial courts, juries, lawyers, and
private parties do as legal actors.17

Rule stakes versus dispute resolution

Karl Llewellyn put the argument this way:

What, then, is this law business about? It is about the fact that our
society is honeycombed with disputes. Disputes actual and potential:
disputes to be settled and disputes to be prevented; both appealing to
law, both making up the business of law. But obviously those which
most violently call for attention are the actual disputes, and to these our
first attention must be directed. Actual disputes call for somebody to do
something about them. First, so that there may be peace, íor the dis-
putants; for other persons whose ears and toes disputants are disturbing.
And secondly, so that the dispute may really be put at rest, which means,
so that a solution may be achieved which, at least in the main, is bearable
to the parties and not disgusting to the lookers-on. This doing of some-
thing about disputes, this doing of it reasonably, is the business of law.
And the people who have the doing in charge, whether they be judges
or sheriffs or clerks or jailers or lawyers, are officials of the law. What
these officials do about disputes is, to my mind, the law itself)8

The modest version of the dispute-resolution idea is that "disputes hap-

pen" and that the legal system at least sometimes "functions" to resolve
them. The modest version adds that if they weren't resolved by something
like the legal system, all kinds of bad consequences would follow, like
private violence. But the idea is often more reified and abstract than that-
it just "is" a social function to resolve disputes and "all societies" have such
mechanisms, and dispute resolution just "is" "the" function ola legal sys-
66 IDEOLOGICAL STAKES IN ADJUDICATION

tern; performing the function is therefore a "good thing," as well as a good

explanation of a practice. I will not go into the critique either of socio-
logical functionalism or of the choice of dispute resolution as "the" function
of a legal system)9 All I want to do here is to distinguish this approach
from the "distributive" one I will be pursuing.
The sociological approach starts from the fact that society is "honey-
combed" with disputes between individuals, hypostasizes the function of
resolving them, and asks how it is performed. The distributive approach
starts from the fact of ideologized group conflict and asks how it is affected
by legal institutions. These approaches seem likely to produce quite dif-
ferent research focuses.
A sociologist interested in how American society performs the universal
function of dispute resolution might well decide to ignore the appellate
judicial process. Appellate courts, after all, actually consider an infinites-
imally small proportion even of disputes that are conceptualized by some-
one as "legal." When they do consider disputes, it isn't always easy to see
how they are "resolving" them in Liewellyn's sense of achieving "peace"
that is "bearable" to the parties and "not disgusting to the lookers-on."
Certainly there is nothing in the reports of appellate decisions that tells
us anything one way or another about whether they lead to peace that was
bearable to the disputants and not disgusting to the lookers-on.
lt seems plausible that if one eliminated appellate courts altogether, so
that all judgments of trial courts were final, there would be neither more
nor fewer disputes, in the sociologist's sense, than there are now. It seems
implausible to me that there would be a decrease in the abstract value of
peace that dispute resolution supposedly preserves, and even more im-
plausible that because the function was "not performed" the society would
disintegrate into private violence. 1f one is interested in the actual perfor-
mance of the function of dispute resolution, it makes much more sense to
do as Sally Merry and Barbara Yngvesson have done,2° and ask Llewellyn's
questions about a local court system, including all its varied personnel,
that serves an identifiable community.
My choice to focus on appellate decisions reflects, of course, my own
specialization as a teacher of legal doctrine ro law students in a law school.
But that activity is itself a product of a view about what is socially im-
portant about law, rather than being a merely accidental situation. As a
person approaching legal dispute resolution institutions with a distributive
focus, I find them of interest for two reasons, each of which leads to study-
ing the appellate process. First, legal dispute resolution institutions, at
 Ideological Conflict over the Definition o/Legal Rules 67

least in common law countries (more on this later), affect ideologized group
conflict by producing rules that govern the conduct of people u'ho do not
engage in disputes.
In other words, these institutions perform a function" quite different
from the one allocated them by sociological theory, the function of pro-
ducing formal law, mainly through the appellate process. Judge-made for-
mal law is interesting for the same reason that law produced in legislatures
or administrative agencies or referendums is interesting. Formal law, it
seems reasonable ro assume, affects ideologized group conflict through the
mechanisms I have described: it disposes of ideological stakes, both in-
trinsic stakes in the content of norms and instrumental stakes in the dis-
tributive effects of rules. But it is interesting for another reason as well:
exactly because it differs from legislation in the particular that judges
operate under a duty of fidelity to the materials and make law in bad faith
(the hypothesis of alienated powers).
The U.S. Supreme Court's decision in Brown y. Board of Education is
of interest to a distributivist first of all because it was an attempt to use
the federal government to abolish school segregation. Of course, there was
a dispute in the case that was "resolved" in some sense. But it is more
important that the rule-making activity of a so-called dispute-resolution
institution that denies its own political role generated a whole generation's
worth of disputes (they still continue) about compliance with the rule
change and about what desegregation means. lt is still more important
that out of this series of disputes there emerged new norms of conduct
with respect to "discrimination" and a dramatic series of indirect effects
on the distribution of the good things of life between and within racial
groups.
Second, dispute-resolution institutions are important because they have
part of the responsibility for enforcing formal lawthat is, for making
sure that the prices law attaches to choices in order to influence the pre-
dictions of bad men and thereby influence their conduct will actually have
to be paid. The "lower" levels of the system do the actual enforcing, so
that the distributive approach suggests an interest in the way they translate
formal law into law in action, at the trial-court level and especially at the
level of "bargaining in the shadow of the law," in Robert Mnookin and
Lewis Kornhauser's phrase.2' But this is interest in a specific subset of
compliance issues: those in which there are ideological stakes.
What counts, if we are interested in dispute-resolution institutions from
the distributive point of view, is not whether the institutions successfully
68 IDEOLOGICAL STAKES IN ADJUDICATION

or unsuccessfully "cool out" conflicts between particular parties, or whether

they "reasonably" settle quarrels, or even whether they do so through ideo-
logically contestable uses of discretion. One thing that does count is the
extent to which they generate ideologically patterned noncompliance (par-
ticularly by the vast numbers of people who never get involved in lawsuits)
that leads to different distributions between groups than would have oc-
curred had there been compliance.22 We are interested in "nullification"
or the "implementation problem." Another is the extent to which ideo-
logically patterned rule application disposes significant stakes not effec-
tively disposed by the choice at the appellate level of a rule to apply
(negligence, consent in rape cases).
For example, Marc Galanter's classic study, "Why the Haves' Come Out
Ahead,"2 shows how the "valid" procedural rules and informal institu-
tional practices of trial and appellate courts lead to a systematic bias in
favor of litigants from some groups (repeat player institutions, the "haves")
and against litigants from other, weaker groups (have-nots). The implicit
contrast is with a system with the same "substantive" rules about who can
do what to whom in civil society but with an enforcement system in which
people from different groups have more equal resources. The article con-
vincingly argues that these procedural rules, viewed instrumentally rather
than intrinsically, dispose important stakes in ideologized group conflict
(conflict between the groups represented generally by liberals and those
represented generally by conservatives).
But to understand how lower-level dispute-processing institutions dis-
pose ideological stakes, one needs a good deal of understanding of the
appellate level. This morning, for example, the Boston Globe carried a front-
page story headlined "Female Athletes Gain in Legal Game," with this
lead: "After decades of second-class citizenship, women's varsity sports are
speeding down the road to equality, propelled by a series of successful
lawsuits."24
According to the story, schools are currently increasing the resources
devoted to women's sports, but athletes and advocates say they will have
"to keep the pressure on if they are to achieve lull equity, because the
government has been ineffective in enforcing the law" (defined as "the
requirements of Title IX, the 1972 law that mandates equality in educa-
tion") "and because there is a growing backlash among male athletes."
Before the settlement of a recent suit, a Court of Appeals decision "upheld
the government's three part test for equality of participation," and this has
"prodded colleges across the nation into action."2'
 Ideological Conflict over the Definition of Legal Ru1e 69

To understand how a fraction of the liberal intelligentsia managed here

to achieve its objective (cast in the universalizing language of "equity" and
opposition to "second-class citizenship") one needs to understand the role
of the appellate court in suddenly giving a doubtless ideologically con-
testable meaning (the three-parr test) to the twenty-year-old legislative
mandate of "equality" in education. Of course one also needs to understand
the roles of lay advocates, lawyers, an administrative agency, and the trial
courts.
I am happy to concede that a person with an interest in ideologized
group conflict has many reasons to study dispute-resolution institutions
other than appellate courts, and that we can't understand the disposition
of stakes through formal law without understanding enforcement. But I
do think it strange for sociologists of law to assume they can understand
the phenomenon of dispute resolution as a whole without some take on
how the formal rules of the legal system come into being.

Adjudication ai a forum of ideology

Ideological intelligentsias would be "interested" in appellate adjudication

even if judges made rules by tossing coins, for the simple reason that these
coin tosses would dispose of significant stakes. And they would be inter-
ested if the judges made the rules, once someone had identified what looked
like a gap, conflict, or ambiguity, by applying a method that was "objec-
tive" in the sense of demonstrable or algorithmic. But their interest is of
a different character. It is based on the commonsense notion that the very
ideological positions they represent are actually or potentially present, de-
nied, within the decision process itself. Adjudication is a forum of ideology
(rather than "the" forum of principle, as we'll see).
A central idea in what follows is that judicial opinions, and the argu-
ments of lawyers that precede them, are ideological documents, or texts,
by virtue of their content, as well as by virtue of the ideological stakes
disposed by the rules they make. Liberals and conservatives, among others,
care about appellate adjudication because it is one of the places where they
pursue their respective projects of converting enough neutrals and enough
weakly committed opponents so that they can enact their program as law,
and one of the places where they try to make their ideological positions
"hegemonic."
"They" are the members of the legal intelligentsia who identify with
the general liberal and conservative ideological intelligentsias: lawyers,
70 IDEOLOGICAL STAKES IN ADJUDICATION

judges, and legal academics who participate in the organized legal dis-
course that explains the rules. Judges, advocates, and academics make lib-
eral arguments for liberal rules, and their counterparts make conservative
arguments for conservative rules. Neutrals and swing voting judges try to
decide between liberal and conservative arguments. Both sides constantly
position themselves vis-à-vis the distinction between law and politics, that
is, vis-à-vis the discursive convention that their ideological positions as
developed in law are not ideological.
Ideological conflict is a long-term, continuous discursive process inde-
pendent of the disposition of the stakes in any particular conflict, and it
has "dialogical" elements. Positions evolve in response to "external" events
but also in response to "moves" by the other side. We can ask, and the
sides themselves constantly do ask, how they are doing, seen as debating
teams, at the task of persuading judges to be, say, judicial liberals and
conservatives. We can ask how liberal and conservative judges are doing
at persuading the populace at large to be liberal or conservative.
A great deal of ideological dialogue and evolution of this kind in the
United States seem to take place in the forum of adjudication, particularly
at the state appellate and federal levels, and most obviously in the United
States Supreme Court. It seems to have a massive long-term influence on
the content of formal law.-on the legal rules that judges makeand so
to be an important factor in explaining how judges dispose ideological
stakes. Through the conversion effectthe ability of judges to validate
rules not just in the sense of making them but in that of inducing a change
in normative views or sentiments about themit arguably affects culture
more intimately and more pervasively than just by setting rules of the
game.
This combination of distributive significance with (denied) ideological
discursive content certainly seems more plausible as an explanation of the
intense intelligentsia interest in appellate adjudication than either the
coin-flip hypothesis or the idea that judges decide hard cases by a method
that is objective in the sense of demonstrable or algorithmic. "Taking
ideology seriously" in this sense is nonetheless counter, as we saw in the
last chapter, to the mainstream of modern American legal theory, one of
whose major preoccupations has been to show that judges are not or should
not be ideological actors, even though they are unquestionably law makers.
The next two chapters offer a historical/political explanation of this pre-
occupation.
 PART TWO

The Problem ofJudicial Legislation

 4

The Paradox of American

Critical Legalism

lis chapter has two goals: first, to contribute to the comparative law
enterprise of distinguishing what I will call "American critical legalism,"
an odd combination of utter faith and utter distrust in law, from Western
European attitudes; second, to explain the difference by identifying the
"viral" strain of ideology-critique in American legal thought, the strain
whose relation to the "body" of thought is the theme of this whole book.
In Europe, until recently, the stakes in general ideological conflict have
been higher than in the United States. Liberals (social democrats) and
conservatives have defended the center against a communist left and a
fascist or authoritarian right that have actually held and have continuously
threatened to take power. In the United States, neither communist nor
fascist positions have been more than marginal to debate. On the other
hand, in the United States, the stakes of judicial law making have been
much higher than in Europe, because both in private and in constitutional
law the courts have played a major role in general political life. Both
liberals and conservatives have pursued major law-making projects
through the courts. A good part of the total corpus of law has no direct
legislative basis, and a good part of this law bears the unmistakable marks
of the liberal and conservative agendas.
A first consequence of this American context of centrist politics with
judicial importance is that disputes about the rule of law have been some-
what different in the two political cultures. Far more in Europe than in
the United States, the rule of law has been an important element in the
debate between the liberal/conservative center and the communist and
fascist extremes. The center has affirmed the rule of law as the heart of its
program, along with human rights and representative democracy based on
free elections. It has developed the legislation/adjudication dichotomy,

73
74 THE PROBLEM OF JUDICIAL LEGISLATION

through the politics/law, objective/subjective, and democratic/professional

accountability distinctions, as a powerful normative position.
The extreme left and right have tended to endorse the rule of law, and
human rights and free elections as well, but only in principle, while bla-
tantly disregarding them in practice. The center has fought the extremes
both by celebrating the abstract value of legality and by celebrating its
actual, however occasionally compromised, realization in the Western de-
mocracies. This way of looking at ir is occasionally important in American
politics, where the extreme left and right exist as imaginary whipping
boys in conflicts within the center. But except for brief moments in the
189os, 1930s, and late 1960s, the threat to the rule of law (and human
rights and majority rule) has been understood to be a threat from abroad.
Internally, the rule of law has figured prominently mainly in the con-
tinuous debate generated by alternate liberal and conservative appropria-
tions of the court system as a vehicle for their conflicting projects within
the center. The American system of separation of powers has meant that
liberals have controlled the legislatures and conservatives the courts for
long periods of time, and vice versa. When this divided control happens,
legislatively dominant conservatives attack liberal judges for judicial leg-
islation, and liberal jurists defend what they are doing as no more than
fidelity to law. When the roles are reversed, liberals critique the conser-
vative courts as sub rosa legislators, and conservatives mount a defense.
Confronted with the American cls critique of the rule of law, Europeans
who don't reflexively assimilate it to earlier Marxist critiques tend to ex-
plain it by reference to the historical innocence of Americans. Because we
haven't experienced either fascism or actually existing socialism, we crits
are naively willing to play with fire by questioning a central pillar of
humane politics in the modern age of barbarism.' This idea isn't absurd,
though of course it canOt serve as a defense against any particular substan-
tive argument. The securely centrist, first peripheral and then imperial,
but continentally isolated American political culture has provided a Ga-
lápagos-like enclave for bizarre intellectual mutations.
But the innocence thesis leaves out of account that the mainstream of
American legal culture is intensely committed not just to the abstract idea
of the rule of law as political icon, but to something that looks to Euro-
peans perilously close to rule by judiciary. It has been common to argue
that this American tendency to turn political into legal questions is ex-
plained by the absence of either a political or a class culture that makes
stability likely.
 The Paradox of American Critical Legalism 75

Jo other words, Americans have to be judge-centric because if they

didn't have a common civic religion oî law their heterogeneous society
might fly to pieces. Far from being innocents who can afford to play with
fire, Americans are bonded to legalism by historical fears that are no less
intense, though different from those of Europeans. The left/modernist-
postmodernist critique of law seems crazy in the United States, not because
it ignores the "historical lesson" that questioning fundamentals leads to
communism or fascism, but because it seems to renounce the universal
liberal and conservative ambition to rule through, and fear of domestic
chaos in the absence of, judicial supremacy.
Though the left/mpm critique is aberrational in this way, it is repre-
sentative in another. It is an extension of the intense preoccupation of
American legal culture with the techniques of critique of substantive legal
regimes and of the judicial opinions that rationalize them. Here again the
contrast with Europe is stark, and widely accepted as such, but the ele-
ments for an explanation are complex. There is no question that critique
is taught as the foundation of legal education through the case method
and institutionalized in legal academia as an element in any conventionally
acceptable scholarly performance.
The question is why Americans see the substance of law and the judicial
opinions that explain and justify it as pervasively problematic, in spite of
their culturally unshakable commitment to rule not just by law but by
judges. Another way to put this is to ask why Dworkin is the emblematic
modern American legal theorist. Remember that as with his forebears
Cardozo, Llewellyn, Fuller, and Hart and Sacks, the essence of his position
is that a judge can be faithful to the rule of law in even the "hardest" case.
But even though she won't have to legislate, she can't expect her opinions,
even in cases that would be regarded in Europe as routine applications of
the method of coherence, to be accepted as objective, demonstrable, or
noncontroversial. By contrast with Europe, Dworkin's ideal American
judge seems to have infinite power and responsibility but practically no
authority at all, if by authority we mean a cultural understanding that the
rules she makes are presumptively valid because outside politics.

Civil law versus common law

As to the critical side of this odd combination, a first European reaction
tends to be that critique flourishes because substantive law is relatively
speaking irrational, that is, substantively incoherent in fact, logically un-
76 THE PROBLEM OF JUDICIAL LEGISLATION

developed, and at the mercy of institutionalized judicial discretion. The

simplest European explanation is the naive Continental one that locates
these traits in the common law, as contrasted with a Code.
The formal theory of the civil law is that the judge makes law only in
the restricted sense of having to formulate a norm for the case, never in
the sense of contributing a decision that will be a source of law for future
cases. The next judge is supposed to ignore what happened in the prior
case, and decide a similar case in the opposite way if his own interpretation
of the Code requires it. But he is to have no expectation that his version
will be given weight in the future. There is much less possibility of legal
conflict than in a common law system, just because there is much less law.
At the same time, there is much more law in the sense that civilians
imagine that many more issues than in common law countries have been
resolved by the democratically elected sovereign legislature. Furtherrnre,
this law is made through a process that promotes coherent statutory re-
gimes rather than the ad-hocery and incoherent compromise that emerge
from both the legislative and the case law processes in the United States.
European legislation, in this naive view, benefits both from the ideo-
logicalpolitically coherent, however "subjective"basis of the party sys-
tem and from the high level of European juridical technique. The basic
civil codes reflect the ideology of nineteenth-century Liberalism, worked
out by brilliant professors rather than by legislative committees.2 Modern
social legislation may be conceptually incompatible with these founda-
tions, but it likewise reflects a coherent social democratic response to clas-
sical Liberalism, worked out by only somewhat less distinguished profes-
sors of moderate left persuasion.
This means that the judge who has to interpret the law through the
method of coherence has a lot of coherence to work with. She may have to
do the ideological work of nineteenth-century classical Liberalism on one
day and the ideological work of social democracy the next, but except on
the rare days when the statutory materials suggest that she has to do both
at the same time, she will do the bidding of the law rather than appealing
to her personal political philosophy (let alone her personal ideological
views).
American comparativists and eccentric Europeans have to my mind
quite effectively debunked this fundamentalist understanding of the dis-
tinction between the two systems. It doesn't seem worth it to review the
work that begins with Rudolph von Ihering,3 gets an American start with
John Dawson,4 and continues in the work of writers like Sadok Belaid'
 The Paradox o/American Critical Legalism 77

and Mitchel Lasser.6 For my purposes, it is enough to point out that neither
rule by judiciary nor critique is any more popular in England, the Great
Cybele of the common law, than it is in France or Germany. Perhaps we
can attribute the English positivist notion of the law "running out" to the
vagaries of common law, but beyond that English legal culture seems
neither judge-centric nor critical, but merely formalist. The distinction
between the code and the common law may be the starting point for our
comparison, but it certainly can't be the sole explanation of the American
paradox.

British law versus American law

Of course, there is an English explanation, smug rather than naive. It is

that the arrogation of the power of judicial review "set the American courts
afloat on a sea of controversial value judgments, and it became plain that
in exercising these wide powers to monitor not only the form and for-
malities of legislation but also its content, the courts were doing something
very different from what conventional legal thought in all countries con-
ceives as the standard judicial function: the impartial application of de-
terminate existing rules of law in the settlement oí disputes."
Judicial review generates the American "nightmare" view of adjudica-
tion, which is that, either very often or always, the expectation that the
judge will be an "objective, impartial, erudite, and experienced declarer
of the law" is "doomed to disappointment." The "cynical view," clearly the
author's own, is that "if your Constitution has made law of what elsewhere
would be politics, it has done so at the risk of politicising your courts."8
H. L. A. Hart goes on to explain both legal realism and what I have been
calling the American version of coherence, in which the judge never has
to be a legislator in the strong English sense, as responses to the original
sin of the U.S. Supreme Court Justices of "availing themselves of conven-
tional myths about the judicial process to pass off their personal political
and economic doctrine of laissez-faire" and then, a couple of generations
later, of engaging in liberal "crypto-legislation" like the abortion decision.°
Hart took a dim view both of the realist version of the Nightmare and
of the countervailing attempt to construct coherence theories that would
make it at least imaginable that the judge could avoid being a legislator.
I will be defending a modernist/postmodernist version of the nightmare
view. It is important to the defense that American critical legalism is the
product not just of judicial review but of a variety of other characteristics
78 THE PROBLEM OF JUDICIAL LEGISLATION

of American legal culture as well. For this reason, it is hard for American
legal theorists to imagine that if only Chief Justice Marshall had been
more responsive to "conventional legal thought in all countries," we could
have stayed out of trouble. Indeed, the American exceptionalist response
to Hart might be that these unusual cultural factors, along with the unusual
practice of judicial review, led to breakthroughs in legal thought, as well
as into the nihilist and romantic dead ends he identifies)°
To help explain the American case, we can add to common (as opposed
to civil) law the American experience of federalism. Until the rise of the
European Community, with its complex program of legal harmonization,
only a handful of European comparativists (for example, Rodolfo Sacco')
had worried about the existence oí conflicting judge-made rules derived
in different jurisdictions from identical code provisions. But every Ameri-
can state supreme court will at least cast a glance at solutions from beyond
its boundaries, and legal academics who want to write about any private
law subject have to be comparativists at least to the extent of "counting
the authorities."
A second consequence of federalism was that the federal courts had to
decide what role to play when called on to arbitrate state/federal conflicts.
lt is important to see how shallow Hart's view was: even if the U.S. Su-
preme Court had declined to strike down federal statutes as violative of
the federal constitution, it would have had to decide what to do about its
explicit jurisdiction to decide cases in which a state was a party, and about
conflicts between state and federal law. This kind of public law jurisdic-
tion, like that of the European Court today, involves questions that are
politically charged without there being any question of judges being asked
to apply "higher" law against legislative preference.
The sense that conflict and choice are pervasive and inescapable also
owes a lot to the historical circumstance that American jurisdictions im-
ported their law from England in the first part of the nineteenth century,
in an ideological context that emphasized the broadly "liberal" character
of American society, by way of contrast with the relatively "feudal" and
"technical" British regime. The experience of reception has been kept alive
through the present by the creation of new states, with local judiciaries
and no common law, as Europeans settled westward.
Another factor distinguishing the United States from Western Europe
(Hart's "all countries") is that beginning early in the nineteenth century
the legal profession, including the judiciary, was far more socially and
politically heterogeneous than in the Old World. When Alexis de Tocque-
 The Paradox of American Critical Legalism 79

ville described the lawyers as an aristocracy, he was referring to their status

and power, nor claiming that they were an "estate" in the European sense,
with all that would imply of quasi-hereditary entitlement and powerful
internal norms defining what is and what is not legal. American lawyers
and judges had a relatively experimental and instrumental attitude toward
law in part because many of them were upstarts, whether self-made reac-
tionaries or maverick populists. It was understood from the beginning that
it was politically important who got to be a judge.
For Hart, "the most famous decisions of the Supreme Court have at once
been so important and so controversial in character and so unlike what
ordinary courts do in deciding cases that no serious jurisprudence or phi-
losophy of law could avoid asking with what general conception of the
nature of law were such judicial powers compatible."2 His implicit answer
is: with no general conception. But, of course, it is not that the decisions
were important and controversial but only that they were "unlike what
ordinary courts do" that raised the question. In the contexts of federalism
and reception, and the social and political heterogeneity of bench and bar,
it was far less clear than it still is in England what counts as ordinary.

Nightmare on Main Street

The simultaneously critical and "believing" character of American legal

consciousness, its paradoxical combination of skepticism and faith, owes a
lot to the historically contingent juxtaposition of three factors. The ideo-
logical stakes of judicial law making have been high, both in constitutional
and in common law cases, at both the state and federal levels; the resources
of legal tradition have been relatively meager given the novel questions
posed; and the political sympathies of judges have shifted dramatically
over time, rather than remaining stably conservative. For these reasons,
and whether we see it as original sin or as the occasion for insight, the
important but legally problematic judicial opinion is everywhere in
American legal culture.
High stakes, a thin tradition, and shifting judicial personnel have meant
that ideological opponents of particular decisions or trends of decision have
had a strong interest in and some hope of discrediting the judicial reason-
ing that supports the outcomes they find obnoxious. This kind of attack
began early in the history of the Republic when federalist Supreme Court
judges developed the doctrine of final judicial review itself, along with a
law of strong national powers in the federal system, against continuous
8o THE PROBLEM OF JUDICIAL LEGISLATION

opposition from Jeffersonian and Jacksonian lawyers. At the end of the

period, there was a dramatic reversal of positions, as the pro-slavery forces
became advocates of federal power to enforce the Fugitive Slave Law. Then
the Supreme Court, in the Dred Scott decision, made a major pro-slavery
intervention in national politics by striking down the Missouri Compro-
mise.
After the Civil War, state and federal courts played major roles both in
the development of a (relatively) pro-employer common law of labor re-
lations and in setting constitutional limits to social legislation. In the
193os, the United States Supreme Court invalidated a good part of the
first New Deal.
After World War II, the political structure of the situation reversed
again, as relatively liberal Supreme Courts confronted more conservative
state and federal legislative majorities on a vast range of issues. The Court
invalidated some legislation sanctioning members of the American Com-
munist Party, and then attacked the executive practice and statutory law
on legislative districting, the rights of criminal defendants, racial segre-
gation, and abortion.
In private law, state supreme courts "revolutionized" tort law in general
and landlord/tenant and consumer law in particular, without striking down
any appreciable number of statutes, but not without producing a massive
reaction of business interests and their legal advocates. When the conser-
vatives began to regain control of the courts in the 1970S and 198os, the
liberals "shamelessly" reversed position once again, becoming enthusiasts
for stare decisis and attacking judges like Robert Bork and Antonin Scalia
as judicial legislators in the sheep's clothing of strict construction and
original intent.
The vast majority of attacks ori particular judicial decisions and on
courses of decision have been based on the idea that there was a correct
legal outcome that favored the political position of the critic. Critics of
John Marshall's early commerce-clause opinions argued that the correct
interpretation of the constitution required a states' rights outcome. Legal
academic critics of Brown y. Board of Education argued that the change
in the law could not be justified on the basis of "neutral principles." Since
the Court reached a legally incorrect outcome, it was engaged in judicial
legislation. This was judicial legislation in the strong sense of imposing
its "value judgments," or ideology, on the populace in contravention of
what was required by the rule of law.
Of course, each controversial judicial intervention has its supporters as
 The Paradox o/American Critical Legalism 8i

well as its detractors. In the liberal view, Brown y. Board was right not
because the judges had no choice but to legislate, so that whatever they
decided would be inescapably political in the sense of "raw legislative
preference," but because it was the legally correct outcome. We remain
participants in a familiar morality play in which the question is whether
the judges' personal ideology or "partisan politics" will overcome their
oaths to interpret the law rather than overthrow it.

Adjudication critique in the context of high stakes

What is most striking about American legal culture is not that court
decisions in politically charged cases produce these passionate arguments
about what the law "really" requires. It is that the context of controversy
has also produced, and here Hart was basically right, a particular, nation-
ally specific form of internal academic critique of legal reasoning. Whether
liberal or conservative, defenders of particular courses of decision against
the charge of judicial legislation have had to respond not just by explaining
that the decision was legally correct within the discourse of legality, but
also by explaining how adjudication in the abstract, or in the particular
case, can be different from legislation, even though it is interpretation
rather than mere application of legal norms.
At the turn of the century, the United States experienced a long period
of conservative judicial and liberal legislative control, one that looked as
though it might go on forever. Most liberals simply continued arguing
that each specific conservative judicial decision was judicial legislation
because there was a right legal answer that the court disregarded in favor
of its own subjective ideological preference. But some liberals "couldn't
take it anymore" and began to argue that the problem was that there were
no correct legal answers to these questions. This was the moment of the
American mutation, the "birth of the virus."
These liberals combined the positions of the German and French "free-
law" theorists with the English positivist position that judicial legislation
is inevitable when the law "runs out." It was particularly likely to run out
in the politically controversial cases that judges were then deciding in
what looked like blatantly conservative fashion. Whatever they said they
were doing, according to this new breed of critic, judges in these cases
made choices. Indeed, the general belief that there were correct answers
misled the judges themselves, forcing their biases to express themselves
"unconsciously."
82 THE PROBLEM OF JUDICIAL LEGISLATION

This book is an attempt to develop and extend this American form of

internal critique. To my mind, it is mainly through this project, rather
than through philosophy or political theory, that American intellectuals
have been participants in the larger, worldwide long-running project of
left/mpm critique. American legal theory is one of the quasi-autonomous
enclaves, like Western Marxist theory, phenomenology and hermeneutics,
and now literary theory, where this project has developed like a Sartrean
"worm at the heart of being."

Summary genealogy of the critique of judicial ideology in adjudication

CIs has had the project of resurrecting the critical strands in preWorid
War I legal progressive thought and in legal realism, so that we could
claim a tradition for our own highly controversial positions in domestic
legal academic debate, while at the same time finding a place in the larger
development. It is not my goal here to make this past "live again" in its
irreducible historical particularity, but I do want to clarify the present
situation by identifying a genealogy for particular elements in the modern
synthesis. I claim only that writers like Holmes, Wesley Hohfeld, Henry
Terry, Arthur Corbin, Walter Wheeler Cook, Felix Cohen, Robert Hale,
and Llewellyn invented the basic techniques and ground-level propositions
of today's practice.
Their attitudes toward these inventions, the way they fit them into their
more general legal and political and cultural postures, were various. None
of them seems at all similar, overall, to us, who claim to be their descen-
dants. In particular, none of them seems to have what we would now call
a critical project, as opposed to a critical practice. They often invented
critical techniques as part of ground-clearing operations for their "recon-
structive" efforts, their own ideas about how judges could escape the di-
lemma of being politically central without a respectably rational judicial
method. To this day, their posterity includes the scholar who develops an
elaborate critique of earlier attempts to rationalize a field, and then offers
his or her own alternative. The alternative sinks like a stone, but the cri-
tique not only effectively does in its object but survives as a model for
future destructive operations.'t
There are two parts to the realist heritage: the critique of the coherence
of the private law regime of contracts, property, and torts, and the critique
of the assumed ideological neutrality of judicial decision making in hard
cases. The critique of the coherence of private law doctrine was the outcome
 The Paradox of American Critical Legalism 83

of the attempt to rationalize the common law, after the demise of the writ
system and in the light of the most sophisticated European thinking. It
had two strands, which we might call "nihilist" and "contradictionist."
The nihilist was best summed up by Terry, the most brilliant late-nine-
teenth-century tort theorist, who spent his life trying to figure out the
coherence of this new legal field. His last work on the subject was pub-
lished in 1903, and it provided a motto for all that followed (not to speak
of a prefiguration of Henry Hart's famous recession from his third Holmes
lecture):
There is no general rule for determining what legal duties exist, what
acts are commanded or forbidden by law. Much labor and ingenuity have
been expended in the attempt to find some general criterion of legal
right and wrong, some general basis of legal liability. But in vain; there
is none. Various acts are commanded or forbidden for various reasons,
generally on grounds of expediency; and they are different in different
places and periods. In this respect, the law presents irsell as having a
purely arbitrary or positive character, and the duties that exist in any
particular system of law must simply be separately learned.
But the absence of a "general rule" was not the end of the story. The
contradictionist side of the critique of doctrinal coherence started with the
proposition, implicit in nihilism as I just defined it, that the European
theorists of the codes were wrong and their critics were right. Neither
European nor American public or private law could be described as indi-
vidualist (or classically Liberal) in fact. Stronger yet, individualism as ap-
plied to law could not generate a coherent legal regime. The next move
seems never to have taken place in Europe, though this impression may
be wrong, and the move may in fact have been made but crushed by
resurgent orthodoxy and the political fears I described above.
This move was to assert that there was no way to resolve particular gaps,
conflicts, and ambiguities in the existing regime without resorting to "pol-
icy," that is, to a choice, in the particular context, between the conflicting
ideals of individualism and "interdependence" (or "collectivism," or "al-
truism") or, within individualism, between the ideal of private autonomy
and the ideal of state protection against fraud and coercion. As I will argue
at length in Chapter 7, "policy" turns out to be the vehicle for consciously
or unconsciously transposed versions of the general ideological debate be-
tween, for example, liberalism and conservatism. The much milder posi-
tion of the first generation of progressives was that the choice between
policies was "legislative."
84 THE PROBLEM OF JUDICIAL LEGISLATION

So Terry was wrong when he asserted that "the law presents itself as
having a purely arbitrary or positive character, and the duties that exist in
any particular system of law must simply be separately learned." One
doesn't have to learn the rules separately, because in the contradictionist
view they are highly organized rather than purely arbitrary. It is just that
they have a dualist rather than a monistic logic. Here is a canonical ex-
ample:

The ethical problems involved in the law of contracts result as I see them
from four elementary ideas:
(z) The Tort Idea, i.e. that one ought to pay for injuries he does to
another. As applied to promises this means that one ought to pay for
losses which others suffer in reliance on his promises.
The Bargain Idea, i.e. that one who gets anything of value by
promising to pay an agreed price for it ought to pay the seller the price
he agreed.
The Promissory Idea, i.e. that promises are binding in their own
nature and ought to be kept in all cases.
The Quasi-Contractual Idea, i.e. that one who receives anything of
value from another ought to pay for it unless it came to him as a voluntary
gift.
These ideas, which at first seem trite and wholly harmonious, are in
fact profoundly in conflict. The first and fourth proceed from the premise
that justice is to be known after the event, and that it is the business of
the court to correct whatever consequences of voluntary intercourse be-
tween men may be found to have turned out unjustly. The second and
third proceed from the premise that justice is to be known before the
event in transactions voluntarily entered into, and that it is the parties'
business to settle the justice and injustice of the voluntary transactions
at the start. The conflict between these two standpoints is perennial; it
can be traced throughout the history of the law of contracts and noted
in nearly every debatable contract question; there is no reason to think
that it can ever be gotten rid of or to suppose that the present compro-
mises of the issue will be any more permanent than the other compro-
mises that have gone before.'6

Our culturally specific form of ideology-critique of judicial opinions in

cases that couldn't be resolved by mere deduction followed from this cri-
tique of coherence:

(a) A judge's explanation of his or her choice of an answer to a question

of law doesn't work, in the very specific sense of failing to establish that
 The Paradox o/American Critical Legalism 8

the rule interpretation was required by the materials, or was the inter-
pretation that fit them best, or whatever.
But it is obvious that the choice between the two rules had a sig-
nificant effect on the outcome of an ideologized group conflict.
The only rational basis for making a decision seems to be to consider
and evaluate those effects on ideologized group conflict, and to choose
between the arguments of the two ideological camps present. The de-
cision is "inevitably" a question of "policy."
Because the choice is inadequately explained by the opinion, and
because the rational consideration of its effects inevitably involves "pol-
icy," and because policy issues are open to ideological controversy, it is
plausible that what the judge did in the case was to legislate his or her
ideological agenda (flot to be confused with agendas that are "personal"
in the sense of ice cream tastes or love of blue-shirted litigants).
My view is that there is an actual, dramatic historical moment when
this critical strategy was first formulated. lt occurred in 1894, when Oliver
Wendell Holmes published his article, "Privilege, Malice, and Intent."7
In discussing recent English and American labor and common law anti-
trust cases, he wrote this sentence: "The ground of decision really comes
down to a proposition of policy of rather a delicate nature concerning the
merit of the particular benefit to themselves intended by the defendant,
and suggests a doubt whether judges with different economic sympathies
might not decide such a case differently when brought face to face with
the issue."8 The rest is history.
Part a of this type of critique appeals to "universal" standards of con-
sistency that are supposed to be convincing to anyone and everyone, re-
gardless of context and commitment. It is an internal textual critique of
the particular opinion, exposing the chain of reasoning as internally flawed
in a way that nullifies its very particular claim of necessity. There is no
claim to have identified a "smoking gun" in the text that reveals the judge's
"bias." Indeed, the technique works best on opinions that present them-
selves as utterly outside ideological discourse.
For example, Holmes critiqued opinions that relied on the legal maxim
sic utere tuo ut alienum non ladas (use your property in such a way as not to
injure the property of others) as question begging.'9 The question to be
decided was which of two parties would be allowed to injure the other
without compensation. Hohfeld criticized a specific set of opinions about
labor/capital conflict on the ground that they falsely assumed that one
kind of right entailed a quite different one.2°
86 THE PROBLEM OF JUDICIAL LEGISLATION

In 1935, Felix Cohen summed up the results of two generations of this

kind of analysis:

In every field of law we. . . find peculiar concepts which are not defined
either in terms of empirical fact or in terms of ethics but which are used
to answer empirical and ethical questions alike, and thus bar the way to
intelligent investigation of social fact and social policy. Corporate entity,
property rights, fair value, and due process are such concepts. So too are title,
contract, conspiracy, malice, proximate cause, and all the rest of the magic
"solving words" of traditional jurisprudence. Legal arguments couched
in these terms are necessarily circular, since these terms are themselves
creations of law, and such arguments add precisely as much to our knowl-
edge as Molière's physician's discovery that opium puts men to sleep
because it contains a dormitive principle.2'

The mocking self-confidence of this passage hides its real weaknesses.

As we will see, it is not so easy to distinguish between concepts that meet
Cohen's requirement of definition in terms of fact or ethics and those that
don't. But what I want to emphasize here is that though general, in the
sense of applying across all of law, this critique is in the mode I will call
"minimal." It is minimal because it carefully avoids two much stronger
but opposite critical claims. (i) lt does not assert that judicial opinions
never convince us that the result was legally compelled, or that law "by
its nature" can never determine an outcome, or that because of "social
construction" law is "inevitably" an ideological construct, or anything of
the sort. (2) Nor, conversely, does it assert that legal reasoning yields a
constrained outcome on the side of the question of law that the judge
rejected. There is no claim that he or she has violated (whether intention-
ally or not) the duty of interpretive fidelity.
The second step in the argument is of a different character. It consists
of pointing out the distributive stakes in the decision, its impact on ideo-
logized group conflict. In other words, once it is established that the judge
has exercised state power without an adequate legal explanation, we in-
quire, cui bono? The appeal is to common knowledge once a rough em-
pirical analysis has shown what the stakes behind the technicalities really
were. Here also there was a breakthrough, summed up in two sentences
of Robert Hale:
The market value of a property or a service is merely a measure of the
strength of the bargaining power of the person who owns the one or
 The Paradox o/American Critical Legalism 87

renders the other, under the particular legal rights with which the law
endows him, and the legal restrictions which it places on others. To hold
unequal bargaining power economically justified, merely because each
party obtains the market value of what he sells, and no more and no less,
is to beg the question.22

Hale opened up a whole field of analysis, showing that the most appar-
ently unproblematic background rules of property, contract, and tort were
"really" sophisticated regulatory interventions through which the state
conditioned the outcomes of economic conflict.23 Since, according to the
hypothesis of contradictionism, this set of rules had no "logic," could not
be derived from a coherent theory of economic individualism, the way was
opened to choosing among possible interpretations with a view to these
distributive consequences. As with Cohen, there was a weaknessthe ab-
sence of a definition of unequal bargaining power.
The third step is the assertion that the issue in the particular case (not
in every case) "is inevitably one of policy." This means that the legal ma-
terials and legal reasoning could not resolve the question, could not con-
strain the judge, in a way that would permit him or her to decide without
reference to ideologically contested arguments.
This step is given credence by step a, in which it was demonstrated, by
appeal to widely or universally shared standards of rationality, that the
opinion failed to establish any kind of legal necessity. (It used a false
argument.) But the internal critique cannot, of course, establish that it
was impossible to write an opinion in the particular case that would indeed
have generated a sense of closure or constraint on the side of the actual
outcome.
The fourth step is no more than an assertion: Given that the judge
offered no convincing legal explanation, and that a rational ground of
decision would have had to take account oí the impact oí the rule on
ideologized group conflict, doesn't it make sense to think that ideology
played a part? The meaning of ideology in this context might be vulgar
and specificpro-labor judges make pro-labor decisionsor more refined.
And the critic might charge the judge with something like having an
ideological commitment, or merely with having what I called in the last
chapter an ideological "preference," as in Holmes's "economic sympathies,"
for example.
The turn-of-the-century critics were usually trying to persuade their
audience that particular pieces of controversial, conservative, judge-made
88 THE PROBLEM OF JUDICIAL LEGISLATION

law were judicial legislation, and that they were wrong. They tended to
favor an attitude of judicial deference toward legislative majorities and a
frank consideration of the inevitable "legislative" factors by judges doing
common law judicial rule making. But they did not, contrary to the cur-
rent pop academic view of legal realism, equate the legislative with the
political. Their analyses of particular cases showed flaws in the reasoning
process, and strongly suggested ideological along with other "subjective"
influences, but offered some form of "policy analysis" as the alternative.
There was no assertion that adjudication was irredeemably ideological.24
This was true even of such notorious "bad boys" as Jerome Frank,2' Thur-
man Arnold,26 Joseph Hutcheson,27 and Max Radin,28 all of whom were
mainly debunkers of the "myth of certainty."
This position allowed an alliance with the liberal critics who believed
that there were correctliberalanswers to the hot legal questions of the
day but that conservative judges couldn't be expected to reach them. Over
the years, some members of both groups of critics supported proposals like
abolishing judicial review, codifying large areas of law, creating adminis-
trative agencies outside judicial control, electing judges to short terms,
and radically easing the constitutional amendment process.
But whether or not such changes occurred, success of the critique of
adjudication per se was quickly understood to threaten further conse-
quences. If judge-made law, at least in these controversial cases, is necessarily
based on legislative considerations, then it is arguably invalid, because it
is the legislature that should do legislation under the rules of majority
vote and democratic accountability. If many people regarded both the lib-
eral and the conservative law that judges have made in politically impor-
tant cases as presumptively invalid in this sense, this conclusion might
change our political culture.
The American mutation, the emergence of an internal critique of ad-
judication, is therefore an obviously dangerous fact. Both liberals and con-
servatives have an interest in legal authority in general, as part of the
general liberal/conservative commitment to the rule of law. And they have
had divergent particular interests in legal authority as a support for the
specific legal agendas they have pursued through adjudication when they
controlled the judiciary.
I think it quite common to see the history of American thought about
law in the twentieth century as a protracted debate about how to deal with
the "viral" tendency of internal critique, with the positions ranging from
flat rejection to compromise to flat endorsement. In the course of the
 The Paradox of American Critical Legalism 89

debate, the practice of opinion writing, its defense as legitimate law mak-
ing. and the critique itself, have gone through many transformations and
elaborations.
The course of the debate has been powerfully influenced by its situation
as a distinct part of the general debate between left and right. The critique
has been an evolving part of the general left-wing attack on particular
rules and on the power of judges in general, and in itself logically uncon-
nected to leftism.
The first point is historical: the originators and developers of the critique
have used it over and over again against particular conservative victories
in the courts and generally against rule by judiciary. They have chosen
naturally enough to tailor the evolution of the critique, its defense and
development, to their left-wing projects. Almost all the classic instances
of internal critique, of assertion of the inevitability of "policy," and of
imputation of ideology are directed by liberals or radicals against conser-
vative rules and judges.
But there is a whole left-wing legal culture that rejects the strategy
represented by the critique, embracing the maximalist position that what
is wrong with judges is that they reach the wrong legal results. According
to this position, in one case or another the Constitution and statutes and
common law gave the victory to the left, but the judges snatched it away
through spurious legal argument.29 There is also a small part of the con-
servative legal culture that embraces the critique.° I don't think this
means they have "made a mistake" about the true implications of their
general ideological positions (more on this later). For the moment I simply
assert that there is nothing intrinsically liberal or conservative about the
critique.
There is an extension that we need on the table now. The realists and
their cls successors expanded opinion-critique beyond the demonstration
that there was a logical flaw. Even a judicial opinion that contains none of
the famous errors of formalism may be supremely unconvincing as a dem-
onstration of constraint. In particular, many opinions are unconvincing
because although of impeccable internal logic they don't confront obvious
responses to their arguments.
In The Bramble Bush3' and in his famous article "Canons on Statutes,"52
Llewellyn developed this notion through what I would call a "structuralist"
formalization of the arguments and counterarguments for broadening and
narrowing precedents and statutes. He summed up his theory of precedent
in language that applies, mutatis mutandis, following the progress of the
90 THE PROBLEM OF JUDICIAL LEGISLATION

virus, to his theory of statutory interpretation and to the cls theory of

policy argument:
What I wish ro sink deep into your minds about the doctrine of prece-
dent, therefore, is that it is two-headed. lt is Janus-faced. That it is not
one doctrine, nor one line of doctrine, but two, and two which, applied
a: the same time to the same precedent, are contradictory ofeach other. That there
is one doctrine for getting rid of precedents deemed troublesome and one
doctrine for making use of precedents that seem helpful. That these two
doctrines exist side by side. That the same lawyer in the same brief, the
same judge in the same opinion, may be using the one doctrine, the
technically strict one, to cut down half the older cases that he deals with,
and using the other doctrine, the loose one, for building with the other
half."
Let me quickly point out that Llewellyn was a contradictionist without
being a nihilist (he believed in the Rule of the Singing Reason), and that
he did not link the argument-bites he identified in precedential and stat-
utory argument ro the liberalism and conservatism of his time. Llewellyn
was not a cnt. Moreover, I am simply presenting his conclusion, obviously
a controversial one, and even more controversial when extended beyond
argument from authority to policy argument in general. This extension is
the subject of Chapters 6 and 7. My point for the moment is only that
when a judicial opinion deploys stereotyped argument-bites without ac-
knowledging that there are equally plausible stereotyped counterbites for
each, it fails in a way analogous to that of the logically flawed opinion.
But it is only a matter of analogy. Unlike "pure" internal critique, the
claim that opinions are unconvincing because they willfully deny what I
will call the "semiotic' character of their own arguments cannot rely on
universally or even widely accepted standards of rationality. Whether legal
discourse can be said to have this stereotypical organization is open to
argument, and for any given opinion there are no clearly agreed standards
of "convincingness."
When it is true to the minimalist program, this form of argument
eschews any claim that all opinions must necessarily be unconvincing be-
cause written in legal prose. Likewise any claim that the judge is a sinner
because he or she betrayed interpretive fidelity and reached the "wrong
result." The form is: this opinion seems open to a response that nullifies
it, not through internal critique but by confronting it with its mirror
image on the other side. Given that there is no apparent basis within law
for choosing between opinion and mirror image, and given that the two
 The Paradox of American Critical Legalism 9'

opinions represent opposing ideological positions on an issue oí group

conflict, it seems plausible to suppose that ideology influenced the judge's
choice.
The body fights the virus. With respect both to the question of the
coherence of particular bodies of law and to the question of judicial method
in hard cases, "reconstructive" efforts are constantly under way. The min-
imalist critical response is to do an internal critique of each reconstruction
as it comes along. The goal is to show that this particular account of how
judges can be neutral doesn't work. The account has left room for ideology,
or it imposes contradictory demands, or whatever. The critical project
builds through time both through specific instances that demolish specific
reconstructions and by additions to the repertoire of repeatable critical
routines. First-year law students today can learn and use Holmes's specific
critique of sic ¡itere tuo and Hohfeld's critique of the derivation of claims
from privileges.
On this basis, there are ongoing ideological disputes between critics and
defenders of particular groups of legal rules (labor law, race law, local
government law, antitrust, professional responsibility, international law).4
The critics work to problematize the rules by problematizing the judicial
opinions and academic writing that explain them; the defenders try to
produce new and better explanations. There is a quite distinct dispute
about whether the critiques successfully problematize the very idea of ju-
dicial neutrality. Neither side is likely to just "win." As in other ideological
battles, the very definition oí stakes and outcomes is contested.
There is no extant theory that threatens to end the current ideological
conflict about method by compelling a consensus about how judges can
and should be neutral. Indeed, the current multiplicity of contradictory
theories of neutrality seems a powerful, though of course not conclusive
refutation of all of them. I am an admirer of their work of mutual critique.
I endorse Dworkin's critique of Richard Posner3' along with Andrew Alt-
man's critique of Dworkin36 and Fiss's doubtless forthcoming critique of
Altman, and Posners critique of Fiss (if there is one) and on around the
circle. This is not musical chairs but more like a game of "Penelope," in
which each writer simultaneously weaves his own and unweaves others'
work.37
I would summarize the situation as follows. On the one hand, in Ameri-
can legal culture, the gradual accumulation oí quite specific critical rou-
tines means that opponents can direct a formidable technology of delegi-
timation at judicial law making in situations of ideologized group conflict.
92 THE PROBLEM OF JUDICIAL LEGISLATION

Ir is difficult to write a convincing judicial opinion, an opinion that gen-

erates the experience of legal constraint, in any case where the opponents
of the chosen rule decide to deploy this technology. Judicial law making
through adjudication is under heavy suspicion oí being disguised ideol-
ogy.38
On the other hand, if the project of legal necessity is a Golden Bowl,
no one has found the fatal flaw that would allow us to shatter it with a
single blow. Successful critique is 'local," even when the locality is a whole
theory of judicial neutrality. Even locally, the endless recurrence of deter-
minacy is as much part of our experience as its endless dissolution in
critique.

The Continent versus the United States

Continental legal theory is uncannily other" for an American, perhaps

because just about everything in our legal culture is present in theirs, often
translated word for word, but nothing seems to have the same meaning.
Of course, there is a Continental critical tradition in legal theory. Here is
a typology, doubtless seriously distorted because I am much more familiar
with Italian thinking than with that of any other European country.
External critiques. An external critique accepts the notion that the law
as a whole, or some part of it, is coherent, but criticizes it either because
it has a suspect origin or because it has bad effects. The first type shows
that coherence derives not from a legitimating external factor, such as the
popular will or the abstract concept of justice, but from a delegitimating
factor. The two most popular delegitimating outside factors are Liberal
individualist ideology and capitalist relations of production. An effects-
oriented external critique concedes (or affirms) coherence and then develops
an analysis of the bad social consequences that flow in fact from the rules.
External critiques can be from either the left or the right. Of course, one
can pursue an ideological and a materialist external critique of origins at
the same time, and combine both with a critique of effects, as in classical
Marxism
Global internal critique. One can distinguish two types of global internal
critique: analytical and sociological. The analytical are critiques of the rule
form, perhaps best illustrated by Hans Kelsen's insistence that every rule
application is the creation of a new norm, or by the various applications
of Wirtgenstein, Derrida, and so on, mentioned in the last chapter. The
sociological critique is the theory part of the European left program for a
 The Paradox of American Critical Legalism 93

regulated market, mixed economy, and welfare state. It is perennially in

battle with the "formal" approach to law, supporting antiformal legal re-
form, an antiformal theory of interpretation, and ultimately an alternative
epistemology for legal theory.
The/ormai versus the social. The formal and the social confront each other
at many levels:

The Formal The Social

Private law and the market Public law and administrative

(property, contract, and tort agencies (labor and
law, implicitly conservative) regulatory law, implicitly
liberal)
Liberty and individual rights Needs and social rights
Legal rules Legal standards

Abstraction and deduction (una Context and facts (an excellent

bella dogmatica) empirical study)
A pyramidal logic of norms A holistic logic of social
organization
Strict separation of judicial and The adaptation of powers to
legislative powers situations (e.g., labor courts)
Legal positivism and legal Scientific positivism and
science sociology
Tradition Modernity
Certainty and stasis Flexibility and evolution
Etc. Etc.

Comments: First, the formal and the social are opposed both to fascism
and to the Leninist theory of the dictatorship of the proletariatthey share
faith in rights, majority rule, and the rule of law. The advocates of the
social are no less committed to interpretive fidelity than the advocates of
the formal (in Italy, they appeal to the general clauses of the i 948 Con-
stitution affirming human rights and the protective role of the state).
Second, each side considers the existence of the other an imperfection-
each imagines that the incoherence of modern law, its patchwork corn-
94 THE PROBLEM OF JUDICIAL LEGISLATION

bination of formal and social elements, could and should be cured by its
triumph over the other. The aspiration is for coherence, even if our fallen
state is incoherence. André-Jean Arnaud's wondethil Les juristes face à la
société is a lament for the suppression of the social in French Legal science,
rather than a critique of the dichotomy.4°
Third, as I noted above, the judicial role is unproblematic as long as it
is possible to situate each particular question within a subcategory of doc-
trine that is coherent according to one model or the other. Fourth, with
some Italian exceptions the major players in the battle between the formal
and the social are the intelligentsias of political parties, which try to im-
pose one vision or the other through legislation (rather than through
judge-made law), and legal academics, but not judges.
There is a strong resemblance between the Continental social current
and American liberal legalism. First, they are politically aligned and can
fruitfully borrow one another's doctrinal and institutional innovations. Sec-
ond, in each case, the practitioners take law seriously, in the sense of as-
piring to win their ideological battles by being legally correct. Third, ideas
like context and facts and a diffuse confidence that social science favors
progress are shared, as in Earl Warren's famous appeal to Kenneth Clark's
study of black schoolchildren to refute the idea that separate could be
equal.
The most important difference is that the social current is both more
and less critical than American liberal legalism. The social current is in a
continuing battle not just with conservatism but with a whole conservative
way of looking at law, the self-consciously formal. The formal doesn't exist
in the United States except as a form of reaction, because legal realism
killed it off and promoted a hybrid in which policy argument is included
as a supplement to deductive reasoning in both liberal and conservative
appellate opinions.
For this reason, European leftists can see the social as antagonistic to
the formal at many more levels than the merely doctrinal, whereas Ameri-
can liberals and conservatives mix and match the identical social and for-
mal elements in their legal writing and theory (Warren and his liberal
successors resort on a regular basis to civil libertarian formalism). Liberal
legalists differ from conservatives only in their preferred outcomes and in
their diffuse supralegal "vision of the good society" based more on "com-
passion," less on "self-reliance," and so forth.
But Continentals don't do the kind of internal critique and hopeful
reconstruction of judicial opinions that is the bread and butter of American
 The Paradox of American Critical Legalism 95

critical legalism. As a consequence, they haven't developed the particular

practices and techniques, transmitted from generation to generation
through the case method and the Socratic classroom, that define American
legal culture. And so they haven't had to defend against the realist and cis
projects of generalizing and radicalizing those techniques in viral form.4'
The consequence of radicalization has been, about every other genera-
tion, a deep challenge to the possibility and even the desirability of the
kind of coherence that the Continentals still take for granted u'ithin the
formal and within the social. As someone engaged in one of these periodic
challenges, the Continental social current sometimes seems to me less
critical even than American conservative legalism, because it has never had
to confront and adapt to the successes of a native movement of minimalist
internal critique. Such a movement would force Continental critical the-
orists to defend the social not just against the formal and against Marxist
external critique, but against an internal critique that might look some-
thing like this.
First, each mode is present in the other, so that when an outcome seems
to follow from adopting one mode or the other, it is probably because
someone made the mistake of overestimating that mode's determinacy. The
question whether anything follows from putting oneself inside the formal
mode as opposed to the social, or vice versa, involves all the complex
questions of legal theory that I broached in the discussion above of the
realist critique of adjudication.
Second, the conflicting elements of each are present in each of us, so
that we are dealing with a contradiction between our own views, rather
than an opposition between groups.42 Advocates of the social, no less than
of the formal, worship an Idea of Reason that doesn't work to solve prob-
lems in the way they think it does, but that does work to reinforce the
social power of its votaries.
I am not at all sure that this is right, or for that matter, that Continental
critical legal thought is helpfully analyzed in terms of the formal/social
dichotomy.43 But I am quite confident that the type of analysis l've just
attempted, combining minimalist internal critique, nihilism, and contra-
dictionism, is typical of American cls and not at all common in Europe.

Britain versus the United States

We are now in a position to ask why the American mainstream, typified
by Dworkin, has rejected the English solution of "frank" recognition that
96 THE PROBLEM OF JUDICIAL LEGISLATION

the judge is willy-nilly a legislator when the "law runs out." It seems
obvious to me that the answer is that, given the viral strand in American
legal thought, the admission would threaten to delegitimate "too much"
of American law"too much" in the sense of too many doctrines, given
the critique of judicial law making in every field of law. And "too much"
in the sense of too important, because judges' decisions in hard cases settle
so many ideologized group conflicts in which liberals and conservatives
have big stakes. In other words, the stakes in the debate about judicial
method, loosely between the realists and their successors and all the gen-
erations of American reconstructors, from Cardozo to Liewellyn and Fuller
through Hart and Sacks to Dworkin, derive from the stakes of liberals and
conservatives in judicial law-making power.
 5

Polùy and Coherence

this chapter interprets American coherence theories as responses to the

problem posed by the widespread and self-conscious use of policy argument
in postrealist American legal culture, that is, in lawyers' briefs, judicial
opinions, and academic writing. In the first part of the chapter, I try to
tease out just what is meant by the term "policy," when it is used in
contrast to deduction or, just as commonly, to "law." This is an exercise in
the anthropology of legal conceptions, based on my own status as a par-
ticipant observer, rather than an exploration of what legal theorists think
about the issue. I then argue that policy argument, however firmly estab-
lished as a legitimate legal practice, is commonly understood to be a po-
tential "Trojan horse" for ideology.
In the second part, I describe the asymmetrical stakes that liberal and
conservative ideological intelligentsias see in finding a way to represent
adjudication as outside ideology, in spite of the presence of policy argu-
ment. I argue that liberals, unlike conservatives, confront a dilemma: that
of reconciling their historical commitment to antiformalism with their
equally historic investment in specific liberal reforms achieved through the
judiciary. In the third part I summarize and summarily critique three
versions of American coherence theory as responses to this dilemma.

The deductive mode versus the policy mode

American lawyers distinguish two ways to argue a question of lawa

deductive mode, sometimes called argument from authority or just "legal"
argument, and a policy mode. The traditional view is that even if it decides
ideologized group conflicts, adjudication can be nonideological because it
is (strong version) objective or (weak version) "not personal." In this view,

97
98 THE PROBLEM OF JUDICIAL LEGISLATION

deduction is clearly nonideological; the contested element is the part that

is governed by policy. According to the legal realist version of viral cri-
tique, when a case "really comes down to a proposition of policy," that
"suggests a doubt whether judges with different economic sympathies"
might not decide it differently.' The jurisprudential debates about objec-
tivity, and lately about indeterminacy, are both parasitic on the law/policy
distinction.
The premise of the deductive mode is that lawyers answer questions of
law by determining the meaning oí an authoritative or "valid" case or
statute, or the meaning of a private expression (contract, deed, articles of
incorporation) that is given legal force by a case or statute. In this mode,
it is a premise that there is a single applicable norm (the holding ola case
or the words of a statute or an expression of legally valid private intent)
whose meaning is uncertain. The uncertainty is resolved by the deductive
or "logical" or "analytic" or "semantic" process of identifying the defini-
tions of the terms in the norm or the "meaning" of the norm taken as a
whole.2 If it seems at first blush that there is more than one norm, or no
norm at all that is applicable, then the logical or analytic or deductive
work of the lawyer is to show that in fact only one was applicable, or that
a rule that did not at first seem to be applicable was applicable in fact,

once we look behind the words to their definitions or meanings.

In the deductive mode, the judge is always moving from the abstract
or general to the concrete or particular. The words in the valid norm raise
a question of law because they could be interpreted in more than one way
in the given case. The answer to the question is the choice of a specification
of the meaning of the valid norm that resolves the doubt without in any
way challenging the norm's authority. In the case of statutes and case law,
a new rule may emerge, one that has never been formulated before, but it
is a "subrule" that was always implicit in the valid rule.
The deductive mode excludes the judge's ideology because the subrule
the judge chooses is the same as the more abstract valid authoritative rule,
except for the logically necessary permutations that come from unpacking
the meaning of its terms. Judges may agree or disagree with the valid rule
that they interpret deductively, but they can still do the deduction, and
others will be able to determine whether they have done it correctly. There
is a "right answer" in a strong sense: universally valid or at least widely
agreed standards of truth have been applied.
Policy argument is different from deductive argument in three crucial
ways. First, it presupposes either (a) that deduction from a valid norm
 Policy and Coherence 99

doesn't settle the question of law, or (b) that the valid norm covering the
case requires the judge to consider nondeductive reasons for choosing one
subrule or another.
In case a, either the law "runs out," so that we have a "case of first
impression" or a "hard case," or there is an argument for letting policy
argument trump deduction, that is, an argument for overruling a prior
case. In case b, there are a number of possibilities. (i) The rule of law is
that the rule against perpetuities shall be "remorselessly applied," unless
there are "public policy reasons" for not applying it at all to the particular
type of interest in question.4 (2) A valid rule conditions an outcome on
"the equities," whose determination requires policy argument (see, for ex-
ample, the Restatement of Torts on what the judge is to consider in de-
ciding whether or not to grant an injunction).' ()"Standards" (negligence,
good faith, probable cause) require policy argument when we apply them
to particular facts or when we choose subrules that give the standard a
much more precise meaning for a subclass of cases (violation of a statute
is negligence per se).6
Second, the content of policy argumentwhat we do when we are not
arguing by deduction from valid rulesis argument about the desirability
of a subrule, in terms of some set of social or legal institutional values.
The social values are almost always one version or another of utility, ex-
tralegal rights, or morality. The legal institutional values are more nu-
merous, but some typical examples are considerations of judicial compe-
tence (judicial activism versus judicial passivism), administrability (clear
rules versus equitable standards), and federalism (virtues of centralization
versus virtues of decentralization). In the language of the realists, the dis-
cussion is "legislative," because legislators make these types of arguments
to one another when considering whether or not to pass a statute (raising
no constitutional issues).
Third, policy argument presupposes a "force field" model of the decision
process. The elements of the force field model are:
More than one policy is likely to apply to a question of law, and the
policies are perennially (though not necessarily) in conflict. In the utili-
tarian version, we have gains and losses to different parties whose in-
terests conflict; in rights argument, rights conflict; in arguments from
morality, there are conflicting moral principles.
Rules (subrules) represent compromises of conflicting policies,
"drawing a line" that "gives" more or less to each affected interest, right
or principle.
100 THE PROBLEM OF JUDICIAL LEGISLATION

For any given policy question, there will be an indefinitely large

number of possible rules, each differing from the others in how much
it responds to each policy.
In selecting among the possible rules that would settle the question
of law, the judge has to 'balance" the conflicting policies.

By contrast, in deductive argument, we presuppose that (a) only one

valid rule is applicable rather than a number of conflicting policies, (b) the
subrule selected is the same as" the valid rule rather than the arbitrator
oía conflict, (c) it represents not one among a set of possible compromises
but the concretization oían abstraction within a pyramidal structure, and
(d) the judge defines and infers rather than balances.

Respective roles of deduction and policy

The relation between deductive argument and policy argument seems to
follow from their places in the larger Liberal theory of majority rule, rights,
and the rule of law. If the applicable norm refers explicitly to policy, or
requires a determination of equities, or is in the form of a standard, then
the use of policy rather than deduction is required of the judge by his duty
of fidelity to law.
If no applicable norm requires policy argument, and there is an inter-
pretation of the legal materials that can be arrived at by deduction from
those materials, then it might seem that is the legally correct interpreta-
tion. This seems to follow from the notion of deduction as a matter of
identities and from the presupposed democratic validity of the legal prem-
ises. The hard case would appear to be that in which there is a gap, conflict,
or ambiguity in the system of norms, so that there is neither a plausible
deductive answer nor an invitation to policy argument built into the ma-
terials. In this case, the judge can defer to the legislature (or another
democratically legitimate body, such as an administrative agency) if it has
decided the question, or do her own policy analysis.
But this is too simple, because in a common law system the judges
make rules by interpreting precedents that are in turn based on earlier
precedents, with no ultimate foundation in a legislatively enacted code.
Judge-made common law is democratically legitimate because the legis-
lature could change it if it wanted to, rather than because it is interpre-
tation of legislative will. This means that there is a perennial conflict
between two theories of interpretation.
 Policy and Coherence ro r

Under the first, deductions from the holdings of cases are legally valid,
and policy is only appropriate when deduction is impossible or the valid
rule requires it. Judges can make exceptions to valid holdings or overrule
cases altogether only when holdings or cases are contradictory, so that there
has to be a mistake somewhere. Under the second, we understand the
judges to have made rules all along to arbitrate between conflicting poli-
cies, and it is therefore legitimate for them to reject a deductively required
outcome in the name of the policies that underlay the original adoption
of the rule. In this theory, policy argument can trump deduction in com-
mon law cases (although not in statutory interpretation).7
There is an implicit lawyers' ontology of legal versus policy questions
that operates in both of these theories of precedent, and indeed throughout
American legal culture. By an "implicit ontology" I mean the never-artic-
ulated presuppositions of a discourse about what exists in the world in-
dependently of observers of the world. In this case, the implicit presup-
position is that it is possible to typologize legal questions, with some being
"by their nature" susceptible both to deductive and to policy resolution,
and others being "by their nature," that is, given the state of the legal
materials, susceptible to resolution only by appeal to policy.
The application of deduction or policy should depend on the nature of
the questionon something external to the judge. When a policy question
is resolved deductively, someone must have made a mistake, because, given
the nature of the question, it just wasn't possible to come up with a
deductively correct answer. This is the sense of the phrase "ir was inevitably
a question of policy." Conversely, when a question that is open both to
deductive and to policy resolution is resolved by an appeal to policy, the
judge has sinned because he or she should accept the deductive solution,
unless he or she can propose a theory of a legitimate nondeductive role for
judges (for example, Cardozo's theory that judges should evolve the law to
meet changed social circumstances).

Tu'o kinds of deduction

A good part of legal reasoning is deductive, in one or another of two

different ways. First, legal reasoning is deductive when a rule states a
factual predicate for a legal consequence, and the judge applies the rule
by stating that the definitions of the terms in the rule correspond to the
facts of the particular case. "If you are convicted of murder, you shall be
sentenced to life imprisonment. You have been convicted of murder. There-
 102 THE PROBLEM OF JUDICIAL LEGISLATION

fore Isentence you to life in prison." Because the fact has been found, the
consequences follow.
In Kelsen's sense, the judgment articulates a new norm (you are sen-
tenced to life imprisonment). But no subrule emerges from deductive rea-
soning starting from the valid rule; it is "merely applied." The case is just
an illustration of the "logic" of the rule, rather than the occasion for an
"interpretation" of it. This mode of deductive reasoning is pervasive but
of little interest for us. Nonetheless, it is reasoning, it is deductive, and it
can be extremely complicated.
A classic example is the rule against perperuities. It is common to pro-
duce elaborate reasoning chains from the definitions of the terms in the
rule (to be valid, an interest must vest, if at all, within twenty-one years
of the expiration of a life in being at the time of the creation of the interest)
and the particular facts oían inter vivos trust (from A to B in trust for A's
children, living and as yet unborn, to be distributed to each child on
attainment of the age of twenty-five). The process of rule application that
invalidates the interests of children born after the creation of the trust
seems to me well described as deductive.
A second classic example is consideration doctrine, once reduced to a
canonical formulation (a promise is nor binding unless there is something
"bargained for and given in exchange for the promise"). My uncle promises
me in writing to give me a sum of money for a trip to Europe, "in con-
sideration of" his "esteem and affection" for me; and unbeknownst to him
I buy a suit in preparation; he reneges. I need the doctrine of promissory
estoppel because there is no consideration for his promise.
In both of these cases, we understand the process as deductive in a very
strong sense: the facts are "data" fed into a system of categories that "pro-
duce" an answer. At each step, definitions do the work. There is no need
to elaborate a subrule that settles the question of interpretation of how
this rule will apply to a class of cases in which its meaning would otherwise
be in doubt. We are close to the civil law model of rule application, in
which we don't need precedent because the application of the rule is not
an interpretationit involves no choices that are "really" open (the choice
to make a logical error is not a choice), and we don't need to preserve it
as a precedent because if we have the same case later on we are confident
we'll do exactly the same thing even if we have no memory of the first
application.
The second form of deductive reasoning is much more important and
much more obscure. Lawyers propose two different interpretations of an
 Policy and Coherence 103

unquestionably "valid" rule. The two will produce, when mechanically

applied to the facts of the particular case, in the manner of perpetuities or
consideration doctrine, diametrically opposite outcomes. The interpreta-
tions are verbally distinct from the original "valid" rule, they are less
abstract, and they will clearly cover a large number of cases, some of which
may be hard cases, as well as the present case.
Everyone understands that it is important to record the judge's choice
of interpretation, which will become itself a "valid" rule, because otherwise
later courts might adopt different interpretations or perhaps misunder-
stand this one. The interpretation is presented not as an explanation of
how the definitions in the authoritative rule apply to the facts of this case,
but as a more concrete version of the authoritative but abstract statement,
which will in its turn be repeatedly applied to new facts.
The judge decides that one interpretation is right because it is just the
restatement of the rule at a lower level of generality, whereas the other
interpretation is wrong because it involved a logical error in moving from
the general to the particular. A classic example is the idea that a rule of
expectation damages follows by deduction from the definition of a contract
as the legally enforceable will of the parties. Reliance damages are of course
a possible alternative, but to adopt them would be, according to one ar-
gument, a logical error.8
The choice of the expectancy as the measure of damages is understood
to be the rejection of the reliance measure. It is an intermediate step
between the definition of contract as the legal protection of the will of the
parties and the facts of a particular case. It may well be that the choice
between the two rules will be made in a lawsuit, but the question is "one
of law" not because judges won't let juries decide it, but because we are
dealing with rule definition. Once the judges have chosen the expectancy
as the deductively necessary subrule, they apply it rather than the more
abstract valid rule that contract law protects the will of the parties.
I chose this example because one of the most famous legal realist articles
is Lon Fuller and William Perdue, "The Reliance Interest in Contract
Damages,"9 which argues that the deduction of expectation damages is a
mistake, an instance of circular reasoning. Instead, according to Fuller and
Perdue, the choice of a damage measure is a matter of policy. He proposes
that in disputes among family members, inter alia, the reliance measure
is better on policy grounds than the expectancy, and there is no "logical"
reason not to adopt it.'°
Because of similar realist critiques of deductive reasoning in many par-
104 THE PROBLEM OF JUDICIAL LEGISLATION

ticular fields, and because of realist generalizations like Holmes's famous

maxim that "general propositions do not decide concrete cases," it is
common to believe that deduction is "formalism," an invalid, discredited
method of decision, and that nowadays we reject it in favor of policy. This
seems wrong to me. The judges and treatise writers Fuller and Perdue
criticized made a wrong deduction. But this doesn't mean we don't still
use their method.
For most modern contract theorists, for example, it follows from adopt-
ing the expectation measure that the contract price minus the market price
is the correct way to measure the expectancy in a commercial contract on
a competitive market. The definition of the expectancy is trying to "put
the victim in as good a position as he or she would have been in had the
contract been performed." Reliance damages restore the status quo before
the contract was made. It seems to be "implicit" in these definitions that
contract-minus-market is just another form of the expectancy, whereas
restitution plus expenses- in-preparation would not be.

Deduction "guided" by policy

In American judicial opinions and in doctrinal writing, the most common

mode is neither deduction nor policy but an intermediate mode, deductive
argument supplemented or "guided" by policy argument.'2 The argument
has a deductive framework, but the participants understand that nothing
like "necessity" or "logical entailment" has been generated by that frame-
work. At each point, the judge or scholar supplements the apparently or
weakly or falsely deductive steps in the argument with policy arguments
that appeal to rights, morality, utility, or institutional considerations cast
nondeductively.
The policy argument itself is presented in loosely or falsely deductive
form: (a) we all agree that we should reject rules that open the floodgates
of litigation; (b) this rule does that; (c) therefore we should reject this rule.
Treatise writers like William Prosser' and E. Allen Farnsworth'4 ration-
alize whole territories oí doctrine, making the complex of rules seem sooth-
ingly sensible, through this kind of combination. Their "argument-bite"
policy arguments have much the same rhetorical effect as the citation ola
case but achieve it by simply ignoring the counterbites.
For example, if the question is whether professional degrees or licenses
are marital "property" that must be "equitably distributed" under a statute
governing divorce, the court will expatiate on the "meaning" or defini-
 Policy and Coherence ¡05

tion of property, while at the same time giving its thoughts on the con-
sequences of one rule or another for "incentives," "trust" between spouses,
and the extralegal "rights" of the husband and wife to the rewards of their
enterprise. The judges debate the desirability of post-decree adjustments
of the valuation of a professional degree in terms of the consequent legal
uncertainty, the virtues of equitable flexibility, and so on.'5
Analogy plays an important role in this kind of argument, in two dif-
ferent ways. Sometimes it buttresses the deductive argument by showing
that the meaning proposed for a premise is adopted in other similar cases-
for example, that there are many nontransferable interests that are treated
as property, so that there is nothing anomalous about treating professional
licenses in this way. Sometimes, the role of the analogy is to show that the
conflict between policies present in this case has been resolved in other
cases similarly to the way it is proposed to resolve it herealimony de-
crees, after all, are subject to equitable revision in spite of the problem of
uncertainty, so why shouldn't we also allow revision of awards based on
the expected value of degrees?'6

What is formalism?

But if we still use deduction all the time in legal reasoning, what is for-
malism? Beginning with Ihering's "Heaven of Legal Concepts,"7 contin-
uing with Roscoe Pound's "Mechanical Jurisprudence,"8 and culminating
with Felix Cohen's "Transcendental Nonsense,"9 the critics of late-nine-
teenth-century legal thought characterized it as formalist in two quite
distinct ways that are now commonly confused. In one usage, formalism
is a "theory of law," though one invented by its adversaries rather than by
any known American proponents. Formalism in this sense is the theory
that all questions of law can be resolved by deduction, that is, without
resort to policy, except for questions arising under rules that explicitly
require policy argument.2°
Their critique of formalism in this sense was that it was possible to
maintain the idea that policy was never necessary only by making mistakes.
They supported their position by showing in particular cases that a par-
ticular analysis, supposed to resolve a legal question deductively, failed.
They critiqued not deduction in the abstract but particular deductions, in
order to show that formalism as a general theory was wrong. In American
legal thought, their critique fit with the pragmatist emphasis on the par-
ticular, on practice, on the specificity of the "facts."2' But, of course, at
io6 TI-lE PROBLEM OF JUDICIAL LEGISLATION

the lower level, say of the definition of the expectancy, they used deduction
just as often and with just as much confidence as the next man.22
In the United States, their critique was successful in a very strong sense:
until recently, I had never met an American legal theorist or practitioner
who called him- or herself a formalist, except in jest.23 Liberals and con-
servatives agree that policy is sometimes necessary. Yet formalism is anything
but a dead issue, and charges of formalism are the bread and butter of legal
theoretical and doctrinal dispute. The reason for this is that the charge of
formalism has another meaning. In this second sense, it charges an adver-
sary either with making the mistake of thinking that a particular abstract
legal norm can generate a particular subrule, or with a general tendency
to overestimate the capacity of norms in general to generate subrules by
deduction.
In this sense, it makes sense to charge justice Rehnquist or justice Scalia
with formalism in a particular case or across the board, even though each
constantly and explicitly acknowledges that sometimes they have to resort
to balancing interests, or some other form of policy argument.24 A friend
recently lamented that the briefs before the South African Constitutional
Court in the Death Penalty Case were "formalist" because they tried to
answer the constitutional question, pro or con, by reference to the words
"right to life" in the South African constitution, without reference to the
history of apartheid.
The sociological jurisprudes and realists charged late-nineteenth-cen-
tury legal thought with formalism in this second as well as in the first
sense. Their message was that there was a systematic tendency to overes-
timate the extent to which the most abstract norms of the legal order
could generate the more particular norms needed to decide particular cases.
They tried to show that the governing abstractions lacked the operative
power that formalists attributed to them. They promoted an attitude:
"distrust of abstraction." They often argued in constitutional cases that
because deduction couldn't settle the question, and it was therefore inevi-
tably a question of policy, the Supreme Court should defer to the legislative
judgment. But in private law cases they simply insisted on an overt rather
than covert consideration of the legislative question that was "really" at
issue!'
In short, formalism in the second sense is a derogatory description of
your opponent's penchant to overestimate the powers of deduction, either
in general or in a particular case. Neither in the first nor the second sense
is formalism a method distinct from deduction. It can be invalidated as a
 Policy and Coherence 107

theory of law, but it can't be invalidated or disproved as a method, because

it is a mistaken use of a method that is sometimes valid, rather than a
method in itself.

Relativizing the boundary between deductive questions and policy questions

The existence ola practice of charging formalism means that there is often
disagreement in particular cases about the boundary between questions
that "by their nature" can be resolved only by appeal to policy and ques-
tions that can be resolved by deduction. But it is not just that at a given
moment some think a given legal issue can be resolved deductively while
others think such a claim formalist. Over time, it appears that a whole
legal culture can shift its general attitude about the boundaries within the
implicit ontology oí types of questions, and, of course, different cultures
can differ along this dimension.
I mentioned a moment ago that the realists taught "distrust of abstrac-
tion." By this I mean that they had a general notion that the more abstract
the concepts that went into the definition of a legal norm, the more un-
likely that it could be elaborated by deduction to produce a subrule that
would resolve a particular case. Thus "contract protects the will of the
parties" was less likely to yield a valid, rather than a merely formalist,
deduction than "the rule is expectation damages."
One way to look at the history of American legal thought is in terms
of shifts over time in the level of abstraction at which it has seemed plau-
sible that legal concepts have the "operative" power to generate deductively
valid subrules. Before the Civil War, nondeductive argument was widely
deployed to resolve questions that got resolved deductively after that war,
and were then again put into the domain of policy by the sociological
jurisprudes and realists.26
As I've indicated several times already, your ordinary American lawyer
is likely to find European solutions to classic legal problems blatantly
formalist, in the sense of overestimating the power of deduction, and to
find European legal culture in general formalist in the same sense. When
Europeans protest that none of them think, or ever did think, that deduc-
tion could solve every legal problem, the American lawyer is likely to
think they have missed the point, which has to do with an attitude toward
abstraction rather than with a theory of law in the jurisprudential sense.
Proponents oí historical and comparative study are endlessly optimistic
about its capacity to undermine vulgar prejudice. But the modern Amer-
to8 THE PROBLEM OF JUDICIAL LEGISLATION

¡can sense that the boundary between law and policy is 'out there" rather
than a cultural artifact, and that as a matter of "fact" policy comes into
play as soon as we rise above a low level of abstraction, easily survives
historical and comparative exposure. The history of American legal
thought has been written overwhelmingly by realists and by their main-
stream successors, who have had a passionate commitment to the ideas
that there was a misguided Formalist Period and that European legal
thought in general is prerealist. The ontology oí deductive and policy
questions survives unshaken because the views of other times and places
look just wrong.
The partial revival of deduction in American judicial opinions and schol-
arship after World War II might be another source for the idea that what
is a policy question and what is a deductive question is not a question of
fact. But the neoformalists of our time are, for the most part, either civil
libertarians or conservatives. In both cases, they interpret their own prac-
tice as simply reestablishing the force of first principles. Because both
groups seem blissfully ignorant of the realist critiques that killed off earlier
versions of their arguments, they come off as simple-minded rather than
as creative reconstructors, in the eyes of the older generation of pragma-
tists.
In short, the implicit lawyers' ontology of types of questions is alive
and well. The critique of formalism (in the sense of overestimation of the
power of abstractions) has reinforced it rather than undermined it.

The legal character of policy argument

The notion of policy was introduced into American legal thought during
the period of "reception" of English law as one of the two factors that
judges could and should use in deciding what rules to adopt, particularly
in situations in which there was an English rule that might or might not
be appropriate. There was a conventional distinction between "liberal" and
"technical" approaches to legal questions. The liberal approach was distin-
guished by willingness to consider, as legitimate elements in the inter-
pretive process, the purposes of rules, the intent of parties, and the equity
of solutions.
Within the liberal mode, policy (convenience, utility) was at first op-
posed to morality. The legal elite thought of morality in terms of a Prot-
estant Christian ethic of total duties of altruism, sharing, and self-sacrifice.
Policy was the countervailing prudential argument for limiting legal
 Policy and Coherence 109

duties and legal excuses so as to promote commerce and enterprise gen-

erally, and the parallel argument for delegalizing family life.27 By the end
of the nineteenth century, with the general formalization of American law,
"policy" came to be used sometimes as the word for all nondeductive factors
and sometimes to designate the set of instrumental, as opposed to intrinsic,
reasons for a rule choice, whether it involved increasing or decreasing the
level of duty. In this usage it is sometimes opposed to "justice," or to
morality or to rights. I use it here in its broad sense, which includes all
nondeductive fctors.
It is crucially important that to this day policy is a standard category
in everyday American lawyer-talk. It is not just that all lawyers and judges
at least sometimes do policy argument in the course of conventional legal
practice. That they do it is a universally recognized and accepted fact. In
this respect, the United States seems to be very different from both Britain
and the Continent, however true it may be that a functionally equivalent,
though unrationalized practice is pervasive there.28
In French, it is still an issue how the word "policy" should be translated
when it is used in legal texts"politique" is a neologism unintelligible
to most lawyers, because it suggests either politics or administrative policy,
as in "incomes policy." In England, the idea that "public policy" is an
"unruly horse" expresses the notion that it is an exceptional basis for de-
cision, much like unconscionability in American contract law, rather than
a word for the routine presence of "legislative" factors in the judicial pro-
cess.
It is no less important that policy occupies a different place in the
American lawyers' conventional understanding from that of argument
from authority (deduction).

Policy as mediator and Trojan horse

Policy is firmly within American law, but also firmly less than 'law" or
deduction or black letter or precedent or statutory authority. It is less
because it is understood as situated between the paradigmatically legal
appeal to authority and the paradigmatically extra- or nonlegal appeal to
"politics" or ideology. It is an intermediate term, partaking of some of the
elements of the extremes. Moreover, it is a "fudge word," meaning a word
that allows us to evade a problem that would be clear if we said what we
meant with more precision.
Because policy argument is unquestionably legal, to make policy ar-
110 THE PROBLEM OF JUDICIAL LEGISLATION

guments is not to ask the judge to violate his role constraint by usurping
the legislative function. But it is more chan a matter of legal pedigree.
Policy arguers present it as different from pure politics, or ideology, be-
cause it appeals to universal rather than particular interests.29 Consequen-
nahst argument appeals to a notion of "social welfare" or "efficiency" or
"economic growth." Morality arguments deploy familiar general maxims,
like "no man should profit from his own wrong," "do unto others," "be
reasonable," and so on. Rights arguments (as we will see in great detail in
a later chapter) presuppose the universality as well as the facticicy of
rightseveryone has a right of free speech, to dispose of property, to
protection against fraud or duress, and so on.
Because policy argument deploys the full range of "social values" that
are conventionally understood to be relevant to choices among norms, it
will allow the judge to resolve any question of rule definition that litigants
may put. Policy is therefore a "mediator" of the contradiction in the def-
inition of the judicial role that requires the judge to decide only according
co law but also requires her to decide any question over which she has
jurisdiction. This means, as we will see, that policy plays the same role in
the conventional understanding that coherence plays in modern analytical
jurisprudence.
There is nonetheless a serious problem, one that "everyone" in American
legal culture is acutely aware of. Although policy argument formally ex-
cludes ideology, it is "soft" and so operates always under the suspicion of
permitting ideology to enter sub rosa. The formal exclusion oí ideology
means simply that it is "impermissible," it would be a legal "blunder," to
phrase a policy argument n explicitly distributive, or explicitly religious,
or explicitly "partisan" terms. Everyone has an interest in social welfare,
observance of conventional morality, and the protection of rights that ev-
eryone possesses. But people are sharply divided about whether it would
be desirable to redistribute wealth, to shift social power from men to
women and from black to white, to further the growth of the Catholic
Church, and so forth.
Even if everyone knows that a particular rights argument will effect
some redistribution (say, affirmative action, or the invalidation of a rent-
control statute), it is not permissible to give redistribution as the reason
for the rule change in question. The distributive consequences must be
presented as "side effects" of rights protection, or of a move that will
increase efficiency, or of insisting on moral acts by individuals or groups.
"Grammatical" policy argument never declares itself as simply "liberal" or
 Policy and Coherence i i i

"conservative," and a fortiori never declares itself as fascist or communist,

because the judge would then appear to be a partisan.
The traditional lay Liberal version of the distinction berween adjudi-
cation and legislation relied on the notion that there is a sharp distinction
between law application and law making. This distinction relied on that
between objectively determinable questions, questions of fact or of logic,
and "subjective" questions about things like fairness and justice, which
have no objectively determinable answers. Something like this opposition
gets reproduced in the law/policy distinction. Lawyers see policy as sub-
jective, and policy questions as having uncertain answers. Policy is indis-
pensable, but it is also potentially a Trojan horse for the introduction of
ideology into law.

Policy argument as an unrationalized practice

American legal culture offers no widely accepted explanation of why policy

differs from ideology. It offers no explanation of how policy can resolve
rather than just fudge the contradiction in the definition of the judicial
role. Lawyers and law students characterize judges and professors as more
or less "policy-oriented," and can be expected to have opinions about
whether policy orientation is ¡n general a virtue or a vice. These opinions
once tended to align with the liberal/conservative ideological spectrum,
with liberals liking policy, up to a point, and conservatives favoring au-
thority, up to a point.° It appeared that there was a liberal theory of the
role of policy in law analogous to the still-existing European left-wing
"social" theory and a conservative theory of "formal" law.
But, as we have seen already, today there are conservative judges and
professors of a law and economics persuasion who have reconfigured the
debate by adopting a highly deductive form of policy argument from the
premise of wealth maximization and who have little or no use for authority.
Liberals, by contrast, reject policy argument in favor of deduction across
a wide range of issues that they have reconceptualized as involving con-
stitutional rights (free speech, privacy). They prefer the authority oi the
Bill of Rights, plus a long chain of inferences, to the choice of a rule among
many possibilities by balancing conflicting interests on the basis ola con-
textualized analysis of the facts.
Of course, policy argument itself includes argument-bites that treat the
whole idea of policy as suspect (remember the newspaper article that de-
scribes the liberal Supreme Court justices denouncing their conservative
1t2 THE PROBLEM OF JUDICIAL LEGISLATION

brethren for a "radical" attempt to argue "policy rather than law").3' The
rhetorical goal is to associate policy with the subjective, the political, the
ideological, and to extrude it from law, leaving only authority. The coun-
terbites denounce "legalism" or "sterile" or "bloodless" or "rigid" or "me-
chanical" or "arbitrary" deductive approaches, and emphasize the "inevi-
tability" of policy, as well as its "progressive" and "pragmatic" character.
Their goal is to tame deduction, to subordinare it to policy.

Policy in legal theory

The social practice of policy argument in these forms, some of them as-
serting it as indistinguishable from law and others assimilating it to purely
political or ideological argument, is basic to American legal discourse. The
rhetorical tropes involved are prior to, rather than responsive to, the ju-
risprudential debate among American legal theorists about what adjudi-
cation "is." No formulation of the nature of adjudication that denies policy
argument as a fact, or that asserts that we should get rid of it as a normative
matter, can be plausible. The goal of legal theoretical discussion, since the
realists, has been to get beyond the mushy, self-contradictory quality of
the lawyers' usage to "firmer ground."
For the most part, the realists did not critique the implicit lawyer's
ontology of legal versus policy questions. What they tried to show was
that the English notion that the judge can reason deductively in most cases
but must occasionally act legislatively grossly underestimated the serious-
ness of the problem. Many, many questions that judges had purported to
resolve deductively were in fact policy questions. The failures of deduction
occurred not at the margins of the system but throughout. Given the
significant rule-making role of the judge, it was not possible to concede
the occasional need for legislative judgment and then get on with deduc-
tion, because that would leave a great deal of law if not illegitimate at
least ungrounded.
Much in the current state of legal theory in the United States is ex-
plained by the realists' choice to attempt to reground the rules of law in
a combination of fine-grained policy analysis and larger theories of coher-
ence. We can say of this enterprise, first, that it entailed the abandonment
of the critical, or viral, strand in their own project and, second, that it was
only partially successful.
The realists' critical project was aborted because they never extended
their successes in the critique of deduction, precedent, and statutory in-
 Policy and Coherence ii 3

terpretation to policy argument itself. That, to my mind, has been a con-

tribution of cis. The realists' reconstruction project was only partially suc-
cessful because it generated, for American legal culture as a whole, the
contradictory situation I have been describing. They achieved the legiti-
mation of policy argument but left it in coexistence with deduction with-
out any convincing account of their respective roles, or of its consistency
with the asserted nonideological character of adjudication in a Liberal the-
ory of the rule of law.
Since World War II, American legal theorists have been obsessed with
completing this reconstructive part of the realist project. In this enterprise,
it is important that liberals and conservatives stand in an asymmetrical
relationship to the tradition of critique.

The dilemma of liberal legalism

Crudely put, the liberal dilemma is as follows: The main vehicle of liberal
reform in the United States since World War II has been the judiciary,
and the judiciary, with the exception of a brief period in the mid-i 96os,
has consistently implemented reform against, rather than in collaboration
with, state and federal legislative majorities. It is not surprising that a
project of liberal (not Liberal) legal theory is to show that this judicial
contribution to the substance of both private and public law is democrat-
ically legitimate because it furthers the rule of law, rather than merely
legislating judicially.
But, as Gary Pelter and William Eskridge have suggested, the liberal
critique of conservative legal formalism, from Holmes through legal re-
alism, extended by critical legal studies, has dramatically undermined ac-
ademic faith in the possibility of judicial neutrality in hard cases.2 Indeed,
the postWorld War II liberal project is the lineal descendant oían exactly
opposite liberal project: that of showing that the enormous contribution
of a conservative judiciary to the shape of the prewar legal system was
democratically illegitimate.
The exit from the liberal dilemma has to be a theory of adjudication
that avoids the Scylla and Charybidis of formalism, in the sense of excessive
reliance on deduction, and nihilism. There are both existential and instru-
mental political dangers on each side. Antiformalism is a core element in
liberal legal identity because it reflects within this technical discipline the
general liberal resistance to rigidity, the doctrinaire, and the authoritarian,
all identified with nineteenth-century conservative ways of thinking and
 ¡14 THE PROBLEM OF JUDICIAL LEGISLATION

being. Antiformalism is the taught tradition of liberal legal education and

the intellectual basis oí the New Deal regulatory regime.
But nihilism about adjudication is no less threatening than formalism.
Existentially, liberals with passionate commitments to specific judicial re-
forms, particularly in the areas of race and gender, have an interest in
believing that these decisions were legally as well as politically and morally
correct. If the judges "shouldn't have" or "couldn't legitimately" do these
things, if the decisions were judicial legislation, then we "should have"
gone on with the regime of de jure racial segregation until the gerryman-
dered state legislatures decided to abolish it in response to majority white
sentiment.
At the instrumental level, a successful liberal legalist theory of adju-
dication must avoid nihilism so as not to cripple the chances for future
liberal countermajoritarian reform by undermining the obedience and con-
version effects. The federal and state courts at least appear to have been
major actors in causing a deep, long-lasting, controversial, compromised,
unfinished, but historic transformation of American political culture. It
was not obvious that their interventions would have this effect. It seemed
throughout the period of intense activism that the judges might change
course in the face of organized grass roots and governmental opposition,
or that their reforms would be rolled back by later conservative courts
appointed by presidents and state governors who ran partly on opposition
to what the courts had done.
Those who are skeptical about the obedience and conversion effects have
to contend with the facts that large numbers of people obeyed though they
disagreed and that judicial interventions seem to have had a massive effect,
over the long run, and not just on the substantive views of a majority of
white Americans on race and gender and consumer issues. The courts seem
to have been important in inducing a diffuse but pervasive, unpredictably
militant "rights consciousness" throughout American society that is one
of the few effective checks on bureaucratic abuses in both public and pri-
vate sectors. lt has also reduced the legitimacy of all the preliberal, patri-
archal, clientelistic, or plain corrupt regimes and arrangements that sur-
vived the "modernization" of American state and society in the 1930S and
during World War Il.
Liberal legal theorists have been at a remove or two from these mass
levels. Through World War II, most were judges (Holmes, Louis Brandeis,
Cardozo, Learned Hand, Jerome Frank, Felix Frankfurter), law professors,
pragmatist philosophers, or institutional economists. Many of them at one
 Policy and Coherence i i5

rime or another played "brain trust" roles in national politics. Since then,
they have been mainly law professors in public law fields and jurisprudence
professors, writing primarily in specialized legal journals, some with hopes
of becoming judges. In the recent past the field of legal theory has emerged
outside the curricular categories to provide a common identity.
It is important that the recent participants have been neither conven-
tional political players (by contrast, European political parties often run
public law professors for national office), nor "just academics," interested
in adjudication in the abstract. They influence judges and elite lawyers,
who are also members of the political class, through legal education. Some
of them aspire to influence legal development directly through service in
liberal Democratic administrations or appointment to the bench. And they
suppose that they are part of a loosely articulated general intelligentsia
capable of translating technical or theoretical insights into the culture at
large through, for example, the New York Times Book Review, the New York
Review, and the New Republic, televised Supreme Court confirmation hear-
ings, and the occasional "appearance" on National Public Radio. They
think of themselves as players, but only over the long run and indirectly,
on the basis of this combination of technical and academic prestige with
"access."33
It has been obvious to liberal legal theorists, I speculate, that as present
and potential rulers through the courts, they have an interest in the ability
of the courts to command obedience and induce changes in moral senti-
ments. Any explanation of why the Warren Court did the right thing that
accepts a strong form of the realist and postrealist critique of judicial
legislation makes the people seem like dupes of legal mumbo jumbo that
is just a mask for the imposition of the liberal ideological agenda. Such
an explanation is not a good explanation. It is not good because it dele-
gitimates this form of liberal political power for the future, while unilat-
erally abandoning the demand for judicial neutrality as a means of keeping
todays conservative judges and left-fringe activists in check.
The instrumental stakes in liberal antiformalism are less obvious than
those in resisting nihilism. They have to do with this same struggle of
liberalism with resurgent conservatism, on one side, and diffuse rights-
oriented radicalism (rather than communism) on the other. The polariza-
tion of liberal courts against conservative legislatures gradually faded in
the 1970S and 198os, as conservative presidents partially remade the fed-
eral judiciary in their own image. There hasn't been another reversal, pit-
ring liberal legislatures against conservative judges in the mode of the
 THE PROBLEM OF JUDICIAL LEGISLATION

long period between about 1870 and 1940. Conservative judges haven't
engaged in wholesale countermajoritarian initiatives (there has been no
need). But they haven't given up their major role in the management of
public life, as exemplified by the U.S. Supreme Court's sustained attack
on affirmative action programs.
To this purpose, they continuously redeploy all the formalist (that is,
implausibly deductive) legal gambits that they once used to block liberal
social legislation. The realist heritage of critique is kept alive in dissenting
opinions that carefully reveal the internally contradictory or inconclusive
character of the majority's syllogistic reasoning, thereby making way for a
liberal policy analysis that comes out the other way (classic examples are
Justice Brennan's dissent in the DeShaney" case and Justice Blackmun's
in Lucas").
At the same time, modern conservative law and economics theorists
claim that the goal of efficiency is the sole politically legitimate basis of
judicial law making and is sufficiently determinate to indicate a correct
answer to almost any question of regulatory law. They urge the judges to
adopt that solution, almost always in some sense "freeing" the market to
the detriment of economically weaker parties, more or less regardless of
what the common law precedents or prior statutory interpretations may
say. From the liberal point of view, this approach combines nihilism about
adjudication with formalism about economics, and it invites internal cri-
tique of the efficiency criterion to make room for "justice" concerns.
While there is no Marxist opposition, there has always been radical
pressure on the liberal left flank. A part of this pressure comes from lawyers
and legal academics influenced by the history of the critique of adjudica-
tion and forever impressed by the success oían earlier generation of liberals
in getting the courts to implement their program against legislative ma-
jorities. Their strategy is to claim that the Constitution requires, at an
abstract level, a regime of rights that corresponds to the radical multicul-
tural program that developed on the left of liberalism in the wake of the
civil rights, antiwar, and women's movements.
Left lawyers and academics of this persuasion continuously develop new
legal theories designed to mobilize the courts behind programs that have
no chance of being adopted by liberal legislative groups, let alone by
legislative majorities. Unemployment is an unconstitutional taking of
workers' property. The institutionalization of the mentally ill is unconsti-
tutional per se. The courts should guarantee a minimum level of subsis-
tence for welfare recipients, guarantee a right to decent housing, forbid
 Policy and Coherence xi 7

U.S. intervention in Nicaragua, require the United States to compensate

the victims of El Salvador right-wing terror, forbid the implementation of
the North American Free Trade Agreement, and so forth.
While any particular liberal is likely to agree with quite a few of the
literally hundreds of proposals put before the courts every year, it is obvious
that there have to be "some limits." In each case, the external normative
systemhuman rights or some form of socialismseems convincing and
important enough so that the advocate is willing to more or less forget
about the idea that judges are supposed to be faithful interpreters of the
existing legal materials. This is a genuine solution or response to the
problem of the internal critique of adjudicationit accepts the critique
and proposes to answer the question of how the judges should behave by
offering them a supposedly determinate system external to law that they
can just implement.
Like law and economics, this response is formalist as well as nihilist. It
treats the Constitution the way the Abolitionists treated the Declaration
of Independence, as a sort of higher law charter trumping all positive law,
including the case law interpretation of the Constitution, and requiring
as a matter of correct popularly sovereign political philosophy that the
courts impose a radical restructuring of society. Resistance involves both
the defense of legality and the internal critique of left rights rhetoric to
make room for "moderate" solutions that "balance" rights in conflict.

Responses to the dilemma

We are now in a position to state the complex conditions of success for

what seems to me the core project of liberal legal theory. Liberals need a
theory of adjudication that affirms the basic points of their historical cri-
tique of ideology in adjudication, as a means of resisting conservative
backsliding and radical hijacking, while at the same time affirming the
recent history of liberal judicial law making in a way that doesn't under-
mine the obedience and conversion effects.
The response has been an explosion of alternatives, beginning with the
realists' and ranging today from Dworkin's through republican, commu-
nitarian, neopragmatist, feminist, and 'new public law" theories of the
judicial role. In jurisprudence, the questions of the "determinacy" and
objectivity of law, along with an influx of humanities graduate students
into law schools, have prompted a new literature that applies just about
every tendency in ancient and modern philosophy to the problem.
ir8 THE PROBLEM OF JUDICIAL LEGISLATION

We can identify three generations of American coherence theorists, each

responding in different ways to the viral strand in realism. The first is the
response of the realists themselves; the second is that of the postWorld
War II Cold War generation; the third is that of the civil rights and
Vietnam (196os) generation. All three defend policy argument, against the
charge that it is necessarily a Trojan horse for ideology, by appeal to met-
aphors intended to show how to confine it, to keep raw politics out.
In their reconstructive mode, the realists were looking for a method of
adjudication that could (a) provide a nonideological modus operandi when
deduction was no help, and (b) sometimes justify the judge in rejecting a
deductively required result in favor ola more socially progressive solution.
In this mode, they proposed a way to deal both with the now open ques-
tions that before their critique of deduction had appeared to be susceptible
to deductive resolution, and with the problem of deductions that were
sound given their premises but that seemed to require the judge to play
a retrograde role.
The most common realist solution, influenced by the German and
French free-law theorists, was the notion of society as an evolving organism
with needs and functions. The judicial function was to evolve the rules so
as to fulfill the needs. Writers like Cardozo describe this function as the
basis of a method alternative to deduction. The judge who did it right
was not a partisan, though he had to acknowledge that "subjective" factors
conditioned his understanding of progress. The method was to be used
not just to answer when deduction "ran out" but also to critique unques-
tionably deductively correct results, and sometimes to reject them in the
name of evolution.36 The obvious problem lies in the vagueness of the
notions of need, function, and evolution, which seem to highlight rather
than overcome the Trojan horse danger.
"Process" models of adjudication (Fuller,37 Hart and Sacks38) have the
same structure, but this time the image is that of the state as a well-
functioning bureaucratic organization based on the division of labor and
aiming to "maximize" not profit but "the satisfaction of valid human
wants."39 The idea is that different law-making institutions, including
private parties, administrative agencies, and legislatures as well as state
and federal courts, have intuitively accessible "jobs" in the overarching
scheme. It seems obviously desirable that each institution specialize in the
job it does best. Any other solution threatens both organizational chaos
and a reduction of the quality of outputs, because institutions will do jobs
that would be "better" performed by others.
 Policy and Coherence 119

The judge's job goes far beyond deduction. Process theorists distinguish
"kinds" of policy questions, namely, those that are and those that aren't
susceptible to "reasoned elaboration" (that is, nonideological resolution
through the method of coherence). There are two symmetrical sins in this
model: to ignore policy when the judge should consider it ("The Case of
the Spoiled Cantaloupes"),40 and to apply policy analysis to questions that
should be resolved "elsewhere" (Brown y. Board of Education, for Herbert
Wechsler).4'
The notion of "institutional competence" within the overall enterprise
of pursuing socially legitimate purposes solves the problem of judicial
legislation, permitting the judge to deploy policy argument and even to
reject deductive solutions on policy grounds, in some cases, while firmly
excluding the merely personal or ideological in cases where policy would
be a Trojan horse. As I pointed out in Chapter 2, when the question is not
one appropriate for "reasoned elaboration," the plaintiff loses for a good
legal reason (the coherence of a scheme of separation oí powers), rather
than through either denial of justice or judicial legislation.
The obvious problems are how to decide which questions have which
"natures," and what to do when the image of the division of labor within
a well-functioning bureaucracy is obviously unrealistic.42 The institu-
tional-competence notion worked well in retrospective 1950S liberal anal-
yses of conservative judicial overreaching up to the New Deal. But it
proved extremely difficult for its inventors (though not for its current
revivalists)43 to reconcile it with the activist role of liberal state and federal
courts after World War II. Writers like Hart and Wechsier, who had begun
their careers as liberal opponents of judicial activism,44 found themselves
unexpectedly the intellectual allies of conservative resistance to judicially
mandated racial integration.43

Dworkin's version of coherence

I will take Ronald Dworkin's work46 as the paradigm of contemporary

responses to the liberal dilemma, but not because his theory is successful
and in spite of the fact that very few liberals seem to agree with it.47 its
virtues lie in that it is canonical, admirably complete, and, to my mind,
by far the most sensitive of the lot to the internal tensions the project has
to overcome.-the most legal realist.
Dworkin's version of coherence explicitly "personifies" the "community"
and asks us to imagine that this person is the author of all valid legal
120 THE PROBLEM OF JUDICIAL LEGISLATION

materials. Then we are supposed to imagine that this person wants to

conform to what Dworkin supposes is an unproblematic norm of personal
ethicsthat a person should act consistently over timewhile trying to
achieve the classic policy objectives of fairness, justice, and due process.48
The judge is supposed to choose a rule that will "fit" the materials imag-
ined as the product of this communal person's project. If the judge tries
to act as if he were the communal person, his own potentially ideological
convictions about fairness, justice, and due process will be disciplined by
the need for consistency with the communal person's earlier decisions.49
Dworkin's solution is like Cardozo's and Hart and Sacks's in that it
allows the judge to decide "according to law" in every case (no need ever
to resort to ideology, as opposed to "political theory"), while at the same
time permitting, indeed demanding, nondeductive reasoning. But unlike
his 1950S predecessors, Dworkin distinguishes between types of argument,
rather than between types of questions. All legal questions have right
answers, but these are accessible only if the judge distinguishes rights
arguments, defined as the trumps of rights holders vis-à-vis majorities,
from the class of what he calls policy arguments. Policy arguments, in his
usage, presuppose the legitimacy of sacrificing individual to collective in-
tereststhey correspond to the subset I called utilitarian or social welfare
policy arguments.'°
In short, all three theories mediate the apparent contradiction in judicial
role constraints by defending the middle term of policy argument (for
Dworkin limited to rights argument), as opposed to deduction on one side
and ideological argument on the other. They do this by denying that policy
(rights, for Dworkin) is inevitably just a mask for subjective or ideological
preference. Their question is, How can the judge be neutral? Their answer
is that he can be neutral in two ways: by doing deduction when that is
appropriate, and by grounding policy argument, when that is appropriate,
outside himself in an imagewhether of society as an organism, of society
as a bureaucracy maximizing through the division of labor, or oían imagi-
nary person who is the author of all laws.

Dworkin left and right

While Dworkin's work (and post-196os American jurisprudence generally)

displays these striking parallels with its predecessors, it also displays far
more anxiety about and is far more responsive to critique than Cardozo,
Llewellyn, Fuller, or Hart and Sacks. I attribute this to three factors: the
 Polity and Coherence i2i

need to incorporate into coherence theory some attitude toward the judicial
activism of the Warren Court, the critique of American coherence theory
by British thinkers like Hart," Raz'2 and MacCormick,' and the rebirth
of the virus in critical legal studies. What follows is a cnt, left/mpm
reading of Dworkini as a contemporary.
First, Dworkin makes substantial concessions to the historical critique
of adjudication by affirming the political nature of legal interpretation, in
his early work, this legitimate political element, sharply contrasted with
"personal" or "partisan" politics, always turned out to be belief in rights
as opposed to one form or another of utilitarianism, in other words, al-
though the judge couldn't escape having a political theory, that theory was
just the opposite of "ideology." The theory constrained him because it was
an articulation of connections between general philosophical propositions
about the political good and particular instances; the judge who saw him-
self as a rule utilitarian couldn't switch ad hoc to a rights argument if he
didn't like a particular outcome.'4
In A Matter of Principle, Dworkin began to develop his own version of
liberalism as a political theory of just this type," contrasted it with con-
servative political theory, and quite abruptly affirmed that "we should
expect to find distinctly liberal or radical or conservative opinions" about
constitutional interpretation, and that "this is exactly what we do find."6
In Law's Empire, Dworkin acknowledges the common practice of analyzing
constitutional decision making through the lens of current ideology and
admits that even his own ideal judge may be well described in these terms
(providing we have enough data about his positions).'7 In other words,
liberalism and conservatism have crossed the line from the partisan or
merely personal into the realm of "theory." The choice among theories, as
we saw, may determine the content of judicial law making but can't be
justified as noncontroversial, demonstrably correct, or objective.
To this point, it is easy to see how Dworkin can fulfill the requirement
that a liberal legal theory provide a basis for attacking both conservative
judicial law making and left activist proposals as judicial legislation. In-
deed, Dworkin appears as the heir andin his own attacks on the semantic
view of law,'8 on oniginalism,'9 and on passivism60as the developer of
the legal realist tradition. But it is hard to see how he can avoid the English
positivist view that the judge is necessarily a legislator in hard cases, and
the corollary that the liberal activism of the Warren Court was no more
legitimate than the conservative activism it succeeded.
He turns this trick by characterizing his politicized version of adjudi-
 122 THE PROBLEM OF JUDICIAL LEGISLATION

cation as still very different from legislation. First, as we have seen already,
adjudication is properly the interpretation of the relevant legal materials,
with a view to understanding what they require if we imagine them to
express the views of a single communal person. This distinguishes the
judge from the legislator who is free to ignore the solution the materials
yield if he thinks he can do better. Dworkin swims with the tide of the
198os, in which the current of legal theory converged with that of her-
meneutics»
But within his version of the interpretive turn, fidelity to the materials
is more than a description of the typical judge's attitude that will help us
to understand what he does. Fidelity requires a commitment to finding
the "right" interpretation in every case, with rightness understood like the
judge's personal political theory as possibly controversial and in any case
nondemonstrable.62 The existence of controversial, nondemonstrable right
interpretations is attested by our collective practice of looking for them
and thinking we've found them. If the judge is committed to finding, and
if there always is, a right answer, then the law will never "run out." The
judge will never be in the English positivist position of having to legislate
no matter how much he would prefer to merely interpret.6
Second, in Dworkin's theory of interpretation, the requirement that a
solution "fir" with the body of legal materials, the requirement of coher-
ence, will often settle the case without controversy, and the judge will be
obviously distinct from the legislator. But where this is not the case, and
the judge must choose between competing versions of the coherent solu-
tion, the judge can deploy his personal political theory only under two
further constraints that don't apply to the legislator. The judge must be
able to defend his preferred political theory as offering the most coherent
explanation of the materials.b5 And he is supposed to apply it to the case
in hand. Together, these three constraints make him principled rather than
result-oriented.
The legislator can make law legitimately while disregarding all these
requirements. He can choose a rule that is blatantly inconsistent with the
larger regime of which it will become a part. He can choose it to further
his particular political philosophy even though that philosophy is totally
implausible as an explanation of the legal regime as a whole. And he can
choose a particular solution in spite of its being inconsistent with the
political philosophy he would apply in other similar cases. He can vote in
favor of an anomalous "anarchist" addition to a liberal legal regime, even
 Policy and Coherence 123

though he himself is a conservative, because his constituents will otherwise

vote him out of office, or because his "gut" tells him this is the only fair
thing to do.
Third, Dworkin's theory of legal interpretation requires the judge but
not the legislator to give a complicated priority in his legal reasoning to
rights over other kinds of policies (though in a somewhat different way in
common law, statutory, and constitutional adjudication). Final judicial
review of legislative action means that when the judges think the statute
violates constitutional rights, they strike it down, no matter how impor-
tant the policies it serves. But in this respect, they differ from legislators
only in being above them: legislators shouldn't pass such statutes. The
rights/policies distinction distinguishes judges from legislators more
clearly in the common law and statutory law making contexts.66
Dworkin supposes a general social consensus on the "reality" (not "ob-
jectivity") of moral rights, rights that are morally "valid" or "binding"
whether or not legally enforceable.67 To try to identify these, and to work
out the consequences of their partial recognition in positive law, is quite
different from trying to decide what legal rules best further collective
objectives (national security, economic growth). The achievement of pol-
icies is measured "in gross," without any requirement that any particular
individual receive any particular form of treatment, and Dworkin also
thinks that policy is by definition unprincipled because it is not concerned
with treating like cases alike.68
The function of this distinction in the theory is clear: the moral reality
of rights grounds judicial law making through the method of coherence
plus political theory. Just as we agree that there can be a right interpre-
tation of a text even though that interpretation is controversial and "can't
be proved," so we agree that rights really do "exist" even if their content
in a particular case is likewise controversial and nondemonstrable, Or so
Dworkin thinks. Adjudication, which is and ought to be focused on right
answers to questions about rights, legitimately involves only some of the
judge's political theoretical viewshis views about rights.
The legislator by contrast is supposed to take rights seriously, but also
to have commitments in policy conflicts where this kind of grounding
doesn't exist, This allocation of function is appropriate because the legis-
lature is organized to aggregate the collective interests that policies have
at stake and to decide the distributive consequences fairly, that is, demo-
cratically. The judiciary would be doing the wrong thing if it intruded on
124 THE PROBLEM OF JUDICIAL LEGISLATION

this domain, even in common law cases, as well as failing to honor its own
historic mission oí protecting the individual against majority abuse. Here
Dworkin owes more than he has acknowledged to Hart and Sacks.
On the basis of these three claims about adjudication, Dworkin can
defend liberal judicial law making as democratically legitimate, not ju-
dicial legislation, not even activism, although as he recognizes the defense
has to be case by case, or "at retail."
Activism is a virulent form of legal pragmatism. An activist justice would
ignore the Constitution's text, the history of its enactment, prior deci-
sions of the Supreme Court interpreting it, and the long-standing
traditions of our political culture. He would ignore all these in order to
impose on other branches of government his own view of what justice
demands. Law as integrity condemns activism, and any practice of con-
stitutional adjudication close to it . . The alternative to passivism is not
a crude activism harnessed only to a judges sense of justice, but a more
fine-grained and discriminating judgment, case by case, that gives place
to many political virtues but, unlike either activism or passivism, gives
tyranny to none.69
For each case, the question is whether the judges reached the right
interpretation of the materials, one that respected the requirement of co-
herence, was principled rather than result-oriented, and eschewed reliance
on the judge's personal views of policy. Even if you agree that the judge's
rule making was thus constrained, you may well think the case came out
wrong, especially if you don't share the judge's political theory. But you
would be naive to expect anything else and foolish to prefer the legislative
process for hard cases. What makes law worthy of respect, what makes the
obedience and conversion effects tolerable in a democracy, is that adjudi-
cation "insures that the most frmndamental issues of political morality will
finally be set out and debated as issues of principle and not political power
alone, a transformation that cannot succeed, at least not fully, within the
legislature itself."7°

A summary critique of Dworkin's response to the dilemma

of contemporary liberal legalism

For Dworkin's theory to work as a response to what I called above the

"dilemma of liberal legalism," two quite different requirements have to be
met. First, Dworkin's assertion that judges should not reason from policy
rests on his general theory that judges should conform to the best inter-
 Policy and Coherence 125

pretation of the actual practice of adjudication.7' So he has to convince us

that the exclusion of policy argument in fact fits American judicial prac-
tice. Second, he has to convince us that rights argument, sharply distin-
guished from policy argument, functions to exclude judicial ideology, so
that the rules it generates are attributable to "principie and not political
power alone."
As to the second point, Dworkin provides surprisingly little in the way
of reassurance that rights reasoning is more internally structured, more
constraining, than policy argument. In Chapters 12 and 13, I argue at
length that, at least to many participants in American legal culture, rights
reasoning seems no more plausibly exclusive of ideological influence than
more apparently open-ended moral or instrumental argument.
My point in this chapter has been that policy, in Dworkin's sense and
also in the broader sense that includes nondeductive balancing of conflict-
ing rights and conflicting moral principles, is pervasive in American ju-
dicial practice, and that the question is how to rationalize it. It seems
implausible, to say the least, that an interpretation of adjudication that
simply excludes consequentialist or social-welfare-oriented policy argu-
ment altogether from the repertoire of legitimate judicial behavior can
'fit" the practice. I think a reason why many practitioners find Dworkin
unconvincing is that as a matter of fact American judges constantly deploy
arguments that look exactly like the ones he claims they generally avoid.
Kent Greeriawalt made this objection to Dworkin's account of American
judicial practice in j97772 Dworkin himself summarized the objection
this way:
Greenawalt takes as his main target my claim that judges in ordinary
cases characteristically justify their decisions through what I called ar-
guments of principle rather than arguments of policy . . He offers, in
opposition to [this) descriptive claim, several counter-examples. These
are designed to show that American judges at least, often reach decisions
in hard cases on the basis of arguments of policy. He fears that I will try
to avoid these counter-examples by "ingenious" arguments showing that
what are apparently arguments of policy in these cases are really, if prop-
erly understood, arguments of principle. But he warns me that if! suc-
ceed in this sort of defense I shall do so at the cost of erasing the dis-
tinction between the two sorts of arguments, or in some other way
making my main claim trivial.73
As best I can understand it, Dworkin's response, which defies summary
here, falls into the trap against which Greenawalt warned.74 Indeed, as a
 126 THE PROBLEM OF JUDICIAL LEGISLATION

student of past and present American judicial opinions, it seems too ob-
vious to merit extended argument that judges constantly evoke, for and
against a given rule choice, the whole range of effects the rule will have
on people other than the parties, and evaluate those effects in terms of the
general goals of the community. Moreover, this practice is explicitly theo-
rized by so many judges with places in the American judicial pantheon
that it seems implausible to say the least to redefine it at this late date as
treason to the Empire. I offer just one example of my own.
In a famous hard case decided in 1842, Chief Justice Lemuel Shaw of
the Massachusetts Supreme Judicial Court held that Farwell, a worker,
could not recover damages from his employer to compensate an injury
caused by the negligence of a "fellow servant." His opinion clearly states
the common understanding of his time as to the role of policy in legal
reasoning:

¡f we look from considerations of justice to those of policy, they will

strongly lead to the same conclusion. In considering the rights and ob-
ligations arising out of particular relations, it is competent for courts of
justice to regard considerations of policy and general convenience, and
to draw from them such rules as will, in their practical application, best
promote the safety and security of all parties concerned. This is, in truth,
the basis on which implied promises are raised, being duties legally in-
ferred from a consideration of what is best adapted to promote the benefit
of all persons concerned, under given circumstances.
.We are of opinion that these considerations apply strongly to the
case in question. Where several persons are employed in the conduct of
one common enterprise or undertaking, and the safety of each depends
much on the care and skill with which each other shall perform his
appropriate duty, each is an observer of the conduct oí the others, can
give notice of any misconduct, incapacity or neglect of duty, and leave
the service, il the common employer will not take such precautions, and
employ such agents as the safety of the whole party may require. By these
means, the safety of each will be much more effectually secured, than
could be done by a resort to the common employer for indemnity in case
of loss by the negligence of each other.7'

I suppose it is conceivable that what Shaw himself understood to be an

argument of policy can be recast as an argument that as a matter of prin-
ciple Farwell had no right to recover from the railroad for his coworker's
negligence. But I agree with Greenawalt that an ingenious transformation
of this kind will make the distinction between rights argument and policy
 Poliy and Coherence 127

argument not exactly "trivial," but rather useless for the purpose of de-
fending liberal judicial reform efforts without falling into either formalism
or nihilism.
Of course, Dworkin has had other agendas, indeed many other agendas
than that of responding to the dilemma of Warren-Court and Vietnam-
era American liberal legalism. Though he might not find the comparison
flattering, his early work resembles in many ways the project of Sir William
Blackstone, whose Commentaries undertook the "Herculean" task of show-
¡ng that the English common law of the late eighteenth century was best
understood as the working out into the details of legality of the rights of
Englishmen established in the Glorious Revolution.76 There is an echo of
this still unfulfilled program in Dworkin's gracious response to his mentor
Henry Hart's critique of the Noble Dream: "I hope to persuade lawyers to
lay the entire [positivist] picture of existing law aside in favour of a theory
of law that takes questions about kgal rights as special questions about
political rights, so that one may think a plaintiff has a certain legal right
without supposing that any rule or principle that already 'exists' provides
that right."77
As with Sir William, the larger Liberal project of reconciling rights,
majority rule, and the rule of law takes place in a much more specific
political context, for Dworkin the context of liberal/conservative ideolog-
ical conflict.

Dworkin 's Hercules as a left liberal legalist

After explaining why Brown y. Board gave the "right" answer to the ques-
tion of de jure segregation, but should have demanded far more than "all
deliberate speed," and why racial quotas are constitutional, Dworkin asks
whether Hercules, his ideal judge, is "too conservative" or "too liberal."
He does not answer that Hercules is no more liberal or conservative than
he is activist or passivist. He says instead: "You cannot yet say, because
your judgment would depend on how closely your convictions matched
his across the wide spectrum of different kinds of convictions an interpre-
tation of constitutional practice engages."78
This answer makes me laugh. Over the course of his career, Dworkin
has endorsed as the legally "right answer" not just Brown without delay
and racial quotas, but civil disobedience,79 nonprosecution of draft card
burners,80 the explicit consideration of distributive consequences rather
than reliance on efficiency,8' judicial review of apportionment decisions,82
128 THE PROBLEM OF JUDICIAL LEGISLATION

extensive constitutional protection of criminals' rights,83 the constitutional

protection of the right of homosexuals to engage in legislatively prohibited
practices,84 the right ro produce and consume pornography,8' and abortion
rights.86
Hercules is not just a liberal; he is a systematic defender of liberal
judicial activism from Brown to the present. He is actually a left liberal,
as close as you can get in terms of outcomes to a radical. As a good liberal
should, he has shown that he is capable of drawing the line somewhere, but
only at defending radical peace activists of the Greenham Common or
German antimissile variety,87 the more extreme demands of freedom of the
press,88 and Catharine MacKinnon's antiliberal critiques of consent in het-
erosexual sex and of pornography.89
Of course, each defense of liberal judicial activism is at retail, on the
merits of the particular case, under the constraints of looking for the "right
answer" to the interpretive question, of principle, and of the judicial priv-
ileging of rights over policies. The same applies to each critique of cower-
vatiz'e activism and each instance of resistance to overreaching by the left
fringe. Hercules

would not have joined the Lochner majority, for example, because he
would have rejected the principle of liberty the Supreme Court cited in
that case as plainly inconsistent with American practice and anyway
wrong and would have refused to reexamine the New York legislature's
judgment on the issues of policy that then remained.90

Hercules is just doing his jobexercising at every point his "most

conscientious judgment," including his "responsibility to decide when he
must rely on his own convictions about his nation's character."91 If you
don't agree with these "convictions," that is, with the egalitarian version
of liberal ideology that Dworkin has been developing in parallel with his
theory of adjudication, console yourself with the thought that when you
are a judge, you are invited, indeed enjoined, to impose your version of
conservative (but not Marxist, anarchist, or eccentric religious) ideology
on pain of condemnation as a "traitor" to law's empire.92 At that point,
you too will be entitled to the obedience and conversion effects, unim-
paired, we hope, by nihilism.
I would certainly vote for Dworkin if he were running for the Senate
and support his appointment to the bench, supposing in each case that
there was no radical alternative. But his (relative) political correctness is
only half the story. Ar the cultural level, he is not a left liberal but a
 Policy and Coherence ¡29

conservative whose goal has been to put a stop to the "eroding" or viral
progress of the critical project.
Stopping the virus doesn't mean rolling the clock back to I9oo; indeed,
it is hard to see how that could possibly work. Dworkin dispenses with
some of the dualities that initially both explained and justified the insti-
tution of professionally accountable courts specialized in adjudication.
Judges make as well as apply law; their law making is political; they arent
validated by objectivity. The tools of reconstruction are the interpretive
right answer, the notion of principle, and the distinction between rights
and policies. Through them, Dworkin reconstitutes the initial distinctions
in a modest mode: not law application but rightness in interpretation; nor
objectivity but principle; not law versus politics, but rights versus policies.
It is emblematic of American critical legalism that liberal legal theorists
attacked each of these attempts at regrounding, trying and to my mind
succeeding in showing that none could survive internal critique.93 It is
equally emblematic that they did this, one after another, in pursuance of
their own versions of the identical project of reconstruction. Some, for
example, take us back to the moderate English version in which legal
formalism radically restricts the nonetheless ineradicable moments of ju-
dicial legislation; others promise a return to objectivity, albeit in some
compromised form; maybe moral reasoning will turn out to have all the
qualities legal reasoning has lost; there are pragmatist options that fudge
even Dworkin's remaining distinctions.
My goal is to get out of this trap, to see what happens when one takes
not rights, and not critique, but their interaction seriously. It is quite
wrong to see Dworkin and cls, in the mode of pop jurisprudence, as "ap-
posites'he thinks there is always a right answer, we think there is never
onesince Dworkin takes critique much more seriously than his own
critics, and crits love determinacy, in its place, as much as the next person.
It is nonetheless a relief to say good-bye, for the time being, to all the
reconstructive projects, all so obviously based, at least to my jaundiced
eye, on making knowledge with a view to power, and power to serve the
holders of that very knowledge.
Some disclaimers. By saying that the liberal legal project has been to
defend the legality of the liberal judicial law making of the last fifty years,
while remaining true to the liberal critique of judicial legislation, I do not
mean to impute bad faith except of the existential type I want to impute
to judges as well. Contrast Dworkin's suggestion that some crits "may
want . . to move toward a new mystification in service of undisclosed
130 THE PROBLEM OF JUDICIAL LEGISLATION

political goals. " Nor am I arguing that the "pure" jurisprudential interest
in figuring out the "truth' about adjudication has been irrelevant. Far from
it. To say, for example, that Dworkin's theoretical work is incomprehen-
sible without the context of his personal political commitment to the
reforms of the Warren Court is not to say that he is dishonest, or not
"really" a scholar, or that his conclusions are "suspect" in a way that those
of more "disinterested" theorists are not.
Nonetheless, the liberal project inflects and also distorts the jurispru-
dential inquiry by influencing the choice of hypotheses, the choice between
equally plausible interpretations, and, above all, the investment of time
and energy in particular problems. In this case, time spent defending right-
ness, principle, and rights is time not spent on the left/mpm project of
unsettling those very ideas.
How does law making by adjudication in an ideologically divided so-
ciety alter the outcomes from those that would occur under a more trans-
parent process? Suppose that one or another theorist actually managed to
successfully answer the question of how a judge can be neutral. It would
still remain to be seen whether our actual judges try to be neutral in this
way, whether they succeed, and how their adoption of the stance inflects
rule making vis-à-vis the outcomes of, say, legislative supremacy.
The liberal legalist investment in Reason sometimes pays off in knowl-
edge that is useful beyond the project, that has as much "truth value" for
conservatives or radicals as for its liberal inventors. But the knowledge the
liberal legalist project produces is not much help with these questions.
We might define the project as a particular strategy for shoring up right-
ness, principle, and rights so that it will be unnecessary to answer them.
In short, the critique of ideologically oriented strategic behavior in judging
that I develop in the next three chapters applies to jurisprudence as well.
I propose to put my left/mpm questions, which are peripheral as long
as we are mainly concerned to defend the possibility of neutrality, in the
center of inquiry, by asking not how judges can be neutral but how they
can be ideological.
 PART THREE

Ideology in Adjudication
 6

Policy and Ideology

The goal of this chapter is to flesh out the intuition that policy is a
potential Trojan horse for ideology. I begin by developing a simple model
of legal discourse in general, a model based on a sharp distinction between
legal norms and the reasons for adopting them. The model is designed not
to "explain" legal discourse but to provide a descriptive vocabulary in
which to argue three points.
First, legal discourse overlaps with, or interpenetrates, ideological dis-
course in a way that makes it hard to distinguish an ideological argument
from a "neutral" or "objective" or "impersonal" legal argument. Second,
over time the pursuit of ideological projects through law has "sedimented"
or structured legal discourse in such a way that it "guides" decision makers
into framing problems of rule choice in terms of familiar liberal and con-
servative ideological alternatives. Third, even a judge or lawyer with no
ideological project of her own will find that she is willy-nilly an ideological
performer, because she has to write her opinions in legal prose. The lin-
guistic units available in legal prose are loaded with ideological meanings.
The methodology through which I explore these asserted phenomena is
quite different from that of the last chapter, which purported simply to
state explicitly the presuppositions of "standard" American legal discourse
or of legal culture. While this chapter resembles the last in relying on no
more than "common knowledge" for data, it is "structuralist" in a much
more technical sense. It draws on Ferdinand de Saussure,' Claude Lévi-
Strauss,2 and Jean Piaget3 (though in the cannibalizing or "bricolage" mode
rather than in that of "application" of their theories) to represent the judge
as both liberated and constrained because her job requires her to speak, to
argue in, a particular language. Legal discourse is distinctive not just be-
cause it is "about law," but also because it is a "langue," or language, in

'33
134 IDEOLOGY IN ADJUDICATION

which the judge produces "parole," or speechnamely, a particular ar-

gument in favor of a rule choice that will resolve a question of law.
To say that judges argue in the "language" of law is to make the specific
claim that this social practice is illuminated by treating it as analogous to
the more general phenomenon of language, in the sense of the English
language. lt is to assert that the familiar structures of English, like the
distinction between a syllable, a word, and a sentence, or between syntax
and grammar, have analogues within "law talk." Of course, law talk in
English is structured by English; the notion here is that law talk has a
second structureit is a language within a language, and the second lan-
guage has an additional set of structures analogous to those of the English
in which it is spoken.
Languages, for example English, have a temporal (diachronic) dimen-
sion, as well as a (synchronic) structure at any given moment. We can
study the way the vocabulary or lexicon of a language changes through
time, undergoes influence from other languages, responds to "material"
developments like technological change, or is deliberately changed by
speakers who see it as a locale for the playing out of conflicting social
projects (Negro, black, or African American? stewardess or flight atten-
dant?). The same is true, if the analogy holds, for legal discourse.
In this chapter, my goal is to identify the aspects of legal discourse that
suggest to informed observers of adjudication that ideology is a major influ-
ence. The premise will be that we have no idea what judges' actual state
of consciousness of the issue of neutrality may be. In other words, the
claim is that there are aspects of legal discourse that suggest ideological
influence even in the absence of any showing of ideological preferences or
intentions, conscious or unconscious, in the person doing the argument.
The external point of view of this chapter derives from the modernist!
postmodernist theoretical current that emphasizes two things about lan-
guage. First, there is a discontinuity between speaker and speech, so that
opportunistic or strategic use of language is always a possibility. Second,
speech is never fully controlled by the speaker (the speaker is in some sense
"spoken" by his or her language), so that speech "exceeds" the speaker,
propagating meanings independently of "original intent."
The next two chapters appropriate a very different mpm methodology,
loosely derived from phenomenology. They attempt to reconstruct judging
"from the inside," by imagining what it would be like to be a judge
working within role constraints that seem simultaneously to forbid and to
require that he bring his ideological commitments to bear in his law
 Policy and ¡dology '35

making. I don't think there is anything inconsistent about adopting these

different approaches one after the other. The idea is to get a handle on a
practice, policy argument, in relation to the phenomenon of ideological
division. The approaches should cumulate, making it clear how the judge
can be an ideological actor by showing, first, what he has to work with
and, second, how he does the work.

Rules versus reasons for rules

The first element in my proposed analysis of legal discourse is a sharp

distinction between rules of law and reasons for adopting rules of law. By
"rules of law," I mean "valid legal norms," or "black letter law," or "doc-
trine." "To make a contract, there must be an offer, acceptance, and con-
sideration." "Any voluntary physical invasion of another's real property is
a trespass to land." Each of these statements is radically incomplete. De-
pending on what facts you want to apply them to, you have to know many
more detailed rules about what counts as an offer, about "defenses" to
trespass, and so forth.
With important exceptions to be discussed in a moment, the rules of law
give no reasons for themselves. They tell us how officials are supposed to re-
spond in different situations. It seems obvious to me that this doesn't make
it impossible to follow them, when their meaning is apparent. But it seems
equally obvious to me that most of them provide, on their face, no expla-
nation of why they were adopted. They have "authority" behind them-
that is, statutory enactment, or declaration as the holding ola case, or an
authoritative treatise writer. There are reasons to obey authority. But the
reasons for obeying authority are not the same thing as the reasons for
adopting a rule in the first place.
I will divide reasons for rules into two categories, corresponding to the
notions of deductive and policy arguments developed in the last chapter.
A deductive reason for a rule is a claim that there is a more abstract valid
legal norm that has the rule in question as a strong or weak deductive
consequence. A policy reason for a rule is a claim that the rule is the one
among many possibilities that corresponds to an optimal balance between
conflicting values (rights, morality, social welfare, and so on) operating in
the "force field" model.
The model I am proposing uses the rule-justification distinction as
the basis for two structures that together constitute legal discourse. The
first of these is the structure of legal rules, or of doctrine. The second is
136 IDEOLOGY IN ADJUDICATION

the structure of nondeductive legal justification, or of policy. The struc-

tures operate quite differently, and interlock in a complex but also quite
intelligible way.

The structure of legal rules or doctrine

The elements of the rule structure, or doctrine, are thousands of statements

that have the form, "If these facts are found, the judge should do this." To
describe doctrine as structured is to say that it is more than a randomly
ordered list. Here are some of the elements of doctrinal structure.

i. Subject-matter structures
We organize the rules by subject matter. Some subject-matter dis-
tinctions are contracts, torts, procedure, the separation of powers,
federalism, evidence.
Within a subject matter, we can speak of the structure of a legal
field, the pattern of cases, statutes, and rules in a given area, distin-
guishing, for example, between fields that are well worked out, full
of "settled law," and fields that are chaotic or embryonic.
2. Horizontal structures
The rule-exception structure. If you took all the rules, you could
make thousands of subsystems by arranging them into rule-excep-
tion pairs. The logical status of rule and exception is complicated
and controversial, but that we tend to organize rules this way is
obvious. The "privilege of necessity" seems like an exception to the
doctrine of trespass.
The rule-counterrule structure. This differs from the rule-exception
structure because there is no defined hierarchy between the two
elements. The First Amendment, where it intersects the doctrine of
trespass in shopping-center speech or picketing cases, is a counter-
rule rather than an exception.
3. Vertical structures
The rule-instance structure. The point here is that the particular is
understood to follow from the general by deduction. If trespass to
land is voluntary physical invasion of real property, we are likely to
see "going hunting in your neighbor's woods" as just "what we
mean" by physical invasion.
The rule-specification structure. This is different because the par-
ticular is much more loosely derived from the general than in the
 Policy and Ideology '37

other case. Specifications are further rules that fill in gaps, conflicts,
or ambiguities that may or may not be apparent on the face of the
more general rule. Is your invasion of your neighbor's land invol-
untary if you were ordered onto it at gun point, or only if you were
carried onto it? The issue has been decided by adding a subrule to
the doctrine of trespass through policy argument.
4. The rule-standard structure. This is a typology of rules distinguish-
ing them according to the extent they use, as triggers for official
conduct and definitions of that conduct, relatively particularized,
"objective" indicia like, say, age (in determining legal capacity) or
vaguer concepts like, say, "maturity" (for the same purpose).'

The structure of legal justification

The second structure within legal discourse is that of justification." By this

I mean the collection not of rules, or valid legal norms, but of reasons
offered to support a choice between rules or between interpretations oi a
gap, conflict, or ambiguity in a rule. Here the first distinction is the fa-
miliar one between deductive and policy reasons. Ironically, deductive jus-
tification is done in a more casual and intuitive way, in our legal culture,
than policy justification. Since we are concerned with the intuition that
policy is a Trojan horse for ideology, we will disregard deductive reasons.
But it wouldn't be surprisingindeed, it would be a typical postrealist
viral gambitfor someone to develop a structural analysis of the discourse
of deduction of subrules from rules, and to show it to be no more immune
to ideology than policy discourse.
While it is easy to see the rules as units, and as constituting a structure,
it is much harder to see the similar properties of policy discourse. To begin
with, the unit of argument is the argument-bite, a brief statement of one
of the formulaic reasons for a legal choice. Consider the following four
examples of argument-bites.

The proposed rule will be easy to administer;

People have a right to freedom of action of the type guaranteed by this
rule;
The proposed solution lacks equitable flexibility;
People have a right to security against the kind of action permitted by
this rule.
138 IDEOLOGY IN ADJUDICATION

Suppose the question is whether to adopt a rule that makes it damnum

absque injuria (injury without a legal wrong, and therefore not actionable)
for a person to erect a fence on his or her property even if it blocks a
neighbor's light. When we think of the way these argument-bites are likely
to be deployed, it is clear that there are structured relationships between
them. When the fence builder argues that "the proposed rule will be easy
to administer," the neighbor will respond that "the proposed rule lacks
equitable flexibility."

i. The first dimension of policy structure is horizontal, and consists of

the oppositional organization of argument-bites in matched pairs, as
in the example above.7
The second element is the vertical organization of bites into a pri-
mary bite and a support system, by which I mean that there are
conventional ways to back up the brief content of an argument-bite
with further justification. For example, there are utilitarian expla-
nations oî why it is a good thing to choose a rule that is easy to
administer, and also rights-based reasons ("control of judicial discre-
tion is essential to protection of rights").8
Subject-matter structures
Argument-bite pairs and their support systems get combined and
elaborated into clusters that deal with recurring legal issues. Some
examples are legal formalities, compulsory terms, the standard of
judicial review, strict liability versus negligence, the choice between
rules and standards (these may be internal to a particular rule sub-
ject-matter area or crosscut various areas). The clustering of bites
means that if the advocate can present the case as involving one of
the "typical" rule choices, he or she will have a ready-made argu-
ment template for each side.
We can distinguish different cluster structures in different areas. In
one area, there will be little development of bite-counterbite pairs
or support systems; in another, the arguments pro and con will be
so well worked out that they have the quality of a mantra. The
arguments for and against formalities, and for and against judicial
review, are well worked out; the arguments for and against allowing
land-use restrictions that "run with the land" are surprisingly prim-
itive.9
. A fourth element is organization by the kind of value asserted, with
my distinction being rights, utility, and morality on one side, and
 Policy and ideology '39

system values like formal realizability and institutional competence

on the other.

Relativizing the distinction between the two structures

Although I think it's useful to distinguish the two structures (rules and
reasons for rules), the distinction is not a tight one, as the following cases
show. First, some standards and some rights are units in the system of
valid legal norms, of doctrine, and yet do provide their own justifications.
Second, sometimes we justify the choice of a rule neither by a policy
argument nor by deduction from a more abstract rule but by reference to
another rule, a rule of interpretation.
There are standards that appeal directly to one of the moral desiderata
of our culture, such as "good faith," "reasonableness," "unconscionability,"
"unfair trade practice." (Other standards refer to general descriptive cate-
gories understood to have little meaning until further specified, such as
"foreseeabiliry" or "restraint of trade." Unlike the first mentioned, these
provide no reasons for their adoption and get explained and interpreted
through policy discourse.)
Abstract but clearly legalized rights also violate my distinction between
rules and reasons for rules. For example, the constitution prohibits Con-
gress from "making any law abridging the freedom of speech," and refers
to the "right of the people to be secure in their houses, papers and effects."
Statutes and opinions may also declare rights (the right of privacy has been
declared as a matter of constitutional penumbra, as a statutory require-
ment, and as a common law rule).
There are two different ways in which rights can operate both in the
structure of rules and in that of reasons for rules. First, rights authorita-
tively declared at a high level of abstraction are self-justifping elements in
the rule structure, when we treat them as positivized natural rights, even
though it is not uncommon to offer nonrights-based reasons for them
("free speech helps the search for truth"). Second, it is standard practice to
invoke valid legal norms like the First Amendment as nondeductive policy
reasons for deciding cases, as in phrases like "First Amendment concerns
weigh heavily here" (as opposed to "the First Amendment requires . .
There are rules for the interpretation of rules, such as those of statutory
interpretation and those for the determination of the holdings of cases.
These are both rules and reasons for rules, and they constitute a "subdis-
140 IDEOLOGY IN ADJUDICATION

course of authority." They are the first resort when there appears to be a
gap, conflict, or ambiguity. Like the other rules in the system, they may
generate an instant sense of legal obviousness that can be unsettled only
by sustained legal work. Thus they can function to eliminate the need to
resort to policy, or just defer it.
When we choose among them and interpret them in order to make
them applicable to specific questions about "primary" rules, we justify our
decisions through policy arguments ("it would cause hopeless confusion to
apply the maxim exciusio unius in this case"). This second-order policy
argument about how to apply rules of interpretation is like the first-order
policy argument about what rule to adopt. The units are internally struc-
tured, like both primary rules and policy argument-bites. For eirnple, in
the famous pieces already mentioned," Llewellyn analyzed the maxims
used in statutory interpretation, and in justifying the choices of "broad"
and "narrow" holdings for particular cases, into a set of rules and counter-
rules, which might just as easily be described as arguments and counter-
arguments.

Dynamics of the model: operations

So far, we have a static typology. But the rule structure is dynamic because
it contains rules for the generation of new rules, or operations.'2 And the
argument structure is a semiotic system, in the sense of a system of signs,
a system that people operate to generate new meanings out of a prestruc-
tured collection of elements.'3

The universe of potential rules

The two operations that we perform on the rule structure are "constituting
the field" and "broadening and narrowing." Constituting the field means
deciding on a particular rule-exception or rule-counterrule structure as the
one within which to decide the case in hand. When striking bus drivers
lie down in front of the buses, we constitute the field when we decide that
the question" is whether their conduct fl1s on one side or another of a
line dividing "unjustified interference with the owner's property" from
"legitimate exercise of free-speech rights."
For a given controversy, there will typically be numerous different ways
to constitute the field. The First Amendment is one way to counteract the
 Policy and Ideology I 4'

owner's property right, but another way would be to argue that what the
workers were doing was a public nuisance, so that there could be no private
action without "special" damage, which the owner failed to show here. Yet
another would be to argue that the workers were merely exercising self-
activity rights guaranteed by the National Labor Relations Act (NLRA).
My point is not that all these approaches are equally likely to generate
the experience of closure in favor of the plaintiffs or defendants. The point
is that there is a relatively formalized procedure, an "operation," of think-
ing up the various kinds of anti-owner or pro-worker rules that could
conceivably provide a basis for a pro-worker argument in this case.
Broadening and narrowing are operations we perform by restating a
rule-counterrule or a rule-exception structure so that conduct that at first
looked as though it was clearly within the scope of a particular rule now
appears to be within the scope of an exception or counterrule. Given a
side, that is, given a decision to argue for the plaintiff or the defendant,
there will be multiple possible rule restatements that will validate the
party's position. Here we are not talking about alternative constitutions
of the field (the choice between a First Amendment and an NLRA argu-
ment) but about the choice between "places to draw the line" within a
constituted field. The imagery is of degree, of more or less.
We generate the alternatives in this operation by "disaggregating" the
situations covered by a given formulation of rule and exception or rule and
counterrule. The imagery is of the rule as a formula composed of a set of
abstractions each of which covers a diversity of particular "real life" situ-
ations. The goal is to restate so that some of these situations no longer fall
within the rule's abstractions (narrowing) or so that they now include
situations to which they previously seemed not to apply (broadening).
The operations of field constitution and broadening/narrowing generate
a set of alternative rule formulations that will win for either side.

The generation of new arguments

Starting from any given argument-bite supporting a particular rule inter-

pretation, there are a set of relatively formalized procedures for generating
a counterbite that will support an alternative rule interpretation. These
are formal operations, meaning that they produce new bites mechanically,
with no guarantee that they will be in any way convincing in the context.
An extreme example is the transformation of a sentence by inserting the
¡42 IDEOLOGY IN ADJUDICATION

word "not." Here is a list of operations, starting from "defendant has a

right to freedom of action of the type guaranteed by my proposed rule"
(for example, a right to lie down in front of the buses).

i. Denial: "There is no such right."

Hohfeldian opposition: "Plaintiff has a right to security that would
be denied by the proposed rule."
Mediation: "On balance, plaintiff's right outweighs defendant's in
this situation."
Refocusing on defendant's conduct: "Defendant has such a right but
has forfeited it by misconduct."
Flipping: "Plaintiff's right to the same kind of freedom of action
would be denied by this rule."

This list is illustrative. There is no closed catalog of operations; there

is no guarantee that any operation will ever produce a convincing argu-
ment; it is often hard to decide what operation, if any, has been performed.
A structural analysis of this kind provides a basis for an interpretation of,
say, a judicial opinion, rather than a theory of "what determined it."

Relationship between rule operations and argument operations

Argument operations are always performed in the context of a choice be-

tween two rules. Suppose it looks as though there is a preexisting rule that
governs this case and that my client will lose if it is applied. Through the
operations of field constitution and broadening/narrowing I come up with
an alternative potential rule that would win the case for my side. I then
look at the arguments that support the "obvious" rule. Given the counter-
rule or exception I have chosen, some of the transformative operations avail-
able will generate plausible arguments for my rule or against the obvious
one.
For example, if the obvious rule is in a highly formally realizable form,
and my alternative is a standard, I can try the argument-bite "your rule is
so rigid that it will produce inequitable results in many particular cases,
including this one." If my rule appears to be just as rulelike as yours,
however, this bite will not be an appropriate one without some further
work to change that initial appearance. If I have chosen a potential rule
that is more formally realizable than the obvious one, I will choose the
 Policy and Ideology '43

opposite argument-bite: "your rule is so vague that it will generate arbi-

trary results in cases like this one."
This "fitting" process goes in both directions. As I explore the argu-
ments in favor of my rule, I may modify it to fit the argument I am
developing. The work of developing argument-bites and support systems
guides rule-generating operations, just as the choice of a rule provides the
context for argument-generating operations. The process of mutual ad-
justment stops when I reach equilibrium, meaning that any change in the
rule seems to make it harder to defend, and any change in the argument
seems to make the rule less rather than more plausible.

An example

This morning I woke up thinking about how to start this section and read
the Sunday newspaper.
Liability Waiver Barred
at N.Y.U. Dental Clinic
by Ronald Sullivan
Waivers that patients of the New York University Dental Center have
been required to sign before being treated by students at a reduced cost
are "against public policy" and cannot be enforced, an appellate court
ruled last week.
The waivers, similar to those used by other university-operated clinics,
seek to protect the institution from malpractice claims.
In a unanimous decision, the. . . Court. . condemned the use of the
.

waivers, which are generally not used by hospitals, medical clinics and
private physicians and dentists.
"We find that the exculpatory agreement sought to be enforced be-
tween a dental clinic and its patient implicates both the state's interest
in the health and welfare of its citizens as well as the special relationship
between physician and patient and that it would be against public policy
to uphold such an agreement," the court said in its ruling on Thursday.
"lt is clear that the state's substantial interest in protecting the welfare
of all its citizens, irrespective of economic status, extends to insuring that
they be provided with health care in a safe and professional manner," the
court said . .
The patient, Arthur Ash, a retired salesman, was referred to the clinic
in 1986 by his dentist, Dr. Charles Lennon, so that he could have about
$6,000 worth of dental care done for half the cost. In return for the
savings, the center required Mr. Ash to sign away any claim of liability.
144 IDEOLOGY IN ADJUDICATION

According to the court, when Mr. Ash was treated by Dr. Lennon and
dental students at the center on Oct. 15, 1986, two gold crowns slipped
down his throat and lodged in his right lung and subsequently required
surgical removal
The court took note of the services that the dental center provided to
poor patients, but said that such services "cannot serve as a basis for
excusing such providers from complying with those minimum profes-
sional standards of care which the state has seen fit to establish."
Poor patients, the courts said, "cannot be considered to have freely
bargained for a sub-standard level of care for a financial savings."
1f dental centers were absolved of any liability, the court said, it would
create an "invidious" system in which "services received by the less afflu-
ent are permitted to be governed by lesser minimal standards of care and
skill than that received by other segments of society."
Generally, the courts have upheld agreements in which consumers
waive the right to sue for damages, provided that the consumers have
sufficient choices; that there is an "arm's length" distance between the
parties involved, such as in the case of owners and patrons of parking
lots; and provided that the agreements are specific on what they cover.
Howard R. Cohen, the lawyer for the dental center, said the ruling
would hurt poor patients by requiring the center to charge more for its
services in order to pay for malpractice insurance. He said the center had
not decided whether to appeal the ruling or to defend itself against Mr.
Ash's suit at trial.t4

The rule structure is obviously complex. There is the rule (standard)

that contract terms "against public policy" are void, and the counterrule
that consumers are "generally" free to disclaim liability, with its excep-
tions, and the very particular rule that parking lot owners can disclaim.
"Normal" health care providers do not disclaim, but it is not clear whether
this is their voluntary practice or the result of a judge-made or regulatory
requirement. (The rule summary in the article is partial and open to chal-
lenge in many particulars.)
Once the lawyers and judges had constituted the field within which the
case falls as involving these rules, exceptions, and counterrules, they had
to come up with formulations oía new specific rule that would decide the
case. From what appears, the judges chose a rule to the effect that reduced-
price (and also completely free?) services from university teaching clinics
are subject to the same regime of liability as regular market health services.
This is a relatively narrow choice. We don't know what the other side
proposed. But it was probably that reduced-price or free clinics run by
 Policy and ideology '45

universities as part of their educational programs are an exception to the

general regime oí medical liability.
These decisions involved excluding lots of other possible rules, such as
that only nonprofit clinics offering greatly reduced prices or free care pri-
marily to low-income people should be able to enforce a waiver, and so on.
Did the lawyer for the clinic argue that it should be able to disclaim
liability even for gross negligence in the supervision of dental students?
These choices reflected a whole array of judgments about the ease with
which it would be possible to restate the rules, facts of cases, and policy
arguments to fit the candidate interpretation.
Once the field had been constituted and the broadening/narrowing
operation performed, the case evoked a whole cluster of formalized policy
arguments for and against the two proposed rules. This is the cluster I
called "compulsory terms." The arguments for and against compulsory
terms that make up the cluster are sufficiently general so that they can be
used in, literally, hundreds of different situations.
But since the cluster is a form, a set of ritualized thrusts and parries,
and since it is inexhaustible, it would be wrong to say that the cluster
"determined the outcome." What we can say is that the lawyers for the
two sides and the judges had, once they had constituted the field and done
some narrowing/broadening, an elaborate lexicon of arguments from which
to compose their particular defenses of their preferred solutions.
For example, it is a familiar argument for compulsory terms that their
purpose is to protect consumers, so the court can justify its rule by appeal
to the state's interest in "insuring that they be provided with health care
in a safe and professional manner." An absolutely standardized response,
for any compulsory term, is that the term "will hurt poor [consumers) by
requiring [the seller) to charge more for its services in order to pay for
insurance." Because argument-bite oppositions within the cluster are
so highly standardized, it is often possible to infer from what one party
said what the other party almost certainly said to provoke it. Here, the
odds are that the statement 'poor [consumers) . . . cannot be said to have
freely bargained for a sub-standard level of care for a financial savings" was
provoked by the other side saying something like "the legally competent
consumer has the right, absent force or fraud, to make any agreement he
or she wants."
An intriguing aspect of the case as reported in the paper is that the
judges twice raised the status issue (the state's duty to protect is "irre-
spective of status," and it would be bad to create an "invidious" system
146 IDEOLOGY IN ADJUDICATION

providing lower-quality services to the "less affluent"). This is a double

example of the operation called "flipping," in which an agreed premise is
shown to have the reverse of its usual implication.
Within the cluster of compulsory terms arguments, the evil of creating
special statuses is typically invoked against compulsory terms, on the
ground that to deny a worker or a woman or a poor consumer the right
to contract on the same terms as an adult male is to treat them as incom-
petent. It is supposedly "insulting" as a continuation of the preliberal
regime in which they had an "inferior status." The status argument thus
flips the conventional argument that the compulsory term will equalize
buyers and sellers. Here, the judges flip the flip, deploying the antistatus
argument to show that freedom of contract would create a special status for
poor consumers, since nonpoor consumers are not asked to sign such waiv-
ers.
The article restricts itself, appropriately enough, to some of the more
striking argument-bites the judges deployed, but doubtless the opinion
contains at least rudimentary support systems for those bites. For example,
the argument that regulation will hurt the people it is supposed to help
gets supported by a standard economic argument, of a complexity tailored
to fit the circumstances, to the effect that the poor value the increased
protection less than what it will cost them, or they would have demanded
and paid for ir without legal intervention.
On the other side, the argument that the poor need this kind of pro-
tection will get support from the argument that in the absence of liability
for negligence, the clinic will have inadequate incentive to take precautions
to avoid harm to patients. And so forth. The argument that people of full
capacity have the right to make whatever contracts they want to, without
paternalistic state supervision, can get support from a disquisition on fun-
damental human rights, or from one on the economic benefits of consumer
sovereignty, or from a single bite like the following: "The consumer is
more likely to know what is in his or her best interest than the courts
are."
lithe opinion is very short, it will probably look more conventionally
"legal" than if it is elaborate. If it is short, the judges will restrict them-
selves to a rudimentary constitution of the field and then assert that the
rules apply in a particular way, with only a few more argument-bites than
we saw in the article and only the most minimal support systems for those
bites. Everything said in the opinion will support the conclusion, and there
will be no serious attempt to state, let alone answer, the argument for the
 Policy and Ideology '47

loser. The opinion will look legal because it looks as though the judges
knew what rule applied and then applied it.
But the short opinion, in a case like this one, will also be unconvincing
to anyone skilled in legal argument, because it will provide no answers to
the whole complex of arguments that we can generate, without knowing
anything much about the details of the case, on the side of the clinic. In
the short opinion, the argument-bites that support the court's conclusion
are presented as disposirive in a way that we know, given readily available
formalized responses, just can't be the end of the story.
A longer, "better" opinion will get into the choices involved in field
constitution and narrowing/broadening, so that the reader has a sense of
the range of possible rule interpretations. It will also deploy a much fuller
repertory of argument-bites and provide a support system for each. The
two most familiar forms are the opinion that is like a brief for one side or
the other, and the opinion that carefully works out the arguments on each
side, and then abruptly resolves in a balancing test.

The interpenetration of legal and ideological diicourse

We can identify a variety of aspects of legal discourse, as l've just modeled

it, that support the intuition that it is open to or a potential vehicle for
ideological preferences. Two of these have to do with its form, and three
with its actual modern content.

The form of policy argument

Because it is structured in matched pairs of contradictory argument-bites,

legal rhetoric is manipulable at retail, as well as at the wholesale, level of
a theory, say, of why judicial activism is bad. Policy argument contains no
powerful metatheories that tell us when the virtue of administrabiliry
trumps that of flexibility. Because of the "semioticization" of policy dis-
course, its reduction to a system of contradictory buzzwords that are always
available and therefore never persuasive in and of themselves, it is always
possible that the judge has "ulterior motives" for his choice of bites.
The "correct" way to get out of this dilemma, according to the realists,
is to identify the conflicting policies, rather than pretending that only one
is involved, and then "balance" them. The move from a one-sided deduc-
tion to balancing saves the "rationality" of the process, but it is understood
in American legal culture that this is a weak form of rationality. The image
 148 IDEOLOGY IN ADJUDICATION

is of a highly objective process (two weights in a scale, suggesting both

science and Blind Justice). Ronald Dworkin gives it a pretentious New-
tonian spin by referring to the "gravitational force" of conflicting princi-
pies.
But as the realists themselves pointed out in the 1950s, when many of
them had become judges and had to "balance" First Amendment rights
against national security, the process seems obviously open to conscious
and unconscious ideological manipulation, at least by comparison with the
paradigm of deduction. Indeed, the imagery of balancing, or gravitational
force, has an ambiguous meaning. Contradicting its scientistic overtone is
the suggestion that the question involved is one of degree, of line drawing.
There is a general cultural understanding that the resolution of such ques-
tions cannot be "objective" or "necessary" or "independent of the observer
or decision maker" in the way that resolution of conceptual or factual
questions can be.'6
Of course, balancing might be highly objective in the sense of producing
results widely experienced as necessary, even though nondeductive. The
doubt about the ability of balancing to exclude ideology is only partly
based on its form; it is also based on the particular content and history of
the arguments that American lawyers and judges actually use in policy
argument in courts today.

Policy as a translation of ideology

First, the social valuesrights, morality, utilityto which policy argu-
ment appeals are the very stuff of the universalization projects of ideolog-
ical intelligentsias. Second, institutional values, like judicial role consid-
erations and federalism, are often understood as stand-ins or surrogates for
the ideologized group interests that will benefit from applying the policy
in a particular way. Third, there are distinctively legal policy debates that,
while not simply "tracking" general ideological debate, appear to be the
functional equivalents of those debates within the specialized culture of
legality.
An ideological universalization project (liberalism, conservatism) re-
states the interests oí groups as claims on the whole society by casting
them in the language of rights, morality, or utility. Particular families of
rules and particular arguments about them have histories and ideological
pedigrees. Thus liberals have argued to the courts for generations in favor
of compulsory terms, from minimum wage and maximum hours laws
 Policy and ideology '49

through workmen's compensation and products liability and the warranty

of habitability through today's case about, say, the validity ola disclaimer
of liability for malpractice oía not-for-profit university dental clinic. Con-
servatives have taken the other side for the same number of generations.
The policy arguments they deploy are ideological arguments.
The conservative policy arguments are freedom of contract, antipater-
nalism, the efficiency of free markets, and the tendency of consumer pro-
tection to hurt the people it is supposed to help. Typical liberal counter-
arguments are unequal bargaining power, the substantive inequity of the
outcome for the particular person or a class of consumers, their lack of
capacity to choose intelligently, and the desirability that producers inter-
nalize the social cost of their operations.
Everyday policy argument often presupposes the irrelevance of deduc-
tion, provides an elaborate description of what all agree is a "social prob-
lem," and then develops all three normative criteria (utility, rights, and
morality) and the derivative arguments about, say, freedom of contract and
unequal bargaining power, without any pretense that there is an algorithm
for combining them, to justify a particular comprehensive legal solution.
The judge's opinion doesn't read much differently than a congressional
committee report recommending legislation to a chamber divided on par-
tisan lines. (See, for example, Judge Wright's opinion inJavins,'7 Judge
Traynor's in Escola. 18) The presentation blurs the line between adjudication
and legislation.
If we imagine that the judge is asked to choose between two rules
strictly on the basis of the ideologically polarized policy arguments that
are standard in legal discourse, it is hard to see how her choice can be
uninfluenced by ideology. What we mean by "a liberal" is a person who
favors compulsory terms on the basis of arguments exactly like the ones
in these opinions, Of course, the judge might choose on some basis other
than her preference between the liberal and the conservative positions, but
if she thinks one or the other is "right," that is, if she is a liberal or a
conservative, she is hardly betraying her duty of interpretive fidelity.
The problem goes deeper. The presupposition of policy discourse is the
force field model in which no policy argument, liberal or conservative, is
ever just "right." In the force field model, policies vary in strength from
one fact situation to another, and different rules "draw lines" by balanc-
ingthat is, by finding the point of equilibrium. Here again, what we
mean by "a liberal" or "a conservative" is a person who balances in test
cases in one way or another. The ideologies are not systems of deductions
 150 IDEOLOGY IN ADJUDICATION

but tendencies defined in terms of one another: a person who draws the
line in one place is a liberal just because conservatives draw the line further
to the right.
Of course, in the next case the legal representatives of the liberal ideo-
logical intelligentsia may "go too far," and the same judge who enthusi-
astically endorsed their arguments the last time around will switch sides.
His opinion will sound conservative, as he cuts back products liability to
avoid "abuses" that "drive up prices." But this is just another instance of
the standard rhetorical structure of ideological debate in the United States,
where liberals and conservatives share identical major premises and switch
back and forth, as they draw lines, between identical intermediate-level
arguments.

Policy as an instrument of ideology

Institutional arguments, about, say, federalism, or judicial activism versus

judicial restraint, are not overtly ideologized in the way the primary ar-
guments are. But they roo have histories. Everyone understands that lib-
erals favor federal power, and deploy the whole armory of policy arguments
associated with it, when they are stronger at the federal than at the state
level, and vice versa. Conservatives favor judicial activism when they con-
trol the courts, and they deploy the whole armory of stereotyped arguments
for judicial pa.ssivism when they lose them but happen to control the
legislatures. (But some liberals and conservatives have substantive com-
mitments on institutional issues that are independent of their ideologies,
as illustrated by the case of Felix Frankfurter's persistence in judicial pas-
sivism after the liberals lost control of the state legislatures after World
War II.)
There is nothing "necessary" or "inherent" about the apparent instru-
mentalization of policy by ideology. It might be the case that federalism
versus states' rights was the "real" issue, and liberalism versus conservatism
just a sideshow. The sense that the parties manipulate the arguments is
grounded in the particular history of policy debate in the United States,
in events like the shift from conservative to liberal dominance of the federal
courts after 1937 or even the temporary reversal of position of abolitionists
who became states' rights advocates after the passage of the federal Fugitive
Slave Law. And, of course, there is no way to "prove" instrumentalization
empirically.
 Policy and Ideology i i

Policy as a parallel ideological development

This third mode of interpenetration of policy and ideology is more com-
plex. There are legal debates that are only "analogous" to general ideolog-
ical debate, because the subject matter is minor or not salient in the leg-
islative arena but is extensively developed in legal discourse. In "Form and
Substance in Private Law Adjudication,"9 I argued that the endless policy
debate about whether to cast norms as rules or as standards, and the sub-
debate about the virtues and vices of legal formalities (the requirement of
a writing in contracts, the requirement of "definiteness," and so on) have
this character.
The policy argument consists at one level of paired bites: rules promote
certainty, standards flexibility; rules are rigid, standards subjective. But
the cursory bites and counterbites are supported by whole systems of more
complex argument invoking the opposed cultural ideals of liberalism and
conservatism: advocates support rules with arguments that are structurally
similar to the arguments for free markets; advocates of standards make
arguments that are structurally similar to those for government regulation.
At a higher level of abstraction, one finds an ontological and epistemolog-
ical debate, supporting, for example, standards through organicist and
rules through atomist social visions.
Moreover, there is a second debate in private law, not generally theorized
but not hard to piece together, between a model of maximum duty and
maximum excuse, and a model of minimum duty and minimum excuse
(altruism versus individualism). This pair of argument systems displays a
strong structural similarity to that of formality versus informality. And
like the debate over form, there is a clear affinity between the soft and
hard positions and liberalism and conservatism. Yet neither argument is
well described as a translation of liberalism and conservatism, because
liberals and conservatives habitually instrumenralize these arguments to
serve their legislative purposes.
On economic issues, for instance, liberals argue for freedom oí action
for laborthat is, for minimal dutiesbut for forcing enterprises co in-
ternalize costs to workers, consumers, and the environment; conservatives
go the other way. On social issues, liberals generally argue against forcing
internalization of the costs of deviance, conservatives the other way; but
there are numerous reversals, such as liberal insistence on remedies for wife
beating and conservative foot dragging. Each side favors rigid rules to
152 IDEOLOGY IN ADJUDICATION

enforce its legislative accomplishments in the face of private or official

resistance, but favors standards when they will allow its partisans to un-
dermine or soften a regime reflecting the objectives of the other side.2°
Though this usage has been much criticized, it still seems appropriate
to me to describe these debates as reflecting the internal contradictions of
modernist legal consciousness,2' and the same contradictions seem to me
manifest in modern liberalism and conservatism. But for present purposes,
my point is only that these structures of policy argument allow endless
play for the ideological projects of the legal intelligentsia. Along with the
direct translation of ideological into legal debate, and the instrumentali-
zation of federalism and institutional-competence debate, they sustain the
characteristic American attitude that policy argument is legal and not-
legal at the same time.

The dynamics of ideology in law

Over time, the work of arguing ideologized interests permanently trans-

forms legal discourse, building into it texts (with answers and further
development in response to answers) that are cannibalized for reuse in new
cases. Thus although legal discourse is in one sense driven by the under-
lying opposition of ideologized interests, it may also react back on the
ideologies and the interests and transform them. The modern legal dis-
course of civil rights is as much a cause as an effect of civil rights thinking
within liberal ideology at large.
Further, the appearance of ideologized group interests in legal discourse
is always mediated by the specific intelligentsia interests and the even more
specific legal intelligentsia interests of the lawyers and judges. Though
their input is consistently recognizable as liberal or conservative, it is not
a direct transposition but rather a translation, and a compromised one at
that, into a very different discursive medium. Nonetheless, the long-run
process of ideological conflict about rule definition profoundly affects the
way lawyers present and judges decide cases.

Ideological history tells you what kind of case it is

The participants organize new legal conflicts into the existing /ega/ schemas
or structures that they have used to fight earlier ideological battles. When
presented with a new case, they do a kind of mental checklist to see if it
 Policy and Ideology '53

fits into any of the well-known types of interest conflict that are ideolo-
gized.
If the case does fit in, it is possible to understand it as one of a series of
conflicts between two groups or interests, even if the parties don't think
of it that way. This will be easiest in the large class of cases that involve
resolving a relatively small gap, conflict, or ambiguity in a rule system
whose current state is understood to represent the outcome of earlier ideo-
logical conflict.
In these cases, the parties are likely to understand the issue as involving
the same contending group interests that settled the content of the general
rule whose interpretation is at issue here. In that initial dispute, we had
to decide whether there would be strict liability or negligence in defective-
products cases; the decision for strict liability left open the question
whether manufacturers can use an "assumption-of-risk" defense. When
that issue comes up, there will be little hesitation in organizing the case
so that we have yet another instance of ideological conflict between the
same strict liability and negligence forces that were arrayed in the decision
of the initial question.
Besides this "nesting" dynamic for "disputes within disputes," prior
ideological work provides analogies in cases of first impression. Let's sup-
pose that several generations of liberals imagining themselves to be the
intelligentsia of oppressed groups have developed a large number of pro-
posed compulsory terms in many different situations of alleged economic
inequality. Sometimes they have argued them to the legislature and some-
times to the courts. Solving a problem with a compulsory term is a familiar
liberal economic strategy.
Now suppose that within this general compulsory-terms project there
are already fifty cases identified as "about" the validity of seller disclaimers
of liability to buyers, in every kind of business from parking lots to legal
services, but there has never been a case about any kind of medical service.
This case involves a reduced-price university dental teaching clinic that
has injured a patient and disclaims liability. Lawyers and judges may pick
up on the presence of the disclaimer, and organize their arguments by
analogy to other compulsory-terms cases, as involving freedom of contract
versus the public interest in consumer welfare.
Rules, in short, have histories. If the history is understood by the par-
ticipants to be part oía general ideological conflict, then when a case comes
along that involves a disclaimer but also lots of other potentially important
facts, there is a ready-made, already ideologically organized, compulsory-
 154 IDEOLOGY IN ADJUDICATION

terms interpretation available. A case that might not be ideologized

against a different doctrinal history will be ideologized because the par-
ticipants have read and worked on lots of other disclaimer cases.
Sometimes it doesn't work this way. No one thinks to fit the case into
its possible ideological conflict interpretation, or both sides and the judge
as weil have reasons for preferring another interpretation and deliberately
ignoring this one. But over the long run, legal work supporting the ideo-
logical projects creates a body of familiar potential ideological meanings
for factual conflicts and for the rules that might govern them. These are
available as forms into which to pour the interpretation of a case of first
impression. This doesn't mean that any case can be poured into any form.
lt's just that you can see the available forms influencing the interpretations
that actually get made.
So far, ¡ have been talking about the way ideological work on the rule
structure influences the interpretation of obviously applicable rules and
the choice of analogies available in more open situations. But a lawyer who
initially experiences a legal situation as clearly governed by a settled rule
often manages, nonetheless, through work, to unsettle that initial appear-
ance. Ideological development of particular rules provides materials in this
kind of situation. If the liberals have managed to get reform of products
liability in the direction of nondisclaimabte strict liability, why not try
the same thing for tenant injuries from defective premises, in spite of the
fact that there are many cases in the jurisdiction holding that there is no
general duty of care, let alone nondisclaimable strict liability?

ideological history provides ready-to-wear policy arguments

Once the case is situated in an ideologically contested part of the rule

structure, the lawyers apply the set of stereotyped argument-bites and
support systems for cases in this cluster. These argument sets are also the
product of long-run ideological work. Liberal lawyers and judges have
spent years developing justifications for their preferred rule solutions in
the languages of rights, welfare, and morality, and so have the conserva-
tives.
Of course, it may be terrible for the interests ola party to cast the case
as a choice between rules supported by clusters of argument-bites and
support systems with clear ideological histories. That party won't argue it
that way. But if it is in the interest of the other party to so cast it, then
the first party will have to respond. Both parties may calculate that the
 Policy and Ideology 155

best way to do it is to keep the argument-bites and support systems to an

absolute minimum and present the case as involving obvious mere rule
application. But even then the judges (or their law clerks) often have their
own reasons for offering the ideological interpretation the lawyers tried to
avoid.
So particular argument-bites and support systems have histories just as
rules do, and we can trace them through the sequence of texts. In cases
about compulsory terms, we can follow the development of the egalitarian
regulatory argument from cases about the eight-hour day, tenement regu-
lation, minimum wages, company stores, products liability, insurance, and
so forth, up through today's case about liability of university dental clinics.
We can similarly trace the argument that compulsory terms are unconsti-
tutional, economically counterproductive, and not in accord with the com-
mon law.
The body of arguments stored in the opinions is available to both sides
in every dispute. Remember that the conservatives have been busy deve!-
oping arguments for statutory rape laws, school locker searches, parental
consent to abortion, and so forth, that deploy in the 'family values" domain
the same paternalist arguments they abhor in the economic context.

The judge is an ideological performer willy-ni//y

The work product of liberal and conservative lawyers and judges preserved
in briefs and opinions biases or skews the legal work that follows, because
it makes it easier to follow some lines of approach and harder to follow
others. On the basis of past work, the judge will be able with only minimal
new work to develop an interpretation of the facts that places the case in
one of the fields of ideological conflict between liberals and conservatives,
or between some other pair of opposed, universalized group interests.
If he or she accepts one of these ideological field constitutions, he or she
gets along with it a ready-to-wear set of policy arguments on each side.
One set of arguments supports rule interpretations that by degrees more
fully realize one interest, and the other set supports rule interpretations
pushing by degrees in favor of the opposing interest. He or she has only
to contextualize the formulas to fit the facts of the particular case. (J don't
mean to suggest that this is easy work.)
Because the materials are ideologically organized, the easiest thing for
the judge to do is to fit the case into one of the rule-conflict forms, and
then develop arguments from the justificarory forms. If he or she prefers
¡56 IDEOLOGY IN ADJUDICATION

a rule that splits the difference between the positions of the two sides, it's
easy to justify the aspects of the outcome favorable to plaintiff's group
with one set of arguments and those favorable to defendant's group with
the other.
If the judge wants to do anything else but this, he or she has to set out
to do something to the language, rather than merely speaking it. He or
she has to be profoundly creative, somehow find time to make up new
arguments, arguments that are outside the organized system. Judges al-
most never do that. They are much more likely to create by developing
the stereotypical argument on one side or the other beyond its earlier state,
thereby permanently changing the store of bites, or to create more ephem-
erally in the work of contextualizing.
The judge who does set out to change the very terms of discussion is
likely to find his or her contribution instantly incorporated into the ex-
isting system of ideological conflict, but cannibalized by the parties for
their own ideologically organized purposes or, quite possibly, just ignored.
To be cannibalized is to change the discourse, though not the very terms
of discussion (to be ignored is just a warning to those who watched your
doomed effort).
The neutral judge is an ideological performer in this sense: he or she
develops the solution to a legal problem and then justifies it in a legal
language that is also ideological language. The outcome will be under-
stood, not always but often, to have favored a "side" defined ideologically.
The explanation offered will become a part of the materials available to
the winning and losing "sides" in future ideological conflicts. Attempts to
get out of this box sometimes succeed, producing true rupture or recon-
stitution of the system of ideological oppositions, but more often they are
cannibalized or ignored.
 7

Ideologically Oriented Legal Work

The question I have been posing is, How can the judge be ideological?
How can the judge be ideological, more specifically, if he accepts that he
is bound to be a faithful interpreter of the laws, bound to do law's bid-
ding" if it conflicts with his ideological preference? In the last chapter, I
asked why an informed observer might be suspicious of the claim that
legal discourse, and particularly legal policy argument, is autonomous from
ideological discourse. In this chapter, I attempt to reconstruct the situation
of the judge from the inside, so to speak, asking how the judge experiences
and responds to the body of legal materials when he has an ideological
preference for a particular rule choice.
To pose the question of how judges can be ideological is not to presup-
pose that all coherence theories are or must be wrong. But it is to take as
a point of departure, first, that none of these theories even suggests that
all, or most, American judges act according to their precepts and, second,
that a judge who accepts a coherence theory will often be uncertain how
to apply it. Even if one of the theories is right as a description of how
judges do and ought to reason to outcomes in ideologically charged cases,
it seems very likely, given the actual state of the bar and bench under-
standing of law, that judges constantly experience themselves as having to
make strategic choices.
In this chapter, the strategic choice involved is in deciding how to
deploy their resources for legal research and reasoning. Legal actors,
whether advocates or judges, can influence what the law "is" through legal
work. In generaL, legal practitioners don't have and don't feel a need for
strong theories of how the law requires one to choose a "direction" for this
work. If they are lawyers, they suppose that it is legitimate to deploy their
resources to shape law to favor their clients. Strategic behavior in choosing

'57
 ¡58 IDEOLOGY IN ADJUDICATION

in what direction and how much to work at legal interpretation is an

everyday matter; it doesn't violate the duty of fidelity to law because it is
constitutive of the law to which one is faithful.
We often speak as though things were altogether different within the
process of judicial decision. It seems wrong for the judge to claim that/or
her fidelity to law kicks in only when she has made some law to be faithful
to. But, of course, law clerks write opinions that are "result-oriented," in
the sense that a rule choice is dictated by the judge, and their job is to
produce the best legal case they can in support of it. And judges them-
selves, when they work in panels, often find themselves in the position of
having to produce the best argument they can for a rule choice that differs
significantly from the one they regard as most in accord with interpretive
fidelity.
Here we will be dealing with what one might call the "core case," in
which adjudication is supposed to be nonstrategicmotivated solely by
the duty of fidelitythe case in which a single judge decides a question
of law. lt is a common belief, supported by a not inconsiderable social
science literature, that judges, in this situation, often can and do work to
make the law correspond to "justice," or to some other "legislative" ideal,
and that they direct this work under the influence of their ideological
preferences) But it is an equally common belief that this work is con-
strained by the legal materials. My goal here is to describe this complex
phenomenon of strategic freedom constrained by context.2 In the next
chapter, I describe the merasrraregy of denial through which, it seems to
me, judges maintain their own internal belief, and their audience's belief,
that they are fulfilling their duty of interpretive fidelity in spite of the fact
that their strategic choices "shape" or "move" the law in one ideological
direction or another.

Work in a medium

My theory is quite different from two othersindeed situated in between

them. First, we might imagine that the judge is an ideological actor in a
very strong sense. Confronted with a question of rule definition, he might
always choose the rule he would favor as a legislator, and then he might,
if he were a lower-court judge, simply impose that rule, offering a legal
justification that was strictly post hoc. If he was an appellate judge, he
might approach decision by the panel of judges in the same spirit, looking
to get, through the politics of the panel, a rule as close as possible to his
preference.
 Ideologically Oriented Legal Work '59

We don't have to assume that such a judge consciously or even uncon-

sciously violates his oath. We might suppose that everyone involved, in-
cluding the judge himself, experiences what he does as uniquely dictated
by correct legal reasoning from the valid legal materials. Yet the duty has
no influence over outcomes, because legal materials and legal reasoning are
sufficiently plastic that they can offer an acceptable post hoc rationalization
of whatever result the judge favors, and judges are habitual rationalizers.
At the other extreme is a model in which thereis a method of inter-
pretive fidelity that the judge can pursue in such a way that the result will
be the same whatever her ideology, or will at least be uninfluenced by
ideology. We don't have to imagine that there is only one determinate
correct answer to every question of rule definition in order for the method
to exclude ideological influence. The method can be uncertain without
being ideological as long as we believe that even in cases where people
aren't sure in advance how it will come out, they know that the uncertainty
will be resolved without resort to ideology.
In this model, law figures heavily in ideologized group conflict because
there are often large stakes that depend on judicial rule choice. But it
figures somewhat the way the weather figures in a military campaign. A
lot depends for each side on what the weather will turn out to be, because
one kind will favor one side and another kind the other. It affects every-
thing, but it doesn't "rake sides." We may not be able to predict with
certainty what it will be tomorrow, but however it turns out, we don't
claim that it was biased against us.
Or take the case of divination in the ancient world. In one model, the
diviners are participants in the political events that their interpretations
of the flights of birds or of the disposition of entrails strongly influence.
They are "proTrojan War" or antiwar, even if they and everyone else
believes that they are just interpreting the will of the Gods. In another
model, they have a "neutral" method of divination that they follow come
hell or high water, and the results of divination are the admission of a
genuinely external factor into the process by which the Greeks decide
whether or not to sail for Troy. From the point of view of the factions, the
dispute is decided randomly, in the sense that it is decided outside the
complex process of dialogue and bargaining that is ideological decision.
Neither of these models is even slightly plausible as an account of what
judges do. I propose instead that we see the judge with an ideological
project as "working in a medium," namely law, to bring about the rule
choices he or she thinks are just. Sometimes such judges find it impossible
to produce a good legal argument for the rule choice they prefer, and they
 6o IDEOLOGY IN ADJUDICATION

find themselves "constrained," both by the internal force of their oath of

fidelity in interpretation and by external pressure, to apply a rule that they
would vote against were they legislators. Sometimes they have the expe-
rience of being able to work the materials so that they support just the
rule they would have voted for. And sometimes they are able to "move"
the law so that there is a good argument for a rule that is better than one
plausible alternative but worse than the rule they would have voted for as
legislators.

Two modes of constraint

There are two situations in which ir is plausible to describe judges as bound

by law. These correspond to two quite different experiences of judging.
The first might be called "unselfconscious rule-following"; the second,
"constraint by the text." In unselfconscious rule-following, the judge has
facts before her and a single rule in mind. She is focused on the question
of what happened, and there are two well-defined contradictory answers.
If one version is what "really" happened, then it seems obvious that the
defendant has violated the relevant rule; if the other, then the defendant
has not violated the rule.
In this situation, no one is thinking about alternative interpretations of
the rule. When the facts have been finally determined, the judge unseif-
consciously applies it, in the mode oí deduction. If we are the audience,
we don't advert to the possibility of anything else happening than what
does happen, once the judge has decided how to characterize the facts.
There is no problem in this situation with what the judge thinks about
the rule. She may think it is utterly wrong and that the legislature should
change it. But she still, in this situation, just applies it.
A judge who unselfconsciously experiences the legal materials as point-
ing to just one outcome, as applied to these facts, and then pronounces
that outcome in the form ola rule application, is "bound" in a meaningful
sense of the term. And it is a constant of everyday life that directives are
experienced as having a single obvious meaning. To proceed as though
they had a different meaning, or many possible meanings, is bad faith, or
disobedience, or evasion. When you ask me to close the door, I don't,
typically, see myself as having to make a difficult interpretation. I know
what you mean without thinking about it. You don't hesitate to say I
haven't closed the door when I close the window.
The polar opposite model of boundness is one in which the facts are
 Ideologically Oriented Legal Work i

known and it is the proper interpretation of the rule that is in question.

The judge dislikes the outcome that the obvious interpretation of the rule
would produce, does a great deal of work to come up with a good legal
argument for a different interpretation, and fails. In the first case, the law
operates effortlessly to "guide" the judge's action; in the second, it is "con-
straint," an obstacle to deciding the case the way you would like to. In
the first case, no one is even thinking of law making. In the second, the
judge tries as hard as she can to make some "new" (meaning "nonobvious")
law, but can't find a way to do it without violating the duty of fidelity to
the materials.

External versus internal constraint

The constraint we have been discussing so far is that the judge experiences
because he or she is personally committed to interpretive fidelityto do-
ing "what the law requires." But judges, as an empirical matter, as a matter
of plausible social fact, are also constrained by the reactions they anticipate
from their audience. In other words, judges, as fallen beings vis-à-vis their
oaths, want to appear ro be "following" rather than "making" law. What a
given judge will do in a case depends on what she thinks will "fly" as
"good legal argument" in the minds of others, as well as on what she
herself thinks about the matter.
The judge operates as a member oían interpretive community, more or
less reified in her mind, and this fact is a source of constraint, just as
writers like Owen Fiss claim.3 But it is a peculiar kind of constraint,
because the judge is a participant and can affect the community's reaction
to the interpretation in question, rather than having simply to register it
as an immovable, external fact.
The experience of "internal" constraint presupposes that the judge is
looking for a legal argument that looks good to her. "External" constraint
presupposes that the judge is looking for a legal argument that looks good
to the audience. We shift from investigating the way interpretive work
produces the subjective experience of constraint to investigating the way
the same work produces the effect of necessity, the experience of legal
compulsion, for the audience for the interpretation.

The paradigm case of ideologically directed legal work

Isuppose (quite happily, be it noted) that "the law" can be understood to

"determine" judicial activity in the two cases of unselfconscious rule-fol-
 162 IDEOLOGY ¡N ADJUDICATION

lowing and constraint by the text. "The law" does this because under the
norm of interpretive fidelity judges do things they would not do if they
were legislators. And I also affirm that judges are constrained by what they
think their audience will think of them.
But there is a limit to how much of legal reality we can understand this
way. As I said before, just about everyone now agrees that the naive version
of rule-of-law theory doesn't fully explain the role of judges. There are
many questions of law of which all or most or some observers and maybe
the judges themselves would say that the rule that emerges from the case
is a product of the judge's agency in a sense other than willingness to obey.
In these cases, the judge's activity, the judge's legal work, affects the out-
come, the rule choice, so that it is plausible that a different judge, or group
of judges, would have come up with a different rule.
A phenomenological account might look like this. We start from the
individual judge with ideological preferences.4 He is confronted with a
question of law posed by the advocates in the case. He has a sense of the
stakes for ideologized group conflict that will be disposed by his rule
choice. There is an "obvious" rule that seems to apply to the facts as they
have been presented at trial and summarized for appeal. What makes it
obvious is that some combination of argument from authority and policy
arguments seems to constrain him to apply it to these facts. The judges'
ideology appears to him to favor a rule other than this one that is "obvious."
The judge understands, as a participant in his legal culture, that he has
only a fragmentary knowledge oí all the authoritative materials and all the
modes of deductive and policy argument that might be mustered to resolve
the case. I mean, resolve it in a way that would fulfill his duty of inter-
pretive fidelity and his need to generate the effect of necessity for the
members of the interpretive community. He also knows that he will have
enough time to investigate only a part of this lost continent of possibilities
should he decide he wants to do more than just accept and reproduce the
"obvious" legal argument for the rule he thinks is unjust. In other words,
the judge knows that he is not Dworkin's Hercules, endowed with infinite
time and infinite legal skill.
He also feels obliged to do some legal work in spite of the apparent
obviousness of the binding rule, and he understands the interpretive com-
munity to expect this of him. American judges don't see themselves as
presiding over a beauty contest between the advocates, as in a moot court.
They regularly produce opinions that have only the most tangential rela-
tion to the briefs and to the points made in oral argument, using facts
from the record not even mentioned by counsel. The judges and their law
 Ideologically Oriented Legal Work 163

clerks see themselves as required to do their own work to produce not only
the best outcome between the parties but also the best legal argument
they can muster in favor of the rule they decide should apply.
I believe that many judges are aware of the possibility, under these
circumstances, of undertaking an investigation of the legal universe with
the conscious strategic goal of unsettling the obvious solution. They also
have the goal of replacing it with a solution in favor of the 'just" rule,
supported by a legal argument that will appear, at the end of the work
process, to be "better" than the one that seemed initially obvious. "Better"
means that the new argument for the nonobvious just rule will seem to
the judge more consistent with his oath and will be more convincing to
the interpretive community.
The judge will also be aware that the undertaking of this strategic search
for a compelling legal argument for his ideologically preferred rule choice
is problematic from the point of view of the rule of law, and indeed of his
oath of interpretive fidelity. The reason for this is that the meaning of
strategic search is search that is "result-oriented," understanding this in
terms of rule choice rather than in terms of which party wins. It is a
strategy because it makes it more likely than would a random search that
he will "find" the result he wants, rather than confirmation of the obvious
rule he thinks is unjust.
Of course, what he is looking for is "inside" the law, since it is an
alternative that is more faithful to the materials than the one it may dis-
place. His search is guided by his prior knowledge of the materialshe
doesn't look where he doesn't expect to find. Of course, the search may
turn up nothing useful, from the point of view of the judge's ideological
preference, and thereby reinforce his initial experience of constraint by the
materials in the direction of the unjust rule. In that case, the judge is
committed by his oath to apply that rule.
The judge who operates in good faith as an ideologist has also to be
open to the possibility that the search process will change his view of what
was just in the first place. If that happens, he will have the option of
reorienting his work to reinforce the obvious, previously unjust rule by
showing that it is good against the counterarguments he himself has been
exploring.
Protestations of willingness to submit to the law whatever it may be at
the end of the search process, and of openness to the authority of law as a
counterweight to one's own ideologized sense of justice, may ease the
judge's sense of moral jeopardy. Rule-result-orientation is still problematic.
It is possible to understand the initial experience of certainty about the
164 IDEOLOGY IN ADJUDICATION

applicable norm and its interpretation as a communication from "the law"

(which just means earlier law makers) to the judge. It is not, I think,
possible to understand the work of trying to unsettle that initial certainty
as responsive to the materials in that particular way. The materials as they
existed in the judge's mind before he began his legal work have had their
say. They've said that what the defendant did was illegal. Now the question
is whether the worker can cause their meaning to change.
This is merely problematic, rather than "forbidden," only because there
is a good argument that he is obliged to engage in a strategic search for a
better rule than the obvious one, and a good argument that he cannot do
this nonideologically if his sense of justice partakes of his society's ideo-
logical divisions. Unfortunately, these arguments are controverted in their
turn, leaving him without any clear guide from the interpretive commu-
nity.
In the next chapter, I will describe typical judicial strategies for dealing
with the problem of judicial strategy. The rest of this chapter develops
variants of the paradigm case, and relates ideologically motivated strategic
search to the ontologies of deductive versus policy questions and of derer-
minacy versus indeterminacy, all in the context of the ideological stakes
of rule choice.

Deductive work

We tend to think of a deductive solution to a question of law as the

paradigm case of constraint or determinacy or legal necessity, as outside
the whole problematic of strategic behavior. This image of legal necessity
is grounded in the experience of following a deductive argument, rather
than in the experience of critiquing or constructing one. Critiquing is
often complex and time consuming, rather than based on immediate
knowledge of how the deduction in question was wrong. An initial in-
tuition that critique is possible may then require an elaborate attempt to
demonstrate that there were alternative premises available, and no expla-
nation of the choice made between them. We have seen already how the
realists did this, combining internal critique with the revelation that
judges constructed rather than "found" holdings for cases.
Developing an alternative deductive argument to the one that at first
seemed obvious involves the same onerous, time-consuming operations in
reverse. It involves searching for alternative premises by researching the
case law that is even tangentially relevant, looking for a line of cases that
 Ideologically Oriented Legal Work ¡65

will seem like authority in the case at hand only after the holdings have
been restated. It involves developing the definitions of the words in hold-
ings so that they have different implications for the facts presented than
they seemed to have at first. It involves restating the facts of the case in
hand to emphasize elements that would seem irrelevant if the obvious rule
applied, and restating the facts of precedents to distinguish some while
representing others as on point. In all these respects, deductive work is
the same as rather than the opposite of policy work.

Policy work

The paradigm case of policy work occurs when the parties and the judge
understand at the beginning that the question of rule definition is one of
"first impression,»' and the legal work they put in does not dispel this
sense. When the judge first reads the briefs, knowing that she will have
to "strike a balance" by choosing a rule, she may experience herself as fully
constrained, as having no choice given her particular understanding of how
policy argument is done, her theory of coherence. But she knows that she
has the option of developing one argument or the other, of working to make
it plausible in the circumstances.
Suppose the judge thinks the advocate for the liberal position, the ad-
vocate who makes the policy arguments that are part of the liberal project
of universalizing consumer interests, say, has done much better than the
conservative advocate. On the basis of what has been laid before her, she
would have to say that the balance favors a compulsory term in this class
of cases. Suppose that she is a conservative, and that her intuition, meaning
her informed impression based on her previous work as a judge, is that
the liberal legal argument is "actually" much weaker than the conservative
one. Suppose that the conservative advocate failed to mention, or to see
the relevance, of the argument that this term might make consumers worse
rather than better off.
Such a judge is likely to see herself as having a moral obligation to do
work on her own to explore the possibilities of developing the conservative
legal position, with the thought that when this work is done she may "see
her way clear" or "feel obliged" to come out for freedom of contract. The
type of work she will do is that which is inherent in the policy mode. First
of all, she will have to identify the range of rules that might apply in the
circumstances. Then she will have to adapt the policy argument-bites avail-
able to the particular facts and the particular rule.
 i66 IDEOLOGY IN ADJUDICATION

The policy question always exists in a context of "obvious" rules. Ideo-

logically oriented work is not designed to transform the whole legal sys-
tem. It is work within the system. You have to choose how to define the
policy question, what to leave unchallenged and what to challenge. This
is a strategy issue of the type discussed below.

Hard cases and easy cases

Lawyers conventionally distinguish hard and easy cases. We can use the
distinction to elaborate the paradigm of legal work. First of all, an easy
case ¡n the conventional sense is a hard case from the point of view of the
ideological strategist. What we mean by "easy" is that there is a rule that
obviously applies to the facts, given some explicit or implicit combination
of deductive and policy arguments. From the point of view of the person
whose ideological preference is for the obvious rule, the case is easy. From
the point of view of the person who thinks the rule unjust, this is a hard
case in the sense that it will be difficult, it may take a lot of work, and it
may be impossible to displace the obvious solution.
lt may be enough for the judge co turn an easy but unjust case into a
hard case, for which he offers, with much allusion to his internal struggle,
the best solution he can manage. But, of course, it would be better to turn
it into an easy case for his side, by supporting his preferred rule as both
deductively required and optimal as policy.
A hard case in terms of the lawyers' typology is an easy case for the
ideological strategist, since in a hard case there are two plausible rule
choices, rather than only one obvious one. A hard case is by definition one
in which the judge who prefers a particular rule choice won't have to
confront an initial probability oí failing to make a plausible legal argument
for itwhat makes it hard is that with minimum work or at first blush
it is obvious that there is no obvious answer.
lt may be enough for the judge if his work leaves the case a hard one,
as long as he can convince himself and his audience that interpretive fi-
delity favors his preferred outcome and can repel his adversaries' attempts
to convince the audience that the case was actually much easier than it
looked, and in the wrong direction. Of course, his ideal is to make a hard
case look easy, easily resolved on the side of his preferred rule choice.

The economics of legal u'ork

There are several economic dimensions of ideologically oriented legal work.

First, the judge has co allocate his time among the cases that presently
 Ideologically Oriented Legal Work 167

offer him chances to dispose ideological stakes. He has to calculate the

probable payoff in terms of convincing argument and the payoff in terms
of ideological significance. It is a hard choice when an apparently hard case
(an easy case for ideological work) offers a low payoff in terms of ideological
stakes, whereas an apparently easy case that is obviously unjust offers a
large payoff but might require a lot of work, with no guarantee of success
(in order to overcome the initial sense of being constrained to "do the
wrong thing").
A second economy applies within a given case, one dimension being the
"distance" the judge can move the law in a given direction, with more
distance taking more work, and the other being the payoff, with more
distance offering more payoff. An "elegant" legal strategy is one that
achieves a rule change that disposes large ideological stakes via a small
amount of work that changes the law only a little bit.
The notion of a work strategy implies a third economy. In pursuance of
a strategy, you "invest" time in a particular line of inquiry, choosing be-
tween deductive and policy solutions, for example, and, as soon as you do
so, ir will cost you something to change the strategy. This means you may
be constrained to continue down a work path, in spite of what has turned
out to be a low probable payoff, because it would take so much time to
go back to the beginning and start again.
Each of these economies has to do with the internal point of view: the
judge is concerned with interpretive fidelity, in relation to work, and has
to decide which work strategy for achieving a sense of internal constraint
in the preferred ideological direction is best. But there is also an external
economy of legal work.
Rhetoricians in general and judges in particular understand that "au-
thorship" is not irrelevant in persuasion, in the simple sense that a partic-
ular author, a particular judge, has more or less persuasive power not just
on the basis of the particular opinion, but also on the basis of the status
or prestige of prior opinions, and on the basis of reputation independent
of opinions. We can call this prestige factor the judge's "store" of mana,
or charisma, or whatever. The crucial idea is that a store of charisma, once
constituted, operates to increase the force of the judge's manipulation of
the specific rhetorical devices that we deploy to produce the effect of ne-
cessity. In other words, identical opinions written by different judges will
have different degrees of convincingness for the audience.
It may be helpful to conceptualize convincingness as the ability to
"move" an audience a "distance" from one belief about the correct inter-
pretation of the rule toward another. The "obviousness gap," for example,
i68 IDEOLOGY IN ADJUDICATION

might be the distance between the interpretation the judge favors and the
one that seems obvious to most members of the interpretive community.
On this basis, a mechanical but suggestive model of the charismatic econ-
omy might look like this.
Judges want to maximize their charismatic store. Charisma is generated
by having persuaded people in the past, as well as operating to add per-
suasive power to arguments in the present. The change in the store caused
by a particular performance depends on how much the judge has invested
in it, and on the "return" in charisma, which is a function both of the
distance the judge has moved the audience and of the importance or sa-
lience or visibility of the case.
On the basis of this mechanical model, the judge has to make a calcu-
lation in every case along these lines: (a) The obviousness gap is x. (b) My
arguments, from the base line of the zero-charisma judge, will get me
I/2X distance. (c) Adding my charisma has y% chance of overcoming the
obviousness gap, which would get me q of added charisma. (d) But there
is a too - y%, or z%, chance of falling short and losing p of charisma.
So the case has a "value" in terms of charisma of yq zp.
Of course, these are continuous functions rather than on/off choices. And
not all judges want to maximize their charisma, in the sense of ability to
generate the effect of necessity independently of the value of their argu-
ments. But I assert that some economy of this type significantly affects
some judges' decisions about how to deploy their legal resources.

Types offield configuration

The legal worker rejects ex ante the conventional oritological distinction

between cases that have deductive solutions and cases that don't, though
she may endorse the distinction after the fact as an explanation of what
happened to her strategy. Before the fact, there are not kinds of questions
but kinds of arguments. What looks like a deductive solution that makes
the case easy and the rule to apply obvious may, through work, be shown
to be a false deduction. The laborious demonstration of a false deduction
opens the way to working on an alternative deductive solution, or to a
policy argument, or to both. After the fact, if you have trashed the other
side's deductive argument without coming up with a convincing one of
your own, you conclude that the question was "inevitably" one of policy.
It seems more accurate to characterize a question of rule choice not
according to whether or nor it "is in its nature" a policy or a deductive
 ideologically Oriented Legal Work 169

question, but in terms of the condition of the "field" of fact situations,

precedents, and policies in which it is located. Easy cases occur in an
"impacted" field, one in which there are many precedents that are intui-
tively obviously close in their facts to the case in hand, there is a legal rule
that has been deliberately applied repeatedly to a variety of only slightly
different fact situations, and the rule represents an obviously plausible
compromise between policies, partly because the alternative rules seem
wildly immoral, violative of someone's well-established rights, uncertain,
rigid, or whatever.
But the field may be "unrationalized" or even "contradictory" instead.
In the first instance, there are many decided cases, but perhaps they are
based on a discredited mode of deduction (for example, "implied intent")
or a policy that is no longer plausible (strengthening the firepower of the
militia). Such a field cries out for a "strong" opinion that will generate
new holdings for cases, based on new statements of their facts and a new
assessment of the policy balance, and a new rule to apply in the case at
hand. The contradictory field also cries out for a strong opinion, but be-
cause there are many cases that are close on the facts but seem to have
been decided in opposite ways, on the basis of two lines of policy argument
that ignore one another.

Legal work and the ontology of determinacy and indeterminacy

In both unselfconscious rule application and constraint by the text, it

makes sense to say that the law determined the outcome, if we mean that
from the point of view of the actor there was no insertion of his or her
own desires. But we can't say that whenever the judge describes what
happened this way the question of law had a determinate answer. The
reason is that it was just an experience and might have been modified by
more work differently done.
Because of the "economic" dimension of legal work, the judge doesn't
know, when he or she "fails," whether the failure was a product of time,
knowledge, bias, skill, strategy, or the "inherent properties" of the legal
field. The report that he or she was "bound" can be accepted at face value.
But it is not a report about inherent properties directly measured. This
question of law had a determinate answer for this judge under these con-
straints. But it might have had no determinate answer, or a different an-
swer, for another judge, differently endowed and pursuing a different strat-
egy.
170 IDEOLOGY IN ADJUDICATION

The question "does this question of law have a determinate answer?" is

therefore meaningless if it is a question about the question of law, rather
than a question about the interaction between a particular, situated his-
torical actor and this particular question of law situated in this particular
field. Because determinacy is a complex function of work as well as of facts
and materials, a function oían interaction, it makes no sense to predicate
determinacy or indeterminacy oí the question as it exists independently of
the particular actor who is trying to answer it.
Of course, one could just assume that "in fact" there always is or is not
a determinate answer, and treat the judge's work as producing evidence as
to which it is. One could ask the judge to keep working until she was
"reasonably certain" that she had "the" determinate answer or that there
was none. Reasonable certainty might mean that there was a low proba-
bility that further work would change the outcome.
I don't doubt that people do in fact sometimes proceed just this way.
But that they do is not evidence that a determinate answer exists or doesn't
exist independently of the work they put in trying to find it. The as-
sumption that the experiences of dererminacy and indeterminacy are "re-
flections" of an external reality, or truth of the matter, that exists indepen-
dently of their own efforts isn't made more plausible by the fact that
sometimes it doesn't seem to be worth it to invest more time in trying to
change the legal situation.
It is common to attribute the phenomenon of legal constraint to things
like "interpretive community" or "conventions." This makes sense when
we are speaking of the "guidance" of decision in unselfconscious rule-
following. It means that sometimes as a matter of fact all the people who
are concerned with an interpretation experience it as obvious, and as ob-
vious in the same way.
We all know from experience that if there had been disagreement, and
the work of legal argument on both sides, the initial unselfconscious view
might have ended up seeming "legally wrong." The sense that the rule just
"meant" that the plaintiff won might be replaced by a developed sense of
constraint, when it turned out that no one could find a way to avoid the
argument that a rule interpretation favorable to the defendant was legally
correct. That everyone unselfconsciously adopted a view, or no one ob-
jected, isn't evidence that the outcome was determinate in any sense we
are interested in.
Questions of law sometimes seem obviously controversial, "inherently
political," or "by their nature ideological" when first posed. The flag burn-
 Ideologically Oriented Legal Work

ing case, for example. Sometimes, a judge working on such a question will
happily or reluctantly come to the conclusion that the question was not
really ideological after all, that the work of legal argument has generated
the experience of closure. But when this doesn't happen, and the question
still calls out for controversial choice even after the time for work is past,
this is not evidence that the question was inherently indeterminate. lt
might have been that a little more work, or work from the beginning
along a different path, would have produced experienced determinacy after
all.
If there is warrant neither in the experience of unselfconscious rule ap-
plication nor in that of constraint by the text for a conclusion that a given
question has or doesn't have a determinate answer, we can always look
elsewhere. I am not going to argue the proposition that there is no else-
where. It seems obvious to me. Try the thought experiment of the doctoral
candidate in legal sociology setting up his or her empirical study of de-
terminacy. What is the objective index against which to measure judicial
reactionsa panel of "control" judges? And what warrants the correctness
of their answers? And so on.
My approach in what follows neither answers nor rejects, but rather
defers or brackets, the question of what, if anything, lies behind ("in" the
legal materials) the experiences of openness and closure. ¡ think there is
quite a bit we can say about judicial law making without an answer to
this more ultimate question. We can explore the "surface," rather than
trying to penetrate the depths.
I am proposing to shift the investigation from the questions, "are judges
ever 'really' bound? and, if so, how often?" to the question, "what follows
from the fact that judges often experience themselves as bound?" The inquiry
into consequences of adjudication can go on because we can plausibly
describe an experience of boundness that affects behaviorby leading the
judge to actually do whatever he felt he was bound to do, even if he would
rather have done something else.
We ask what are the consequences for the political system if judges
sometimes experience the accessible surface as structured so as to determine
an outcome, and then bring about that outcome, either in the mode of
unselfconscious rule-following or in that of constraint. We ask what are
the consequences for the political system if judges often experience ques-
tions as open, and work to close them in one way or another, but also often
experience them as closed and work to open them, sometimes successfully,
sometimes not.
172 IDEOLOGY IN ADJUDICATION

How often do legal questions permit ideologically oriented work?

Once we abandon the ontology of determinate and indeterminate ques-

tions, we also have to abandon questions like "how much indeterminacy
is there in the law?" This question is often seen as crucial to the analysis
of ideology in law, along the line that if most questions of law have legally
correct answers regardless of who is answering them, then there is little
room for the influence of judicial ideology. Conversely, if law is "inher-
ently" or "pervasively" indeterminate, and for reasons that "inhere" in the
nature of language or of rules, then it appears that there is lots of room
for that influence.
When we conceptualize constraint in terms of work, it seems obvious
that we won't be able to answer the question of ideological influence this
way. A committed liberal judiciary can change a lot of law that a com-
mitted conservative judiciary would leave be, and vice versa. There is no
way to say "how much" they can change except after the fact. We can make
a list of "factors" that we might expect to help predict "how far" they will
go, including personal factors like energy and time and skill and "external"
factors like the typical field configurations in ideologically sensitive areas.
We can say it's more likely that a committed judge will have success in a
contradictory area like regulatory takings law, or promissory estoppel, than
in an area that is more "settled," but experience shows that the generali-
zations will be extremely risky.
And perhaps we can make broad historical and cultural generalizations.
There are periods of judicial creativity and periods of no creativity, periods
when many or most judges are motivated to do ideological work, and
periods when they are not. One legal culture at a given time may be
characterized by the widespread judicial experience that there is no room
for ideologically oriented work, while another culture with a strikingly
similar body of formal law may encourage judges to find opportunity be-
hind every bush. To my mind, this means that the study of ideology in
law has to be undertaken at retail, as Dworkin might say, rather than
wholesale.

The notion that lau' restricts the field of ideological conflict

Another common notion is presented by Neil MacCormick:

 Ideologically Oriented Legal Work 173

Stripped down to a claim about the political and/or ideological quality

of mainstream legal dogmatics when concerned with fundamental issues
of interpretation and of coherence or value in law, the CLS position is a
lot less radical, or even anti-mainstream (at least as that would be judged
from a British standpoint), than the grander programmatic presentations
suggest. The thesis that even the best drawn laws or lines leave some
penumbra of doubt, and this calls for an exercise of a partly political
discretion to settle the doubt, is not particularly new; it is but the com-
mon currency of modern legal positivism
A crucial point, though, is that one ought not to miss or under-
estimate the significance of line-drawing or determinatio as already dis-
cussed. The law really does and really can settle issues of priority between
principles by fixing rules, and even when problems of interpreting rules
arise, these focus on more narrowly defined points than if the matter were
still at large as one of pure principle. Fixing rules can be done either by
legislation or by precedent; most commonly, in a modern system, by the
two in combination. lt is one of the gifts of law to civilization that it
can subject practical questions to more narrowly focussed forms of ar-
gument than those which are available to unrestricted practical reason.7

It is of course true that "law" "really does" settle particular "issues of

priority" by "fixing" rules. I think this just means that judges choose
between alternative rule formulations, supported by different deductive
and policy arguments, when they answer questions of law. When the judge
makes a rule choice, it becomes, in a common law country, part of the
large structure of legal doctrine; it becomes a valid norm from which later
judges can reason, subject, of course, to Llewellyn's problematics of prec-
edent. In a developed system, all questions of law arise in a dense pyramidal
rule structure of this kind. The judge with an ideological preference has
to deal with the structure of authorities as part of the medium in which
he works to frame the question of law, of rule choice, and then to produce
an argument that will generate the experiences of internal and external
constraint on the side he favors.8
But it is not at all true that the historical process of successive judicial
rule choices has an immanent tendency to reduce over time the possibilities
for ideologically oriented legal work. First, there is no tendency for the
ideological stakes in judicial rule choice to fall as judges move from
"broader" to "narrower" questions of interpretation. Second, there is no
tendency for the "forms of argument" to be narrower in "little" cases than
174 IDEOLOGY IN ADJUDICATION

in "big" cases disposed on grounds of "pure principle." These points are

distinct, and each will take some elaboration.

High stakes for "little" questions

The question "Does the U.S. Constitution mandate federal judicial review
of state statutes?" is obviously a "bigger" or more abstract or less narrow
question than "Can a federal district court enjoin a state administrative
agency from enforcing a schedule of rates for rail shipment oí farm products
promulgated under a valid state regulatory statute requiring that rates be
'reasonable?' " Both the "initial" decision for judicial review and a long
sequence of cases fixing rules for narrower subquestions were obviously
"relevant," but they didn't settle in and of themselves this sub-subquestion.
Yet the ideological stakes in the little question were understood to be
large, certainly greater than those in many a local election, because of the
expectation that the state regulatory agency would decide the question of
reasonableness very differently than the federal court.
This is an example of high stakes because in long-run ideological con-
flict, "God is [ofteni in the details." Sometimes a small question involves
high stakes because the size of the wealth or resource transfer that will be
settled in the lawsuit is great, even though the question of law, the rule
choice, is unlikely ever to be relevant in a later case. The tenant farmers
under the "patroon" system of upstate New York litigated a case about
whether the form of tenure devised by the owners, which involved an
incorporeal hereditament called a "rent," was invalid because a restraint
on alienation.'0 When they won, they got a lot of land free and clear. The
rule choice had no significance beyond the case at hand, but the ideological
stakes were great.
But ir is conceding too much if I leave the impression that we are
speaking simply of a discontinuity between legal stakes and ideological
stakes. What the legal stakes in a case "are" depends on the work of ad-
vocates and judges. Legal work, in American history, has often, very often,
unsettled rules located way up in the pyramid: see Brown y. Board of
Education," Reynolds y. Sims,'2 Miranda y. Arizona» Dred Scott y. Sand-
ford,'1 Lochner y. New York," Escola y. Coca-Cola,'6 Javins y. First Na-
tional Realty.'7 Once we reject the ontology of determinacy and indeter-
minacy in favor of the notion of constraint as a function of legal work, it
is a question of fact, to be answered only through trial and error, whether
the optimal strategy of ideological work in law is to concentrate on little
 Ideologically Oriented Legal Work '75

or on big questions. A lawyer who equates the place of a rule in the

pyramid of abstraction with its degree of movability through advocacy is
incompetent.

Nesting

It might be Law's Gift to Civilization that as judges elaborate the rule

structure by working to create and to resolve gaps, conflicts, and ambi-
guities, they change the "form of argument" through which they resolve
sub- and sub-subquestions. As the questions get "smaller," questions
might become susceptible to correct legal resolution through narrower
and, therefore, less ideologically charged forms of argument. But this is
not the case. The questions get narrower and narrower (the ideological
stakes may be getting bigger and bigger), but the forms of argument
remain astonishingly the same. This is the phenomenon sometimes called
"nesting."8
I don't want to overstate my case. Suppose that we fix an interpretation
of a rule, that is, choose a subrule by nondeductive or only weakly deduc-
tive argument. This subrule may well have implications in a later case of
sub-subrule choice and may influence the outcome so that it will be dif-
ferent than it would have been if the only relevant authority had been the
original rule. The subrule may be a veritable fountain of deductions,
whereas the original rule was not. What I want to assert is that ir is often
the case, and often the case with high ideological stakes, that the subrule
does not powerfully constrain the choice of a sub-subrule. The argument
will then be no less ideological in form than the one about deriving the
subrule from the rule.
Suppose the question is what happens when A kills B in mistaken self-
defense, when B was really trying to assist him. If the question of com-
pensation in tort is one of first impression, there is a highly predictable
set of policy arguments, referring ro rights, morality, and utility, as well
as to administrability, that the parties will make to the judge. Suppose the
judge allows the defense of mistake, but the question arises whether the
defendant's mistake has to be "reasonable" under the objective standard or
merely in good faith, The parties will argue this question, using almost
exactly the same rights, morality, utility, and administrability argument-
bites as on the previous issue.
The plaintiff will say that the defense of mistake should not be allowed:
"as between two innocents, he who caused the damage should pay"; we
176 IDEOLOGY IN ADJUDICATION

must protect the right of bodily security; we need to deter carelessness; a

rule of no defense will be easy to administer. Suppose that the judge decides
to allow a defense of mistake. As to whether the defendant's conduct has
to be reasonable or merely in good faith, the plaintiff will make the same
arguments: an objective standard because "as between two innocents," we
must protect the right of bodily security, we need to deter carelessness, an
objective standard will be easy to administer. It will often happen that this
time the court will come out on the plaintiff's side and impose an objective
standard. When it does so, it will reject the defendant's policy arguments,
the exact same policy argument-bites that it endorsed when the question
was whether there should be a defense oí mistake: no liability without
fault, the right of self-defense, encourage self-help, solutions should be
sensitive to particular facts.
Dworkin pointed out in "The Model of Rules" that principles are not
rules because they can be argued successfully in one case, and then rejected
in the next, without losing their legal status.'9 Rules, by contrast, are
followed or they are not. His principles are among the larger set of policy
bites and counerbites. It is not just that they can be accepted as important
reasons in one case, and rejected in favor of their opposite numbers in the
next, but that the same judge can go down the pyramid, resolving ever
"narrower" questions, while switching back and forth between the bites.
Remember that the semiotic structure of argument-bites is related to
ideological projects in at least three ways. Sometimes a system of bites, as
in compulsory terms, is virtually indistinguishable from the system used
on the liberal or conservative side of general legislative debate on the topic.
Sometimes the systems of bites are instrumentalized, meaning that they
seem to be no more than pretexts that are adopted ad hoc by liberals or
conservatives depending on which side they favor in the particular case
(judicial role, federalism). Sometimes the legal policy debate is analogous
to the general ideological debate but is nonetheless often instrurnentalized
(individualism versus altruism, rules versus standards).
These ideologized modes of policy argument recur at every level of
abstraction. The dispute about whether or not there should be an assump-
tion-of-risk defense to strict products liability turns out to have the same
ideological structure as the argument about whether or not to have strict
products liability in the first place. A little while later, there will be yet
again the same structure to the debate over whether there should be an
exception to the doctrine of assumption of risk in products liability cases
when the plaintiff's conduct was highly foreseeable by the defendant and
 Ideologically Oriented Legal Work '77

might have been prevented by a safety precaution. Policy argument is

interminably ideological, and like ideological debate, just plain intermi-
nable.

How radical?

Is what I have been expounding no more than "the thesis that even the
best drawn laws or lines leave some penumbra of doubt, and this calls for
an exercise of a partly political discretion to settle the doubt?" lt really
doesn't seem that way to me. (Oh my God, am I really just a Hartian?)
First, that phrase answers the question "how can the judge be neutral?"
The answer is that he can't be, because "even the best drawn lines
My argument is that he can be ideological, not just because "the best drawn
lines . . ." but because the legal materials are lying there waiting for his
ideologically oriented work. Sometimes his "work in a medium" produces
convincing argument for his ideologically preferred outcome when work
in the other direction would have produced an ideologically contrary re-
sult.
Sometimes he can do much more than "exercise a partly political dis-
cretion" in a "penumbra of doubt." Sometimes he can generate a doubt in
the core of meaning; sometimes the field configuration invites him to settle
not doubt in a penumbra but raving contradiction across a doctrinal do-
main with high ideological stakes; sometimes the field is unrationalized
and he can have the thrill of explaining that its true spirit is libertarianism
in offer and acceptance. This is neither the Nightmare (the judge just does
ideology) nor the Noble Dream (there is a way to be right), but it is not,
I hope, hope, hope, just what the Brits have been saying all along.
If one sees law this way, it looks, as a whole, like the ossified record of
conflicting work projects. It is not just a list of rules, each with a penumbra
within which a little "partly political" discretion can be exercised. The
rules themselves have a new meaningthey are not just the command of
the sovereign, or what we get when we apply the rule of recognition, but
a ragged, contorted boundary trench that marks the outcomes of a thou-
sand sorties and countersorties. (Or maybe the line of scrimmage, just after
the snap . .
The parole evidence rule oía given jurisdiction looks like the particular
working out of the large conflict between a formalist and an antiformalist
version, plain meaning versus New Criticism. The next, sub-subquestion
about that rule looks like the latest incident in a perennial conflict, and,
 ¡78 IDEOLOGY IN ADJUDICATION

if God is in the details, one camp or the other may win a major victory
even though it lost the last three battles. If God is in the details, the
reformulation of what it means for the burden of proof in employment
discrimination cases to shift after the making out of the prima facie case
may "gut the statute."
I am aware of a formulaic British response, first articulated, I think,
with supreme condescension by H. L. A. Hart, who claimed to be able to
catch "by a single glance from afar"2° what had been locally invisible before
his overflight. As he summarized the realists,
What did all this amount to? Seen from afar it appears to many English
jurists not to have advanced legal theory far or to have added much to
the stock of valuable jurisprudential ideas. But the virtues and beneficent
influence of the realist movement lay elsewhere . . For its main effect
was to convince many judges and lawyers, practical and academic, of two
things: first, that they should always suspect, although not always in the
end reject, any claim that existing legal rules or precedents were con-
straints strong and complete enough to determine what a court's decision
should be without other extra-legal considerations; secondly, that judges
should not seek to bootleg silently into the law their own conceptions
of the law's aims or justice or social policy or other extra-legal elements
required for decision, but should openly identify and discuss them.2'
Cis looks similar to realism in Scottish eyes:
As a heuristic device, it is, however, certainly good advice to scholars and
practitioners that they should always be ready to turn any question upside
down and to see whether underplayed principles cannot be played up to
create a seriously arguable counter to the view one has initially enter-
tained. The danger of mere dogmatism in legal dogmatics comes from a
failure to take seriously the possibility that another view might be argued
just as well as one's own initial one (mark you, this can be as true of
those who start with a view toward the political left as of those who start
from the political right; no party seems to have a monopoly on dogma-
tism). The uses of this heuristic are demonstrated in many excellent and
insightful CLS writings at the level of concrete doctrine rather than gen-
eral programmatics.22
All those modest studies (realist and cls alike) may have been instan-
tiating the liberal humanist virtues of skepticism about claims of authority,
candor, and antidogmatism, but they also claimed to be doing something
quite different. They also claimed to be showing that the actual outcome
of doctrinal debate, that is, the set of rules the judges chose, is much more
 Ideologically Oriented Legal Work 179

intelligible (insert big German word) if you reject both the Hartian and the
American Noble Dream views, and adopt not the Nightmare but suitably
chastened ideology-critique.
In short, they were representing the actual content of doctrine as the
outcome of an argument between intelligible contending projects, or vi-
sions, with big stakes in view, rather than as either a struggle to "work
the law pute" or "mere personal preference" exercised in penumbras. The
plausibility of this project-to-show-the-projects-at-work does not depend
on a global internal critique, like Hart's, of the "inherent" limitations of
language. It depends on the plausibility of a minimalist internal critique
of the mainstream's attempt to show the coherence oía field, on the plau-
sibility of the restatement of the field as contradictory, and on the plau-
sibility of the formulation of conflicting blocks of implicitly ideological
legal argument to account for the cases that came out one way or the
other.23
The interest, as opposed to the plausibility, of the project depends on
an empirical proposition: that as a matter of fact, rather than of necessity,
very large ideological stakes have been disposed by the choice of rules in
cases in which ideologically oriented work of this kind made a difference.
This is the common sense of American lawyers and political commentators
with respect to American law/politics.
Perhaps it looks weird to English and Scottish commentators, for whom
judges exercise a "partly political discretion" in the "penumbras" that exist
in even the "best-drawn" rules, because as a matter of fact British judges
have not disposed large ideological stakes through ideologically oriented
work. Perhaps it seems positively deranged to Continentals because their
judges have disposed even less in the way of stakes than British judges,
who have to deal with the pesky indeterminacy oí the case method.
I have my doubts. But this is not the place to develop them into theories.
The next chapter takes up the metastrategies that American judges adopt
to deal with the anxiety of being strategists in a culture of critical legalism.
 8

Strategizing Strategic Behavior

in Interpretation

In the classic legal realist critique of conservative judicial decisions, the

last step was to suggest that, given flaws in the chain of deduction, high
stakes for ideologized group conflict, and the inevitability of policy, it was
plausible that the judge's ideological "sympathies" influenced the outcome.
In the last chapter, I tried to show just how a judge with an ideological
preference for an outcome can work to make that outcome law. In this
chapter, I suggest three typical postures that judges adopt as workers con-
scious of the possibility of pursuing ideological strategies. These are the
postures of the constrained activist, the difference splitter, and the bipolar
judge.
My initial claim is only that informed observers so characterize some
judges. I then test the plausibility of this claim against the argument that
whatever the observers may think, the categories of liberalism and con-
servatism ae too diffuse to ground plausible explanations of decisions.
Having concluded that they will serve, I take up the question of how
constrained activist, difference splitting, and bipolar judges square their
behavior with the norm that the choice of rules through adjudication
should proceed according to a method of legal reasoning that is, if not
objective, at least outside the ideological contests of the moment.
My answer is that they, and their informed audience, "deny," in the
psychological sense of the word, the influence of ideology. They do so for
good reasons, of which the most important is that they would otherwise
have to confront the contradictory character of the role constraints under
which judges operate. Acknowledging that judges can't coherently be
asked to "just say no" to ideology would threaten, in turn, the plausibility
of Liberal legalism in general and, in particular, the favorite "legally cor-
rect" outcomes of liberals and conservatives alike.

i 8o
 Strategizing Strategic Behavior in Interpretation i8 t

Relativity of the claim about strategic behavior

lt was implicit in the discussion in the last chapter that it is always possib/e
for the judge to adopt a strategic attitude toward the materials, to try to
make them mean something other than what they at first appeared to
mean, or to give them a meaning to the exclusion of other initially possible
meanings. But it is never necessary that he do this, and never certain that he
will succeed if he tries. Finally, it is not usually possible to know whether a
particular decision came out differently, as a result of the judge adopting
a particular work strategy, than it would have come out if he had adopted
some other strategy.
It is always possible to behave strategically in the sense of trying to
make a particular rule interpretation look good. There is no definition of
the rule of law that could prevent judges from making this effort, and it
is plausible that the rule of law requires judges to make it, at least some
of the time.
A judge who habitually behaves strategically vis-à-vis the materials may
be insensitive to specifically ideological implications or work hard to ban-
ish them from her consciousness. She may have an agenda that we would
characterize as personal or idiosyncratic rather than ideological. Such a
judge has to use the discourse and listen to the arguments while somehow
not understanding the situation the way the others do, but things like
that happen all the time.
It isn't necessary to behave strategically at all. Many judges seem to
approach the materials with the belief that they must mean something,
and to have little talent or inclination for legal work. They may experience
closure at the end of a process that looks like random search, just grabbing
onto the feeling when it hits them. They may repress or never have ac-
quired the ability to strategize.
From our point of view, the input of these judges into judicial rule
making is uninteresting (though we might speculate about how their non-
strategic behavior will map in relation to the behavior of judges who are
political actors). It is quite important to distinguish this ideologically
random behavior both from unselfconscious rule-following and from con-
straint by the text. It is not unselfconscious rule-following because the
judge knows there is a question of law and is trying to find an answer. lt
is not constraint by the text because constraint means resistance to an
attempt to make the materials mean something in particular.
Even if you can always behave strategically, that doesn't mean you can
 182 IDEOLOGY IN ADJUDICATION

always modify the rule from what you at first thought it would be, or that
you can take what looks like an open question and show that the liberal
side was clearly right, or whatever. You can always work at manipulation,
but you may fail to achieve your objective.
It might be that there are no "real" opportunities for strategic behavior.
Maybe judges do as a matter of fact sometimes adopt the strategic attitude.
But whenever they do so they might be either deluded about what is really
going on, because the law guides them behind their backs, constraining
them in the end to the right answer, or in bad faith in the strong sense of
transgressing the role constraint of interpretive fidelity.
I don't think it possible to refute this possibility except by an appeal to
the history of critique and reconstruction. And this history, to my mind,
establishes only that it is plausible that ideologically focused work con-
stantly changes the meaning of the materialsthat successful instances of
strategic behavior are frequent. Judges often produce a convincing mean-
ing for the legal materials different from the convincing meaning a judge
with the opposite work agenda would have produced (or did produce in a
dissent). In what follows, I try to strengthen this hypothesis through a
description of three kinds of agenda that judges pursue strategically. I will
introduce my three typical characters first as they might be described by
someone interested only in predicting their behavior, someone using the
commonsense notion of an ideological "preference" I described in Chap-
ter 3.

The (constrained) activist judge

There are judges lawyers analyze as constrained activists, meaning that

they (the lawyers) have a picture of how these judges operate, a picture
that they use in predicting what these judges will do. Here's my version
of the lawyers' picture. Suppose that the judge, on first exposure to the
case, has a clear sense of what the applicable common law rule is and how
to interpret it. But suppose that if she were a legislator she would not
want this rule applied to cases like this one and would change it (either
prospectively or retrospectively) by adding an exception.
Further suppose that if asked to explain her discontent with "the law,"
and the direction in which she would change it, she would offer a policy
critique of the rule and a policy justification of her proposed exception
that you would identify with "conservative ideology." Finally, suppose that
this judge has a similar conservative policy critique of lots of other rules,
and that she never or almost never criticizes the rules in a way that makes
her sound like a liberal.
 Strategizing Strategic Behavior in Interpretation 1 83

This judge has no intention of disobeying the law. What makes her a
constrained activist is that she puts a great deal of time and energy into
working out a legal interpretation different from the one that first appeared
best. She does this in every case where the law seems "too liberal" to her.
Sometimes she is successful and sometimes not. When she fails, she un-
grudgingly chooses a rule that differs from her legislative preference. In
other words, whichever rule she finally chooses to apply to the case will
represent the best legal interpretation she can find for the materials. She
writes opinions that are formally "legal" and also reflect her honest belief
that the law "requires" the outcome she has reached.
I am calling this judge "activist" because she has an "extrajuridical"
motive, namely, the achievement of a just outcome, for preferring one
result to another across a wide range of cases, and works to make that
result law. Note that this form of activism is oriented to the legal rules. The
judge has a rule that she prefers to the one she thinks she may have to
apply, rather than just a party she wants to win.
In the course of her work, the judge goes back and forth between the
case for her new legal interpretation and the best case against it, in the
spirit of fidelity to the materials. But she is doing this with a goal: the
goal of establishing that her preferred legislative solution is the correct
legal solution. In pursuit of this goal, she has been anything but neutral
in her use of her resources. She has spent a lot of time inventing a strategy,
digging through the books, keeping an eye out all the rime for random
bits of stuff that might be useful in building her argument.
In developing the best argument against her position, her motive has
been defensive. That is, she has tried to think what someone who was as
determined to uphold the first impression as she is to upset it would say
to her alternative. When she is satisfied that she has a good answer to the
objections she can think of, she stops her inquiry and goes on with the
affirmative task of buttressing her own position, thinking up another ob-
jection to refute.
True, she has undergone in this process a good faith risk of being per-
suaded to the opposite side. She has really and truly opened herself to the
possibility that each argument for her first impression is right, and deter-
mined to give in to it if she can't answer it. But it is still the case that
she has an identifiable "project," a direction she is going in (to change the
unfair rule into a fair one). From her point of view, it will be a defeat if
(as often turns out) she just can't find a way around the unfair rule.
Now suppose the activist has a legislative sense of what would be best
but anticipates at the beginning of the interpretive process that there is
¡84 IDEOLOGY IN ADJUDICATION

no clearly best answer from the internal perspective of fidelity to the ma-
terials. She works away at finding the interpretive strategy that will over-
come this first impression by establishing that fidelity requires the con-
servative outcome she chose on legislative grounds.
If she comes to the conclusion that the law requires the "wrong" inter-
pretation, she will struggle against the conclusion but submit to it if she
can't come up with a good legal argument to the contrary. If she ends up
with a sense that the arguments for alternative interpretations are evenly
enough balanced so that there is an element of choice in deciding between
them, she will decide according to her (predictably conservative) sense of
what is just in the circumstances and will write an opinion making the
best case she can that that result was legally required.
My claims here are, first, that many judges are constrained activists, and
they do a lot of important law making through adjudication. Second, the
results the conservative constrained activist judges come up with are dif-
ferent from those of the liberals with the same approach. It makes a big
difference how you deploy your resources among alternative work strategies
in response to your initial reaction to the materials. Liberal judges who
work hard and well will find good, even apparently (to them) conclusive
reasons for liberal solutions to questions of interpretation. Conservative
judges will come out the other way.
Third, if the conservative judge succeeds through work in making the
conservative outcome look required, we might say that she has changed
the rule of law from what it initially appeared to be. This change was
permitted by the materials, since otherwise the judge would not, at the end
of the process, be operating under the constraint of fidelity in interpreta-
tion. But it was not mandated or required by them. The law did seem to
speak to the judge, in the first instance, generating seemingly of its own
force an experience of certainty about what it required. But "it" didn't tell
the judge to change it or what ro change it into.

The difference-splitting judge

The logic of the Court's precedents suggests that peremptory challenges

should be abolished entirely because the right to vote on juries is a
fundamental political right. But Justice O'Connor once again tried to
split the difference by suggesting in a concurring opinion that defendants
and civil litigants, but not prosecutors, should be able to continue to
discriminate against jurors on the basis of sex.
 Strategizing Strategic Behavior in Interpretation 185

Justice O'Connor is a highly intelligent lawyer with sensible political

instincts . [Sihe seems to believe that by rejecting the extreme con-
servative and liberal position in each case, and by trying to stake out a
judicious compromise, she is acting as a voice of principled moderation.'
The posture of the difference-splitting judge is, from the point of view
of the outside observer, more passive than that of his constrained activist
colleague. He has a developed sense of the way groups pursue ideologized
conflict through adjudicative rule making. He is oriented to this aspect of
adjudication in just the same way as the other participants. But he uses
this understanding to work out what the "ideologues," his constrained
activist colleagues, would see as the optimal liberal and conservative rule
interpretations, and then chooses an interpretation that lies in between.
This is possible because the ideological structure of the materials is a thing
of continua. The liberal rule and the conservative rule are polar, and in
between there are a series of "moderate" positions.
This is not inconsistent with the "either/or," "on/off," or binary character
of adjudication. It is true that one party or the other wins, but there will
generally be several rule interpretations under which the plaintiff wins and
several that produce victory for the defendant. The difference-splitting
judge is concerned with the rule structure, rather than with the particular
parties. What I mean by "difference splitting" is choosing a rule formu-
lation, an interpretation rather than a party, that is "moderate" from the
ideological point of view.
From the point of view of an observer trying to predict his behavior,
the difference splitter is controlled by ideology, albeit the ideologies of oth-
ers, even though he eschews any ideological commitment. The reason for
this is that what he predictably splits is the difference between other
people's ideological positions. He lets the ideologues decide him indirectly
by setting up a choice and then refusing it by choosing the middle,

The bipolar judge

The bipolar judge combines traits from the other two. Sometimes, like a
constrained activist, he works hard to develop a strong liberal position on
an issue. But in the next case, he comes out just as strongly for a conser-
vative position, also like a constrained activist, but of the opposite com-
mitment. The outside observer understands him to have the project of
putting together a judicial career that splits the difference, rather than an
opinion in the particular case that does so.
¡86 IDEOLOGY IN ADJ UDICATION

His opinion in a given case will be hard to tell from what a constrained
activist judge on the same side would produce, except that it will not be
looking forward to promoting the libera! or conservative project over a
range of cases. (The bipolar judge, however, may well have made up his
mind on one side or the other for a whole field of law, and so work with
just as much sense of long-term strategy for that field as an activist col-
league.)
What makes this judge bipolar is that he has a consistent tendency to
alternate between the ideologies over time. At the most vulgar level, sup-
pose you are a practicing lawyer appearing before him with an ideologically
charged case at a moment when he has come out as a liberal several times
in a row. There is a much greater probability that he will go for a conser-
vative rule interpretation in your case than there would be if that very
same case had come before him at the end of a string of conservative
opinions-
There may be many particular aspects of the case that you can predict
will appeal to his particular judicial temperament or his previous pattern
of alternation between the sides. But it is also true that his judicial tem-
perament has a general structure independent of these particulars: he is
bipolar. He does not in fact belong to an ideological camp. But like the
difference splitter, we predict his behavior on the basis of our knowledge
of other people's ideological productions. The productions of others define
the alternatives between which he fluctuates. Unlike the difference splitter,
he "lets himself go" and participates actively in constructing the very
ideological positions of which he is at the same time "independent." His
liberal opinions influence the evolution of the liberal "side," just as his
conservative opinions influence conservatism. But having jumped in, he
backs off. Being independent turns out to be another form of compromise.

Interpreting strategic behavior

We might, of course, respond by trying to figure out, in each case where

something like this might have happened, what the true interpretation
was, as opposed to that which happened to lie along the strategic path
adopted by the constrained activist, the difference splitter, or the bipolar
judge. We might ask, in other words, how the rule chosen is different
from what it would have been had judges "just interpreted" the legal
materials.
I argued in the last chapter that it is methodologically incoherent and
 Strategizing Strategic Behavior in interpretation 187

practically impossible to make the "just interpret" analysis unless one has
what we lack: some other criterion of legal correctness than the plausible
deployment of the argumentative tools that legal culture makes available
to judges trying to generate the effect of legal necessity. Lacking any in-
dependent criterion, I don't think it makes sense to ask how these judges'
outcomes differ from what they would have been had they "just inter-
preted" the law.
My plan is to use my three models of the judge as ideological strategizer
as elements in a theory of the difference it makes to liberal/conservative
conflict that so much of our law is made through an adjudicative process
within which liberalism and conservatism are not supposed to play a role.
The idea is to contrast the status quo, not with an imagined situation in
which judges "just interpret," but with an equally imaginary situation of
legislative supremacy.
With this in view, the rest of this chapter takes up two problematic
aspects of the description I've given of judicial strategy. The first question
is whether the idea of ideology as liberalism or conservatism can work as
an explanation of what judges do, and the second question is whether it
is possible to account for constrained activist, difference-splitting, and
bipolar activity without resorting either to the idea of conscious deceit or
to the idea of utter unconsciousness.

The critique of ideology as an explanatory concept

My use of the notion oían ideology in my presentations of the constrained

activist, the difference splitter, and the bipolar judge is obviously prob-
lematic. The ideological projects of liberal and conservative intelligentsias
figure in my discussion as a "behind" that is "revealed" when we discover
the plasticity of legal reasoning.2 But the mere substitution of ideology
for legal reasoning as an explanation of outcomes is open to the critique
that ideology is no more determinate than what it replaces.
In other words, my approach seems to require us to believe that there
is an important difference between understanding legal outcomes as the
result of the application of a neutral method of adjudication and under-
standing them as the result of the pursuit of ideological projects. The
strategy seems to be one of exposing the indeterminacy of the surface level
of discourse in order to get at the "real" level, which is ideology.
But the ideologies are themselves just "texts" that each individual judge
will have to interpret before he or she can decide what is "required" by his
 t88 IDEOLOGY IN ADJUDICATION

or her presupposed political commitment. Saying that the judge is a liberal

constrained activist doesn't tell us what liberalism "requires" in any par-
ticular case, because of the possibility of strategic behavior within the
process of ideological interpretation.
The judge will consult the "principles" and "values" that supposedly
underlie or inform liberalism, by contrast with conservatism, and then
some list of canonical examples of the principles and values in action. The
problem is that both ideologies appear internally inconsistent in two dif-
ferent ways. Each deploys largely identical abstract first principles, and the
same set of contradictory intermediate principles, to produce sharply dif-
ferent outcomes across a range of domains. Each is open to the charge of
switching back and forth between the contradictory intermediate argu-
ments as we move from domain to domain (bedroom to boardroom) with-
out any coherent larger pattern. And each is open to the charge that within
a given domain there is no coherent explanation of why the ideologists
don't take their principles to their "logical extreme" (total deregulation of
everything versus total socialization of everything).
Judicial policy arguments are complexly related to these general ideo-
logical positions, sometimes appearing to be direct translations of the ar-
guments oí general political debate, sometimes seeming to be mere in-
struments for the pursuit of the ideological agendas, and sometimes
appearing as a parallel though not identical form. Moreover, there are
specifically professional agendas of the legal intelligentsia that can crosscut
or contradict the liberal or conservative commitments of the actors.
All of this means that the occasions for strategic behavior in choosing
an interpretation of one's own ideology will be at least as numerous as
those for choosing an interpretation of the legal materials. Suppose the
issue is university regulation of hate speech on campus. There is the liberal
commitment to civil liberties and the liberal commitment to racial justice.
There are all the particular instances of liberal defense of communist
speech, however "hateful," and of liberal advocacy of strong rules against
racial and sexual harassment in the workplace.
Suppose that on first examination the liberal constrained activist sees
her own liberal ideology as "requiring" invalidation. If she "doesn't like"
this result, she can go to work to restate the liberal principles and values,
and reconfigure the liberal precedents, so that the outcome changes. Maybe
she will be unable to come up with a convincing liberal case against the
regulations and will end up feeling "bound" by ideology to a result she
doesn't like. But maybe the hard ideological work will lead to a sense that
 Strategizing Strategic Behavior in Interpretation 189

the case can go either way for a liberal, or a sense that any good liberal
has to support the regulations.
Of course, we could say that liberal ideology "really" required either one
result or the other. A judge might imagine that liberalism required regu-
lation of hate speech, but she would be wrong because liberalism prohibits
it. If we had a lot of confidence that the ideologies have this kind of bite
when correctly applied, we could use the notion of an ideological project
as an explanation of judicial outcomes even though we might have to
acknowledge that judges sometimes make mistakes.
The internal critic of this use of the notion of an ideological project may
not be able to "prove that it can't be done." But she will point persistently
to internal flaws in extant demonstrations of how liberal or conservative
principles apply in practice. Then there are all the cases in which suppos-
edly determinate liberal reasoning is unresponsive to alternative versions
of liberalism that have apparently equal claim to legitimacy.
Within the ideological "camps" there are diverse groups with different
positions, and even different "spbideologies." We sometimes see this in
terms of the underlying communities on which they draw. Liberal Repub-
licans of the old WASP gentry kind, with their progressivism on civil
rights and social issues combined with pro-business, antiregulatory sen-
timent, are very different from the libertarians, Jewish neoconservatives,
white middle-American social-issue fundamentalists, and black conserva-
tives. Feminists, rainbow coalitionists, civil libertarians, liberal union ac-
tivists, and environmentalists, to name a few, coexist within the liberal
camp.
My definition of an ideological project allows for conflict or incoherence
among the theoretical premises, and for inconsistency among practices and
between theory and practice. It also allows for fluid "membership" in the
project, and for disagreement about who is in and who is out. None of
this is inconsistent with the experience of closure, but it certainly makes
it implausible to claim that liberal or conservative ideology will yield a
tighter explanation of outcomes than neutral interpretation of the law.
Indeed, the parallel between ideology and legality suggests an inquiry
into how people's false belief in the determinacy of their own ideological
positions inflects the course oí democratic politics. And then we could go
behind ideology to try to find out how judges decide, for example, that
they "don't like" being opposed to regulation of campus hate speech, even
though it at first appears to them that their own liberalism requires that
opposition.
 190 IDEOLOGY IN ADJUDICATION

For example, we might follow Jerome Frank3 and resort to explanation

in terms of "judicial temperament." Then we could explain temperament
in terms of childhood experience. But each level, from legality to ideology
to temperament, requires "the subject" to interpret, and permits interpre-
tive strategy based on the level behind. (Though at each level there are
also experiences of closure, of constraint by the text.) At each level, the
attempt to persuade us that what happened was caused or required by the
text will come up against the objection that the same text could have
yielded the opposite outcome had the actor pursued a different interpretive
strategy.
lt might at first appear that the infinite regress of interpretation simply
invalidates each "behind" in turn, so that "explanation is impossible." This
doesn't seem right to me. As a matter of fact, the meaning of the ideolog-
ical projects is sometimes "stabilized" by factors like self-conscious con-
sensus about the political character of a position, the history ola position
in ideological conflict, its "semiotic" relationship to opposed positions, and
its "local coherence" with closely related. liberal or conservative positions.
The legal versions of ideological debate are sometimes stabilized in the
same way. If the question is whether to impose a protective compulsory
term in a labor or consumer contract, there will usually be little difficulty
in identifying the opposing legal arguments with ideologies.
For the observer pursuing the critical social theory project, what needs
to be explained is the event (the judicial choice ola rule), and each Level of
textuality "behind" the event is helpful. As critical observers, we some-
times feel we "know what is going on," to the extent of explanatory closure,
through the process of multiplying the levels available to make sense of
the judge's action. As long as we don't expect more of the effort to explain
than these experiences of closure, the infinite regress presents opportunities
for richer description and more intelligent response, rather than a meth-
oclological disaster.4
To my mind, this kind of critique is threatening not to explanation in
the abstract but to the particular kind of explanation through ideology
that leftists have wanted, for leftist reasons, to build into critical social
theory. My hypothetical attack on my own use of the concept of ideology
is just the latest incident in a continuing modernisr/poscmodernisc attack
on this leftist intention. My theory was designed to withstand this attack,
in the manner of the last paragraph.
I think, in other words, that the moderation, empowerment, and legit-
imation effects I describe in the next two chapters can be plausible con-
 Strategizing Strategic Behavior in Interpretation 191

sequences of adjudication, even if it is conceded that liberalism and con-

servatism are no more determinate as explanations of outcomes (rule
choices) than the rule of law, and even if we won't do any better by going
back another level. The occasional sense of explanatory closure that this
kind of ideological interpretation of adjudication produces seems to me a
plausible basis for doing things in pursuance of the left project, even if it
will often be the case that liberalism and conservatism are useless for more
ambitious explanatory purposes.

A psychology of strategic behavior

We could treat my descriptions oí typical judges as empirical hypotheses

about patterns of outcomes. We might try to verify them using our own
"external" definitions of liberal and conservative outcomes, making case-
by-case determinations of what we think the constraints imposed by in-
terpretive fidelity "really" were, and then identifying judges as constrained
activists, difference splitters, and bipolar judges without any reference at
all to their states of mind while judging. It should already be clear why
this doesn't seem a plausible course to me. First, external definitions of
liberalism and conservatism are hard to come by. Second, I don't think it
is possible to determine what the constraints imposed by interpretive fi-
delity "really" were.
Alternatively, we could see what the judges do as conscious strategy, or
as strategy pursued truly unconsciously, as repressed strategy. I think each
of these alternatives is sometimes useful. But I have chosen a fourth path.
In my descriptions the judges are half-conscious. This is the characteristic
posture of mediating a conflict by denial or "bad faith." Such a description
seems to me more realistic as a matter of fact than either consciousness or
unconsciousness, but there is more at stake in this choice of strategy than
the endlessly intriguing question of what they think they're doing.
Another reason for insisting on the psychology of denial or bad faith is
that if judges are able to operate without confronting openly the problem-
atic character of their role, it is more plausible that no one else confronts
it either. The ideological element is a kind of secret, like a family secret-
the incestuous relationship between grandfather and motherthat affects
all the generations as something that is both known and denied. This is a
collective, social psychological phenomenon with political consequences
(the moderation, empowerment, and legitimation effects). It could occur
even if judges were conscious ideological manipulators deceiving a public
192 IDEOLOGY IN ADJUDICATION

that wanted to be deceived, but it would then have the instability of any
conspiracy that involves many thousands oí people and has to constantly
renew itself by recruiting new Grand Inquisitors.
My way of looking at it is to start with the psychology of denial in an
individual judge, then suggest mechanisms by which the psychology of
the actor in the story gets adopted by the audience for the action. Judges
keep the secret, even from themselves, in part because participants in legal
culture and in the general political culture want them to. Everyone wants
it to be true that it is not only possible but common for judges to judge
nonideologically. But everyone is aware of the critique, and everyone knows
that the naive theory of the rule of law is a fairy tale, and those in the
know fear that the sophisticated versions of contemporary jurisprudence
aren't much better.

Denial: not just a river in Egypt

What does it mean to refer to the judge as "denying?" There has to be

something more involved than a familiar speech act: when asked whether
his performance was influenced by ideology, he responded, "it was not...
Denial in the sense that interests us is motivated in a particular way. We
impute denial, meaning that we choose a psychological interpretation of
the act. As with the initial imputation of an "ideological motive" to a
judge, there is no way to "prove" or "verify" that the judge is denying.
This usage originated in psychoanalytic theory, in Sigmund Freud's in-
terpretation of jealousy, for example, but Anna Freud gave it a whole new
lease on life,6 and it has passed into the American popular discourse of
daytime talk shows and twelve-step programs ("he's been in denial about
his drinking for years"; "she's been in denial about his cheating for years").
My version is adapted from both these sources, and from the related ideas
of bad faith and cognitive dissonance, for the particular purpose at hand.
This kind of interpretation of judicial psychology has a legal realist ge-
nealogy.7
We use the word "denial" as an interpretation of a piece of behavior in
cases where we agree about what was said or thought and want to figure
out what was "behind" it. We feel the need to go "behind" because we
(the interpreter and the audience for the interpretation) agree on two
things:
i. We agree that what the actor has said is a misrepresentation of his
or her own desire, emotion, opinion, or intention, or of important
 Strategizing Strategic Behavior in Interpretation 193

external facts about his or her situation, but in the special sense of
a "refusal to acknowledge," "refusal to recognize," "refusal to admit."
The denial requires something like "refusal," because it presupposes
that there is evidence for the thing denied, or an assertion of it by
someone in argument. When I say that judges "deny" the role of
ideology in their decisions, it is implicit that in my view it does play
a role in factthe denier is always wrong.
2. We agree about the misrepresentation that:
It is not merely conventional, as when you ask the terminally ill
patient, "how are you?" and he responds, "I'm fine, how are you?"
When judges write their opinions in the language of legal neces-
sity, this is just a convention; when we say that they are engaged
in denial, we mean that they at least partly believe the conven-
tion.
It is not a conscious, deliberate, strategic misrepresentation, not a
lie designed to deceive an audience without the speaker having any
belief at all in its truth (judges are not consciously trying to deceive
us about ideology in adjudication).
It is not a cognitive glitch or random error. For example, we have
more data than the statement itself, as in, "'I am not mad,' he
screamed, veins bulging." Or the speaker repeats the misrepresen-
tation after "dismissing" feedback or new data that the audience
believes would "normally" cause him to correct itnew data in the
form, for example, of a devastating critique of adjudication.

If these conditions are fulfilled, it is common practice to look for a

"psychological" explanation, by which I mean an explanation that attrib-
utes the persistence of the misrepresentation to the needs or desires of the
speaker. The kind of need or desire is both specific and complex. We call
it denial when we have the idea that if the speaker recognized the truth
about an external fact, or about his own desire, emotion, opinion, or in-
tention, he would experience painful anxiety. The motive for denial is to
prevent or get rid of this anxiety.
There is yet another level, another "behind": what causes the anxiety,
or would cause it absent denial, is an intrapsychic "conflict," in the sense
oía painful choice. It might be conflict between contradictory desires, or
between conscience and desire, or between a desire and fear of the conse-
quences of acting on the desire, or just between contradictory versions of
reality, where that choice has important implications, and so on.
194 IDEOLOGY IN ADJUDICATION

In common usage, denial is the verbal manifestation of a particular kind

of wishful thinking, the wish being that an anxiety-producing conflict,
one the audience has decided is "real," should disappear. The speaker re-
solves the conflict and dispels the anxiety by "falsely" getting rid of one
of the two conflicting elements, for example, by denying anger in a situ-
ation where one ought not to feel anger, by denying that one feels a com-
pulsion to drink because admitting it would require one to decide whether
or not to stop.

The three types of judges as deniers

What follows is an imaginative reconstruction of my three types of judges

as deniers. It is an interpretation based on the evidence of opinions read
in their historical context, plus a little time spent at judicial conferences.
I am not saying that all judges deny the role of ideology, or that those

who deny do so all the time, or even that all judges are influenced by
ideology. As I said above, some judges are better understood as clueless,
or as devoted to agendas that aren't ideological at all in the sense in which
I've been using the term; and some judges are best understood as random,
or as operating on the basis of truly unconscious motives that are hopelessly
complex and also inaccessible. And in many, many cases, judges experience
themselves as constrained by the text, so that their liberal or conservative
or difference-splitting or bipolar strategic inclinations turn out to be ir-
relevant to the outcome, at least from their own point of view.
As long as we suppose that a significant number of judges are con-
strained activists, difference splitters, and bipolar judges, and that they
have made a lot of important law that is best accounted for by these
ideological postures, the analysis should be interesting. Even if you think
that there is always a legal right answer that is the same whatever your
"personal" ideological position, it should be interesting if you also think
that some judges some of the time behave in the ways described.
The constrained activist accepts the constraint of interpretive fidelity. But
when she thinks this obligation will require her to reach an unjust result,
or when she sees open texture, she works to change the meaning of the
materials in the direction of what we have decided is her own ideology.
When she writes her opinion, she obeys the convention that requires her
to present the outcome as fully determined by the materials and by her
reasoning. To the charge that the rule of law means no ideology in judging,
her reply is an opinion that denies that ideology had anything to do with
 Strategizing Strategic Behavior in Interpretation '95

it. She offers no account of the role of ideological strategy in her work
process.
I've had conversations with three sophisticated constrained activist
judges, two liberal and one conservative, in "private," so ro speak. The two
liberals denied, in the mode of Cardozo, that ideology played any role at
all in their decisions, although they heartily agreed that technical reason-
ing was often indeterminate, that policy was a constant influence, that
they were perceived as judicial liberals and often as "partisan," and that
liberals but not conservatives had supported their most important judicial
initiatives.
They both said that they tried to shape the law "in response to the
development of the society." They thought liberal responses to socio-legal
problems, such as products liability or landlord/tenant, corresponded bet-
ter than conservative ones to the "needs" of society, and they therefore
chose those responses, with humble recognition that they might well be
wrong. This didn't make them ideological actors, in their own minds,
because they remained free agents, deciding each policy question on the
merits, without any loyalty or inner commitment to the ideology they
were implementing over time. The conservative judge was much more
"cynical." He saw his liberal brethren as unselfconscious or hypocritical,
and gave a sardonic but also uneasy description of his battles with them,
emphasizing that his own activism was strictly defensive.
The liberal constrained activists seem to me to be in denial or bad faith
because their explanation of how they are independent of ideology is an
evasion of rather than a response to the critique. Both liberals and conser-
vatives, like the activist judges, are formally committed to putting into
effect the rules that they respectively see as responding to the evolution of
society and meeting its needs. What divides them ideologically is that
they have sharply different interpretations of "society," "evolution," and
"needs." We don't hesitate to call a person a liberal or a conservative with
no more basis than that they consistently adopt the interpretation that one
or the other camp has evolved, over time, as an application of the shared
general principles (rights, majority rule and the rule of law, Judeo-Chris-
tian ethics, regulated market economy with safety nets) to each particular
question that implicates social need and development.
True, these judges could be ideological in a stronger sense. They might
"believe" in liberalism or conservatism as doctrines, and be committed to
working both to improve them and to ensure their practical triumph in
the world. It is fair for them to deny that they are ideologues or partisans
¡96 IDEOLOGY IN ADJUDICATION

in this stronger sense. But the claim of the critique of adjudication is not
that judges are committed but merely that ideology influences adjudica-
tion.
If the judge admits that over time she has consistently found liberal
solutions to be more just than conservative ones, and consequently has
chosen to make them into law, she has admitted enough to validate the
critique. The bland persistence in affirming independence when one's vote
is highly predictable is a perfect example oí bad faith.
There are two kinds of difference splitters. One type is an ideological
moderate and splits the difference as a constrained (centrist) activist. This
judge's legislative preferences correspond to the results he works to bring
about through adjudication, and he is a denier and in bad faith to the
extent he claims that all he is doing is "calling them as he sees them,"
without any commitment to a camp. Again, what we mean by ideological
influence in adjudication is consistent orientation to a set of results, rather
than partisanship or true-believer-ism.
The more interesting type of difference splitter has internalized a strong
norm against activist behavior of any type. His idea of his role is that it
forbids acting like his colleague who is a "knee-jerk conservative" and also
like his colleague who is a knee-jerk centrist. He believes in one of the
various theories of his role that excludes an ideological motivation for the
work of legal reasoning, even if constrained. He may be a reasoned elab-
orator of the Hart and Sacks school, or a Dworkinian, or a positivist, or a
feminist pragmatist, or he may adhere to the view of the activists that the
judge should make law evolve to meet the "needs of society."
His practice does indeed represent a version of neutrality, since his "per-
sonal" or legislative politics, which may be liberal or conservative or cen-
trist, don't influence how he comes out. He splits the difference even when
he thinks that result monstrous and knows he would never vote for it if
he were a legislator. Ideology has no internal, commitment-based influence
on his behavior. It influences him only because he allows the ideological
positions of others to determine him by setting up the difference that he
splits.
But the theory of even the most revisionist advocates of the rule of law
is not that judges should consistently choose the path of ideological mod-
eration, against their intuitions of justice when necessary, but that they
should be in some sense nonideological. From the point of view of the
critique, ideology is no less an influence if it comes in only through the
back door, so to speak, by structuring his alternatives.
 Srrategizing Strategic Behavior in interpretation '97

The bipolar judge, like the difference splitter, comes in two variants. He
may be an activist by personal or legislative commitment, first on one side
and then on the other. In this case he is, in pop psychological terms,
"schizophrenic." He is open to the critique that he is in bad faith on each
side of his split personality, because on each side he is an activist. Or he
may be best interpreted as acting on an implicit but untenable theory of
judicial neutrality, to wit, that as long as he isn't consistently liberal or
conservative, he isn't ideological.
Like the other two, he wants to be interpreted as doing just what he is
supposed to, that is, calling them as he sees them, without an ideological
commitment. He is exempt from the charge of having a commitment to
moderation because in any given case he can go all the way with the liberals
or the conservatives. The way he decides a particular case is to keep an
open mind as long as possible, listening attentively to the arguments on
both sides starting from his own understanding of himself as not a liberal
nor a conservative nor a moderare, but a "free agent."
This is his problem: He has a commitment to his idea of himself as a
free agent, but he would doubt that commitment in himself if he found
himself coming out too often on one side or the other. And since he is
proud of his independence and thinks others recognize it, he may be in-
fluenced not just by his own but by what he thinks his audience's ideas
are about what proportion of liberal and conservative decisions you need
in order to sustain the free-agent claim.
This type of bipolar judge differs from the constrained activist because
he doesn't start out asking whether he would favor the obvious interpre-
tation of the rule if he were a legislator. He doesn't see his role that way
at all. What he does is to listen to counsel or other judges putting forward
their arguments for ideologically organized alternatives and try to figure
out which one best "fits" the body of materials. He adopts first one point
of view and then the other. Finally, he commits himself. But the commit-
ment is ideologically patterned over time so as to keep him independent.
The nonactivist difference splitter as I have described him is an ideo-
logical moderate who believes that moderation is not ideology. The non-
activist bipolar judge calls them as he sees them, but turns out to see them
under the constraint that he must be able to appear to himself, over time,
as neither a liberal nor a conservative, no matter how he would react to
the merits without that constraint.
They are both classic bad-faith actors, because they deny both to them-
selves and to others something that they know perfectly well is going on.
 198 IDEOLOGY IN ADJUDICATION

They couldn't possibly accomplish their highly patterned strategic inter-

ventions unless some part of their minds, some part close to the surface,
was constantly picking up che ideological implications of "every move they
make." But they have a much trickier, more sophistic response to the
charge that they are ideological than the constrained activist has. They
point to their difference splitting or long-run bipolar opinions and ask us
to believe that they are actually outside ideology.

Psychologizing versus dialogue

We don't get to the point of psychologizing American judges until we

have decided that, at least for the moment, there's no sense in continuing
our investigation of their views on the merits, because those views are
wrong and, indeed, there is no sense in further dialogue with them on
their own terms, because, for the moment, it is more interesting to figure
out why they say what they say, on the assumption that it's wrong, than
to investigate further whether it is wrong. It can be pretty infuriating to
be treated this way, if you see your persistence in your view as well founded,
indeed as an example of the "reality principle" at work.
But the mere adoption of the psychologizing posture doesn't close off
the possibility that there is no misrepresentation, that the view we're about
to psychologize is correct. We can keep an open mind on the merits, see
what we get when we psychologize, and go back to debate on the merits
the next time a judge or a legal theorist produces an account of a decision,
or of adjudication in general, that claims to have excluded the ideological.
That's where I am now: I don't claim to have shown that it is impossible
to exclude the ideological or to have shown that it is always present. But
I don't believe the accounts that say either that it always can be or that it
is absent. So, for the time being, it seems worthwhile to psychologize.
And, of course, it's easy enough to psychologize in the opposite direc-
tion. Radicals have commitments to the presence of ideology in adjudi-
cation that it would be hard to give up. From my point of view, the
insistence that law is always and everywhere ideological, "socially con-
structed through and through," and so on, involves as much denial (of the
mechanical) as the opposite position. I see myself here as the representative
of the reality principle, in the form of my own theory, which is as hostile
to global critiques of objectivity in law, whether from the old Marxist or
the postmodern angle, as it is to the claim that judges can always be and
are in fact usually neutral.
 Strategizing Strategic Behavior in Interpretation '99

is denial unconscious?

When you say "I'm not mad," or "my ideology had nothing to do with
it," and others think you're denying, rather than being polite, lying, or
making a random mistake, it's hard to decide what to call your relationship
to the true fact, your true intention, your true emotion.
When we are mistaken about the facts, in a random, unmotivated way,
we say that we are "not conscious" of the true facts. In lying, we are
"conscious" of the facts. In repression as it figures in Anna Freud, the
repressed impulses are really and truly "gone": "But the ego of the child
who has solved her conflicts by means of repression, with all its patholog-
ical sequels, is at peace."8 Denial is a much less drastic mode of defense,
which takes a less massive investment oí energy, and, like the other non-
repressive defense mechanisms has "to be brought into operation again
whenever there is an accession of instinctual energy."9 The judge has to
deny his ideological role every time someone asserts it, or evidence suggests
it; he cannot get rid of it once and for all by a single act of repression.
But it seems odd to apply the adjective "unconscious" to denial as l've
defined it. There is a problem in saying you're unconscious of a fact or of
an inner state when you muster a lot oí energy to "keep from knowing"
it. When we say that we are dealing with motivated error or wishful
thinking, we are saying that there is some part of the psyche that registers
the possibility of the unpleasant truth and then mobilizes to keep from
knowing it. The very thing we mean by denial in the psychological sense
is that what is involved is more than the mere speech act, and we interpret
this "more" as a strategy to deal with an anxiety-producing conflict. This
presupposes that the "strategist" in the story knows more than the obtuse
performer of the speech act of denial. As Sartre puts it:

To be sure, the one who practices bad faith is hiding a displeasing truth
or presenting as truth a pleasing untruth. Bad faith then has in appear-
ance the structure of falsehood. Only what changes everything is the fact
that in bad faith it is from myself that I am hiding the truth. Thus the
duality of the deceiver and the deceived does not exist here. Bad faith on
the contrary implies in essence the unity of a single consciousness.
It follows first that the one to whom the lie is told and the one
who lies are one and the same person, which means that I must know in
my capacity as deceiver the truth which is hidden from me in my capacity
as the one deceived. Better yet ¡ must know the truth very exactly in
order to conceal it more carefullyand this not at two different moments,
200 IDEOLOGY IN ADJUDICATION

which at a pinch would allow us to re-establish a semblance of duality-

but in the unitary structure of a single project. How then can the lie
subsist if the duality which conditions it is suppressed?
We have here an evanescent phenomenon which exists only in and
through its own differentiation. To be sure, these phenomena are frequent
and we shall see that there is in fact an "evanescence" of bad faith, which,
it is evident, vacillates continually between good faith and cynicism:
Even though the existence of bad faith is very precarious, and though it
belongs to the kind of psychic structures which we might call metastable,
it presents nonetheless an autonomous and durable form. It can even be
the normal aspect of life for a very great number oí people. A person can
live in bad faith, which does not mean that he does not have abrupt
awakenings co cynicism or to good faith, but which implies a constant
and particular style of life. Our embarrassment then appears extreme,
since we can neither reject nor comprehend bad faith.t°

Sartre's purported way out of the dilemma doesn't seem to me to work.

But for our purposes it seems enough to say that the denier is half-con-
scious, or conscious and unconscious at the same time, or that the ego
wills its own unconsciousness of something that it must therefore in some
sense know.

Denial as a collective phenomenon

The idea that the legal actors in a given legal culture can engage in col-
lective denial with respect to the true nature of legal institutions is one
with a long pedigree in legal history and sociology. The classic version of
the problem is that of explaining "legal fictions." Here, from Henry
Maine's Ancient Lau', is a description of the phenomenon of denial in Ro-
man law:
lt may be affirmed then of early commonwealths that their citizens con-
sidered all the groups in which they claimed membership to be founded
on common lineage. What was obviously true of the Family was believed
to be true first of the House, next of the Tribe, lastly of the State. And
yet we find that along with this belief, or, if we may use the word, this
theory, each community preserved records or traditions which distinctly
showed that the fundamental assumption was false . . . Adverting to
Rome singly, we perceive that the primary group, the Family, was being
constantly adulterated by the practice of adoption, while stories seem to
have been always current respecting the exotic extraction of one of the
original Tribes and concerning a large addition to the houses made by
 Strategizing Strategic Behavior in Interpretation 201

one of the early kings. The composition of the state, uniformly assumed
to be natural, was nevertheless known to be in great measure artificial.
This conflict between belief or theory and notorious fact is at first sight
extremely perplexing; but what it really illustrates is the efficiency with
which Legal Fictions do their work in the infancy of society. The earliest
and most extensively employed of legal fictions was that which permitted
family relations to be created artificially, and there is none to which I
conceive mankind to be more deeply indebted."

A psychological interpretation of denial has two quite distinct parts.

The first is the decision to interpret the speech act as a misrepresentation
that is not merely conventional, and neither a lie nor a random error. This
is Maine's "conflict between belief or theory and notorious fact." The sec-
ond is to choose a particular conflict or conflicts as the cause of the anxiety
that denial gets rid of in the particular case. In the case of adjudication,
it is one thing to decide that the denial of the ideological in judging is a
misrepresentation of this kind, and quite a different thing to successfully
interpret the denial as the product of specific conflicts. Maine, in the quo-
tation above, makes no serious effort at explanation on this second level,
appealing instead to the "efficiency" of fictions in the "infancy of society."
The conflicts that plausibly motivate denial in the theorists of Roman
society or in judges and their public are not the highly particularized
vicissitudes of che instincts that sometimes seem useful in explaining neu-
rotic symptoms or even severe individual pathology. The modern pop psy-
chology of defense mechanisms, however, isn't tied to individual life his-
tory in this way. To my mind, what made Anna Freud not merely a
competent synthesizer of her father's work but an important innovator as
well was, first, her sharp distinction between repression and less drastic
defenses; second, the normalization of the defense mechanisms as factors
in psychological life; and, third, her insistence on a long list of different
kinds of conflict against which we defend.'2
These three moves make possible our pop psychology of defenses, which
has nothing particularly "Freudian" about it. In this version of ego psy-
chology, as in that of Sartre and in cognitive dissonance theory, defense is
no longer closely tied to sexuality in general or to the Oedipus complex
in particular. Defenses are a technology of self-protection but at the same
time the mechanisms through which the subject constructs a "truth."
Their use in understanding individual or collective phenomena is perfectly
consistent with poststructuralist epistemological and ontological skepti-
cism about a reified unconscious or a "reality principle."
202 IDEOLOGY IN ADJUDICATION

If many judges are denying the role of ideology in their decision pro-
cesses (and some of them are lying), it seems plausible to look for some-
thing common to their situation that produces a conflict, rather than a
million idiosyncratic versions of the Oedipus complex.

Denial as a response to role conflict

lt is commonly assumed that if judges deny the ideological in their de-
cision processes, when in fact ideology is present, it is because they are
violating a role constraint and don't want to admit it. This description fits
the behavior of constrained activists, difference splitters, and bipolar
judges into the common mold of weakness of will or cheating, things all
of us deny all the time.
I don't mean, myself, to deny that judges sometimes experience con-
straint by the text and then decide against the constraint, violating their
oath of fidelity to the legal materials. It is even possible (who knows?) that
the main impact of ideology on judicial law making is through this kind
of behavior. To the extent that is the case, the study of the impact on our
political process of the practice of judicial law making is the study of how
judicial deviance, norm violation, plays out in the moderation, empow-
erment, and legitimation effects I mentioned above.
But it seems obvious to me that there is more to the denial of ideology
in adjudication than a cover-up of deviance. It seems obvious that the
constrained activist, the difference splitter, and the bipolar judge are re-
sponding to a bind. lt is true that many, many people condemn them out
of hand, on the ground that they should "just say no" to ideology. In this
view, the minute they are influenced in their decisions by their legislative
preferences (their personal ideologies), they are out of line.
We should condemn them even though they accept the rule of law as a
constraint, in the sense that where they find a particular rule interpretation
can't be budged by argument, they declare it the law even though they
think that as a legislative matter it is wrong. Even when there is open
texture, they don't impose the rule interpretation they prefer as a legislative
matter unless they can argue in good faith that it is the solution supported
by the most plausible legal argument.
This is all very well, but in the conventional view it is not enough: they
should categorically exclude their ideological preferences and "stick to the
law," or "just interpret the law." The rule of law is not a constraint, in this
view, but a source of guidance. The question is whether the judge accepted
 Strategizing Strategic Behavior in interpretation 203

the guidance, no matter how difficult it may have been to figure out what
it was, or, on the contrary, took guidance from something else.
The alternative view, historically associated with British positivism and
radicalized in legal realism and cis, is that the judge faces not a conflict
between his role and his illegitimate desires but a genuine "role conflict."
There is a contradiction between the norms that are supposed to govern
his behavior. In this view, the motive for denial is not guilt at deviance
but the anxiety produced by the dilemma of not being able to do the right
thing no matter how hard you try, because you are being told to do two
opposite things at the same time. The denial of the ideological resolves
the conflict by making it appear that the role definition is coherent rather
than contradictory.
Again, I am not arguing that all judges decide ideologically, and I think
it likely that some judges have nothing to deny. These judges don't ex-
perience the conflict that my three types experience. My much more lim-
ited claim is that it is plausible that constrained activists, difference split-
ters, and bipolar judges experience role conflict, which motivates denial,
as well as or rather than a conflict between their will to ideological power
and their roles.
To say they experience role conflict is to say that it would be problematic
for them to exclude ideology because there is something in their under-
standing of the role of the judge that seems to push to include it. I think
that in fact judges, and actors in a range of similar positions, do often
experience a conflict of this kindroughly between the overarching gen-
eral goal or standard proposed to them and the particular rules that sup-
posedly further the goal but sometimes seem to conflict with it. For judges,
the goal is "justice under law," and the conflict is between that idea and
the categorical exclusion of the "personal,' in the sense of the ideological,
from the decision process.
For these judges, I imagine, it doesn't seem possible to say that justice
under law means no more than law application. First, they are very much
aware that their task is to decide "questions of law," meaning questions of
rule definition, and that these are questions of interpretation, rather than
of application of rules to disputed facts. Second, they are very much aware
that "the law" as it appears at the end oí the decision process is a function
of the work they do on the legal materials, and that different work strat-
egies are likely to produce different lawthat is, different legal rules-
with no intralegal criteria available to indicate which work strategy is
correct.
204 IDEOLOGY IN ADJUDICATION

These judges, I imagine, feel that what they are supposed to do, what
their role requires them to do, when the law appears to depend on what
work strategy they pursue, is to consult their conception of justice, perhaps
concretized as rights, values, or needs. But, I imagine, they also feel that
they can't bring the idea of justice to bear on a dispute without allowing
ideology to enter the decision process. They don't want it to enter and
wish it couldn't; they may even believe that if only they could figure out
how, they could exclude ir. But as they experience it, the minute you start
talking of justice, you have a contested concept, and the contest is the
familiar one between liberal and conservative conceptions of just social
orderthat is, of just legal rules.
These judges are in a bind. Their sense of justice is inescapably an
ideological one, in the sense that an outside observer would easily cate-
gorize the judge as either a liberal or a conservative on the basis of his or
her answer to what justice required in the circumstances. The only alter-
native to ideological justice, once strategic behavior has become a possi-
bility, seems to be random decision. Random decision violates the role
definition of "justice under law" even more seriously, the judge might
suppose, than pursuing justice in the shadow of ideology.
In the description l've just given, my goal was to suggest what in fact
might motivate judges to deny the ideological in adjudication, rather than
"just saying no" and getting rid of it. It may be an accurate description of
what some judges experience, even if we conclude that there is in fact a
nonideological method for deciding questions of law. If this method exists,
judges ought to employ it, but they may be ignorant of it or unable to
make it work in particular cases.
In my view, a judge who experiences role conflict is "right," because
there really is a conflict built into her role, so that her only alternative to
denial is ro acknowledge that she can't do her job in the way she is sup-
posed to. The conflict is "real," in my view, because there is no extant
theory that plausibly explains how the judge can decide, once she is con-
scious of the possibility of strategic behavior in interpretation, in a way
that excludes ideology, supposing that her sense of justice is congruent
with an existing ideology.
Dworkin, for example, says two things to the judge: there are no criteria
outside legal argument for determining the rightness of rule choices,'4 and
the judge should deploy his own "political philosophy" (which may be
liberalism or conservatism)," both in the analysis that searches for legal
determinacy through fit, and in resolving gaps, conflicts, and ambiguities
 Strategizing Strategic Behavior in Interpretation 205

that persist in spite of that effort)6 Although he uses the language of

"right answers," Dworkin offers no comfort at all for those who propose
to resolve the judge's role conflict by having him "just say no" to ideology.
In this light, the judges' denial of the ideological has the very specific
content that Sartre identified with bad faith, because the misrepresentation
is of oneself as a machine, as interpreting mechanically rather than stra-
tegically. Bad faith in this sense exploits the truth (according to Sartre)
that human subjectivity is at the same time factoid, just a thing in the
world, and transcendent, in motion past its apparent fixity, free. Here, the
judge misrepresents himself as factoid, or mechanical, seeming to himself
to comply with the role requirement that he be that through and through,
in spite of his experience of constraint by the text as a sometime thing,
always unpredictably subject to dissolution by legal work.

Motives for the public to deny ideology in judging

So far, we have denial as a way to escape role conflict. But why doesn't the
judge respond by saying, "my role has an internal conflict, so it needs to
be redesigned"? Why don't academic critics help the judge off the hook
by suggesting that we are forcing her into hypocrisy? One way to extend
the analysis is to ask what reasons there are for people outside the role to
deny the ideological in judging, to act as codependents in the judge's
denial. The answer can't be role conflict for these outsiders, since they
aren't playing the rote.'7 But they can nonetheless have investments in the
nonconflictual character of the role, in the possibility of playing it without
ideology having a place in the decision process.
Two types of investment in the notion of judging without ideology
suggest themselves: (a) people may want to believe in it because not be-
lieving in it would induce anxieties based on the centrality of judges in
the political system, and (b) people may want to believe in it because belief
fulfills, at a distance, at a social remove, a pleasurable fantasy about the
possibilities of being in the world.

Fear of the consequences

There is an apologetic motive for believing in the rule of law as a guide

rather than a restraint. If one believes that it is possible to exclude ideology,
then even if one is invested in the idea that our system is "basically" a
good one (albeit in need of reform), that is, if one is either a liberal or a
206 JDEOLOGY IN ADJUDICATION

conservative, it is easy to deal with the idea that judges often allow ide-
ology in rather than just saying no to it. This insight simply requires us
to reform the judiciary, to get judges to obey role constraints that "every-
one" agrees are valid. Denouncing the tyranny of the judiciary can be a
staple of both liberal and conservative politics without threatening "the
system" in any way.
But if the critique is correct, this is shadow play, however satisfiing as
such, because there is no coherent account of how judges whose sense of
justice is ideologized can do what their role, defined as keeping ideology
out, requires them to do. And since it is hard to imagine how we could
exclude people who have this kind of "fallen" sense of justice from the
judiciary (especially if we have "fallen" ourselves), "the system" seems
flawed in a quite basic way, rather than just subject to the inevitable
corruption of judicial deviance.
In short, the viral critique arouses anxiety in part because it is delegit-
imating. lt undermines the broad Liberal consensus not just about how
society should be but about how it pretty much, with warts, is organized,
namely, in accord with the principles of individual rights, majority rule,
and the rule of law. lt suggests that, appearances to the contrary notwith-
standing, it isn't organized that way in fact, and won't be even after reform
of the judiciary. It couldn't be, given the empirical reality of strategic
behavior in interpretation and the difficulty of imagining how it could be
eliminated.
A second motive, a second kind of investment in the notion of the rule
of law as a guide rather than a mere constraint, derives from liberal and
conservative commitments to diverse, particular, judge-made legal rules.
The liberal stake in the nonideological character of adjudication might be
summed up by the question, "Don't you think Brown y. Board of Edu-
cation was legally as well as ideologically correct?" Liberals and conser-
vatives have many commitments of this kind to the specifically legal cor-
rectness of their favorite important judicial decisions. The news that Brown
was just a manifestation of liberal ideology, in the sense that it was no
more legally, as opposed to morally, correct than Plessy y. Ferguson, is bad
news for liberals, and the motive for denying it is obvious.
Yet another reason to deny viral critique is the fear that if it were valid,
and if judges fully understood it, they would tyrannize us worse than they
do already. This is the notion that belief in the rule of law as a guide,
rather than as a mere constraint, is a beneficent illusion, a myth with good
social consequences. I think Scott Altman, in his article preaching this
 Strategizing Strategic Behavior in Interpretation 207

fear, is wrong to think that even the judge who fervently believes the myth
can unselfconsciously "follow the law," for the reasons already stated. But
I don't think the critique can deny that greater judicial sophistication might
(a) increase strategic behavior at the expense of ideologically random be-
havior, and (b) induce some judges to "cheat," by which I mean disregard
experienced constraint by the text.'8
I'm not going to pile speculation on speculation by trying to assess to
what extent these imagined dangers of the demystification of judging are
realistic. My intuition is that people who want to believe in rights and
the rule of law, and liberals who want to believe in the justice of deseg-
regation, will go on believing even if they accept the critique of judging,
and that greater sophistication on the part of judges would probably have
little effect on the content of judge-made law. But who knows? I assert
only that fear of the consequences motivates denial of viral critique.

Overcoming contradiction

From my specific ideological position, that of left-wing modernism/post-

modernism, there is a much more cosmic motive for denial, namely, the
contradictory character of our impulses and ideas. This notion of the "fun-
damentality" of the experience of contradiction is one of the defining traits
of modernism and its sequelae, something like a premise, as is the longing
for coherence as an autonomous force in human life. People want coherence
for its own sake, at least some of the time, because it is a pleasure, it is
release from a kind of terror. Rather than arguing this position, I'll let it
be represented by these two quotations, the first from the first chapter of
Sigmund Freud's General Introduction to Psychoanalysis, and the second from
Anna Freud's The Ego and the Mechanisms of Defense:
It is important to begin in good time to reckon with the fact that mental
life is the arena and battle-ground for mutually opposing purposes or, to
put it non-dynamically, that it consists of contradictions and pairs of
contraries. Proof of the existence of a particular purpose is no argument
against the existence of an opposite one: there is room for both. It is only
a question of the attitude of these contraries to each other, of what effects
are produced by the one and by the other.'9
To these three powerful motives for the defense against instinct (su-
perego anxiety, objective anxiety, anxiety due to the strength of the in-
stincts) must be added those which in later life spring from the ego's
need for synthesis. The adult ego requires some sort of harmony between
 208 IDEOLOGY IN ADJUDICATION

its impulses, and so there arises a series of conflicts of which Alexander

has given a full account. They are conflicts between opposite tendencies,
such as homosexuality and heterosexuality, passivity and activity, etc.2°

This idea is familiar at the level of the coherence of desires or impulses:

it is unpleasant to want or to want to be two contradictory things at the
same time. The intellectual version of this is that it is unpleasant to ac-
knowledge that one believes, or holds to, two contradictory ideals at the
same time, and that in particular cases what one does is choose in a non-
rational way between them.
We might interpret the social construction of the figure of the Judge
as the place where we most clearly develop the collective fantasy of over-
coming the endless sense of internal doubleness or contradiction that Sartre
presents in the paradoxical language of "being what one is not" and "not
being what one is." In "justice under law," justice is transcendence, and
so ungraspable, while law is facticity, the dead weight of the past, the
compulsion of the text. Most Americans, I suppose, want the Judge to be
like Sartre's version of the French café waiter, a person who does his job
with a vengeance, rendering himself thinglike or factoid, a mere trans-
mission belt for legal necessity. At the same time, they want to believe
that law is justice, the product of the Judge's laser intuition, with no
contradiction between the two elements.
At least some real judges, we imagine, want this too, but they have a
problem, to which bad faith (theirs and their public's) is the response.
They "know" that the facticity of law dissolves (sometimes) to the touch
of legal work, and that their own sense of justice is less transcendent, less
free, less their own, and more factoid, more mechanically ideological, than
it "ought" to be. The bad faith consists in simultaneously exaggerating
the extent to which they are bound (factoid, thinglike) as law appliers and
understating the extent to which they are mere ideologues when they are
supposed to be exercising their (transcendent) "independent" judgment.
In other words, the denial of the ideological, along with addiction to the
drama of inquisition and condemnation for infidelity to law, can be seen
as a response to the demand that role incumbents in general "be" their
roles, and that judges in particular "be" their roles with a vengeance.2'
While it seems ro me that the judge's role conflict is an instantiation
of, or one of the constitutive manifestations of, this particular existential
complexity, there is rio reason to reduce it to this complexity alone. For
example, it may also be useful to see judges as denying, on behalf of their
 Strategizing Strategic Behavior in Interpretation 209

public, the problem that we have no coherent conception of justice, just

an aspiration toward something we can't pin down, and that our practice
of justice is endlessly contradictory. This is another way of saying that the
whole point of the role of the judge is to affirm the possibility of escape
from the ideological situation.
Liberals and conservatives share general principles, and find themselves
equally contradictory in practice, though in service of different outcomes.
The principles are brought to bear on the choice of legal rules through the
medium of contradictory argument pairs, deployed by liberals and con-
servatives in opposite ways over the range of policy domains, with no
explanation either of how they pick domains or of how they secure their
boundaries against radicalisms of the left and right. The judge, in his own
and his public's hopeful fantasy, is like the ideologist in being a votary of
justice, but should be unlike her in having an answer that is limited in
scope to justice between the parties. And also unlike her, more successful,
because outside the "fundamental" situation of contradiction. Denial and
bad faith are perhaps (who knows?) the response to the disappointment of
this expectation.

Coercive consensus sustains denial

To generate an explanation of denial rooted in role conflict with attendant

anxiety, we can add the element of coercive consensus, as a stabilizer of
the system. In other words, if most participants are engaged in denial in
our psychological sense, then they will have a motive to sanction anyone
who brings the bad news that it is merely denial, rather than reality, that
adjudication does or could exclude ideology. The motive is to avoid the
anxiety that will follow undoing of the defense. (This is a social equivalent
of the patient's "resistance" to the undoing of a defense mechanism by a
therapist.)
And if people sanction those who try to penetrate the denial, people
will be hesitant to try and will lie, or adopt denial themselves, as an
alternative to anxiety generated by the conflict between their desire to tell
the truth as they see it and the fear of the displeasure that truth telling
will bring down on them.

Projection of ideology as a stabilizer of the system of denial

In the pop psychology of defenses, it has become a familiar idea that we
sometimes project onto others the impulses or behaviors that we deny in
210 IDEOLOGY IN ADJUDICATION

ourselves. Trial judges who fear the anger of losing litigants, and appellate
judges who fear the anger of those who disagree with the rules they make,
have a motive to displace responsibility onto others, the legislature or prior
judges.22 To the extent they feel guilty about their ideological contribu-
tions to law making, they have a motive for the quite distinct operation
of projecting ideological intentions onto others.
As l've been arguing, judges find themselves willy-nilly participants in
the general cultural conception of judging as a situation of moral jeopardy
in which the chief danger is the introduction of ideology into the decision
process. It is not, I am supposing, psychologically tenable for judges and
their public to respond that there is role conflict here, rather than a moral
drama of corruption. They can't acknowledge that the rule of law is only
a constraint, and not a guide, and that some of the time, at some very
important times, it is a weak constraint, one that doesn't let them off the
hook represented by their ideologized, "fallen" conceptions of justice.
In this situation, the stability of the system of denial may get an im-
portant support from the projection of symmetrical ideological motives
onto one another by ideological opponents, followed by denunciation oí
those opponents for corruption. This "projective identification" involves a
self-reinforcing relationship with the person onto whom one has projected
a desire or a characteristic, rather than a mere externalization.23 The notion
seems to me helpful in interpreting the odd persistence in American legal
culture of obsessive concern with and equally obsessive denial of the ideo-
logical, what I called American critical legalism.
How could one "prove" a proposition like that of the last paragraph?
One couldn't. But consider the following letter to the editor of the Boston
Globe by a liberal participant in the intensely politicized battle over the
confirmation of a conservative Harvard Law School professor, Charles Fried,
to the Supreme Judicial Court of Massachusetts. Because the letter quotes
Fried, as well as denouncing him, it allows a glimpse of the symmetrical
character of the projections, and it even contains a denunciation of the
very impulse to analyze judges ideologically that it itself perfectly exem-
plifies.
Fried has had a distinguished academic career, but I do not believe he is
an appropriate choice. He would bring an ideological predisposition and
potential divisiveness to a court that has been free of both.
Fried was a committed servant of the so-called "Reagan Revolution,"
an agenda that had as one of its main goals the dismantling of the legal
rights and remedies developed under Republican and Democratic ad-
ministrations for violations of Title VII of the Civil Rights Act of 1964.
 Strategizing Strategic Behavior in Interpretation 2 II

The goal was almost accomplished when Solicitor General Fried

helped persuade the Supreme Court to abandon decades of precedent and
gut the Civil Rights Act in a series of decisions in 1988 and 1989. The
decisions were viewed as so destructive that Congress took the unusual
step of overriding them by adopting the Civil Rights Act of '99', re-
storing the law to the status it had before Reagan's Justice Department
and Fried were so successful in subverting it.
Fried writes in his memoir:
"In many respects the courts themselves had become major bureau-
cratic actors, enthusiastically, self-consciously enlisting in the movement
to substitute the judgments and values of the nonproductive sector of
societylawyers, judges, bureaucrats, politiciansfor the self-determi-
nation of the entrepreneurs and workers who create wealth. Egged on by
aggressive litigators, the legal professoriate, and the liberal press, the
courts had become a principal engine for redistributing wealth and shack-
ling the energies of the productive sector."
This jaundiced attitude toward courts and judges should be carefully
weighed. Do you want to place on the SJC someone who subscribes to
the extremist view that the courts are engaged in a plot to sabotage
capitalism and redistribute wealth? Do we want someone who asserts
that judges are part of the "nonproductive sector of society" to sit in
judgment of other judges? Fried's nomination should be rejected.
Mark S. Brodin
Professor of Law
Boston College Law School24

I find it useful, in understanding the way Brodin and Fried manage to

do ideological analysis of the "other" while affirming the possibility of
neutrality in general and their own neutrality in particular, to refer to
Freud's classic analysis oí neurotic (as opposed to "normal" and "psychotic")
jealousy. Indeed, I think we critics should proudly affirm the analogy be-
tween our analysis of the ideological in adjudication and the Freudian
tradition of hunting out sexual motives where people are most concerned
to conceal them. Here, as elsewhere, the analysis has to be of the chastened
variety that eschews pretensions to having found "the" truth of the phe-
nomenon. It is still fun to read Freud on jealousy, substituting "neutrality"
for faithfulness, "ideological motivation" for unfaithfulness, and "judging"
for marriage.

The jealousy of the second layer, the projected, is derived in both men
and women either from their own actual unfaithfulness in real life or
from impulses towards it which have succumbed to repression. It is a
matter of everyday experience that fidelity, especially that degree of it
212 IDEOLOGY IN ADJUDICATION

required in marriage, is only maintained in the face of continual temp-

tation. Anyone who denies this himself will nevertheless be impelled so
strongly in the direction of infidelity that he will be glad enough to
make use of an unconscious mechanism as an alleviation. This relief-
more, absolution by his consciencehe achieves when he projects his
own impulses to infidelity on to the partner to whom he owes faith. This
weighty motive can then make use of the material at hand (perception-
material) by which the unconscious impulses of the partner are likewise
betrayed, and the person can justify himself with the reflection that the
other is probably not much better than he is

Conclusion

Some judges some of the time pursue ideological strategies vis-à-vis the
materials rather than just accepting direction from them. The strategies
they choose have an impact on what law gets made in a given case. On
the one hand, this impact is not constrained by an electoral process, the
way it is when legislators bargain over the wording of legislation. In this
sense judges are freer than legislators.
On the other hand, the law constrains them in a way it doesn't constrain
legislators because they accept a duty of fidelity to the materials that rules
a lot of things out, even if it doesn't determine the choice between liberal
and conservative rule interpretations in many cases. In this sense they are
less free than legislators.
There is a discursive convention denying that judicial law makers are
engaged in an ideological practice. Most members of the intelligentsias
(including the judges themselves) believe that there is some truth to the
convention, that is, they deny the ideological in adjudication. They con-
sistently exaggerate the difference between what judges do when they
decide appellate questions of law in adjudication and what legislatures do
when they decide them by deliberating and then voting on statutes.
I am going to argue in the next part that the combination of the law-
making power of judges with the bad faith (mis)understanding of adju-
dication has consequences for ideologized group conflict.
 PART FOUR

Consequences of A djudication
 9

The Moderation and Empowerment Effects

Counterfactual legislative supremacy

in most discussions of the rule of law, the implicit question is what would
happen if judges were "at large"? The quite different heuristic device em-
ployed here is to imagine a different system of governance than the one
we now have, one that would eliminate a crucial aspect of adjudication as
we currently understand it, and then speculate at length about what con-
sequences would follow for the political system. This method has the ad-
vantage of keeping the question of consequences relatively defined while
not suppressing the utterly conjectural character of the discussion.
What would happen if, in every case where appellate judges at the
highest level decided a question of law, there was an appeal to the legis-
lature, with a strong practice of the legislature considering and deciding
the question? There would be no written opinions in the legislature, but
there would be debate and legislative history. The legislature might use
more or less elaborate fact finding, just as it normally does. "Parties" could
submit whatever briefs they wanted to; there would be no rules limiting
"standing," once the question was in the legislature.
Imagine the abolition of final judicial review, in the sense that a final
adjudication of unconstitutionality of a statute could be appealed like any
other question of law to the legislature. Finally, imagine a general under-
standing that the legislature should approach questions from the courts
under decisional norms indistinguishable from those it observes in "ordi-
nary" legislation, including a norm of obedience to the state and federal
constitutions.
My claim is that the combination of our current practice of ad judication
with current understandings of that practice produces political results that
215
216 CONSEQUENCES OF ADJUDICATION

are different from those that would likely occur if we had this different
practice and different understanding. It would be a big change. But how
big? Your answer will depend on just what you think judges now do, and
on how you think people in various publics understand what judges do.
It is necessary to distinguish between these two questions because there is
so little consensus about the reality of the practice of adjudication. People
have widely varying views of the practice, and these affect both their par-
ticipation in it and their participation in legislation. Since it seems obvious
that the views contradict one another, in the sense that they can't all be
right, some substantial group seems probably to be misled.
In my hypothetical scenario, by contrast, there is a shared understanding
oí what is going on (though of course wide disagreement about what
should be done in particular cases and perhaps about the new system itself).
The question I want to pose is that of the impact on the political system
of doing law making through an adjudicative process subject to our par-
ticular multiplicity of understandings, including the widespread denial of
ideology in adjudication, rather than through a (relatively) transparent
legislative process.
Three hypothetical effects of our particular, and particularly misunder-
stood system of law making through adjudication, contrasted with my
counterfactual process, seem worth exploring. The first is the reduction of
the power of ideologically organized legislative majorities, and ideologi-
cally oriented high-court judges, whether liberal or conservative, to bring
about significant change in any subject-matter area heavily governed by
law. The second is the empowerment of the legal fractions of intelligentsias
to decide the legal outcome of ideological conflict among themselves, with
less control by the electoral process than would likely be the case under a
regime of legislative decision of appellate questions of law.
The third, which I take up in the next chapter, is a legitimation effect,
an increase in the appearance of naturalness, necessity, and relative justice
of the status quo, whatever it may be, over what would prevail under
legislative revision. All three effects presuppose that our society has a
particular main ideological division, liberalism versus conservatism. The
moderation and empowerment effects have to do with the fates of liber-
alism and conservatism under our own versus a different system. The le-
gitimation effect has to do with the question of how other ideologies, for
example radical leftism and radical rightism, are affected by the peculiar
phenomenon of practically or constitutionally final judicial law making
through adjudication.
 The Moderation and Empowerment Effects 217

We can distinguish consequences for common law, statutory interpre-

tation, and judicial review. In the first two categories, the legislature al-
ready has the (prospective) power to revise judicial answers to questions
of law whenever it wants to. But the current system makes review likely
in only a tiny fraction of cases, whereas the alternative makes it available
as a matter of course (not as a matter of "right," since such a description
would suggest, in our legal culture, the possibility of judicial review of a
legislative decision not to review).
There is no reason to think there would be an appeal in every case, any
more than there is an appeal every time a trial court decides a question of
law. Most judicial rule-following would still fall into the "unselfconscious"
category, with the judge and the parties doing business as usual. When
the judge was in the position of constraint by the text, feeling that the
rule was wrong but unable to come up with a plausible legal argument
for her preferred interpretation, the losing party might or might not think
it worthwhile to try the legislature.
It would make no sense to appeal where the rule in question was the
object of broad consensus, and little sense where the same or a similar issue
had just been decided or where a legislative victory would be likely to
apply only prospectively. But in cases of ideologized group conflict, there
would be political energy and resources available, as well as some prospect
of success, and the situation would be very different from what it is now.

The moderation effect

Robert Reich recently wrote,

There is high drama in the creation of landmark legislation, like the

recently enacted Clean Air amendments of 1990. Within such epic strug-
gles, the great issues of a mixed economy get debated. Do we want faster
economic growth or a safer and cleaner environment? What are the
proper domains of public and private responsibility? . . . At last, in a
final teeth-clenching, death-defying act of courage or cowardice (de-
pending on your point of view), the die is cast. The drama is over.
More likely, however, the real drama hasn't even begun, or else it was
under way years before the legislators ever got into the act. The practical,
day-to-day struggle over government regulation is waged continuously
by government bureaucrats and federal judges, as they interpret and re-
interpret statutessome newly enacted, others enacted decades before.
The bureaucrats and the judges fill in the legislative blanks, giving mean-
218 CONSEQUENCES OF ADJUDICATION

ing to vague statutory language, updating obsolete legislation, applying

the law to circumstances that legislators never dreamed of, determining
detailed rights and duties that were never specified in the
legislation . .[llt is here that the real contours of the public and private
.

sectors of the economy are mapped.

[Environmental Protection Agency) bureaucrats will claim that
they are only implementing the statute; federal judges will say that they
are only ensuring that the EPA's implementation is in accord with Con-
gress's intent. But these modest protestations are for the cameras. The
bureaucrats and judges, motivated by their own preconceptions of the
public interest, as modified by the relentless arguments of parties that
can best afford lobbyists and litigators at these lower levels of govern-
ment, will be making new law . . . [lin answering these questions, EPA
bureaucrats and federal judges will create a complex system with pro-
found implications for American industry and the environment.'

One effect of the choice of law making through adjudication, rather

than through legislative revision, on the outcomes of ideologized group
conflict may be a more "moderate" course, through time, for the whole
system of governance. If all the questions of law that affect ideologized
group conflict were constantly open to decision or redecision through the
legislative process, we would expect the ideologies of the legislators (and
of their constituents, to the limited extent the political process functions
to reflect voter ideology) to work themselves out as they do on other issues.
If there was a clear liberal majority on a given issue, there might be clear
liberal outcomes over a whole area of controverted policy.
Our system prevents anything like this from happening because (a) the
legislature actually decides only a tiny fraction of ideologized issues, and
(b) the judges who do decide them operate under the peculiar system of a
duty of interpretive fidelity combined with (denied or misunderstood) free-
dom to shape.the materials. How this might produce moderation is easiest
to understand in a case of statutory interpretation like that described by
Reich above.

Moderation of legislative regime change

We need to distinguish between law making that is supposed to have far

reaching consequences, to change things significantly, and law making that
is understood by all as elaboration of an existing regime. Both courts and
legislatures do both kinds of law making. Courts do regime-altering law
 The Moderation and Empowerment Effects 219

making in constitutional law, in statutory interpretation, and in common

law, denying it vigorously in all three areas. But they also do vast amounts
of mere regime elaboration in all three areas.
Two important aspects of law making in our system are that legislative
regime change can't occur without judicial elaboration of the proposed
change, and that regime change requires change in all the different inter-
locking types of law. The system of legal rules is so big, so dense, and so
full of gaps, conflicts, and ambiguities, open to conflicting ideological
interpretations, that a legislative regime change requires hundreds and
hundreds of implementing decisions in many different areas of law.
According to the nesting hypothesis, these decisions replicate the un-
derlying conflict of which the abstract regime change was a resolution.
Nesting means that in the elaboration of a legal rule through time, the
gaps, conflicts, and ambiguities that emerge with application to new fact
situations re-present the ideological conflict the initial formula purported
to resolve.2
Sometimes the process of resolving gaps, conflicts, and ambiguities can
be seen as "merely" routine elaboration of the regime, affecting its "tilt"
in a more liberal or more conservative direction but not affecting our
understanding of what it "is," what its general purposes and effects were
and continue to be. But "God is in the details," which means that we are
also familiar with situations in which the implementing decisions end up
nullifying the overall purpose. Sometimes the detail work can even turn
the scheme into something that in practice has purposes and effects that
are the opposite of those intended. Or the initial scheme can be a com-
plicated compromise in which two ideologized group interests are repre-
sented, thereby making a legislative majority possible, but the implemen-
tation can gradually freeze one interest out.
These possibilities mean that the formal structure of the interpretive
process is misleading. We start with a legal rule. It looks as though the
gaps, conflicts, and ambiguities are "within" the rule. This makes it seem
as though the decision to make the rule is obviously more important than
the decisions about how to interpret it. It makes it look as though the
interpreter is implementing the policy or policies behind the rule. But in
fact the implementing resolution of the gap, conflict, or ambiguity may
nullify or reverse the policy or policies.
Constrained activist, difference-splitting, and bipolar judges are the cru-
cial actors in this process. To put it crudely, the constrained activist judge
might be either ideologically favorable or unfavorable to the regime
220 CONSEQUENCES OF ADJUDICATION

change. If she favors it, she will do something more than "implement" ir;
she will work to develop and entrench it, choosing among the possible
interpretations those that lead to a real shift in the balance of ideologized
group conflict.
If the constrained activist is on the losing ideological side, she will do
just the opposite, working to give the statute a minimal meaning, to fit
it into the great mass of rules in a way that will deprive it of ideological
bite. The difference splitter will position himself between these poles,
looking for "moderate" interpretations that can't be tarred with the brush
of partisanship. The bipolar judge will flip back and forth between vig-
orously extending the statute and equally vigorously cutting it back, main-
taining balance, but only over the long run.
All of this is happening in the context of constraint. But constraint just
means that sometimes each of these judges ends up choosing a rule inter-
pretation that he or she would not vote for as a legislator. Because oí
constraint, it may well be possible for the legislator to make a regime
change and implement it through the judiciary in a way that really does
shift the ideological balance. But there is nothing that guarantees that this
will happen.
The moderation hypothesis is based on a simple model: suppose that
the judges are divided up in a way that roughly reflects the ideological
divisions within the intelligentsia or political class, and that the legislature
also reflects the same division. It follows that a majority of the judges favor
the regime-changing statute and understand it as an ideological victory.
But some of them oppose it, and some don't feel strongly one way or
another. These underlying legislative preferences of the judges will be mod-
ified by the role constraint that forbids them to be ideological and drives
them into the three postures I've described. In this situation, only the
constrained activist judge who likes the statute will do what the majority
that enacted it would have done under a system of legislative revision.
The other judges will all, in some measure, work against che more
extreme possible meanings of the enactment, even though many of them,
as a matter of their "personal" legislative preference, would support those
meanings. The constrained activist on the losing side will be systematic
about it, doing as much "damage" (from the majority point of view) as is
consistent with her sense of constraint by the materials.
But the difference splitter will also systematically moderate the regime
change, choosing solutions that are plausibly nonideological because they
lie between the "extremes," even when he would have voted, as a legislator,
with the activist majority. The bipolar judge will sometimes do just what
 The Moderation and Empowerment Effects 22!

the ideological majority would have done, and what he himself would have
done as a legislator, but sometimes the opposite, behaving like the anti-
statute constrained activist in spite of his legislative preference.
The role of constraint in all of this is complicated. At one level, there
will almost certainly be a range of possibilities that no judge would see as
consistent with interpretive fidelity. But after excluding these, the different
judges may have different reactions to particular cases. Conservative judges
who favor the regime change will feel constrained, after working hard to
extend the statute, to the extension their legal work has produced. Liberal
opponents who work equally hard to find narrowing interpretations will
feel equally constrained in the other direction.
The result is controversy, with each side claiming in good faith (but
more cosmically in bad faith) that the statute "requires" their particular
interpretation. The debate about interpretation that would have occurred
in an overtly ideologized language under a regime of legislative revision
occurs here inside a legal discourse that is also ideologized, but covertly
so. This is what Reich means when he says that the protestations about
Congress's intent are "for the cameras," and that "judges, motivated by
their own preconceptions of the public interest . . . will be making new
law.

Five complexities

First, constraint might come into play in the opposite way from that just
described. A conservative judge might feel more constrained to adopt an
"activist," but also self-defeating, interpretation of a liberal regime-chang-
ing statute than a liberal. She might see the statute as irrational to start
with but think its democratically elected authors entitled to make their
own mistakes. The liberal might feel more free to give an apparently
conservative, limiting interpretation that would save the liberal statute's
effectiveness, by compromising it in a way that would have surprised the
enacting majority.
Second, neither side in the judicial implementation process can afford
to drop the rhetoric of necessity unless the other side drops it as well. This
is the consequence of the (mis)understanding of the judicial role, main-
tained by judicial and popular knowing and denying, in bad faith, of the
shaping power of interpretation. As long as it is judges who are doing the
implementing work, each side has available the rhetorical resource of the
"rule of law," and each side must use it or lose.
Third, the need to maintain a rhetoric of judicial necessity "for the
222 CONSEQUENCES OF ADJUDICATION

cameras" masks the similarity between the judicial battle and the legis-
lative battle that preceded it. The practical effect of this is to empower
the opponents of the regime change in a way that would not occur under
legislative revision. In that process, they would appear as "the losers" trying
to snatch victory from the details, rather than as ideological neutrals trying
to puzzle out someone else's intention.
Fourth, the moderating effect is not a "distortion of the popular will,"
or of democracy, for three reasons. (i) Under the rule of law as I've defined
it, judges who experience interpretive fidelity as compelling a particular
result, against their legislative preference, go with the law and against the
preference. They must experience their moderating interpretations of the
regime change as permitted by the legal materials, or they don't adopt them.
Given the directed nature of the work process, they will often or perhaps
even usually experience them as required.
The moderation effect relies on a notion of constraint but not on any
particular or general theory of the "true," "correct," or "neutral" interpre-
tation of a particular statute or of statutes in general. The moderation is
in contrast with what would happen if the legislative majority could im-
plement its own regime change, rather than having to rely on a judiciary
that is both internally ideologically divided and motivated by role anxiety
not to appear ideological.
(2) It would be wrong to understand the legislative process as producing
meanings in isolation from the judicial process that implements those
meanings. Sophisticated legislators understand the moderation effect and
draft legislation with it in mind. For example, sometimes they draft what
looks like a regime change, with no expectation that it will be implemented.
Sometimes they exaggerate the degree of change in order to overbalance
the moderating effect and end up just where they want. The point is not
that there has been a distortion but that the medium through which the
legislature works has a particular molasses quality, which it might not
have under a different system.
() The alternative regime of legislative revision would have its own
distorting effect on the popular will. There would have to be a large in-
crease in the legislature's capacity to consider and enact statutes. However
this was organized, it would almost certainly change the balance of polit-
ical and bureaucratic power within the system as a whole, creating exten-
sive new opportunities for strategic behavior by litigants. And anyway,
why treat the existing balance of legislative power as legitimate, given all
its familiar distortions and corruptions?3
 The Moderation and Empowerment Effects 223

Final point. My assumption at the beginning was that the ideological

distribution of judges mirrors that of legislators, which mirrors that of the
electorate. As a transition to the discussion of the empowerment effect, it
is time to relax this assumption. The judiciary may include ideological
perspectives absent from the legislature. Judges pursue these agendas at
cross-purposes to the main ideological division of the electorate.
Just as important, difference splitting and bipolar judges construct their
nonideological ideological strategies on the basis of their own estimates of
what the relevant ideological positions are. In other words, if the difference
splitter sees the basic conflict as between feminists and diehard gender
traditionalists, those are the interests he compromises, even though the
diehards in the legislature may be opposed only by gender moderates, with
no feminist representation at all.
Both the presence of judges with legislatively excluded agendas, and
the tendency of difference splitters and bipolar judges to incorporate un-
represented agendas into their compromises, further dilute the ability of
a legislative majority to just carry out a regime change. Indeed, the law-
making power of judges may work something like the alleged paralyzing
effect of proportional representation in a parliamentary regime. The dif-
ference is that it is proportional representation not of the electorate but of
the ideologized group interests that the legal intelligentsia thinks are im-
portant.

Judicial regime change through common and constitutional lau'

Judicial regime elaboration in common and constitutional law is elabo-
ration of the judges' own regime. The convention of necessity and the
denial of ideology mean that judges can't overtly initiate regime changes
if they are understood as ideological. Of course they can do regime change
if they are willing to disguise it, and they can do regime changes that they
themselves perceive as nonideological. Under the empowerment effect, I
will consider how these judicial initiatives compare with those that would
occur under a regime of legislative revision. Here the point is that however
they originate, judges have to implement them.
In other words, majorities of high courts that, under our system, can
carry out far-reaching regime change (for example, prohibition of social
legislation, desegregation) have to implement their programs through
other judges. These other judges will be ideologically divided, and they
will work at the gaps, conflicts, and ambiguities of higher-court decisions
224 CONSEQUENCES OF ADJUDICATION

with the same possibilities that exist for statutory change. The issues will
present themselves in the same nested pattern, with the ideological choices
supposedly settled at the high-court level re-presented in subsumed de-
cisions that have the potential of undoing the original scheme.
Fractions of the intelligentsia steadily develop programs for transfor-
mation of areas of life that are governed by the common law, such as, say,
spouse abuse or sexual harassment in the workplace. In the early stages, it
is difficult or impossible for them to muster legislative majorities or even
interest for their program. The judges may "adjust" earlier, gradually ab-
sorbing the new ideas as they work at splitting the difference between
what they see as the extant social visions.
Because judges have practically unreviewable law-making power in
common law and constitutional adjudication, fractions of the intelligentsia
can avoid the legislatures in bringing about policy change. As we will see
in the next section, the system operates more flexibly than it would if
adjudication were outside ideology in fact. But, at the same time, even
judicially initiated ideological change takes place in a muffled, compro-
mised way, rather than in the form of decisive action implemented across
the whole relevant range and with all the relevant detail questions resolved
in accord with a general plan.

The empou'errnent effect

The second hypothetical effect of (denied) law making through adjudica-

tion cuts in a different direction. In the moderation hypothesis, some
judges' commitment to their own neutrality makes them "centrists" within
whatever system of ideological oppositions they find themselves. In the
empowerment hypothesis, liberal and conservative legal intelligentsias get
to settle ideologized group conflicts, through a mystified adjudication pro-
cess, with less concern for the electoral process than they would feel as
legislators.
In statutory interpretation, for example, the moderation effect is quite
plainly not the only thing that happens to statutes. Take the development
of the law of no-strike clauses and compulsory arbitration after Textile
Workers Union y. Lincoln Mills,4 a major transformation of American labor
law, or the development of causes of action under the Civil Rights Act
after Jones y. Mayer,' or the development of the law oí sexual harassment
under Title VII.6 The judicial elaboration of rule ro(b)5 under the Secu-
rities Act is another example.
 The Moderation and Empowerment Effects 225

Common law judicial initiatives oía similar type are the development
of labor torts around the turn of the century, the reform of the law of
business ethics through promissory estoppel and related doctrines, the
development of the modern law of consumer protection, the Tort Revo-
lution, the development of the modern law of land use restrictions oriented
to protecting subdivision development, the transformation of child cus-
tody doctrine, and the abolition of the causes of action (criminal conver-
sation, seduction, and so on) that once gave the marital relation a particular
legal structure.
In constitutional law, the epic judicial initiatives have been the attempt
to restrict social legislation under the Lochner Court and its successors,
and the judicial abolition of de jure racial segregation. But there are lots
and lots of less extreme cases, including the reapportionment, police mis-
conduct, and obscenity cases of the Warren Court, the abortion decision,
the neutralization of civil rights law during the 1970S and 198os, and on
and on indefinitely. The New Jersey Supreme Court's Mt. Laurel7 doctrine
is based on the clause in the New Jersey constitution to the effect that
legislation shall be "in the common interest."
My goal here is to give a political interpretation of this kind of judicial
law making through adjudication. The first question is how judicial as
opposed to legislative control modifies the outcomes of ideologized group
conflict. We need to make the general model a good deal more complicated
to make sense of this.

Law as a land mass that can be colonized

Let's look at the mass of legal rules from the perspective of an ideological
intelligentsia. Many of the rules are irrelevant to the kinds of group conflict
the intelligentsia is interested in. But some of the rules are very important.
Ifa group succeeds, through litigation or legislation, in getting these rules
to favor its interest, ir moves on to other legal or nonlegal concerns. It has
scored a victory and leaves it to the judges, constrained by the language
of precedents or statutes, to administer the new regime. Perhaps over time
the judges develop this body of law in the direction preferred by the
ideological intelligentsia, or perhaps it goes the other way.
A large number of particular rule systems have a history as objects of
ideological interest and controversy. Different subsystems, and different
particular rules within subsystems, are understood to be favorable or un-
favorable to particular interests. But the system as a whole has no single
226 CONSEQUENCES OF ADJUDICATION

ideological imprint. There isn't even an ideological intelligentsia with a

universal law reform plan. There may be a conservative and a liberal po-
sition on each issue, but these are uncoordinated, reflecting the activity of
all the social subgroups within large constituencies and the divisions
within the intelligentsia.
We might say by analogy that ideological intelligentsias, and fractions
thereof, colonize the land mass of legal rules. Intelligentsias and fractions
have interests in rules and in their development, as well as more abstract
interests.

Fractions and constituencies

The liberal and conservative intelligentsias are not self-organized, well-

defined groups. As we all know, there is a left-right spectrum, and a struc-
ture of coalitions within the liberal and conservative "camps." Moreover,
there are well-known differences between the liberal intelligentsia and the
mass of liberal voters (pointy-headed intellectuals versus white working-
class types), and between conservative voters and elites.
This means that fractions of, say, the liberal intelligentsia passionately
hold many positions about public policy that are not shared by other parts
of that intelligentsia and may even be abhorrent to liberal "masses." There
is a complex process of negotiation between fractions and between the
intelligentsia and its constituency, as well as with the opposing intelli-
gentsia and its constituency. Many things that particular fractions want
are "just not politically feasible" in the existing legislative process.
A fraction may be able to achieve some oí these things through the
courts. The judiciary has representation from most of the range of ideo-
logical fractions, it being understood that left-wingers and those with
styles too openly nontraditional need not apply. All it takes is a few con-
strained activists from any particular fraction to create a "doctrine." The
difference splitters and the bipolar judges then go to work, under their
peculiar forms of constraint, to incorporate and develop it.
Once embedded in the great mass of legal rules, the doctrine becomes
part of the "property" of the fraction that pushed for it, subject of course
to neutralization or reversal through future development. If we had a sys-
tem of legislative revision, these properties would be in jeopardy all the
time from legislative majorities. Under our system, the quasi-finality of
judicial decision, along with the denial and misunderstanding of law mak-
ing through adjudication, make them relatively immune, or "safe." The
 The Moderation and Empowerment Effects 227

empowerment effect is the increase in power and sense of possible power

that fractions of intelligentsias get, or think they get, through this differ-
ential.

The role of judges in creating popular will

This power goes beyond the ability to settle particular rules favorably to
one side in an ideologized group conflict. The judge deploys the mana,
the charisma, the concentrated authority that derives from our cultural
understanding of the Judge. The first, or elementary, importance of this
is that it allows the fraction to legitimate rules that favor it through
something more than mere state force. The judges who set the rules in
their favor also declare that these rules are required by "the statute" or "the
law," or by "the Constitution." This may make it more likely that people
will obey, accept, and eventually approve them.R
In so much as putting the charisma of the Judge behind the rule causes
people's views on the merits to change, judges form public opinion. They
are part of the political system not just as "appliers" of law made by
someone else, but also as formers of the sentiments that express themselves
in legislation. The most striking recent example of this is the judicial
contribution to gradual formation of a legislative consensus in favor of
desegregation. But John Marshall's contribution to the current consensus
on judicial review itself, and on the nature of federalism, shouldn't be
underestimated.
It is simplistic to denounce this process as "undemocratic." There is no
"private" sphere in which the will of the people could form without con-
tamination by all the various sources of authority in the society. The per-
suasive power of judges derives from what we might call the preliberal
consciousness of people, their attachment to ideas like God, the King,
Father, Doctor. There are numerous sources of authority of this kind. The
media filter what authorities say and do, but also amplifr and elaborate it,
drawing on their own sources of authority. Judges couldn't not exercise
this kind of mediated authority, unless they deliberately set out to dele-
gitimate themselves. If they did, others would take up what was ceded.
Empowerment is the ability of fractions of the ideological intelligentsia
to influence, according to their agendas, both the outcomes of conflict and
the formation of democratic majorities, by their privileged access to this
particular combination of state power, authority, and media.
It is equally simplistic to sanitize this authority through the theory that
228 CONSEQUENCES OF ADJUDICATION

judges "reflect" changing social ideas and customs. They do indeed reflect
them, but in their diversity, and above all in their contradictions. The way
the opposing views and habits of the population, their ideological divi-
sions, are represented in the judiciary, and then developed and pursued by
judges, affects the direction and speed of change of popular consciousness,
the emergence of new consensus. What judges do forms as much as it
reflects.
There is no popular will. There is a legislative process, and there is the
rule of law. Each is a component of the Liberal theory of democracy. The
structure that withdraws so much law making from the legislative process
and lodges it in a misunderstood judicial process influences what people
in general, and intelligentsias in particular, think about all kinds of policy
issues. It is difficult or impossible to know what public opinion expressed
through the legislative process would be if we did not entrust so much
law-making power to judges, and it is naive to think whatever that was
would be somehow purer.
Thus far, I have focused only on the way a shift toward legislative su-
premacy would threaten the current power of ideological fractions to col-
onize particular areas of law through sympathetic judges. The balance of
power in question is "horizontal": elites and their constituencies fare dif-
ferently in the judicial system than they would in the legislative. But the
empowerment effect empowers only those with access to the judiciary. The
next section explores the possibility that the privilege of the intelligentsia
in gaining this kind of access helps to explain the phenomenon of denial.

Adjudication as a strategy of intelligentsia class power

Suppose that there is a lot of law making through adjudication, a lot of

deeply felt controversy about what the right answers are, and a lot of denial
of the extent to which there is leeway for strategic work to give the ma-
terials particular ideological meanings. Why doesn't the controversy, along
with the endless process of critique of judicial neutrality, eventually un-
dermine the denial?
Of course, one quick answer might be that there is a lot less leeway
than I have been asserting, and that the controversy no more disproves the
existence of right answers than controversy about 'who killed Kennedy"
disproves the existence of a killer. In short, the whole denial hypothesis
was wrong in the first place. Another quick answer might be that contro-
 The Moderation and Ernpowernent Effects 229

versy and critique have already thoroughly undermined belief in the pos-
sibility of objectivity, and even oí constrained interpretive fidelity in ad-
judication. What is left is no more than a convention, a fig leaf, a
performance "for the cameras."
I tried to respond to these views in the last chapter. Here I am going
to amplify the hypothesis that the intelligentsias of both ideological camps
have a common interest in mystified law making by adjudication. This
interest isn't the obvious one from the point of view of each fraction: the
ability to use the mana or charisma of the judge to enact and enforce their
particular policy preferences. Since the fractions have contradictory pref-
erences, and all have access to the Judge, the accesses cancel one another
out. A common interest means an interest in opposition to a common
danger.
I don't think the intelligentsia has a common material interest, in op-
position to the material interests of other social groups, that is strong
enough and dependent enough on access to judicial power to motivate
denial. Intelligentsia class privileges certainly depend on reverence for ed-
ucation, general belief in the power and validity of expertise, and respect
for "intelligence" in the abstract. But I don't think the knowledge classes
see their prosperity as depending particularly on special access to judges,
with accompanying mystic power, in anything like the way, for example,
that late-nineteenth-century big business did.
To make things even more complicated, there is an intelligentsia interest
in believing in law that has little to do with class conflict. Just about
everyone wants to believe in the success of their own ideological univer-
salization project. If they get their interests universalized in law, they
experience them as validated in a way that is not true for legislation. One
of the verses of "We Shall Overcome" that civil rights marchers sang at
the moment of laying their bodies in the way of police violence was, "God
is on our side." Civil libertarians are quite similar:

Despite these impressive gains, I always tried to remember that the

strength and influence of the ACLU rests less on numbers than on prin-
ciples. Thus . . . one is struck again and again by how often ACLU
policies that seemed visionary or far out at the time they were adopted
eventually became mainstream and were accepted by courts and legis-
latures. This record, unmatched by any other organization, is the result
of our fidelity to the values set forth in the Constitution and Bill of
Rights. It is also the result of hard work by thousands of people.9
230 CONSEQUENCES OF ADJUDICATION

Nonetheless, it is at least possible to construct an interest-based theory

of why intelligentsia fractions that disagree passionately about what the
right answer is, and have long since learned to deploy the whole critical
arsenal against any opinion they don't like, should persist in believing that
law making through adjudication is different in kind from legislation.
Once again, we can make the question concrete by contrasting our current
regime with one of legislative revision, this time in the context of consti-
tutional law.

Contrasting legislative revision with final judicial review

of constitutional questions
Discussions of the rule of law n statutory interpretation and common law
have far less charge than discussions of judicial review of the constitution-
ality of statutes. One reason for this is that the U.S. Supreme Court plays
an important role in our practical politics. But constitutionalism, includ-
ing final judicial review as a presupposed element, is also an important
part of our national political culture.
I am speaking here about a kind of national mythology, rather than
about what informed political theorists think. There is a widespread per-
ception that it makes a big difference whether you have constitutionalism
with judicial review or not, and that this big difference is one of the things
that defines our political society. This is true even though the practice has
been the subject of heated debate at several points in our history, with
some of the most striking attacks only as old as Learned Hand's lectures
on the Bill of Rights.'°
Here is an alternative. When a statute is challenged, and the court
strikes it down, the loser can appeal to the legislature. That body then
decides whether its prior work was indeed defective. Constitutionalism,
though not judicial review, is still the dominant political ideal, and voters
are concerned, as they are now, with the issue. All legislators take an oath
of office to uphold the Constitution. In the new order, all or the vast
majority of legislators see it as the "governing document" to which all owe
allegiance (until amendment).
But imagine that there is no longer a consensus that it is "law" in the
Marshallian sense. The courts review statutes as always. But when the
question is appealed to the legislature, its members, for the most part,
see themselves as having the duty to decide what they think about valid-
ity, without a duty of interpretive fidelity to the whole corpus of relevant
 The Moderation and Empowerment Effects 231

constitutional materials. They see themselves as required to form their

own judgment as to the rightness or wrongness of prior judicial deci-
sions.
A legislator with training in constitutional law might be quite clear
that, if she were a Supreme Court judge under a duty of fidelity to the
materials, she would declare the statute unconstitutional. But in the new
regime, she might vote to uphold it. The feeling of closure, ofdeterminacy,
generated by the total corpus of legally relevant materials is specific to
that corpus, which includes far more than the constitutional text. She
might have a feeling of closure, of determinacy, with respect to her inter-
pretation as a legislator every bit as strong as the feeling she would have
in the opposite direction were she a judge. Fidelity to constitutional law
would have required her to do something that fidelity to the Constitution
in her legislative role requires her not to do.

Defects of majority rule

The following quotations illustrate what I think is the consensus, "for the
cameras," about what would be at stake in a change to a regime like that
just described:
DEFECTS OF MAJORITY RULE. One obvious, oft-cited peril is the tyranny
of the majority, which de Tocqueville characterized thus: "If it be ad-
mitted that a man possessing absolute power may misuse that power by
wronging his adversaries, why should not a majority be liable to the same
reproach?" Were majority rule to apply strictly and without constraint,
deplorable results would become possible. Brown-eyed people could vote
to enslave blue-eyed people; those whose names begin with A through
N could vote to confiscate all the property of those whose names begin
with O through Z. But in most democracies, the rule of the majority is
constrained either by explicitly putting some issues out oí bounds-
through devices such as the Bill of Rightsor by requiring certain kinds
of issues to be approved by more than a majority.'
Please note that behind eye color and alphabetization, the two issues
are slavery and socialism, race and class. Moreover, the Bill of Rights is a
"device." Here is the device idea carried to its logical extreme:

Pigeons were given a small but immediate food reinforcement for peck-
ing a certain key, and a larger but delayed reinforcement for not pecking.
Most of the pigeons tested pecked the key in over 95% of the trials . .
232 CONSEQUENCES OF ADJUDICATION

[Sol the experimenters offered the impulsive pigeons the option of peck-
ing a different colored key at an earlier time. Those pigeons that pecked
the different colored key found, upon waddling into the test chamber,
that the temptation of the small, immediate food reinforcement had been
removed. They were thereby forced to wait for the larger, delayed re-
wardsomething that over 95% of them could not bring themselves to
do when the temptation was immediately present. Significantly, 30% of
those same pigeons learned to peck the earlier key when it operated to
foreclose the later temptation. Even pigeons seem capable of learning to
bind their own future freedom of action in order to reap the rewards of
acting in ways that would elude them under the pressures of the mo-
ment.'2
These quotations are suggestions about the difference it would make if
we had just the same constitution we have now, but with the legislature
as the "final arbiter" of its meaning.
Judges doing final judicial review are not supposed to "enforce the Con-
stitution" against the legislature quite in the way the quotations suggest.
The role constraint on judges that is supposed to make their activity anal-
ogous to a "device" is interpretive fidelity to the whole corpus of consti-
tutional law, including past interpretations. The most we can hope for
from final judicial review is that we can use judges to "bind our own
freedom of action" according to their assessment of the meaning of the
Founders' text plus earlier judicial decisions.
Moreover, the authors of these two quotations do not believe even for a
minute in the naive rule-of-law theory. If the defects of majority rule are
in every child's commonplace book, every newspaper reader is used to neu's
stories (not editorials) that begin like this: "In the past month, the Supreme
Court's conservative majority has made clear that it now has the intention
and the votes to push criminal law sharply away from its liberal moorings
of a generation ago."3
Whether judicial review seems preferable to legislative revision should
depend on a complex calculus. You might believe that the pigeon idea is
powerful not because law is analogous to a machine that withdraws a
particular lever from the pigeon, physically preventing an error by the
pigeon, but because there are some clear constitutional directives that you
agree with, and judges are more likely to follow them than legislators.
You might concede that there will be many constitutional questions that
don't have clear answers but think that judges are not likely to do much
damage, however they decide them, as long as they hew to their task of
enforcing the good, clear mandates.
 The Moderation and Empowerment Effecti 233

You might not like the text oí the Constitution, but like constitutional
law, seeing the judicial elaborations over the years as a valuable total cor-
pus. You might see the judicial technique of constrained activist fidelity
to the total corpus as a more reliable safeguard than the legislature will
ever be. And you might believe that even your own ideological camp, in
its legislative incarnation, is sorely in need of a safeguard.
But you might see the text as containing good and bad, and see judges
as having leeway to give good and bad meanings in accord with ideological
agendas you don't like. You might see our form of constirurionalism as
sanctifying, "enshrining," bad results and sapping legislative competence
and initiative.
People don't resolve themselves on this question behind a veil of ig-
norance, with no idea of what their particular interests and ideological
commitments will be in the regime chosen.'4 We can ask what conse-
quences we might anticipate for ideologized group conflict from switching
to the alternative. And there is no reason to think the consequences would
be the same regardless of the time at which one made the switch. Switching
today wouldn't be the same as never adopting Marbury y. Madison.
Constitutional law today is no more coherent than is the common law.
However the textual provisions may have seemed at the start, the process
of interpretation has turned them into a hodgepodge, with some built into
particular liberal or conservative agendas, others deployed in alternation
by liberals and conservatives, depending on which domain of ideological
controversy is in question. Some language switches its valence through
time, while other words and phrases have never been much use co either
side.
Liberals have been devoted to the equal protection clause, and to the
religion and speech clauses of the First Amendment, but speech issues are
more complex in the era of paranoia about political correctness; conser-
vatives like the just compensation clause of the Fifth Amendment, and the
contracts clause. Both sides like due process when it suits their interests
(that is, when they get to define liberty and property), and so on. There
have been activist liberal and conservative majorities of the U.S. Supreme
Court within recent memory, so that the body of materials taken as a whole
is quite representative of the ideological possibilities in the general polit-
ical culture.
I don't think that the commitment of the whole political spectrum to
judicial review is explained by the fact chat every part of the spectrum has
colonized some part of the corpus and wants to protect it against other
234 CONSEQUENCES OF ADJUDICATION

fractions' legislative coalitions. It seems more plausible that the role of

judicial review is to prevent "legislative excess," just as the civics lesson
teaches. The denial and misunderstanding of ideology in constitutional
adjudication strengthen the ability of the courts to prevent excess.
Of course, one man's excess is another man's good judgment. But the
distinguishing fact about American political culture is that, however they
define ir, both the liberal and the conservative intelligentsias fear it in
about equal measure, once it is understood that we are talking about pop-
¡dar excess. Liberals fear nationalist, chauvinist, sexist, racist, anti-Semitic,
homophobic, majoritarian reactions to political and cultural division. Con-
servatives fear electoral revolt of the unpropertied many against the rich
few, electoral uprising of oppressed minorities that together make a ma-
jority. Both sides fear demagogues, Joe McCarthys and Huey Longs, who
can get genuine electoral support for departures from the different ele-
ments of the status quo the two sides hold dear."
At the same time, neither conservatives nor liberals have a program or
even a desire for popular mobilization that would transform the society in
a major way. The intelligentsia as a whole is sitting pretty, and sitting on
top. The intelligentsia as a whole is genuinely patriotic and genuinely
convinced that "for all its defects, many of which are very serious indeed,"
this terrible system is better than the alternatives.
Given their sense of the tenuousness of their ability to control the dan-
gerous masses, it is doubtful that either liberals or conservatives would
take up an opportunity for serious, legislatively based regime change if it
were offered on a silver platter. At the same time, both liberal and con-
servative intelligentsias are worried that the other side would change the
regime if it could, or at least nudge it along little by little until quantity
became quality.
Final judicial review, based on denial or misunderstanding of ideology
in law, serves the interest of the intelligentsia as a whole in the stability
of the regime, as well as the interest shared by each particular intelligentsia
and its constituency in "freedom from" the other side's majoritarian ex-
cesses. It does this indiscriminately for right and left because both right
and left firmly believe that constitutional law firmly prohibits the popular
masses from putting the extreme program of the other side in place
through the electoral process. Conservatives think communism is uncon-
stitutional. Liberals think fascism is unconstitutional.
The resulting consensus has a complicated structure. The civics-class
rhetoric of constitutionalism, as in my two examples above, points to gen-
 The Moderation and Empowerment Effects 235

eral dangers of majority rule, dangers that everyone should fear. Then there
is what one might call constitutional wishful thinking, the conviction of
both liberals and conservatives that the corpus of constitutional law, cor-
rectly interpreted, protects them and their constituencies from their ene-
mies and their constituencies, while permitting their favorite (moderate)
reforms. Finally, there is the pervasive intelligentsia experience of living
on top ola disorganized, culturally disparate, ethnic, racial, class, regional,
religious stewpot, a stewpot that threatens periodically to boil over into
populist, racist, radical, or reactionary intolerance.
In this respect, the American intelligentsia is far more precarious in its
authority than the intelligentsias of the nations of Western Europe. Those
intelligentsias are by comparison "organic." Their authority is rooted in
the cultural and class and ethnic histories of relatively homogeneous soci-
eties.'6 But their history is also that of the guillotine and fascism and the
Holocaust and the gulag.
The American intelligentsia has a naive belief in constitutionalism: the
myth of the possibility and the reality of a national life organized in accord
with a set of founding principles, along with the myth that the Judge
presides "over" politics. But it also has a cynical conviction that it is best
for the masses to believe in law, in the Constitution, in the Judge, because
without them there is no telling what might happen.
In the absence of hierarchically structured community, which is the
(simultaneously secure and stultifying) condition of the Western Europe-
ans, any authority is better than no authority. And our extant constitu-
tional law, whatever its status in the Court of Reason, is, for both sides, a
lot better than just "any" authority. Experience formalized as critique
drives American liberals and conservatives into bad faith rather than apos-
tasy.
The Western European intelligentsia has no confidence in sacred polit-
ical texts whose mere interpretation guarantees legitimacy. It believes that
"anything can happen," whether or not you have judicial review. Law is
not at the center of politics, though I think it plays just as important a
role from the periphery, a role that is if possible even more thoroughly
mystified than in the United States.
 Io

The Legitimation Effect

icall the third effect of law making through adjudication "legitimation,"

meaning the reenforcement and reproduction of a particular attitude or
"sense" about the social world. The attitude is that the universe of possible
ways oí thinking about society, and particularly about the desirability and
possibility of radical change in society, is exhausted by the moderately
reactionary, moderately reformist, and status-quo-ist alternatives.
According to the legitimation hypothesis, the particular set of hierar-
chies that constitute our social arrangements look more natural, more nec-
essary, and more just than they "really" are. One reason for this discrepancy
is that alternative ways of understanding are rendered invisible or marginal
or seemingly irrational by the practice of withdrawing a large part of the
law-making function into a domain governed by the convention of legal
correctness and the denial of ideological choice.

What is a legitimation effect?

The connection between denied ideology in adjudication and legitimacy

is not "essential" in the sense of deriving from the very "nature" of law or
politics. One could imagine "withdrawal" making the political order seem
perennially less necessary, natural, and just rather than more. For example,
the alienation of social choice into the domain of tradition or religion may
have made some societies more vulnerable to disruption by the arrival of
modern secular critiques than they would have been had their leaders
better understood how social connection was organized, albeit semicon-
sciously, in the old regime.
Nor is there any reason to think a priori that "delegitimation," by the
reincorporation of the domain of judicial law making into politics, would
236
 The Legitimation Effect 237

lead to a shift to the left. Nonetheless, the legitimation hypothesis is best

understood in its initial context, that of specifically left-wing critique.
Here is a schematic model.
The question is, why don't "the masses" rebel against capitalism? The
first answer is "tanks." But then there is the problem that so many of the
masses believe in capitalism, or believe that there is no better alternative,
or that attempts to change it are hopeless. These are like self-fulfilling
prophecies. Because people believe them, they don't do things that would
in fact destabilize the system (like voting, for example). But they are not
prophecies so much as errors.
The legitimation hypothesis starts from the premise that the system is
less just, natural, and necessary than people think it is, and that their error
is one of the things that keeps it in place. The premise might be wrong.
Maybe things are just as natural, necessary, and just as people think they
are, and the critics are deluded. Or maybe the masses are just as conscious
of injustice, constructedness, and contingency as the critics, but have other
good reasons for acquiescing in capitalism. To the extent that either or
both of these is the case, the rest of the discussion loses interest. It's hard
to imagine "proving" the premise.
Accepting the premise, a legitimation hypothesis also presupposes that
most people in American society have ideas about why things turn out the
way they do. At all levels of the class system, people pick and choose from
a common store of conflicting representations of the social order as more
or less natural/constructed, necessary/contingent, just/unjust. These beliefs
are part of systems or loose structures of belief, in which the parts support
or are in tension with one another. What we think about the naturalness
or constructedness of economic inequality depends on what we think about
lots of other things, even on what we learned in high school about natural
science, and on why we think some baseball teams have long histories of
success and others don't.
This means that we can't fully explain what a person thinks about the
legitimacy of inequality by reference to that person's direct observations
and experiences of economic life. Felt legitimacy is a function not just of
the processing of data by social actors within a given domain of controversy
but also of the way in which one view or another of the justice of the
system "fits" into a system of beliefs about just about everything.
The different, but structurally related parts have the quality ola system
in equilibrium, meaning that a change in one affects the others. Changing
what happens or what we believe in one sector of reality will have (large
238 CONSEQUENCES OF ADJUDICATION

or small) effects on beliefs in other sectors. The legitimation effect is an

asserted structural relationship between beliefs about adjudication, on the
one hand, and beliefs about the legitimacy of inequality and the plausi-
bility of proposals for left-wing change, on the other.
The notion is that the practice and (mis)understanding of law making
through adjudication influence the way particular people understand their
total social situation, making the outcomes of social struggle look more
natural, necessary, and just than they would if those people had a better
understanding of adjudication. One mistake induces another, or contrib-
utes to another. The first mistake is one of the building blocks of the
second. Delegitimating adjudication wouldn't "prove" that things are less
natural, necessary, and just than at first appeared, or otherwise directly
attack the legitimacy of the status quo. But it might induce change n the
second mistake by rectifying the first.
We can use the by now familiar device of imagining a system of leg-
islative supremacy, this time in the common law context, ro explore just
how the legitimation effect might work.

Conseqtíences of legislative supremacy for the common law

Imagine that every time a litigant is displeased with the decision of a
question of common law, he or she can appeal to the legislature, and that
there is a practice of legislative decision of the question by passing a
statute. Let's begin by considering cases where the judges experience them-
selves as bound by a clear meaning of the common law materials.
The effect of the alternative would be that when the legislature thought
this clear common law meaning was a bad one, it would change the rule.
Judges would then follow the normal processes of statutory interpretation
in deciding how the new statute should be incorporated into the total
complex of existing common law and statutory rules.
This already happens all the time, though sporadically. We are talking
about a significant increase in the frequency of the practice. Such an in-
crease might (or might not) have a wide variety of effects. There has been
a long debate within the Anglo-American tradition about the relative
virtues of common law and statutes or codification.2 An important sub-
theme of realist and postrealist legal thought has been the debunking of
the general conception on which the debate was based. Is the common law
more "stable" than statute law? Is it more "rational"? Above all, is there
some sense in which common law rules can be understood to be less "po-
litical" than statutes?
 The Legitimation Effect 239

Stability of law tinder legislative supremacy

First, why assume that there would be rapid change? The legislature might
tend to approve the vast majority of common law rules, and even tend to
be more hostile to "reform" than the courts. Of course, the legislature
could reconsider whole common law schemes. It could decide that al-
though the common law had been clear, it should be scrapped, or an
exception added. There would be no issue oía duty of fidelity to precedent.
But in the debate about the modification or massive replacement of
common law regimes, we would expect legislators to put forward all the
arguments for stability in the law that we would hear in a discussion of
stare decisis. The advocates of change would in turn put forward ail the
familiar arguments that the "law evolves to meet new social conditions."
Legislatures might change common law rules more rapidly than courts
have changed them in the recent past, and the process might spin out of
control. But there isn't a powerful theory that indicates that would happen,
so let's suppose it doesn't.

Coherence, consistency, rationality

Why assume less internal consistency? We already have legislative revision,

but it is sporadic. If the legislature were engaged in a constant practice of
looking at common law rule systems, its changes might become more
"rational" rather than less. (In another branch of the debate about judicial
versus legislative law making, James Thayer's famous essay on judicial
review3 argued that the legislature is rendered incompetent by constant
reliance on the courts.) The technical quality of drafting, concern about
preserving the coherence of overall rule systems, and responsiveness to
special interests might all be less or more under the new system, depending
on the legislature's reaction to its new responsibilities.
There is a European notion (associated with Franz Wieacker)4 that the
codes of the late nineteenth century were internally coherent individualist
documents that were then destroyed piecemeal by "socially" oriented leg-
islation. The equivalent American idea is that the common law is an in-
ternally coherent body of individualist late-nineteenth-century doctrine,
and that it would be destroyed by constant legislative intermeddling.
But the common law never had and certainly does not now have any
such internal ideological coherence. As I have argued throughout, it is best
understood as the outcome of ideological struggles in which particular
rules are compromises. In this kind of structure, it doesn't make sense to
240 CONSEQUENCES OF ADJUDICATION

speak of preserving ideological coherence because there is nothing there

to preserve.

Politicizing the common law

The most interesting claim is that legislative supremacy would "politicize"

the common law. What does this mean? It is clearly right in the sense
that the following of rules by judges in these cases would be subsumed in
a political process. In assessing this change, it is good to keep in mind
that the legislature already has power to revise whenever it wants to, and
that the judges already have power to overrule cases, though this power is
to be exercised in the context of fidelity to the materialssubject to "rules
about overruling."
The claim is clearly wrong ¡fit means that the common law rules them-
selves are not "political" but rather "rational" or "objective" or "neutral,"
by contrast with the statutes that would replace them. The common law
rules are resolutions of issues of ideologized group conflict, even if their
authors and appliers do not understand them that way. They are a crucial
part of the total political order of the society, as the realists constantly
pointed out.
It is possibly right if it means that rules and rule systems that are not
now perceived as important collective interventions in ideologized group
conflict would come to be seen that way through the process of more
frequent legislative consideration. The proposal might increase transpar-
ency, in the sense of reducing the illusion of "just thereness," or "natural-
ness," or "never-thought-about-it-ness" that currently adheres to a large
part of the rule system.
The basic idea is that some significant number of participants in our
political culture experience the common law part of the legal system as
"less political" than it "really' is and, in particular, as less political than
the part of the rule system that we understand to be the product of the
legislature. Under the alternative, there might be a modification of this
misunderstanding of the basis and effects of the rules. The misunderstand-
ing, according to the legitimation hypothesis, reinforces the felt legitimacy
of the whole system.

The stricture of the distinction between the common law and legislation

Why do people see judge-made common law as less political than statutory
law? At an elementary level, we have a cultural belief in the distinctions
 The Legitimation Effect 24!

between law application and law making, between adjudication and leg-
islation, and between judicial resolution of controversial questions of rule
interpretation and legislative resolution of equivalent questions.
People have associations with law, and its development through adju-
dication, that connect to the "natural, necessary, just" pole of the duality,
with legislation associated with the traits at the other end. The figure of
the Judge is a real one in the imaginations of all classes of people, and it
is quite a different figure from that of the Congressman or the Senator.
This belief operates in different ways at different levels of the class and
gender and race systems. For example, in popular consciousness, the courts
may be strongly associated with the repression of deviance and the settle-
ment of disputes according to widely shared social norms.' The legislature
is there to take care of problems, to make changes in response to new forms
of deviance or to the deterioration of systems. At the other pole, the spe-
cifically legal intelligentsias have a clear conception of courts as resolvers
of ideologized group conflict according to an often indeterminate method.
For different people, the belief that there is a fundamental distinction
goes along with different kinds of critique and cynicism about the judicial
role. These views may dovetail only on the proposition that it is not "all
politics," though politics has a lot to do with it. The different strata can
and do disagree on exactly how or why it is not all politics, without
undermining the basic structure, as long as circumstances don't force their
(mis)understandi ngs into actual conflict.
In what follows, ¡ am concerned with the way the conservative and
liberal intelligentsias, and their specifically legal subparts, (mis)understand
the distinction, and with the consequences. In the (mis)understanding of
the intelligentsia, there are three structural aspects of the relationship
between judge-made common law and legislation that are politically im-
portant.
i. The common law is a background, a complete or potentially complete
system that is there waiting to dispose of any new case, and does in fact
dispose in a routine way of the overwhelming mass of legal business. Leg-
islation is a foreground, a more or less striking intervention that makes
things different than they were before, but does this only to a small piece
of the total system and does it episodically. Contrast an understanding in
which "the Code" is the background on which judges do foreground in-
terpretation, with the legislature occasionally "fine tuning" its own prior
work.
2. The common law is, roughly, "commutative," concerned with "right-
ing wrongs" within a well-defined system of individual and collective
242 CONSEQUENCES OF ADJUDICATION

rights that is presumptively just. By contrast, legislation is "distributive,"

concerned to change the balance of success of groups struggling for welfare
by changing the ground rules of the struggle.
In legislation, people make arguments based on perceptions of injustice,
constructedness, and contingency, both of the rule system and of the out-
comes that occur when people play the game within the rules (for example,
the NLRA; the Social Security, Unemployment Compensation, and Civil
Rights Acts; and environmental statutes). In court, the important question
is whether you violated a preexisting norm, or how to interpret a preex-
isting norm. Distributive arguments are unseemly as well as irrelevant.
3. The common law rules governing economic life are loosely identified
with the free market, while legislation is identified with regulation. A free
market seems generally to mean freedom of contract and few protections
against external effects of property use. The premise is that a judicially
administered free market is what we had in the late nineteenth century.
For liberals, "legislation has been necessary because there are lots of bad
consequences of a free market." For conservatives, populist majorities or
rent-seeking coalitions are constantly wounding the goose that lays the
golden eggs.
Courts, by contrast, continue to elaborate the free-market regime based
on property and contract, except when made to do otherwise by statute.
It is clear that there are liberal and conservative positions on common law
issues. It is becoming more and more common for conservatives to argue
that, in the last twenty years or so, liberal judges have improperly pursued
their regulatory agendas through the courts. But only a small minority
even of the specifically legal intelligentsia has grasped the legal realist
insight that the common law, even that of the late nineteenth century, is
no less regulatory, even when the judges pursue free-market agendas, than
the statutory regimes that episodically supersede it.

"Withdrawal" ai a consequence of misunderstanding

Now let's suppose that the figure/ground relationship between legislation

and adjudication is arbitrary. Suppose that the sense that the common law
is commutative and legislation distributive is just plain mistaken: the
common law operates in fact distributively, and all attempts to construct
a coherent methodology for strictly commutative judicial law making are
failures.6 Suppose we accept the critique of the notion that there is a de-
terminate legal structure for a free market, and the common law is that
legal structure. The common law is no less regulatory than legislation.7
 The Legitimation Effect 243

On this basis, we can give a more concrete definition of the notion of

the "withdrawal" of a legal domain from politics. Our current understand-
ing "withdraws" the common law from politics in the sense of locating it
off the map of institutions that cause wealth and poverty, worker or man-
agement empowerment, sexual and racial equality or inequality.
The common law, thus understood, is one of the long list of institutions,
like the interstate highway system or the steel industry, that have obvious,
nonpolitical purposes. Their particular modes of operation are "technical"
and derived from those purposes. These background institutions provide
the context within which people struggle for welfare and the context
within which they pursue ideological agendas in the legislature.
1f we imagine a person trying to figure out why some people get more
and others less in society, there would be a list of reasons. Some of these
would refer to aspects of human nature and social life that we locate in
"nature," such as "some people are smarter than others." Others would
refer to "necessity," that is, to the existence of painful tradeoffs between
conflicting values"the only way to achieve equality is through a level of
day to day coercion that would be unacceptable even to egalitarian fa-
natics." Other reasons would refer to virtues of inequalitythat it rewards
different contributions differently and provides incentives for effort.
The "political" reasons for inequality include the unwillingness of the
rich to give to the poor, the hope of the poor that they will one day be
rich, the ability of the rich to buy the legislative process, the callousness
of conservatives (for liberals), or the mush-headed counterproductive pol-
icies of liberals (for conservatives). In the domain of the political, the
reasons for inequality are the ideologically organized preferences and beliefs
of the people in the society, the balance of political power between groups
with conflicting views about how bad it is, and the balance between groups
debating how much we should sacrifice other values in order to get rid
of it.
lt would not come immediately to mind that the technical operation of
background institutions with clearly nonpolitical purposes is a major cause
of inequality. We might want to adjust their practices to fit, say, legislative
changes in an egalitarian direction. But this is likely to be an attempt,
post hoc, to minimize the "damage" caused by reform.
There is a wide range of views on the question of the relative importance
of political and nonpolitical reasons for inequality. At one extreme, one
might believe that the whole story is that the people with political power
are unwilling to make the small sacrifices necessary to abolish it. At the
other, one might believe that no amount of good will and effort and sac-
244 CONSEQUENCES OF AD)UDICATION

rifice could abolish it, because its roots are in human nature and the ne-
cessities of social life, and besides there s nothing wrong with it.
With respect to the level of inequality in society as it exists right now,
there is a related spectrum of attitudes. The current level might be intol-
erably and unnaturally and unnecessarily large, or far too small to be con-
sistent with ethics and rationality, or it might be just about right. The
argument is that how you see the common law will influence where you
stand on this spectrum.
Suppose the choice is between seeing the common law as a nonpolitical
background institution whose practices are governed by technical require-
ments (the interstate highway system) and seeing it as a part of the political
system that resolves issues of ideologized group conflict. The claim is that
the more you see it as political (in the sense of ideologically disputed choice
that increases or lessens inequality), the less likely you are to see the current
level of inequality as natural and necessary, and the more complex your
argument that it is just. In short, the withdrawal of the common law from
politics favors the status quo. Why should this be so?

Politica! consequences of withdrawal

One way to look at it is in terms of "room for maneuver." If government

affects inequality only in a small number of ways, it is less likely that it
can have a major impact on it than if it affects it in many ways. If gov-
ernment affects it only in limited ways, then it might be necessary to
undertake drastic changes in those ways if we expect to have a big impact
on inequality.
But there is a second element to the theory. To the extent the rules made
by judges are withdrawn into an area where they have their own peculiar
form of justification, then changes in those rules will have to confront
reasons for the rules that have nothing to do with inequality. The rules
are rationalized by judges and endorsed with judicial charisma. Just be-
cause they have entered the domain of consideration as instruments that
affect inequality doesn't mean that the political process now has free play
to fit them into an instrumental inequality calculus.
Imagine that we begin to develop, as the realists did, a sophisticated
"policy science" of the distributive implications of common law rules.
When it seems that changing a particular rule would have good (conser-
vative or liberal) consequences, we have to deal with the fact that the rule
is located in the common law domain and therefore reenforced by the mana
 The Legitimation Effect 245

or charisma of the judiciary that established it. To mess with this rule will
be understood as messing with one of the set whose derivation is outside
the political process but also in a domain of authority.
The analogy is to arguing, for example, that bridges should be built
differently in order to make it easier for poor people to cross them. Such
a proposal comes up against the notion that the authorities "know what
they're doing." lithe Engineer says it should be built in a particular way,
then we ought to do what he says.
But it is not just a matter of floating, prerational charismatic power.
Like the Engineer, the Judge has her reasons. There is an apolitical logic
of bridge building, based on factors like cost and safety. There is also an
apolitical logic to the common law definition of fraud (false statement,
made with knowledge of falsity, that reasonably induced reasonable reli-
ance by the addressee, to his or her detriment).
At least it is the burden of the legal opinions that lay down the rules,
and of the academic literature that compiles and comments on them, that
there is such a logic. This body of texts is "apologetic," in the sense that
it argues, under the convention of necessity, that the rules are as they
should be, or that the rules should be marginally modified in a conservative
or liberal direction. In other words, we withdraw the common law from
politics into a domain in which there are apolitical ethical and instrumental
and purely "technical" justifications for what the judges have done.
The notion that law is apolitical has both a positive and a negative
meaning. The positive meaning is that there is a judicial method, that the
method is that of fidelity to the materials (to the past, to the previously
agreed on), and that the method is, in some sense, to a large degree, ideolog-
ically "neutral." The negative is the absence, from judicial or academic
justifications for rule interpretations, of the kinds of reasons that are cul-
turally identified with the ideological.
These include preference for egalitarian or unequal income distribution,
for a particular religious vision, for a controversial version of sexuality, or
for the promotion of racial, as opposed to individual or "American," iden-
tity. Ideological preferences are present as a matter of fact, as I argued
above, built into the universalistic discourse of "policy," and worked out
by restrained activist, difference splitting, and bipolar judges. But they
are present denied, as the stain of bad faith.
The point is not that the rules thus justified have a liberal or a conser-
vative "tilt." Within the domain of law making by adjudication, the dif-
ferent ideological fractions vigorously pursue their different agendas. Their
246 CONSEQUENCES OF ADJUDICATION

success varies with time and the process of judicial appointment, subject
to the vagaries of the moderation and empowerment effects.
The point is rather that a cost of movement toward greater equality or
greater inequality appears to be the "abandonment" of law. It means chal-
lenging authority; it means renouncing the security of understanding this
part of social order as "necessary" (in the sense that legal outcomes are
necessary rather than contingent), in favor of flux. It means finding a way
to answer the web of legal argument that asserts the fairness, rightness,
usefulness of the judge-made rules, and their transcendence of narrow ideo-
logical considerations.
In short, our current understanding, however qualified by cynicism,
withdraws these legal rules into a domain in which a whole knowledge
industry has worked for generations to justify them, subject again to mod-
erate reformist and reactionary critiques. The legitimation hypothesis is
that this limitation of the political imagination is good for the status quo.

Disclaimers

I want to reiterate that the legitimation effect is not based on an assertion

about the "nature" of law or legal reasoning. It is far more contextualized
than that, indeed specific to American law and politics in this moment.
Moreover, the effect is hypothetical. It may or may not be true that law
making through adjudication buttresses the status quo in the way I have
described. It seems plausible to me, and worth working on, both at a
theoretical and at a practical level, but no more. Finally, delegitimating
the system through internal critique might be part either of a left- or a
right-wing program. I believe that the effect of critique in the specific
milieu of the elite legal intelligentsia tends to be consistently left wing,
but I may be wrong. Effects in other social milieus are even more conjec-
tural.

An analogy

Imagine a culture that is heavily dependent on agriculture. It is a tradi-

tional culture in the sense that, with one exception, it has, from time
immemorial, planted, cultivated, harvested, and processed plants in what
everyone agrees is "the same way." Agriculture and religion are inter-
twined. The gods and goddesses are crop gods, weather gods, farmer gods.
Every element of the agricultural process has a mythical interpretation, a
 The Legitimation Effect 247

place in religious beliefs and rituals. There is no science of the consequences

of small or large departures from the traditional agricultural techniques.
These are understood and explained as responses to commands of the gods,
although, of course, the fruits are understood to be necessary to sustain
life.
The exception is the system of irrigation. It is understood as an instru-
mental activity, based on human invention and skill. Its purpose is to
maximize the quantity and quality of production. This is fully compatible
with religion, and indeed sacralized, but sacralized as pleasing the gods
by "aiding their work." There are no specific religious commandments
about irrigation, and no part of the ritual system is organized around or
depends on any particular irrigation practice.
The idea is that in this society the response to a change in the environ-
ment, or to a change in the goals of people with respect to the quantity
and quality of food, will focus on irrigation practices. If changing these
doesn't work, change may appear impossible, the status quo natural, and
the consequent distribution of welfare fair to everyone.
Of course, religious invention and reinterpretation are always possible
and may occur in a way that promotes response to environmental or nor-
mative change. The religion may have, for participants and observers, qual-
ities of truth, and it may promote values that are highly admirable. It may
be wholly "rational" to focus on irrigation in responding to crisis, given
the noninstrumental "functions" of religion in the society. But the response
is still likely to be different from what it would be if agriculture were an
instrumental activity, with religious belief organized around, say, sexuality
and reproduction. Our situation is like this, except that the priesthood is
in bad faith in its claim of necessity for the rule system it administers.

The practice of de/egitimation

The legitimating effect of law making through adjudication, as I've been

describing it, differs from the empowerment effect because ir reenforces
the status quo, whatever that may be. The empowerment effect allows
fractions of ideological intelligentsias to exercise power that would be
denied them if they had to go through the legislature. The judicially
empowered intelligentsia creates a body of doctrine that becomes a natu-
ralized element that helps reproduce the status quo while appearing merely
to serve it.
This critique of adjudication has a particular history. It was developed
 248 CONSEQUENCES OF ADJUDICATION

by liberals arguing both against the empowerment of conservative judges

and against the legitimation of the conservative status quo. In their de-
legitimation efforts, the liberals pursued their strategy across a variety of
legal domains. But after they gained control of Congress and the executive
branch in 1932, and of the federal judiciary over the ensuing years, they
stopped doing it. They had become the managers of the postWorld War
II social settlement rather than critics of a failing laissez-faire state.
It was taken up again in cis, in the aftermath of the 196os, this time
as a radical critique of mainstream liberal legality, rather than as a liberal
critique of conservatism. The critique of the common law in relation to
legislation, that is, of the separation of powers, offered above is just one
of this larger family of liberal and radical critiques. The rest of this chapter
appropriates (rather than summarizes or "reads") a variety of critical works
to try to show that delegitimating critiques with a similar underlying
structure can be operated in many different legal fields.
In each case, what the critic is going after is this phenomenon: there
are groups engaged in cooperative but also competitive relations within a
legal structure. The activities of the members of the groups are in the
foreground, from the point of view of everyone involved, meaning that we
attribute the outcomes of competition and cooperation to their actions, to
their choices and strategies, and to the distribution of resources among
them. The legal rules that structure the competition are in the background.
Everyone knows they are there, but they are naturalized, taken for granted,
not attributed causal significance in explaining the outcomes of the battles
that occur within their framework.
A delegitimating critique of the kind I'm discussing in chis chapter is
an attempt to operate a background/foreground shift. It attributes causal
significance for the outcome to the background rules. The point of the
analysis is not transparency, a situation in which all elements of the situ-
ation would be continuously before us and nothing would ever be natu-
ralized that wasn't "really" natural. It is rather to perform a specific polit-
ically motivated operation of reversing figure and ground.
We assert chat something that is background for others is causally im-
portant in the hope that if we are right, and we can make people see it,
we wiJI make it plausible that there are more ways to change the status
quo than previously appeared. We argue against that part of its legitimacy
that derived from its appearance of inevitability.8 The critique was first
developed in the context of labor law. I will sketch a version of that effort
and then construct six extensions, to the law of federalism, international
 The Legitimation Effect 249

law, local government law, race law, the law oí the First Amendment, and
gender law. My presentation becomes more schematic as it goes along and
in every case neglects the richness of context and the major differences
between the different authors, within as well as among fields.

Labor law

Labor and capital are each organized, with individual workers and unions
on one side and capitalist enterprises of different sizes and structures on
the other. There are elaborate rules of the game about how the entities can
be constituted (bargaining unit definition, union democracy rules, corpo-
rate and antitrust law) and about what they can do to each other (covering
activities like trespass, picketing, strikes, secondary boycotts, discharge,
lockouts, blacklists, and so forth). The outcome of conflict and cooperation
is a distribution between the underlying groups behind the legal entities.
In the foreground, the outcomes are determined by "bargaining power," a
black box that includes the value at the margin of contributions to the
productive process, but also strategy, group cohesion, resources, and so
forth, of capital and labor.9
The first version of labor law delegitimation was that of the progressives
up to the passage of the Wagner Act. In the United States the two main
movements of opposition to the status quo in the late nineteenth and early
twentieth centuries were the agrarian movement and the labor movement.
The law of legal personality, especially corporate law, and tort law were
focal points. In particular, labor cases put common law judges in the po-
sition of deciding issues that were ideologically contested with large stakes.
Both labor and capital defined the issue in terms of "unbiased" rules of
the game.
The legal representatives of capital developed a version of property
rights that conservative judges accepted in many cases.'° The labor move-
ment developed a symmetrical populist position based on the right of the
individual to dispose of his labor and to make agreements with others
parallel to those among employers. Outside the milieu of socialism, the
demand was for a "fair shake" or for preservation of traditional forms of
worker collectivity, rather than for, say, worker control." Labor advocates
argued that the conservatives were distorting the true logic of a system of
individual rights in order to protect their interests. But their supporters
in the progressive intelligentsia had a much more sophisticated notion of
what law was and what it could achieve.
250 CONSEQUENCES OF ADJUDICATION

The delegitimation strategy was a four-part argument. Later versions in

other areas would have the same basic structure.
i. Neither common law precedent nor common law theory, relying on
"formalist" reasoning from terms like "property," "coercion," "lib-
erty," and "right," could legally compel the adoption of either a pro-
capital or a pro-worker legal regime. Property was just a bundle of
rights. There were vast leeways in deciding how to compose the
bundleit was "inevitably a question of policy."
The design of the background rules had a much larger effect on
outcomes, including not just the distribution of surplus but also the
tenor of industrial life and the prospects for economic growth, than
you'd think when focusing on the foreground of strikes, collective
bargaining, union organizing, and union busting. The rules consti-
tuted the bargaining power of the parties, rather than merely pro-
viding the site for its exercise.
The rules that were in force and that were emerging in the great
cases represented a particular choice by a judicially empowered con-
servative minority. These rules were naturalized through an inter-
nally incoherent discourse of legal necessity that claimed they were
the logical consequences of having a capitalist system in the first
place.
We needed to adopt a more "progressive" law of industrial organi-
zations and labor torts, one that would allow the adjustment of the
conflict of labor and capital in a way that would not threaten civil
order. Under such a regime, the situation of labor would improve
gradually, interstitially, by institutional adjustment, toward work-
place democracy in a growing economy, rather than through cata-
clysmic revolutionary strategies. The rights of property and interests
of capital could be protected, once we stopped fetishizing absolute
rights, without creating a right-wing police state.'2
The argument that there were no "absolute" property and contract
rights, so that social policy was appropriately called on to draw lines, was
highly effective, indeed the prototype for legal realist analysis. But as a
piece of private law theory it was superseded, indeed it disappeared from
consciousness, when the reformers came to power and took the route of a
federal statutory reordering of labor relations in the NLRA.
The modern, cis version of a labor law delegitimation project was ad-
dressed ro this statutory regime and performed on it a remarkably similar
set of operations. Karl Klare'3 argued that the moderate liberal judges of
 The Legitimation Effect 25 1

the 19405 and 19505 had chosen a particular interpretation of the NLRA,
one that was required neither by the principles of statutory interpretation
nor by a compelling theory of the background legal context, but rather by
a "deradicalizing," moderate liberal ideology. These acts of interpretation
by a labor intelligentsia empowered through adjudication created a legal
regime that naturalized a particular vision of collective bargaining.
It created a legal context that was systematically hostile to labor mili-
tancy, whether at the level of union activity or at that of the rank and file.
The promotion of arbitration, enforcement of no-strike clauses, insulation
of unions from effective fair-representation suits, constriction of subjects
of compulsory bargaining, narrow interpretation of the duty to bargain in
good faith, and many other doctrines represented ideologically motivated
choices with massive but largely invisible consequences. What came to be
regarded by both labor and management intelligentsias as the beneficent
logic of the collective-bargaining "system" created by the statute func-
tioned in fact to demobilize workers and then "administer" them.
The obvious difference between the earlier and later critiques is that the
first was liberal and the second radical, oriented to worker control, work-
erist, hostile to what Kathy Stone called "industrial pluralism."4 Another
important difference is that the cis critiques emphasize the reproduction
within the antiformalist, policy-driven liberal labor law regime of "social
conceptualist" legal reasoning techniques." As we saw in Chapter 5, the
realists didn't come close to solving the problem of the coexistence of
deductive with policy reasoning, and this made their work vulnerable to
a critique analogous to that they had leveled against formalism.
A third equally important difference is that the critical analysis em-
phasizes the way the labor law regime and its analogues actually constitute
the "subjects" they regulate. In addition to distributing surplus by influ-
encing bargaining power, the labor law regime favors the "social construc-
tion" of passive workers and then purports to give them what they want
through freedom of contract.'6 The progressives tended to take the "sub-
jects" of the conservative regime as given outside the legal analysis, thereby
avoiding difficult political questions of "false consciousness" but also un-
derestimating the stakes of law.'7

Federalism

More or less at the same time that they were critiquing tort law in the
labor context, the progressives applied the same tactic to the law of fed-
eralism. Liberal/conservative conflict takes place within a public law struc-
252 CONSEQUENCES OF ADJUDICATION

tute that allocates some powers to the federal and some to the state gov-
ernments. At any given moment, in the foreground of political conflict,
liberals and conservatives compete in elections for control of governments
at both levels. The choice of policies with distributive consequences for
their constituencies depends on how they do.
But once liberals or conservatives gain power, what they can do at the
level they control is conditioned by the rules of federalism. If you control
the federal but not the stare level, you get only federal powers. If you
control at the state but nor the federal level, you may be legally blocked
by the law of federalism and practically blocked by deregulatory compe-
tition among the states.
Again, the progressive motive for critique was conservative judicial in-
terpretation, in this case of the commerce clause and the Tenth Amend-
ment. The federal government had no power to regulate activities whose
effects on interstate commerce were merely "indirect"; manufacturing was
"not commerce"; the states could not supplement weak federal regulation
where Congress had "occupied the field"; the states were prohibited from
regulating in some areas even if Congress had not done so.
lt is easy to see this doctrinal development in terms of the empowerment
effect: conservative political groups achieved results that they might not
have been able to achieve through national and state legislatures. The
legitimation effect was the "withdrawal" of the issue of the allocation of
state and federal power from the political discussion of how to deal with
monopolies, child labor, and so forth, because it appeared that federalism
was just a neutral framework for the democratic process, rather than a
framework shaped by the very interests that were contending within it.
The progressives responded by developing the same force field model
for federalism that they had worked out for private law conflict.'8 They
attacked all the conservative on/off distinctions as hiding questions of de-
gree that couldn't be decided without reference to policy.
(r) Within the general framework of the Constitution, there are vast
leeways in deciding the particular rules of federalism, because terms like
"power," "commerce," and "tax" are too vague to preclude setting the rules
so as to further the substantive liberal or conservative policies you favor.
(2) The choice of a particular specification of the idea of federalism will
have large consequences, much larger than appear if you focus on the
foreground of state and federal electoral politics. () Our specific set of
rules is the product of conservative judges empowered through adjudica-
tion, legitimated through legal reasoning, and much worse for liberal re-
 The Legitimation Effect 253

form than would be an alternative liberal regime. (4) We should change

them so that federalism, within the broad limits oí the Constitution, favors
rather than impedes rational policy making at whatever level of govern-
ment.
The progressives' analysis was just as successful politically in this area
as it was in that of labor law, and it suffered the same fate of intellectual
disappearance. At the level of substantive doctrine, when they gained con-
trol of the courts during the New Deal, the progressives weakened or
abolished the conservative doctrines and promoted national supremacy in
fact, if not in name.'9 At a more abstract level, the main accomplishment
of the Legal Process school was the working out of a theory of federalism
that drew lines between areas of institutional competence through coher-
ence-oriented policy argument, without resort to ideology.20
The effect was similar to that of the codification of labor law through
the NLRA. The doctrinal entrenchment of federal power was so complete
that the sophisticated intellectual routines that had seemed necessary to
establish it became irrelevant. When Rehnquist and Scalia began to revive
the earlier conservative doctrine in the 198os, the liberals had all but
forgotten the responses that once had seemed second nature. The analysis
was, however, one of the building blocks for the critique of local govern-
ment law discussed below.

Public international law

To my mind, the progressive critique of public international law presup-

posed a structure analogous to those of labor law and federalism. Com-
petition between groups occurs within the system of states or sovereigns
whose relations are ordered by public international law. Ethnic groups may
be consolidated within a homogeneous sovereign unit, may dominate many
small states, or may be dispersed as minorities within states controlled by
other groups. In the foreground, it appears that states compete through
war, trade, and diplomacy, with the results determined by their resources,
strategy, and so on. But the outcomes for the groups that underlie the
state system depend on what a state is, that is, on what sovereignty "is,"
and on what states can "legally" do to each other in war, trade, and diplo-
macy.2'
Progressive "modernists" critiqued this system and tried to revise ir
through the League of Nations.
(i) Within the general framework of a state system, there are vast lee-
254 CONSEQUENCES OF ADJUDICATION

ways in defining sovereignty, which is, like property, best seen as a bundle
of rights and powers and which lacks, like property, an internal logic that
would make it sensible to oppose any desirable solution for an international
problem on the ground that it is "incompatible with sovereignty." (2) The
choice of a specification of the concept has much larger consequences than
people preoccupied with the foreground of military, diplomatic, and eco-
nomic conflict within the rules imagine. (3) The preWorld War I rules
were put in effect by leaders of a small group of dominant imperialist early
modern states and then frozen through legal reasoning as necessary im-
plications of basic concepts.() It was urgent to revise the state system by
reconfiguring sovereignty and building new institutions, in the interests
of the victims, whether those who die in wars, the colonized peoples, or
minorities within existing states.22
The interwar thinkers, like the progressive critics of labor law and the
law of federalism, were successful in the sense that their ideas became a
kind of orthodoxy in the era of the United Nations. But as orthodoxy the
critique became itself a part oí the background, this time for a disinte-
grated pragmatic policy discourse within the larger structure of Cold War
stalemate.
I would cannibalize the work of cis post-Vietnam critics for use in my
schema as follows. They hoist the antiformalist liberals on their own petard
by pointing out the residual power of a formalist concept of sovereignty
within a discourse that claimed to have superseded any such primitive
notion. They pointed out the tension between the claim to have superseded
formalism and heavy reliance on the notion of expertise to legitimate suc-
cessive New World Order projects. As had the labor lawyers, they em-
phasized the subject-constituting effects of legal discourse but included
the decision makers themselves as products of their own policy speech.
Along with other second- and third-generation crits, they developed a
postmodern methodology that had not previously been tried in law. They
eschewed programmatic radicalism and replaced analysis in terms of rela-
tively coherent visions with a combination of cultural critique and the
kind of semiotic analysis described in Chapter 6.23

Local government law

I think there is a good case for describing local government law as defining
a field like those above. Rich and poor and black and white compete in
markets, which are a foreground for the exercise of bargaining power,
 The Legitimation Effect 255

against not one but two backgrounds. The first is that of the rules regu-
lating the interactions of labor and capital as bearers of "legal personality,"
developed in labor and corporate law. But these same groups also pursue
their interests within local government law, a "state system" analogous to
the international and federal systems.
Groups can homogeneously control their own city, town, or county
governments, exist as minorities within them, find themselves "balkan-
ized" or "ghettoized" by the local government system, and so forth. Legal
rules govern the formation and dissolution of such governments, and what
they can do in competition with one another through their tax, zoning,
and voting policies, and legal rules also allocate powers between state and
local government. The relative wealth and poverty of groups, as well as
their opportunities for consumption of housing and community charac-
teristics like slum conditions and racial segregation, depend on this struc-
ture.
There does not seem to have been a progressive critique in this area
parallel to those in labor, federalism, and international law. As I read it,
the cls version24 was originally quite close to the early labor law model
but built on the realist critique of federalism that was still an important
part of the law school curriculum in the late 1950S and early 19605. Local
government law was also one of the locales for the shift to postmodernism.
I would appropriate some of its elements for purposes of my schema as
follows.
(t) Within the general structure of local government law, neither the
public/private distinction nor concepts like plenary state power over mu-
nicipal corporations and home rule are any more determinate as guides
than property, states' rights, or sovereignty. Doctrine develops through
opposed rhetorical modes (for example, picturing space as naturally divided
or as featureless). There is no reason not to take our substantive views
about rich/poor, black/white conflict into account in designing this struc-
ture. (2) Its distributive effecton urban wealth and poverty, for example,
or on the national pattern of racial segregation in housing, schools, and
jobsis vastly greater than appears when we focus on the foreground of
city budget crises, desegregation decrees, urban riots, or white flight.
() The extant rules were frozen in place by nineteenth- and twentieth-
century judges with various agendas and naturalized through legal reason-
ing. They function today to generate outcomes much less favorable to
cities, the poor, and people of color than might occur under a different set
of rules. () We should change the rules to change both distributive out-
256 CONSEQUENCES OF ADJUDICATION

comes and subject-creation effects significantly,2' rather than limiting our-

selves to the solutionstax-and-spend programs and legal strategies based
on individual rights, formal equality, and fair procedurethat are typical
of modern liberal thinking in the area.

Race law

The legitimation critiques in the areas of race, the First Amendment, and
gender law differ from those in the above areas because they do not have
progressive forebears. Indeed, First Amendment, and race and gender equal
protection law, as developed from the 1930S through the 1970s, represent
the main alternative to legal realist policy analysis and interest balancing,
namely, the appropriation by liberals of what had been a right-wing rheto-
ric of individual constitutional rights. In these areas, the liberals were
antimajoritarian and therefore concerned to build up, rather than under-
mine, judicial authority.
As I see it, the analysis in the race area had two stages. Derrick Bell
showed how the development of supposedly color-blind, individual legal
rights against discrimination in the school desegregation context could
have large negative consequences for their supposed beneficiaries.26 Liberal
victories sometimes turned out to undermine black community resources
and institutions and to promote the polarization of the black community
along class lines. The judiciary, and white elites in general, were at best
only ambivalently committed to racial justice. Rather than pushing for-
ward to deal with the unintended consequences oî reform, they pulled
back from confrontation with the white working and lower-middle classes,
and compromised or gutted the set of legal doctrines that had promised
to transform the legal structure oí black-white relations.27
The legitimation critique in the area of race law was of the way in which
the prestige of the judiciary, the mana of the Judge, deployed from the
1950S through the early 1970S by liberals against racial oppression, turned
against the cause of racial justice when conservatives got control of the
courts and switched from the "victim" to the "perpetrator" perspective.
Alan Freeman's brilliant analysis28 was thus parallel in its radical intentions
to the critiques of liberal policy analysis in labor law and international
law, but he aimed at a different mode of judicial legitimation of the status
quo. His work, and some of critical race theory, fits the more general cis
schema as follows.
(i) The legal concepts, like equal protection, discrimination, and eq-
 The Legitimation Effea 257

ultable remedy, that provide the structure for black-white relations in a

racist society that has abandoned de jure segregation are open to contra-
dictory interpretations reflecting opposing ideological orientations to racial
justice. (2) The consequences, for the black community, of adopting one
or another of these interpretations are large, much larger than appears when
we imagine that the legal issue of race has long since been settled by the
dismantling oî de jure segregation.29
() The shift from one interpretation of race law to the other was op-
erated by conservative judges exploiting the underlying indeterminacy of
the legal concepts and the ideology of color blindness.° They naturalized
the new rules through the prestige of adjudication, doing their best to
make it appear that the massive remaining group inequality is explained
in terms of factors like merit and cultural differences between blacks and
whites. () We should adopt a "race-conscious" approach, and change the
rules to fulfill the radical promise of the early desegregation decisions.

The First Amendment

The foreground for political and cultural competition is the "marketplace

of ideas" that is said to result from the constitutional guarantee of free
speech. Groups compete to dominate in this market, both because having
a share of the culture is an end desired for itself and because speech is
instrumental in all the other kinds of competition. The background rules
here are those that govern what entities get protection (corporate speech,
broadcast licensing and regulation), the distinction between speech and
action, and the list of what types of speech get protected.
The law of sedition and the rules governing libel, slander, assault, in-
tentional infliction of emotional harm, sexual harassment, fraud, obscenity,
and more recently hate speech constitute a speech-tort code analogous to
that governing labor/capital conflict. The code influences both the content
and the authorship that is in the foreground when we pay attention to
discursive conflict.
The critique of free-speech absolutism has no progressive predecessor,
though it is a response to the liberal regime that emerged in the 1960s
and 1970S from the earlier battles over the proper treatment of issues like
labor picketing, communist speech, and civil rights and antiwar protest.
The critics have been antipornography feminists,32 critical race theorists
supporting the regulation of hate speech," and crirs deploying the realist
analysis.34 I would assimilate it to my schema (not summarize it) as follows.
258 CONSEQUENCES OF ADJUDICATION

(i) The regime, constituted by the combination oían individua! and a

corporate legal right of free speech with a particular legal definition of
speech torts, has no more coherence than property, sovereignty, states'
rights, or home nile. There are vast leeways in the definition of the regime
and no reason to disregard the impact of choices on issues of democracy
and subordination. (2) The influence of the background rules defining who
is protected, and of the speech-tort code, is far greater than appears when
we focus on the foreground in which people speak more or less persuasively
to larger or smaller audiences. (3) The rules of the game were put in place
by liberal and conservative judges and frozen through lega! reasoning.
They favor money, entrenched political power, and groups that use speech
as a weapon of subordination. () We should change them to make them
better serve the interests oía mobilized electorate and of the groups whose
subordination is perpetuated through various kinds of low-value speech.

The law of gender

It is easy to see how one can mechanically apply my schema to the law of
gender.
(i) The regime of legal rules that constitutes men and women and gays
and straights as legal subjects, and then structures their competitive and
cooperative interactions, has no more coherence than the others described
above. (2) Its effects are great, potentially far more important than those
of the foreground dramas provided by the prosecution of cases of alleged
abuse, the battle over affirmative action for women, or the gender wars
beloved of the media. (3) It was put in effect by conservative and liberal
judges who thought they could derive it from their (conflicting) ideas
about the natures of men and women, gays and straights, and naturalized
as background through legal reasoning. (j) We should change it in the
direction of radically egalitarian, anti-essentialist gender liberation.
But this is no more than a form. To give it content is to illustrate again
that there is no general theorem of the legitimating effect of adjudication,
only a series of historically specific examples. In this case, the crucial moves
were those that allowed the extension of the labor law model to gender
but in the process transformed the schema. The extension was difficult
because there are many ways in which we conceive issues of gender law as
arising in a context so different from that of labor law that they are irrel-
evant to one another.
To begin with, labor law is the place where the distributive focus, which
 The Legitimation Effect 259

frankly asks how law affects the division of the fruits of cooperation be-
tween participants, is most developed and has been most developed for the
longest time. The law of gender, by contrast, seems mainly preoccupied
with two quite different kinds of issues: first, with defining the limits of
formal legal inequality between the sexes and, second, with the enforce-
ment of norms thought of as unproblematic, like the prohibition of do-
mestic violence.
In labor law, issues of formal inequality were worked out over the eigh-
teenth and the first half of the nineteenth centuries," so that the preoc-
cupation of theorists of the field, whether Marxist, progressive, or conser-
vative, was how to analyze and respond to the tendencies coward inequality
within a regime of formally equally legal rights. The cls critique was, in
a sense, third generation, following first the Liberal critique of formal labor
hierarchy and, second, the liberal critique of the conservative version of
equal rights for labor and capital.
Feminist reformers through the 1970S initially focused on completing
the Liberal critique of de jure gender inequality. They had to work out a
liberal feminist approach to issues like special treatment for women as
child bearers within an only recently established regime of formal equality,
and devise new practical remedies for male abuse of women. The radical
feminist approaches to legal issues I am about to describe, like the post
civil rights movement race critiques, can be seen as responses to the re-
alization that neither the establishment of formal legal equality, nor its
fine tuning, nor supplementing it with affirmative action would "solve"
the problem of gender oppression.
The competitive and cooperative relations between men and women
occur in a variety of domains, each with its own sociology and its own set
of legal background rules. There are the domestic sector, the "street," and
the workplace, to name just three. The "stakes" in the domains are dif-
ferentpower over household decisions, the division of housework, and
sexual conflict and cooperation differ markedly from competition for jobs
and salaries in the marketplace. But power translates or transfers from one
domain to another, as when the restriction of employment opportunities
reduces women's bargaining power in the home.
The distributive conflicts between men and women are played out be-
tween individuals, rather than between legally structured organizations
like labor unions, corporations, sovereign states, federal and local govern-
ments, and media "speakers." Far more than in economic relations between
social classes, we habitually attribute what happens in these face-to-face
260 CONSEQUENCES OF ADJUDICATION

interactions to "custom" and to the natures, or "identities," of men and

women. The role of the state is close to invisible.
To my mind, the crucial moment in the development of feminist legal
theory occurred when Catharine MacKinnon36 and Frances Olsen37 figured
out how to overcome these obstacles to applying the critique of labor law
to gender. They found two parallels. First, the distribution of income
between labor and capital is mainly rationalized through the notion that
distribution results from free bargains between workers who own their
labor and capitalists who own the means of production. Likewise, the
distribution of a million things between men and women is rationalized
through the idea that men and women mutually consent to them on the
basis of equal rights to property and bodily security.
Second, like the consent of workers, the consent of women takes place
in the context of the relative bargaining resources of men and women, and
this is crucially affected by what men and women can do to one another
under the regime of tort and crime. The laws governing aggressions by
men against women play a crucial role, because their weaknessesboth in
legal definition and particularly in enforcementradically disempower
women, inducing them to enter bargains that are much worse than they
would be if women were better protected against aggression.
There is a counterintuitive analogy here: law effectively protects the
property of capitalists against worker attempts at appropriation, both in
the gross sense of constitutionally protecting capitalism and at the micro-
level of controlling what unions can do to employers in labor conflicts.
The law is far less effective in protecting the bodily integrity of women
against male assault, and women are consequently at a vast disadvantage
in bargaining compared to what they would have in an alternative more
pro-woman regime.
A clear focus on consent as induced in bargaining within these back-
ground rules is profoundly delegitimating because, as with the critique of
freedom of contract in the labor area, it reveals that coercion is everywhere.
It particularly affects the domain of heterosexual relations that Liberal
culture celebrates as quintessential examples of human freedom. This is
the importance of Andrea Dworkin's critique38 of marriage and heterosex-
ual intercourse as profoundly conditioned by the realities of rape, prosti-
tution, the abuse of female children, and radical economic inequality. She
refuses to treat sex as a domain to which the kind of critique ofexploitation
we make in the economic realm is irrelevant.
Both the role of bargaining against this background and the background
 The Legitimation Effect 26!

legal regime itself are far less visible than in the labor law area, because
of the widespread conceptualization of male-female interaction as "pri-
vate." Olsen's critique39 was that this notion has the double consequence
of making law more invisible than it ought to be and of rationalizing an
antiregulatory attitude on those occasions when the background is noticed
and it seems plausible to modify it to favor women.
The trick here is analogous to, and a complex extension of, the way the
public/private distinction has functioned in the labor area. First, just as
the economy is private in relation to the state, the family is private in
relation to the economy. Second, just as the privateness of the economy
vis-à-vis the state justifies leaving worker-employer bargains to the out-
comes conditioned by the invisible background rules, so the privateness
of the family vis-à-vis the market justifies leaving male-female bargaining
to the outcomes conditioned by the even less egalitarian background re-
gime of gender law.
On the basis of this figure/ground reversal, combined with the legal
realist/institutionalist analysis of the economy, the gender critique devel-
oped the notion that the legal regime constitutes the subjects who bargain
and consent within it. The regime (along with myriad other cultural prac-
tices) creates them as people who will consent to the reproduction of me-
galitarian relations that it seems merely to reflect.4° Just as liberal labor
law after the NLRA developed in directions that made workers passive,
according to the cls critique, the actual administration of the background
rules governing violence against women, and the property regime that
keeps them economically weak, has the effect of forming them as characters
who will accept and even embrace subordinate status. The rules push them
to understand themselves to be heterosexual, monogamous, and maternal
beings, as a consequence of the very nature of womanhood)1
With some notable exceptions, doctrinal analysisthe demonstration
of the incoherence of legal conceptions like marriage, custody, and con-
sentplays a less important role in this critique than in that of labor law,
internacional law, or First Amendment law.2 I think it plausible that, as
a matter of fact, the (mis)understanding of adjudication and legal correct-
ness, the denial of the ideological in legal work, play less important roles
in the reproduction of gender oppression than in other kinds of oppression.
It was rather the critique of rights43 (the subject of the next chapter) and
of identity,44 both important parallels to the critique of adjudication, that
developed here with particular clarity, as did the technique of analyzing
opinions as texts promoting or instantiating cultural conceptions.4S
262 CONSEQUENCES OF ADJUDICATION

Just as important, by the time the various critical movements in law

had extended the initial legitimation schema across all of these fields, it
had become something like a critical technology, in the same way that the
legal realist critique of conceptualism evolved into a critical technology in
the 193os. It is available for initiatives like Kimberle Crenshaw's "inter-
sectional" analysis of the situation of women of color and for queer legal
theory,47 and will continue to evolve if people continue to find uses for it.

The typical structure of cls-inspired policy proposals

The development of parallel critiques in field after field went along with
the development of a large number of concrete proposals for judicial or
legislative change in the particular legal rules that made up the structures
we were critiquing. We were influenced (although not at all required) by
our mode of critique to make policy proposals with a particular kind of
structure. I would describe it as follows. Many cts proposals focused on
changing the background rules so as to change the distribution of power,
as a means to redistributing the good things of life. By contrast, the main-
stream liberal emphasis tended to be more on regulating unequal rela-
tionships by the two techniques of prohibiting discrimination and requir-
ing particular substantive contents.
Typical "empowering" as opposed to "regulating" solutions are the crea-
tion of limited equity cooperative housing,48 liberalizing the battered
woman's right of self-defense49 and establishing a community-based shelter
system,'° changing labor law rules to promote worker self-organization,
worker participation in management decisions, and worker ownership,I
creating new tort remedies for sexual and racial harassment and hate
speech'2 and for employer abuse in the workplace," and modifying home
rule to give inner cities a voice in suburban decision making.4 But the
line is not a clear one. In the many cases where the critics favored regu-
lation, it was often, as in the case of the warranty of habitability," with a
view to the local, strategic use of new legal tools to pursue distributive
ends.
Shifting power balances by changing background rules also fit well with
the project, inherited from 196os radicalism, of equalizing distribution
among groups, conceived as crosscutting and intersectional, rather than
of, say, guaranteeing equality of opportunity to individuals without regard
to their race or class or gender. Typical policy proposals were "race con-
scious" or "gender conscious," or "class conscious," at the same time that
 The Legitimation Effect 263

there was a vigorousultimately perhaps a little too vigocousinternal

debate about the concept of identity and its place in left and mpm theory.
The local focus and the scattered, unsystematic character of the policy
proposals were partly the result of a basic difference between the cnt net-
works and their progressive forebears. The pOSt-1960s radicals had no
expectation of exercising state power and were skeptical about the possi-
bility of profound transformation of society from the center. Having a
program, in the traditional left sense of the term, seemed far less crucial
than it had to earlier generations with similar projects.

C/s versus progressive attitudes toward reconstruction

There were many other differences between the cls style of delegitimating
critique of liberalism and the progressive-era style directed against con-
servatism. I've already mentioned the contrast between radical and liberal
reformist political motivations, the different methodologies of internal cri-
tique, and the emphasis on the social construction of identity through law.
CIs has been committed to appropriating whatever is useful in neo-Marx-
ism, particularly its Gramscian strand, and aims to synthesize it with the
progressive/realist tradition of legal analysis that had treated the more
orthodox Marxism of its time as an "other." The various non-Marxist Con-
tinental European intellectual currents that influenced the progressives,
from structuralism/poststructuralism through psychoanalysis, had evolved
a long way in a generally irrationalist direction by the time the crits tapped
into them.
But perhaps more striking than any of these is the contrast between the
relatively unified progressive commitment to reconstruction by the appli-
cation of pragmatism to law and the wild diversity of attitudes toward
reconstruction within cis, within critical race theory, and within feminist
legal theory. My summaries above suppressed these differences of sub-
stance, strategy, and tone. The remaining chapters of this book bring them
to the fore.
 II
Adjudication in Social Theory

this chapter attempts to clarify the particular critique of adjudication I

have been developing by contrasting it with two others close enough to
be called cousins. Since the 196os, various American legal theorists have
struggled with the question of how our peculiar national mode of criti-
cizing law might allow us to make a contribution to social theory.' The
approach I have been describing and those with which I will contrast it
are attempts to figure out the consequences of legal realism for the grand
tradition of Weber and Marx.
In the grand tradition, both Weber and Marx theorized modern society
as an ordering according to intelligible abstract principles worked out in
the details of institutional life. This ordering was not a natural develop-
ment, in the sense of corresponding to natural laws of social life, but rather
a complex product of particular ideas with particular dispositions of forces
in conflict.
The state played an important role in both theories, in spite of the major
difference between them, because it was the vehicle through which the
participants in material and ideal clashes turned momentary victories into
an enduring regime. Legal regulation, in turn, was an obviously important
state function, because through it those who controlled the state could
develop principles of public and private order, defined at an abstract level,
into particularized norms governing daily interactions, and then make
them practically effective through the administration of justice.
The grand tradition looks "formalist" to an American steeped in realism.
lt treats the bodies of legal rules characteristic of modern societies as pos-
sessing a high degree of internal coherence, as developments of the prin-
ciples of the regime. In this respect, social theory parallels the American
jurisprudential coherence theory that viral critics have been challenging
264
 Adjudication in Social Theory 265

since the turn of the century. And the grand tradition imagines legal
regulation as institutionally effective in a manner belied by realist skep-
ticism about the correspondence between the law in books and the law in
action.
The grand tradition's alleged misappreciation of law seems important
because law is such an important element in the tradition. But it is still
an open question how the incorporation of one or another version of post-
realism might alter the Weberian and Marxist theories. And it is another
open question to what extent we can usefully deploy elements from those
theories to explain judicial behavior and assess its effects, once judging is
seen as underdetermined by logic and incoherent as policy.
The approach I've outlined, looked at as postrealist social theory, has
three components: the distributivist analysis of the ideological stakes of
formal law making, the notion that adjudication is a forum of ideology,
and the theory of denied strategic behavior in legal interpretation. The
moderation, empowerment, and legitimation effects of adjudication are
supposed to be plausible consequences flowing from the combination of
these elements in the context of an ideologically divided society.
What shall I call this theory? Not the "cnt" theory, because although I
tried in the last chapter to assimilate a large amount of cnt work to it
(and could have assimilated a lot more in similar fashion), there is no
consensus on these issues, as we'll see in this chapter, among people who
have identified themselves as cnits. It is, likewise, only one among a num-
ber of possible left/modernist-postmodernist theories. I'll call it the "Pink
Theory," or PT.
The PT developed in the face of and in continuous response to two
critiques. The first, the "skeptic's critique," has been that the PT overes-
timates the social significance of appellate adjudication. The second, the
"systematizer's critique," is that the PT underestimates its significance.
Both skeptics and systematizers draw on elements from legal realism, em-
pirical and functionalist sociology, neo-Marxism, American populism, crit-
ical theory, and other elements too numerous to figure out.
The skeptic's critique is that the Pink Theory overestimates the signif-
icance of appellate opinions, because the formal law they produce has little
practical importance and their ideological productionshave little audience.
The systematizer's critique is that the theory underestimates the extent to
which the specifics of judge-made formal law can be explained as respon-
sive to and legitimating of either the needs of a market system or the
structural requirements of particular stages of capitalist development.
266 CONSEQUENCES OF ADJUDICATION

According to the PT, a sophisticated analysis of the distributive effects

of legal rules, along with the analysis of hypothetical phenomena like the
moderation, empowerment, and legitimation effects of denied ideology in
judicial law making, are about what one can hope for from a social theory
of adjudication. In this chapter I defend this position against the skeptic's
view that this is too much, through a description of the "mandarin ma-
terials controversy," and against the systematizer's view that it is too little,
through a description of the "rationalism/irrationalism debate" in early
critical legal studies.

The mandarin materials controversy

In the 1980s, American legal sociologists who had long since abandoned
dispute-resolution functionalism had a biting critique of the cls preoccu-
pation with appellate opinions and other "mandarin materials." This attack
came first from older "law and society" mainstreamers, like Lawrence Fried-
man, and then from the Amherst Seminar, which loosely grouped left "law
and society" people, left legal anthropologists, and sociologists working in
the European critical tradition.
Both critiques had a strong tone of disciplinary ressentiment (even the
sociological mainstreamers seemed emotionally invested in seeing them-
selves as marginal and disrespected both in legal academia and in academic
sociology). The mainstreamers claimed that if you didn't do empirical
research, and do it in something more recognizably "the field" than a law
library, you certainly weren't a sociologist, or a "real" progressive, and most
likely were engaged in reasserting the social power of "law professors"
(sneer quotes) through Byzantine doctrinal discussions that we all know
have nothing to do with what happens in the real world.
The leftists, by contrast, had neither a scientistic idea of the empirical
nor a prejudice against the discursive in general. But they were very much
in agreement that the sociology of law should focus on what happens in
the field, defined as lower-level, "action-end" dispute resolution insti-
tutions. They also agreed with the mainstreamers that, as Susan Silbey
put it,

[sjome contemporary critical legal scholars reflect this sort of idealism

by attending exclusively ro doctrinal analysis and ignoring material or
behavioral substance in favor of a professional discourse which they treat
as the entirety of law. In this way, many critical legal scholars confuse
 Adjndication in Social Theoty 267

the rationalizations and argumentation of appellate courts with legal

practice
Traditional formalist approaches and contemporary critical legal schol-
arship cakes the lawcases, rules, statutesas non-problematic, when
they are just the opposite. The essence of recent law school trashing, as
it is called, is to say, "Hey! You, judges?" (There is no attention to anyone
but judges....You are not what you claimed to be or what we were taught
you are. You are not consistent and inescapably logical. Now, we've got
you, you are exposed for being the powerwielders that you are." By the
1980's, this portrait of legal indeterminacy is not a particularly original
observation. The limits of doctrine and form were carefully delineated at
the beginning of the twentieth century, albeit without the language of
ideological hegemony, mystification and reification associated with crit-
ical legal studies.
[TJhe deconstruction of the rationalist claims of legal ideology
has rested upon the discovery of logical incoherence and indeterminacy,
encouraging critics to focus upon the minutia of the discourse, without
reference or attention to its social construction (social determinacy). This
kind of attention to the formal discourse, distinct from action and prac-
tice, obscures its connection to external social structures.2

A comradely paraphrase might be: (a) Legal sociology has demonstrated

that the formal rules of law are not a description of the actual regularities
of behavior that characterize a society, because there are major disconti-
fluides between the formal rules and the way ground-level legal institu-
tions and private parties apply (or ignore) the rules in practice. (b) We
have known since the beginning of the twentieth century that the legal
reasoning that purports to govern judicial rule making is indeterminate,
in the sense of not governing it according to a logic. (c) Although legal
reasoning does not determine judicial rule making, and formal rules do
not determine legal practices, rule making and legal practices are both
determinedby social structures external ro the appellate adjudicative
process. (d) Therefore you have been wasting your time studying appellate
opinions.

The ¡au' in books versus the ¡au' in action

My intention is to respond to "books/action" skepticism by confession and

avoidance. It is true that the Pink Theory, in its analysis both of the
ideological stakes disposed through rule making, and of the moderation,
empowerment, and legitimation effects, depends on the notion that ap-
268 CONSEQUENCES OF ADJUDICATION

peliate adjudication makes a difference in the world beyond the dispute

before the court. As I said in Chapter 3, we are interested in appellate
adjudication because we see the judges as law makers, in the same way we
see legislators and administrative officials as law makers. 1f it makes no
difference (beyond the dispute in question) what law they make or how
they explain it, then there are no interesting ideological stakes in the rules,
and there is no possibility of legitimation through legal discourse.
I think realist and postrealist American sociologies of law have con-
vincingly and usefully demonstrated that we cannot ever assume, when an
appellate court chooses a particular rule interpretation over another, that
the various people (not before the court) whose conduct the rule seeks to
govern will behave in conformity with it. I would go further: t"y have
also demonstrated that even when the parties conform their behavior to a
legal rule, one or both parties often manages to alter some other aspecr of
the situation so that the rule fails to further the balance of policies the law
maker had in mind in choosing it.4 Thus the rules of constitutional law
that judges chose to promote school desegregation have failed in many or
most cases to achieve it, because of white flight.
Nevertheless, I don't think the sociologists have intended to suggest
that the choice of rules, whether by legislators, administrators, or judges,
has no effect on ideologized group conflict. lt would be absurd to argue
that judicial decisions about school desegregation were simply a dead let-
ter, res nullius, something that might just as well not have happened as
far as effects on American society are concerned.
Or take the transformation of American tort law in a strongly pro-
plaintiff direction over the last fifty years. It would be wrong to think that
judge-made changes ¡n the legal rules have translated in a straightforward
way into changes in corporate behavior, as cases like that of the exploding
Pintos (not recalled because ir was cheaper to pay off the victims) make
clear. But it would be just as absurd here as in the school desegregation
example to argue, against the evidence of furious corporate lobbying and
advertising campaigns for "tort reform," that what the judges did made
no difference, disposed no stakes in ideologized group conflict.
So what is going on? It is true that the Pink Theory has been concerned
to show (though not empirically) that the rule choices of appellate judges
are much more important than people think, and that the sociologists have
been concerned to show that the rule choices of appellate judges are much
less important than people think. Yet there may be no real conflict of
views.
 Adjudication in Social Theory 269

Remember that the Pink Theory is committed to the idea that judges
dispose important stakes of ideologized group conflict through choices of
interpretation of many different kinds of rules, ranging from the regulation
of abortion to the regulation of truck weight on interstate highways. It
makes no more sense to ignore them as rule makers, on the ground that
particular rules they make don't get enforced, than it would to ignore the
legislative process because the same is true of statutes.
The claim that the rules made by appellate courts are more rather than
less important than people think is based on the idea that people often
fail to advert, in ideological conflicts, to the ways legal rules function as
rules of the game, more or less effectively but invisibly altering the out-
comes from those that would occur if different rules were in force. The
point is not that the rules are more widely effective on conduct than you
would think. It is that the legal background rules, to whatever degree they
may be effective, are habitually left out of our causal hypotheses about
hierarchy and alienationthis is the whole point of the figure/ground
reversals I described in the last chapter.
Perhaps the rub is there. If the sociologists were claiming that the rules
are so thoroughly ineffective that they cannot be attributed causal force in
constituting the relative bargaining power of competing groups, then they
would be striking to the heart of the PT. But it turns out on closer ex-
amination that they never go that far, though their traditional rhetoric
sometimes suggests they'd like to. Here, for example, is a summary of the
enormously valuable work of the Wisconsin school on contract law in
action:
[The] focus on business behavior quickly reveals an important insight-
that contract law doctrine worked out by appellate courts is insignificant
in its impact for many reasons, among them: the sanctions provided by
contract law are too weak to deter breach; weak or strong, damage sanc-
tions are usually irrelevant because the value of continuing relationships
or of good reputation leads to peaceful adjustment; even when relation-
ships are over, the cost of litigation makes resort to law unlikely; and
where significant interests conflict, regulation is almost never left to the
common law, but rather administrative regimes are put in place (e.g.
labor law or insurance). In sum, appellate contracts cases commonly in-
volve "atypical or freak" transactions and "tag ends of problems nobody
cares enough about to regulate in some other way."

As a critique of the content of the typical law school course on contracts,

this is pretty devastating. But it is in no way threatening to the PT. To
270 CONSEQUENCES OF ADJUDICATION

begin with, when "significant interests conflict," that is, where we expect
ideologized group conflict and where "administrative regimes are put in
place," judges will constantly make decisions about those regimes that
dispose ideological stakes. Indeed, I asserted in the last chapter that a major
locus of the legitimation effect is the judicial oversight of labor law.
Second, even though "the cost of litigation makes resort to law unlikely,"
the rules often exert a large enough influence on bargaining, "in their
shadow,"6 so that the judges' choices among the possibilities dispose sig-
nificant ideological stakes. Likewise, that people ¡n long-term relationships
feel intense pressure to settle their conflicts without litigation most defi-
nitely does not mean that law is irrelevant to the outcome. The entities
that have the long-term relationships and settle disputes within them get
their particular form under legal influence, and all the participants make
calculations of their alternatives, in deciding what to settle for, about what
they will be able to do if settlement proves impossible.7
Rather than tending to show that appellate adjudication in general is
"insignificant in its impact," this research suggests, and is patently in-
tended to suggest, a quite different but important critical conclusion. From
the perspective of the law school contracts classroom, it might appear that
contract law requires people to be fair to one another. But many judge-
made rules of contract law that purport to give weak parties protections
against strong parties turn out to be illusory in practice.8 The point is not
that appellate law is intrinsically ineffective, but that judges have chosen
to make rules for weak parties that look better on paper than they do in
practice.
Even a savvy student (and a fortiori a cloistered professor) might reach
a quite wrong conclusion about how much strong parties can "get away
with" in the real world, if he or she relied on appellate opinions. Worse,
there are legal reforms that might bring the law in action much closer to
the law in books, effectively restructuring power in favor of weaker parties.
But the illusion that formal law has already taken care of the problem is
a factor contributing to both judicial and legislative inaction.9 Note that
a similar point applies to legislatures, which not uncommonly pass statutes
that seem on their face to give one interest or another a lot more than it
will receive in practice.'°
Like legislatures, appellate courts operate under the constraints imposed
by the plausible limits of enforcement within the existing system. The
New Jersey Supreme Court was no more able to simply impose its "fair-
share" requirement for affordable housing in the suburbs than the U.S.
Supreme Court was able to abolish the third degree by handing down the
 Adjudication in Social Theory 27 i

Miranda decision. But, of course, the same is true of legislative regime

changes. Looked at this way, the issue is not how important appellate
decisions are in the abstract, but what we can say about the practical limits
on the pursuit of ideological projects through courts as opposed to legis-
latures.
It seems to me plausible to pursue this inquiry on the premise that the
fixing of the formal rules of the legal system, by courts and legislatures,
disposes enormously important ideological stakes, and that adjudication
as a forum plays a more diffuse but important role in the production of
American ideologies. I do not propose this understanding as an analytic
truth, but rather suggest it as an empirically ungrounded empirical gen-
eralization about the developed West, and only about the developed West.
My sense that it is right probably owes a lot to che sociological tradition
(Marx and Weber) that emphasizes the general importance of the state in
imposing a social order that has an intelligible form (not, for us latecomers,
a logic). And it owes a lot to Antonio Gramsci's theory of hegemony, which
insists that elites generate consent through discourse (the forum idea), as
well as imposing it by force. But "law is not a one-way projection of
authority," as Lon Fuller liked to put it." And Foucault is right that power,
including power exercised through law, has meaning only to the extent
that there is resistance and gets its practical content from the resistance as
well as from "above."2
These qualifications are important. A left/mpm program for the trans-
formation of society would have aims that could not be simply imposed
by law. First, the ability of the state qua state, the state without "legiti-
macy," to coerce obedience is obviously limited. Second, much of the be-
havior a left/mpm program would like to change is so fine-grained, so
much involved with "attitudes" and spiritual orientations to action, that
it couldn't possibly be mandated in all its detail from above.
If it could, and people just obeyed a totalitarian code, the program
would have failed for the reason that the program aims at conversion to a
kind of antinomianism, rather than at obedience to correct thought. "The
letter killeth . . ." is not an entailment of postmodernism (there are none),
but it is a core maxim of left/mpm. A second core maxim is that we study
state power to resist it, not to seize it.

Is there an audience in the forum?

Theories of adjudication as a forum of denied ideological conflict have to

make it at least plausible that there is some audience for the ideological
272 CONSEQUENCES OF ADJUDICATION

productions of the participants beyond the parties to the case. This is by

no means self-evident, as has been forcefully pointed out in another branch
of the skeptic's critique, typified by these quotations from Alan Hyde and
from Frank Munger and Carol Seron:

[O]ne review of the literature on public opinion concluded: "there is

supporting evidence for the view that the Supreme Court and its deci-
sions have such low salience as to render improbable popular acceptance
of governmental action because of public knowledge that policies have
been approved by the justices." Less than half the population can name
a single Supreme Court policy or decision they liked or disliked. Less
than half the population can select as many as three correct topics from
a list of eight possible areas in which the Supreme Court might have
made a decision. The Supreme Court appears to be the least visible in-
stitution in the political socialization of American children. Other studies
continually show low public awareness of the Supreme Court and even
less awareness of the substance of its decisions. The same story could be
told about lower courts.'3
Underlying [cisl research is an implicit premise: tracing, or mapping,
legal decisions will, in and of itself, reveal the ideological role of law, as
well as its incoherence. The absence of a serious attempt to examine the
relationship between doctrine and other institutions in society insures
that this research will fall short of its own goals. Failure to make a
creditable case for the ideological role of law in its historical context
prevents the Conference from maintaining that law potentially has any
part to play in transforming society. More important, the Conference
cannot creditably rebut assertions made by liberal scholars that it is not
class dominated, not repressive, and instead is a rationalizing force
(whether or not its doctrine is troubled by logical inconsistency).'4

Most of the "early" crits claimed only that legal discourse was "effective"
for the legal intelligentsia itself, and for the broader educated elite that
takes legal discourse seriously.' This limited claim seemed plausible to us
because we had recently been law students struggling against the puz-
zlingly seductive influence of the elite understanding. In this respect, we
adopted more a Gramscian'6 or Althusserian'7 than a Weberian18 approach,
treating appellate courts as an "ideological state apparatus" that produces
one of a plethora of legitimating discourses, such as those of the educational
system and the media, each with a different audience and different subject
matters.
The Pink Theory can therefore embrace skepticism about the size of the
 Adjndication in Socia! Theory 273

audience for appellate opinions, and agree that for some audiences, for
example for people of color, as Kimberle Crenshaw argued,2° the law may
be first and foremost the deployment of state force (empirical studies
awaited), while the content of the discourse may be of little or no persuasive
importance. This insight doesn't make the moderation effect, for exam-
plethe hypothetical reduction of the ability of ideologically organized
majorities to bring about significant regime change through the legislative
processless plausible.
The effect depends on the idea that difference splitting, bipolar, and
hostile activist judges have enormous interstitial power to "cool out" the
legislature's regime-changing abstractions, through interpretation. The ef-
fect occurs within the elite group that legislates and judges. lt is a con-
sequence of their understandings and arrangements, not of those of the
people they govern.
The same is true of the empowerment effect. Denied ideology in judicial
law making means that fractions of ideological intelligentsias, and each
intelligentsia as a whole, can get things through the judicial process that
they imagine they couldn't get through electoral politics. Liberals get
Brown y. Board of Education; conservatives get a cutback of affirmative
action. 1f we had both legislative supremacy (no judicial review) and a
consistent practice of legislative oversight of judicial rule making, the
result, according to the hypothesis, would be outcomes less favorable to
the fractions, and perhaps outcomes fulfilling the intelligentsias' symmet-
rically opposed fears of the masses. The empowerment effect appears to be
part of the complex game through which political elites distribute power
and vetoes on power among themselves. It can operate regardless of what,
if anything, the masses know of appellate opinions.
One might even speculate that in so much as moderation and empow-
erment effects favor the interests of moderate liberal and conservative elites
at the expense of masses, they work better when the masses remain in
blissful ignorance of government by judiciary. In this interpretation, the
"backgrounding" of judicial law making, its invisibility for the masses,
stabilizes the system, as long as the formal law that appellate courts make
achieves a modicum of impact on conduct, through criminal enforcement
and private civil actions in lower courts and through obedience and con-
version effects.
But don't legitimation effects, at least, depend directly on the existence
of an audience for appellate opinions outside the legal/political inteili-
gentsia? I defined a legitimation effect as the reinforcement of the status
274 CONSEQUENCES OF ADJUDICATION

quo by the "withdrawal" of judge-made rules from political consciousness.

The consequence is that there seem to be fewer, and more costly, vehicles
available for social change than is "really" the case. In the many contexts
in which legal rules function as rules of the game of cooperation and
conflict between groups (in the contexts of labor and gender, for example),
judicial opinions help to naturalize or "background" them. The opinions
claim (falsely) to produce the rules through a technical, nonideological
method of judicial decision. (The effectiveness of these texts depends on
the audience's active participation in the denial of ideology in adjudication,
its wishful thinking.)
In both versions of delegitimationthe liberals against the conserva-
tives up to the New Deal, and cis radicals against the liberals in the late
t97OS and early 198osthe point was to bring about a figure/ground
reversal. Its elements were the analysis of the distributive effects of the
rules and the exposure of the element of denied ideology in the judicial
opinions that established them. In each case, the delegitiniaters were trying
to provide a pragmatic and also an ethical basis for a politics of mobili-
zation. But, in each case, the context was political debate between and
within intelligentsias looking to increase their own understanding of their
situation and to convert waverers from opposed groups.
We crits didn't claim that judges passivized the masses through appel-
late opinions. The idea was that the denial of the ideological element in
appellate law making, both in general and in many particular fields, led
liberals to underestimate the possibilities for changes they claimed to favor
or, alternatively, helped them rationalize their unwillingness to do any-
thing that would really upset the status quo. The hope was that the de-
legitimating analysis might win us some converts from among them and
might help in formulating radical strategies. We weren't so dumb as to
think that our delegitimating efforts would lead to change in mass con-
sciousness, except, just maybe, in the very long run, through the complex
processes by which elite ideas interact with popular ideas in a mass culture.
It is not that law, in the sense of legal rules, has no impact on the
masses. All versions oí the legitimation thesis assert that the rules have
more, not less, distributive impact on real life than people realize. The
"advanced" versions of the thesis, whether in labor law, international law,
local government law or the law of gender, also assert that the rules have
"subject-forming" properties. Workers in the regime of industrial plural-
ism are made passive by the legally defined structures within which they
work (not by appellate legal discourse); women are pushed toward acqui-
 Adjudication in Social Theory 275

escence in patriarchal roles by the large elements of violence against them

tolerated by the legal system. These impacts are independent of legal dis-
course.21
If there is a mass legitimation effect, it might be because the media
propagate a popular understanding of judging that denies its ideological
content. And perhaps this error makes the status quo seem more natural,
less contingent, and more just than it really is. But it seems equally plau-
sible that mass culture steadfastly resists the elite (mis)understanding, even
generates its own alternatives, based on real life experience with the crim-
inal justice system or with local courts as local dispute resolvers.22 This
seems to me an interesting empirical question the answer to which won't
affect the plausibility of the version of the legitimation effect in the Pink
Theory. In that version, the denial oí ideology in adjudication mainly
affects intelligentsias, and others only through them.

Evetybody knows that legal reasoning is indeterminate

We study appellate opinions because appellate judges are major law makers
in our society, on a par with legislators. We also study them in particular
because, following the hypothesis of alienated powers, their law making
is characterized, as that of legislatures is not, by a particular form of de-
nialthe denial that they are legislators.
For Silbey, "the limits of doctrine and form were carefully delineated at
the beginning of the twentieth century." For us, on the contrary, it was
not at all obvious (and still isn't) how legal discourse manages to produce
the "effect of necessity" that allows the denial of ideological content. We
ourselves were not sure just how "formalism" was wrong, or that it was
dead; we were sure that law was political but not about how it was polit-
ical. The critical part of the legal realist project seemed aborted, rather
than something finished we should move on from. It seemed more im-
portant to revive it, and keep at it, than to work at "proving" that the
United States is a society in which elite legal materials are relevant to
political and popular consciousness.
The problem was and is that the judges' claim of impartiality is partially
true, because judges are supposed to, and to a large extent do, behave
differently from legislators in choosing what rules should apply to cases.
Judges are, to a significant extent, practically "bound" by law and often,
often, often declare and apply rules that they would never vote for if they
were legislators. Judges sometimes behave in ways well described as "con-
276 CONSEQUENCES OF ADJUDICATION

sistent" and "logical," meaning obedient to a role constraint that requires

them to apply rather than make law.
For this reason, it is simply fantasy to believe that the limits of doctrine
and form were carefully delineated at the beginning of the twentieth cen-
tury. It proved then and still proves difficult, to say the least, to figure out
in just what respect, and with what consequences, any particular instance
of judicial rule making is more than mere "reasoned elaboration." The
answer proposed in the preceding chapters of this book is no more than
an incomplete and often (to my own eye) only loosely plausible account.
The fantasy that someone has, or that one might oneself, figure out once
and for all the indeterminacy critique of legal reasoning is shared well
beyond the milieu of American sociologists of law who think they under-
stand legal realism. Many cls writers and even more numerous commen-
tators on cls have thought that discovering such a critique was central to
the cls project.23 In the latter days of cls, postmodernist crits sometimes
thought they knew, without ever reading a judicial opinion that, "law"
just "had to be" indeterminate, because deconsrruction had "proved" that
all texts are indeterminate.
This is Golden Bowlism, the belief that a given formal discourse will
shatter if only one can find the crucial pressure point, as a flawed crystal
(according to Henry James) will split if dropped in just the right way.
Once you've "done" critique, by recognizing the wrongness of legal for-
malism in one of its manifestations, you've recognized its wrongness in all
its manifestations. You should then move on to "constructive" work. I
think Tom Heller was closer to the truth of the matter when he argued
that structuring and critiquing are interminable activities.24
No critique is ever truly global. When someone thinks up a new ar-
gument, you need a new answer. Hohfeld's critique of the derivation of
rights from privileges exposed a specific "Hohfeldian error" that appeared
in some dozens of late-nineteenth-century legal opinions.2' It was a "mo-
tivated error," because it made the choice of right-wing legal rules look
like legal logic rather than like legislation. But though Hohfeld's critique
is permanently helpful, it does not in itself identify, let alone successfully
expose, the errors in Richard Posner's economic rationale for the legal rules
that establish private property in the means of production.
In Knowledge and Politics,26 for example, Roberto Unger essays a global
critique of judicial neutrality, arguing that once we realize that the mean-
ings of the words that compose legal rules can be determined in practice
only through a value-laden interpretive process, we have to abandon the
 Adjudication in Social Theory 277

formalist vision. But it seems to me an adequate answer to this that we

can and sometimes do formulate rules to minimize the need for value
judgments in applying them to facts, and that language can often be made
concrete enough so that disagreement will be rare.27
There is no single principle or metaprinciple, at least as far as I can see,
that links together all the different kinds of argument that we want to call
"formalist," except that they all fall to internal critique. And there is no
general principle, as far as I can see, that links together all the different
strategies of internal critique into a single supercritical unity. So there is
no guarantee, as far as I can see, either that there will or won't be a critique
available for every assertion of legal necessity.
This means that even if it were true, which it isn't, that the limits of
doctrine and form were carefully delineated at the beginning of the twen-
tieth century, that accomplishment would represent nothing more than a
model for what critics need to do at the beginning of the twenty-first
century. (I believe that this is a rough paraphrase of a passage somewhere
in the Grundrisse about the critique of political economy, but I just can't
seem to find it.)

External determination

Now to the third element in Silbey's critique: external determination. If

you think you have discovered that legal reasoning on the basis of a set of
legal materials is always indeterminate, it is likely, if you are a social
scientist or a political philosopher, that you will also think that "the law"
is determined by something else, something "outside" the reasoning pro-
cess.
If the judges are wrong in their claims that their reasoning process and
the preexisting materials determine the rules, you might search for deter-
mination "above" or "below" them. If you are going "above," you might
be interested in normative or descriptive determination. Many people be-
lieve that the law ought to be determined by the prelegal rights of the
people it governs, with the judges in the role of translating the external,
superior, determinate order of rights into the socially effective medium of
legal rules.28
The internal indeterminacy of legal reasoning is no cause for concern
here, except that it creates opportunities for judges to mislead us about or
mistake the external order of rights, and then dress up their false conclu-
sions as required by their illusory procedures. Nor is it cause for concern
278 CONSEQUENCES OF ADJUDICATION

for those law and economics scholars who think efficiency should be the
sole normative criterion in decisions about what legal rules to put in force.
Richard Posner can sharply reject the claim that legal reasoning autono-
mously determines judicial rule making in "hard cases" because he believes
that economic reasoning about the efficiency consequences of rules can and
should take its place.29
The kind of external determination that was popular with the Amherst
Seminar at the time Silbey wrote her critique was descriptive rather than
normative, and from below. The notion was that while formal legal rea-
soning is indeterminate, the ensemble of patterns of official behavior that
influence the actual patterns of social behavior is not. The key to getting
some determinacy at the level of the law in action was to introduce con-
cepts like "culture" and "practice" and, of course, to study what was "really"
going on at the "action end" of law.
Austin Sarat has suggested a conceptual framework for this kind of
effort:
Statutes and court decisions are not abstractly stated goals which could
ever govern legal or social behavior . . . This does not mean that judicial
decisions can't be examined as an influence on, let's say, police arrest
activities. Such a study would, however, ask how does one practice influ-
ence another rather than why does one depart from the other. Moreover,
such an approach allows us to investigate the extent to which the variety
of legal practices comprise a coherent whole. Here, the sociology of law
may embrace the early concerns of critical legal studies at the same time
that it insists on the importance of examining legal practice in the court-
house, the police station and the lawyer's office.3°
These more proletarian, multi-"voiced," from-the-bottom-up-analyses
were supposed to preserve the social theoretical ideal of determination
while purging it of "idealism" and concomitant elite focus. In the European
context, in the form of the theory of "legal pluralism," they also make
possible a challenge to the combination of extreme positivism, formalism,
and focus on national state actors that have characterized the civil law
tradition.3' But neither the American nor the European version has yet
developed into a general theory that could rival the dominant left mode
of arguing descriptive external determination from above,
This mode proposes descriptive external determination from above by
the interests of particular social classes, or by the needs or the necessary
structure of a market economy or a phase of capitalist economic develop-
ment. Here the indeterminacy of legal reasoning is remedied by the de-
 Adjudication in Social Theory 279

terminacy of the "big picture," which judges are translating into law all
the time they are pretending to he following their autonomous, internally
determined reasoning procedures. This approach is the subject of the next
section.
The Pink Theory differs from all the variants of external determination
that I am aware of in three respects. First, it does not assert that "law" "is"
globally indeterminate, but only that sometimes judges do legal work on
the legal materials in pursuance of strategies that are well understood as
ideological projects, and that this work often inflects outcomes in ways
that dispose high ideological stakes. Second, the accumulation of such
choices over time produces distributive outcomes radically different from
those that would have been produced by a different series of judicial choices
under conditions of (local) indeterminacy. Third, it seems a plausible hy-
pothesis that the making of this law through adjudication, with concom-
itant denial of ideological influence, generates moderation, empowerment,
and legitimation effects (all mediated by the vagaries of enforcement and
the inattentiveness of the audience).
I propose this model in part for political reasons: as a leftist, I am
interested in questions of distributive justice between groups. I think the
actual distribution is unfair, whereas many think it fair or unfair in ways
that can be remedied only by greater unfairness. This analysis is supposed
to show that the current unfairness is in part produced through judicial
rule making that was neither just "law application" nor a rational response
to the needs or structure of the economy. If we changed the rules by making
choices different from the ones the judges have made, maybe we could
achieve greater distributive justice among groups without the dire con-
sequences that we fear from measures like revolution or gigantic tax-and-
spend programs.
Thus the PT emerged both from a critique of legal reasoning and from
a critique of the notion that there is an external, determinable logic of the
economy, its needs or functions or stages, that could plausibly explain
judicial rule making once we abandon belief that judges are constrained
by the norm of coherence. There are two important points here. In the
rationalism/irrationalism debate, we used minimalist internal critique to
undermine the systematizer's notion of the logic of the economic base. In
doing so, we were trying to use American postrealist legal technique to
contribute (albeit destructively) to the grand sociological tradition. At the
same time, we adapted from neo-Marxism a much chastened (and, we
hoped, much improved) version of the notion that legal reasoning performs
280 CONSEQUENCES OF ADJUDICATION

legitimating functions, the version presented in the last chapter. The rest
of this chapter elaborates this complex relation between the Pink Theory
and Marxism.

The rationalism/irrationalism debate

In the "rationalism/irrationalism debate" in cls in the late 1970S and early

198os, the systematizers argued that we could put the notion of legal
indeterminacy to work to buttress systemic analysis of the role of law in
capitalism. The "irrationalists" (left/mpm types) countered by deploying
the minimalist internai critique of legal reasoning in the "viral" direction,
arguing that far from supporting the systemic analysis, it decisively un-
dermined it.2
I would put the leftist goals of the critique of adjudication, shared by
systemic and left/mpm types, this way: to reveal the large role played by
the legal system; to delegitimate the outcomes achieved through the legal
system by exposing them as political when they masquerade as neutral; to
show that they are in some sense unjust and that their injustice contributes
to the larger injustice of the society as a whole; to be, thereby, a radicalizing
force on those who read and accept the analysis; and to suggest ways that
a radicalizing project should approach the task of making the system less
unjust through political action.
The cls "science project" worked to show that really understanding leads
in all these directions, within the general framework of the model of alien-
ated powers developed by Feuerbach and Marx. The three parts of that
model were to show (a) falseness of the theory that conventionally explains
why things are the way they are, (b) sub rosa determination by something
else, (c) the need to change to a new mode of determination through human
agency according to a correct moral theory.
Systematizers and irrationalists collaborated on the first of these opera-
tions through the development and radicalization of legal realism. We
attacked the false appearance of necessity by minimalist internal or (to my
mind mistaken) global critique. We attempted to show that legal rules
played a much larger role than generally supposed in producing the hi-
erarchical, alienated world of our capitalism, and that these legal rules
reflected ideological projects, or at least particular, contingent social vi-
sions, rather than an inner logic of law.
The second part of the science project involved developing theories of
what really happens, and why, that bring to light both human agency and
injustice, and showing that they can be causally attributed to "the system."
 Adjudication in Social Theory 281

The notion went something like this: "We have this system as a matter of
fact (of science). Having this system necessarily (because of science) re-
quires that you have these conditions that according to our (nonscientific
ethical system) are injustices. This knowledge is nonideological."
lt was here that disagreement arose. Systematizers argued, plausibly,
that the content and evolution of the legal system were in some sense
responsive to the content and evolution of "society," so that law could be
understood as a dependent variable. They also argued, plausibly, that the
legal system performed a "function" in the social system, contributing to
its content and evolution as well as reflecting it.
In the late 1970s, there were many extant versions of system among
which to choose, including neo-Marxism, Weber's theory of law in capi-
talism, Parsonian structural/functionalism, and Habermas's theory of com-
municative action. Perhaps the single most common attitude was "post"
in relation to these quite elaborated theories, but influenced by all of them.
It seemed obvious that American society had gone through a series of
stages, from an agrarian, supposedly individualistic, yeoman society,
through industrialization, urbanization, and class stratification, toward a
highly "interdependent" welfare capitalism dominated by large corpora-
tions and state bureaucracies. It seemed plausible that the legal system
had responded to different needs and performed different functions in each
period."
The rationalism/irrationalism debate was about whether this intuition
could be supported through legal scholarship. It focused on a particular
version of system, what I will call the "neo-Marxist theory of law in cap-
italism," not because the participants were Marxists (a few had been), but
because this theory seemed the most coherent and the most leftist. The
critique applied a fortiori to the weaker versions of the needs and functions
thesis, which I will describe in a moment.

A neo-ì4arxist social theory of law

A neo-Marxist social theory of law might go something like this. "We

have a capitalist economic system. The capitalist system is based on private
property in the means of production. If you don't have private property in
the means of production, you don't have capitalism. If you have such a
system, then it follows that you will have the following kinds of injustice
and misery. These things are implicit in the system. They are therefore
implicit in private property in the means of production.
"The role of judges is to enforce and interpret the laws that instantiate
 282 CONSEQUENCES OF ADJUDICATION

the general concept of ownership of the means of production. They are

part of the system. They are not a 'necessary' part but merely 'superstruc-
turai,' because even if there were no state apparatus and no rule of law, the
capitalists could maintain control through the use of force within the base,
or 'relations of production.' That is, they could coerce workers to accept
the system through nonlegal means.
"But if judges did otherwise than interpret and enforce the rules that
flow from the general concept of ownership, and got away with it, thereby
changing fundamental relations between workers and owners, then we
would have something different from capitalism. As long as they enforce
these rules, we have capitalism and its attendant injustices.
"The rule of (capitalist) law is supremely helpful even if merely super-
structural. Along with their administrative work of putting the system in
operation at the practical level, judges produce an extensive legitimating
discourse that is part of the ideology that pacifies people. Liberai legal
theory dovetails with Liberal economic theory in representing the unjust
outcomes of economic interaction as the consequence of 'free bargaining'
among property owners (workers own their labor) whose factor endow-
ments have different 'natural' values based on their social contributions.
Judges form one of the ideological state apparatuses.
"Sure, some measure of marginal reform through the legal system is
possible. There may be marginal gaps, conflicts, and ambiguities in the
concept of property. And in order to maintain the plausibility of the ideo-
logical claim that (capitalist) law is neutral between social classes, judges
will follow it against their class interests in some cases. For these two
reasons, it is sometimes possible for the working class to win victories
through the legai system. The legal system is 'relatively autonomous,'
determined by the base only in the 'final instance,' and it is even possible
to regard the rule of law as a 'universal human accomplishment.'
"But when it comes to the fundamental rules of the game, which are
what guarantee the fundamental interests of the capitalist class, then the
law itself is committed to capitalism. To change the basic legal rules of
capitalism, the judges would have to go against the 'system' that protects
their own class interests. But they would also have to go against the law
itself, against their own oaths as judges."
In the fanciest form of this kind of theory, there is legal indeterminacy
in the sense of social construction, but only at the abstract level: the com-
modity form and the legal form are homologous or identical or mutually
syntonic. Once we have the legal form (of the commodity), the specific
 Adjudication in Social Theory 283

rules of the legal system put capitalism into effect according to a deter-
minate logic of the commodity)
According to the theory, what is wrong with the system (injustice and
misery) is a consequence of a basic, pervasive structure of the system,
namely, its commitment to private property. Liberal reformism offers mere
Band-Aids, overestimating what can be done with its moderate methods,
while at the same time understating how bad things are. The positive
social theoretical analysis is therefore leftist in the sense that it argues that
only "radical" change can get us where "we" want to go. The only way to
bring about "real" systemic change would be to have a system based on a
different concept, and that requires the rulership of a different class.

The role of indeterminacy in the neo-Marxist theory of lau'

The critique of legal reasoning, whether in its legal realist or its cls version,
at first seems to fit into this project, indeed to contribute mightily to it.
It does so by extending the "false-necessity" critique of the "laws of eco-
nomics" to the rules of the legal system. This extension makes it possible
to incorporate a logic of legal change into the story of capitalism. If law
is indeterminate in its details, as well as at the level of the choice of an
abstract form, we can do a political analysis of judging and of the vast
private law domain left to judges (on the Continent, left to "legal scien-
tists").
Judicial law making practice can be fitted into the general left political
analysis by making judges part of the strategic elite, furthering class in-
terests or working out the logic of the system, rather than merely admin-
istering ("applying") capitalist legal concepts. We can interpret this work
as that of constantly adjusting the whole corpus of specific legal rules to
fit the interests of dominant classes in the successive stages of competitive
and monopoly capitalist development. Competitive market capitalism has
one set of legal needs, but monopoly capitalism has another. Judges make
the needed changes through strategic manipulation of indeterminacy while
maintaining the illusion of legal compulsion.
There is no necessary tension between the more "instrumental" and the
more "structural" theories. Each stage (structure) might produce and be
produced by a capitalist class whose instrumental interests correspond to
that stage's development. The class will then appoint judges who choose,
among the possible meanings of an indeterminate legal corpus, those
284 CONSEQUENCES OF ADJUDICATION

meanings (rules) that will promote the development of the stage and its
dominant class.

De-Marxifying the analysis

This flexible version of capitalist economic development brought the neo-

Marxist theory into surprising convergence with the liberal mainstream.
Indeed, an analysis structurally similar to this one underlay just about all
oí the sociology of law, as it developed after World War II, at least to the
extent that it was influenced by legal realism and had social theoretical
ambitions (as opposed to strictly positivist, empirical, behaviorist, or num-
ber-crunching ones).
There was an apologetic version, which had the same stages but no
notion that capitalism was defined by "relation to the means of produc-
tion." This version employed the logic of economic growth, rather than of
capital accumulation; it was steered by democratically chosen policy mak-
ers who were more or less wise about the public interest, rather than by
the ruling class. The outcome was a prosperous open society with some
serious problems, rather than exploitation.3S
In between, came the progressive historians' version, derived from
Charles and Mary Beard and Vernon Parrington, with a soupçon of Marx-
ism and a large dose of legal realist nihilism. In this version, law had
exactly the same functions and served exactly the same needs as in the
other two theories, but there was much more emphasis on the way elites
manipulated the process to serve their own interests than in the apologetic
version, and much less interest in the analytic systematicity of the process
than in the neo-Marxist version.36
The role of the critique of adjudication in all of these approaches is
strictly limited: it is to loosen law up just enough so that it can be the
instrument oía developing rather than a static capitalist system. It is made
pliable, or internally contradictory, or fluid, but only just enough for some-
thing outside it to give it new shapes through time.
The initial form of cis (as opposed ro legal realist) internal critique, the
mode of "contradiction," fit this role particularly well, though it is im-
portant that those of us who developed it were hostile37 or ambivalent8
toward the base/superstructure analysis of the neo-Marxists. We showed
that there were two "models" or "visions" or "forms of consciousness" that
could be teased out of the mass of legal materials in a given doctrinal
area.39 This innovation lent itself to cts theoretical developments with only
analogical ties to the neo-Marxist analysis.
 Adjudication in Social Theory 28

There were different versions of the internal structure of doctrine in

different fields, but the point was that fields had internal structure. One
use of the conflicting elements was as building blocks to which you could
hook up antagonistic class interests, in the neo-Marxist theory or in some
softer version. But there were other axes of conflict, as well, race and gender
conflict, for example, and other types of theory, theories of patriarchy or
oí racial domination, for example, to which they might be hitched.4° At
the same time, one could interpret doctrinal development at a much lower
level of abstraction as the playing out of conflict between specific groups
within the elites, or between conflicting normative orientations much more
specific or more "philosophical" than that between capitalism and social-
ism .'
This was easy to understand as left analysis. On the model of traditional
ideology-critique, determination by law's autonomous force or by demo-
cratic legislative willor the derivation of law from a few universally
accepted ideals or natural rightsis revealed as mystification. Determi-
nation by something at once more human and less savory is revealed. And
there is an explicit or implicit appeal to "people" to take advantage of this
revelation oí freedom and oppression to change things for the better.

The irrationalist critique

The rationalism/irrationalism debate in critical legal studies was about

whether the exposure, first, of law's powerful distributive effect and, sec-
ond, of the simultaneously structured and plastic character of legal rea-
soning, could be put to che uses of left theory at a more ambitious level.
The issue was not whether the discourse was structured and influential;
that was common ground. It was not whether it was useful in understand-
ing doctrinal change to see it as the working out of conflicting political,
economic, social, and purely ideal ethical projects; that was common
ground. And it was not whether the judges and doctrinal writers who
"froze" these projects into positive law, understood to have a nonideological
origin, had the political effect of bolstering the status quo.42 That too was
common ground, though with disagreement over how important the le-
gitimating effects really were.13
The disagreement was over whether there was a higher level of abstrac-
tion at which one could understand all of this in terms of the system, its
"logic," its stages, its structure (as opposed to the lower-level structures of
doctrine), its needs, and "the" function of law within it. The issue was the
"actual" (as opposed to mystified) link between law and economy, the
 286 CONSEQUENCES OF ADJUDICATION

second step in traditional ideology-critique. The stakes concerned whether

an internally structured, but plastic, legal regime was determined in some
sense by the economy, or some other social system, such as patriarchy or
racial supremacy. For these purposes, progressive historians, post-neo-
Marxists, some critical race theorists, and some feminist theorists of pa-
triarchy constituted a coalition of systematizers.
The irrationalists simply abandonedwalked away fromthe claim
that the models or visions or forms of consciousness that coexist or succeed
each other in legal thought are linked to changes in the economy or the
society in any readily intelligible way.44 The internal structures of the
models and their sequencing were asserted to be good descriptions of re-
ality, but only oí the reality of textual structure. The link with extant stage
theories was problematized, and no new theory was proposed in their place.
The historical drama became that of the "death of reason," or the loss oí
faith, first in law's autonomous rationality, and second in the economy's
autonomous rationality, played out in the arena of group conflict with local
stakes, rather than the drama of capitalist development.4'
There were three different critiques of the systematizers' left project
that justified the abandonment of the stronger claim. Note that two of
these are classic examples of minimalist internal critique, applied now not
to legal reasoning but to the notion ola logic of the relations of production.
The third was analogous to the "incompleteness" mode of legal critique:
"I can write an opinion on the losing side that is just as plausible as yours
for the majority."
The first internal critique was of the base/superstructure distinction.
The definition of the economic formation that supposedly determined the
"legal needs of capitalism" that the judges fulfilled through manipulation
included the very legal terms (property, labor, contract, commodity, wage)
that the judges were interpreting in the course of making new legal rules.
Each alternative legal definition of property, contract, commodity, and so
forth, therefore meant a different definition of the base. It would be rea-
soning in a circle to define the base in terms of the legal rules that sup-
posedly met its needs.46
This idea of law as "constitutive"47 was, mucatis mutandis, just as threat-
ening to progressive functionalist accounts as to the neo-Marxist ones,
although none of the former would have been caught dead making a base/
superstructure distinction. The needs and functions they attributed to so-
ciety and to law, respectively, were hopelessly vague rather than hopelessly
specific. If one took the needs and functions seriously, it appeared that
 Adjudication in Social Theory 287

there were many legal regimes that might have done the job. These re-
gimes would have produced wildly different distributive outcomes and
indeed wildly different economies)'
The second internal critique was of the distinction between capitalist
and socialist law. Once it is acknowledged that legal rules define the "base,"
we can ask about the "logic" of these rules. (i) Hohfeld's analysis shows
that "property is just a bundle of rights," with no "core"; there are an
infinite variety of particular private law regimes each of which will produce
a different allocation of resources and distribution of income, all fully
consistent with any coherent definition of private property. (2) Socialism,
in the form of collectivist, altruist, egalitarian values, is already present in
the capitalist legal system, and just as much within the supposedly Liberal
individualist core of private law doctrine as in the social democratic reg-
ulatory add-ons.'°
() Modern mixed capitalist legal regimes have no overall system logic:
each is an internally inconsistent hodgepodge of "social" and "individual"
elements with conflicting valences." This was also true oí communist
regimes, which couldn't operate the vague abstraction "state ownership of
the means of production" without elaborating internal rules of decentral-
ization that functioned the way the law of the commodity functions in
capitalism.'2 (4) Rather than a distinction between reform and revolution,
there is a mushy continuum between collectivism and anarchism, hierarchy
and equality. There aren't even any privileges among places to struggle
("bourgeois dinner parties are sites of resistance," and SO on)."
The third critical move was to argue that the proponents oía (rationalist)
left legal theory, whether in the neo-Marxist or the progressive historical
mode, couldn't produce a logic of economic development that was any
more than an ex post description of the consequences of particular ruling-
class legal strategies. Is there a way of using the insight that different
possible legal rules lead to different economic outcomes, to show that a
given legal regime promotes capital accumulation (economic growth, pro-
duction), or some set of class interests?
Since the systematizers didn't have much in the way of an actual theory
of the logic of capital, or the needs of monopoly capital, or whatever (I say
this respectfullyafter all, we irrationalists didn't have one either), a good
part of the debate took place in the critique of efficiency theory, a closely
analogous hut right-wing form. The critical line vas that efficiency, as
defined by economists, just doesn't produce clear answers to the question
288 CONSEQUENCES OF ADJUDICATION

what rules will maximize consumer welfare, let alone a dynamic theory of
welfare over time.'4
It followed that the left-wingers couldn't employ the concept oía "sub-
sidy" through legal rules to organize a theory about how a "dominant class"
can use the legal system to promote its interests, or economic growth, or
capital accumulation. The problem was the absence oía neutral economic
baseline (which would replace a now impossible neutral legal baseline).
There was no point from which to measure the subsidy.
It might be true that the actual legal actors involved all believed that a
particular rule or rule change was necessary (or just desirable) to protect
class interest or the accumulation process. And it was often possible to
show plausibly and concretely how particular interests might gain or lose
from a particular rule choice." But the extant attempts to demonstrate
the connection between legal and economic variables at the much more
abstract level of "capitalism" or economic growth were either no good
internally (see the critique of cost-benefit analysis), ignored counterinst-
ances (where the wrong class adopted the legal program in question, or
the right class adopted the wrong legal program), or were open to the
formulation oían equally plausible but ignored counterstory (in which the
economic effects of legal change were plausibly predicted to be just the
reverse of those asserted).'6 All the systematizers could show was ruling-
class strategies, adopted under conditions of practical and analytic uncer-
tainty, justified by phony appeals to economics, and then critiqued by the
left using equally phony but politically opposite appeals to economics.
As in the critique of legal reasoning, the strictly internal critique was
different from the "incompleteness" critique that showed that you could
construct alternative, equally plausible arguments for opposite results.
"Yeah, but that rule change might have hurt the ruling class; that rule
might have impeded capital formation, indeed probably actually did hurt
and impede, for all you can show, given this alternative version of the
facts."
This kind of argument, as we saw in Chapter 4, is less logically tight
than strictly internal critique. It leaves the field open to determined show-
ings that in fact the effects were indeed x ory, and to endless attempts to
qualify the systematizers' claim just enough to meet the critique without
losing all scientific power (see the debate about "tilt" as a substitute for
the "logic of capital")." There's no way to prove that someone won't soon
come up with a totalizing theory that works.
But until someone does comes up with one, the Pink Theory rejects
 Adjudication in Social Theory 289

(walks away from,"parks") the whole model oían internally indeterminate

legal discourse determined by external facts or structures (the needs or
stages of the economy). This is one of the postmodern elements in the PT,
though it's odd to call it that, because it was present before any of us had
heard of postmodernism.
Be it noted that giving up on the idea oía base whose structure deter-
mines legal rules does not mean giving up on establishing a connection
between legal rules and their social, economic, and political context. When
we find that the discourse of legal justification is internally contradictory
in ways that sometimes render it plastic, open to ideologically oriented legal
work, we try to increase our understanding by "going deeper" (just as the
systematizers do), by appealing to ideology, in the vulgar sense of liber-
alism and conservatism. Isn't this the same old model of outside deter-
mination? No, it is nor, for reasons already elaborately canvassed:

Liberalism and conservatism, understood as discursive systems, as

ideologies, are inside rather than outside legal discourse itself; legal and
political versions of liberalism and conservatism are mutually consti-
tutive.
When judges choose, "for ideological reasons," which way to move
within their contradictory discourse, the liberalism or conservatism that
motivates them is not only internal to law but also no more (and no
less) determinate or internally coherent than the formal discourse they
inflect.
Within the opposing sides in the legal argument there are opposing
sides in an ideological argument, and within them antagonistic char-
acter types and within them opposed cultural styles and within them
opposed modes of legal discourse. There is a circle or an infinite
regress, in which there is never a determining outside discourse or fact
but a series of never final unveilings. If we're lucky, we get knowledge
with enough bite so that we want it before we have to decide how to
act, though not enough bite to tell us how to act.
Although "outside" factors influence adjudication, they do not im-
pose on it an outside "logic." The first reason for this is, as just stated,
that they do not determine the rules judges make, in any ordinary sense
of the word "determine." The second reason is, as we irrationalists ar-
gued against the systematizers, that neither the economic base nor pa-
triarchy nor racial supremacy has any more internal coherence, any more
"logic," than the process of legal reasoning from the extant materials.
290 CONSEQUENCES OF ADJUDICATION

Contrast with neo-Marxist theories of ideology

After the theory of "determination in the final instance," the second most
important element in the neo-Marxist theory of law is the theory of legit-
imation through ideology. This is an important element in the "output"
side of the theory, the part about how law affects society (external deter-
mination being the "input" side). As I mentioned above, the Pink Theory
is a variant, a chastened version of this theory.
Writers in the Marxist tradition, such as Georg Lukacs,'8 Gramsci,'9
and Alrhusser,6° and also Jürgen Habermas,6' have used the term "ideol-
ogy" to describe what I have been calling "Liberalism" (belief in majority
rule, rights, the rule of law, and some version of a regulated market econ-
omy with safety nets).'2 In the classic analyses, it is ideology in this sense
that legitimates. This usage is closely linked to the notion of a logic of
the economic formation and is quite different from the use of the term in
the Pink Theory.
To identify ideology with American liberalism and conservatism is to
adopt a different definition of the word, and a weaker theory, than Marxists
have typically wanted to develop and deploy in their accounts of capital-
ism. A strong version of ideology, which I will call "Ideology" (capitalized),
has four characteristics.
Ideology is an interpretation of reality that is either consciously or
unconsciously shared across the whole social and political spectrum; spe-
cifically, it is something "deeper" than the "surface" disagreements that
mainly preoccupy actors in those areas. Thus a common belief in God
underlies religious sectarian conflict, which looks to the participants to be
a matter of salvation and damnation. Thus a common belief in the natu-
ralness, justice, and efficiency of private property in the means of produc-
tion underlies political conflicts between liberals and conservatives that
seem to them to involve basic questions of social justice.
There is something behind Ideology, something that is not itself
Ideology, that causes or explains it, and thereby indirectly causes or ex-
plains Ideology's effects. The something is the forces and relations of pro-
duction, or the needs of capitalism at a particular stage, "the base." The
play of intense surface conflicts within Ideology reflects divisions in the
base. While there may be feedback from the ideological to the material
domain, a strong version of Ideology privileges the material. "In the final
instance," the base trumps the superstructure, or the theory is not a strong
one.
 Adjudication in Social Theory 291

Ideology legitimates the structure of forces and relations oí produc-

don that causes or explains it. To legitimate, in this context, means ro
persuade people to accept the overall social order founded on the under-
lying economic structure, rather than to persuade people that particular
actions are right or wrong. Legitimation is Ideology's function in the social
order seen as an integrated totality, or at any rate its effect. The legiti-
mating effect oí Ideology is more important than the various effects that
flow from the disagreements within it that seem so important to the par-
ticipants.
Ideology is demonstrably false. That is, we can appeal to widely
agreed on criteria of truth and falsity to show that it doesn't work as an
interpretation of reality. Both the arguments for the existence of God and
those for the natural justice of capitalism are tissues of contradiction. By
contrast, the theory of the structure of capitalist society, and of the laws
of its development, are "scientific" in a quite strong sense.'3
Note that in this type of theory, Ideology, a singular noun, is the product
of the underlying structure of economic forces and relations, which it
legitimates, whereas in the common parlance of American political culture,
there are many ideologies linked to a variety of economic interests. For the
reasons discussed in Chapter 3, I've chosen this usage of the word, rather
than the Marxist one»
Liberalism and conservatism are not Ideology in the Marxist sense.
Neither is shared across the society, and indeed the conflict between
them is just the kind oí surface phenomenon that the classical theory tries
to get beyond.
There is nothing more substantial behind them than an ideological
intelligentsia with more or less definite ties to a "community" with some
definition of its own "interests," at the same time that the intelligentsia
has interests of its own that diverge from those of the represented groups.
The interests are as much a function of the ideologies as vice versa.
Liberalism and conservatism are "universalization projects" of intel-
ligentsias that claim to represent particular group interests, rather than
"the" legitimation mechanism for a particular type of society.
Each is contested, both by its semiotically defined opposite number
and by Marxism, anarchism, fascism, and Manchesterism, but there seems
little prospect that either will be "proved false" in any definitive way. In
my scheme, there is no "scientific" alternative to life as an ideologist.
But what about Liberalism (capitalized)? The Liberal conception of the
rule of law, and the denial of the ideological in adjudication, are widely
292 CONSEQUENCES OF ADJUDICATION

shared across the political spectrum, like Ideology in the Marxist analysis.
Moreover, I have been arguing that attempts to establish the coherence of
the Liberal conception, to show that adjudication is or plausibly could be
nonideological, have failed. The denial of ideology in adjudication is a
response to the incoherence, so that we are dealing with something closely
resembling "false consciousness."
In the Pink Theory, adjudication disposes of the stakes of ideologized
group conflict by defining the rules of the game, and the presence of
ideological motives in adjudication is mystified by its representation as
neutral, impersonal, or objective, so that judges and their audience are in
bad faith (rather than simply deluded). Contrasting this kind of regime
with the counterfactual situation of effective legislative control of all law
making generates the moderation, empowerment, and legitimation effects.
For this reason, the Pink Theory belongs to the same family as the classic
Feuerbach/Marx theory of alienated powers, as well as to the larger family
of Marxist ideology theories.
Moderation and empowerment effects have to do with the evolution of
liberal/conservative conflict within a regime where there is a lot of mys-
tified judicial law making. This part of the analysis uses the non-Marxist
notion of ideology, in the sense of liberal and conservative universalization
projects, and suggests how the Ideology of Liberal legalism affects their
fates as political movements.
In the legitimation effect, the mystified discourse of judge-made law in
general, and numerous specific discourses explaining particular legal re-
gimes, contribute to the naturalization of existing social relations of dom-
ination (hierarchy, inequality, alienation). Both the general and the more
particular discourses contribute to naturalization by making it appear that
background rules that are "really" the product of judicial ideological strat-
egy flow instead from merely technical reasoning.
Naturalization is an Ideological effect because proposals for change that
are outside the liberal/conservative "mainstream," as it defines itself in
relation to the "extremes," seem, to the participants in political culture,
less plausible than they would in a more transparent system. (By "trans-
parent" I mean less mystified by the denial of the ideological in adjudi-
cation.) In other words, these nonmainstream alternatives are "cogni-
tively"6' excluded from consideration as impractical, rather than excluded
on the basis of consideration on the merits. (By "on the merits" I mean
without the mystif,ing effects of bad faith and denial.)
 Adjudication in Social Theory 293

The Pink Theory differs from the Marxist analysis in the following
respects.
Lau'c influence on society: What is legitimated is the status quo, rather
than capitalism or the relations of production understood as a structure.
The status quo is an incoherent hodgepodge of heterogeneous elements,
without a system logic. Whatever it may be at any given moment, that's
what gets naturalized by the denial of the ideological element in judicial
law making. In this respect, the analysis is closer to populism than to
Marxism. lt points to the distortion of the results that would occur under
a more transparent law-making process, rather than to necessary functions
of the legal order in a particular kind of regime.
Societ)'s influence on lau': Neither liberalism and conservatism, nor Libera!
legalism (the rule of law with denial of the ideological in adjudication), is
caused or explained by the deep structure of capitalism. To repeat, the PT
denies that any such deep structure has been plausibly demonstrated. Lib-
eral legalism serves the status quo, not a deep structure, but is derived
from it only in this sense: I allege that liberal and conservative judges and
legal theorists share an apologetic motive that influences their descriptions
of adjudication in general and of legal regimes in particular.
That motive is to defend the status quo against the extremes. Denial
and bad faith with respect to the ideological in adjudication are in part a
half-conscious strategy designed to represent judicial institutions and par-
ticular legal regimes as internally coherent and also just, when they are
better understood as the opposite (from my heavily ideological, "extreme"
perspective, of course).
In the article on Blackstone's Conirnentaries that I mentioned in Chapter
3, 1 characterized Blackstone's proto-Liberal project as apologetic in this
sense but also as "utopian." I would say the same about modern Liberal
legalism. The notion of utopian aspiration is implicit in what I have been
calling the "abstract normative element" in liberalism and conservatism,
that is, in their commitment to social transformation in the direction
indicated, however ambiguously, by the body of Liberal principles and
texts (rights, majority rule, the rule of law, a regulated market with safety
nets, Judeo-Christian morality).
The idea of apology is the dark side of the idea that the ideologists are
committed to the interests of the groups they represent. An ideology, seen
as the universalization project oían intelligentsia, "mediates" between the
utopian (abstract normative) element and the apologetic (interest-based)
294 CONSEQUENCES OF ADJUDICATION

element. To say that Liberal legalism is apologetic is to say that as a matter

of fact, rather than of analytic necessity, the liberal/conservative center has
been concerned to present the status quo as better than what the extremes
have to offer, in part because liberals and conservatives benefit from the
status quo by comparison with the extremes.
But it is to say more than thatthat the apologetic motive or intent
has inflected Liberal representations of legal institutions and regimes, fal-
sifying or distorting the analyses. The particular form of distortion, or
motivated error, is the denial of the ideological in adjudication and of the
contradictory nature of the legal regimes produced by judicial law making.
I mean to attribute a disreputable motive, albeit a half-conscious one, for
this distortion.

The PT as "chastened" left theory

What this perhaps overly intricate theoretical model adds up to is an

account of adjudication as the locus of liberal and conservative ideological
projects with distributive effects, and an account of Liberal legalism as
denial and bad faith with utopian and apologetic motives and legitimating
effects. ii it is convincing, it establishes, in Alan Hunt's words, a "con-
nection between doctrine and its historical context' of the type that "crit-
ical theory promises. "a'
But it is a much weaker, more contingent connection between two much
less coherent entities (a deconstructed status quo and a deconstructed legal
regime) than the Marxist analysts originally hoped for. A theory of this
kind may delegitimate the existing order in terms of its own theory of
itself, and it may suggest ways in which the institution of adjudication
plays a stabilizing role in our particular kind of capitalism. But it actually
reduces our ability to "understand" the system in the traditional leftist
sense of reducing its operation to laws or grand tendencies. Indeed, the
critique of law, in the mode I am proposing, has the effect of making it
implausible that we will be able to establish a relatively parsimonious
explanatory paradigm to undergird the leftist project.
It seems to me unlikely that the left will succeed in finding a strong
alternative to a weak version of this general type. I think the best we can
or should hope for is the kind of chastened theory contained in this book.
But it is worth noting that the rationalism/irrationalism debate within
cls, which seemed at the time to be grappling with issues that were basic
 Adjudication in Social Theory 295

to Marxist, Weberian, Parsonian, and Habermasian social theory, has had

virtually no resonance beyond the narrow confines of the left legal academy.

The "hypercritical" character of irrationaliim

The irrationalist attack on the systematizers' left theory doubled the use
of the minimalist internal critique of legal reasoning: law is plastic in the
sense chat it could have been shaped in two or more ways; but che theories
that are supposed to give definition to a plastic legal body fall to the very
same internal critique that had loosened law up in the first place. The
internal critique gets applied, directly when the theory includes legal con-
cepts, and by analogy when it doesn't, to the implicit or explicit theories
of' the logic of capital that were supposed to explain law. Internal critique
becomes a colonizing force ¡n its own right, rather than a condition per-
mitting colonization of legal by economic theory.
This kind of viral progression is something we will see happening over
and over again in the evolution of the theory debate. Right from the start,
it produced a political critique: indeterminacy theory was "going roo far"
if it deprived us of our ability to produce not just "covering laws" but any
meaningful generalizations at all. Internal critique would become a de-
mobilizing force if its argument was that history was just one damn thing
after another. Moreover, it tended to support interest-group pluralism, in
which groups have strategies that they pursue within a "process" frame-
work, with no overall logic of the system. Interest-group pluralism was
associated with legitimation of the status quo by "rules of the game" and
was therefore clearly a bad thing.
The issue didn't go away and still hasn't. The code words are: "What
we need is a general theory. You can't beat something with nothing. lt's
easy to critiquethe hard part is to create a theory. The critical project is
finished; now it's time for reconstruction." The danger of sliding into
liberalism or pluralism, the loss of the sense that theory can orient practice,
and the fear of the demobilizing effect of indeterminacy, contextualism,
complexity, and contradiction, are still major themes of discussion. So is
the idea that the critique "proved too much" and couldn't be right, because
ir would make all knowledge impossible (see Chapter 14).
Critics of cls from che right have exulted in the "lack of" or "failure to
develop" a general cls theory,TM for much the same reason that some cls
people themselves have lamented it. "Outsiders" (not American legal ac-
296 CONSEQUENCES OF ADJUDICATION

ademics) who want to be sympathetic sometimes say they would be able

to be sympathetic if only there were a general theory. Among us middle-
aged white males, there are only a few participants in the debate (I'm one
of them, most of the time) who don't feel ambivalence, or at least nostalgia,
in regard to the "abandonment of totalizing theory." The situation in the
later white male generations, and among white feminists and critical race
theorists is more complicated.
In retrospect, the rationalist/irrationalist debate appears to have been
the beginning of the legal version of the general intelligentsia's debate
about whether postmodernism is "inherently" or "tendentially" conserva-
tive, and maybe psychotic to boot. lt began in cls before most of us had
heard of postmodernism, and it ran out of steam not because one side or
the other won, but because, as in any narrative, "something happened."
What happened was the "rights debate," to which we now turn.
PART FIVE

Post Rights
 12

Rights in American Legal Consciousness

LTp to now, the critique of adjudication has been designed to make way
for one kind of reconstructive project or another. Illegal reasoning is
frequently indeterminate, and when determinate represents nothing more
than earlier answers to open questions by those who happened to have the
rule-making power, then extralegal normative commitments are inevitably
part of law. So we can argue for "correct" normative commitments.
This is the third part of the Marx/Feuerbach model of ideology-critique.
The revelation of political bias behind a mystifying facade is a prelude to
putting in judges who will "do the right thing." Doing the right thing
means having normative projects that are better than those currently em-
bedded in the law and better chan those oí current judges.
Until World War Il, there were two main left reconstructive projects
in the United States. One was socialism, meaning public ownership of the
means of production, or the more or less complete abolition of the markets
for labor and products. The other was the "reform" program of recon-
structing the market and also influencing it, by a combination of structural
changes (empowering labor unions), fiscal policy (progressive taxation),
welfare programs, and regulation of just about everything.
Both of these groups might have found ultimate justification in ideas
like freedom or human rights, but they were strongly predisposed to un-
derstand outcomes for unfortunate people as the consequence of a failiae
of planning. That is, of a failure to properly understand the social totality
and intervene to shape it from the center to make outcomes correspond to
what the collective wanted, whether the collective was "the working class"
or "the American people." (There were exceptions: the rights of labor versus
the rights of capital rhetoric in labor disputes at the turn of the century,
women's rights). The counterprogram of the American right was usually
299
300 POST RIGHTS

cast in terms of the defense of individual rights against the collectivity

(exceptions bei ng protofascists, the Catholic right).
That is no longer the situation. This chapter describes the rise of a liberal
rights-based version of reconstruction, the role of rights in American legal
consciousness now that they are the basis of both liberal and conservative
ideological projects, and the left/mpm phenomenon of loss of faith in
rights.

The role of rights in left legal thought, circa 1975-1985

There are three liberal subdiscourses oí rights that overlap in legal reason-
ing but do not reduce to legal reasoning. These are liberal constitution-
alism, fancy reconstructive rights projects in legal philosophy, and the
popular political language of rights that flow naturally or automatically
from the assertion of "identity." The three discourses are partially auton-
omous, because each corresponds to a fraction of the liberal intelligentsia.
Liberal constitutionalism is part of the ideology of the milieu of activist
liberal law professors, judges, and public interest lawyers mainly oriented
to legal reform through the courts. Public interest lawyers include the
American Civil Liberties Union, the Legal Defense Fund, and the dozens
of newer institutions that have sprung up to litigate on behalf of women,
Latinos, the environment, gays, and so on. This group also includes the
post- 1960s National Lawyers Guild and the Legal Services Corporation of
the same era. A recent addition to this family is international human rights
activism.
Constitutional rights discourse is argument in briefs (and supporting
law review articles) for the legal recognition, development, or defense of
liberal legal positions. The advocates argue that these positions are "re-
quired" by the correct interpretation of the constitutional law materials,
particularly the provisions guaranteeing citizen rights.
Fancy theory (that, for example, of Ronald Dworkin, Bruce Ackerman,
Frank Michelman, Martha Minow, Margaret Radin, Dru Cornell, and Pa-
tricia Williams) is the project of the milieu of elite legal academic intel-
lectuals self-consciously concerned with universalizing the interests of var-
ious oppressed or disadvantaged groups. They support specific liberal
positions that have gotten legal recognition, and are therefore already "rep-
resented" in legal discourse in (maybe only dissenting) judicial opinions,
by linking them to the liberal political philosophy of the day (that ofJohn
Rawls, Richard Rorty, Carol Gilligan, Habermas, Derrida, and others). In
 Rights in American Legal Consciousness 30!

the !98os, they were joined by Central European theorists of "limited

revolution" under the banner of human rights. All show that philosophy,
something at once higher than, more intellectually sophisticated than, and
also more determinate than postrealist legal reasoning, supports legalizing
liberal rights claims.
The popular discourse oí rights pervades not only the formal political
culture but also just about every milieu where people argue about who
should do what, including, for example, the family, the school, and the
entertainment industry. The identity/rights rhetoric in particular is that
of organizers, advocates, and spokespeople of subordinated groups (blacks,
women, gays, the handicapped). They argue the existence of an identity,
that given the identity there are rights, and that these rights should be
recognized by the legal system.
Within legal academia, but virtually nowhere else either in the world
of law or beyond it, there is a left/mpm critique, loosely identified with
cis, of these three versions of the liberal project.

The effacement of radicalism

The left intelligentsia has not always been organized this way. Although
the current liberal project has its "origin" in the fifties, during the 196os
the left intelligentsia grew exponentially and then split sharply and re-
peatedly over such questions as direct action versus legal strategies, revo-
lutionary communism versus liberalism, black nationalism versus integra-
tionism, separatist feminism versus "sleeping with the enemy." In each of
these splits, one subelement was different attitudes toward rights and
rights rhetoric, associated with different degrees of "radicalism," as we
defined ir then, meaning different beliefs about how great and possibly
even violent the changes would have to be before anything was "really"
different.
The political radicals' critique of rights had little to do with the kind
of internal critique oí legal reasoning I have been describing. Indeed, they
leaned toward external, economy-based, race-based, or gender-based theory
(consider Shulamith Firestone and Eldridge Cleaver). The political radicals
also failed or were defeated or seif-destructed, however you want to look
at it. In the 1970S and 1980s, the left intelligentsia was much as it had
been in the early 96os, with a small radical fringe and a giant liberal
r

mainstream always about ro be devoured by neoconservatism, yuppieism,

and lots of other things.
302 POST RIGHTS

Perhaps the biggest change from the 1950S and early 1960s was that
the white male working class no longer played a significant role in left
thinking. White male left liberals and radicals saw themselves as deserted
or betrayed by that class, had lost their faith in it, or had never identified
with it. For most left political activists, the straight white male working
class was, at worst, the core of the enemy camp and, at best, the necessary
object of conversion.

From clasi politici to identity politici

The hopeful version of the situation of the new New Left is neatly put by
Corne! West, who asserts the existence of an "inchoate, scattered yet gath-
ering progressive movement that is emerging across the American land-
scape. This gathering now lacks both the vital moral vocabulary and the
focused leadership that can constitute and sustain it. Yet it will be rooted
ultimately in current activities by people of color, by labor and ecological
groups, by women, by homosexuals."
The different levels of the left intelligentsia relevant to us herenamely,
fancy legal theorists, law reform litigators and organizersreorganized
around or persisted in rights discourse and successfully reinterpreted what
had happened in the 196os. They remembered it as a triumph, in the civil
rights, women's and antiwar movements, of constitutional rights, repre-
senting the best instincts and true ideals of the American people, over an
earlier regime representing a reactionary or morally torpid version of those
instincts and ideals.
What had happened, according to them, was the triumph of universal-
izing intellectuals (Martin Luther King, Gandhi), allied with civil rights
lawyers and legal services lawyers, allied with community organizers. To-
gether, they asserted, litigated, and then justified rights guaranteed in the
Constitution, against legislative and administrative regimes that denied
those rights.
The rights were usually defined in terms of equality, but equality in a
special sense. They did not involve the demand for equality in the distri-
bution of income or wealth between social classes, regions, or communities,
but rather "equal protection" for individual members of previously sub-
ordinated social groups. The rhetorical emphasis on identity and antidis-
crimination was a complex new synthesis of the "nationalist" and "inte-
grationist" strands in 196os black and women's protest movements.2
By the 1970S and 198os, there were no longer "popular movements"
 Rights in American Legal Consciousness 303

aggressively raising rights claims, there were no longer federal courts will-
ing to invalidate legislation and regulations in the interests of oppressed
groups, and there was no longer the sense of the undeniable moral/philo-
sophical correctness and ineluctable coherence of left constitutional theory.
From different places within the left intelligentsia, the causal links be-
tween these three failures looked different.
There were some advantages to the new situation, as well as obvious
disadvantages. The remaining left intelligentsia was rid of the radicals who
had made their lives miserable throughout the 196os and freed of the
worrisome problem of the white male working class. The left liberals were
now the left. They could, sometimes, institutionalize themselves and de-
velop all kinds of more or less oppositional or collaborative attitudes to-
ward the mainstream, without worrying about the horrible dialectic of
"taking up the gun" or "selling out." And the left intelligentsia did sur-
vive, with a good deal more in the way of numbers and resources and ideas
than had been around in the 1950S and early 1960s.
New recruits, post-196os children, continued to trickle in, particularly
women and minority recruits to the law reform and theory intelligentsia
fragments. For many of them, the 1960s seemed a Golden Age. They had
personal memories of that time, often of formative events in their own
lives. But their memories were filtered through childish consciousness, and
there was little in them that might conflict with the rights-oriented re-
interpretation of what had happened. Its nostalgic emphasis on the im-
portance of popular movements, but suppression of intraleft division,
seemed far more plausible than the mainstream story of the 196os as the
Dark Ages.
lt is easy in retrospect to see the weaknesses of this project. But in 1980,
say, the year before Ronald Reagan took office, it was plausible, even if
the times were hard for the left. I think a lot of its strengthas an intel-
ligentsia projectderived from the combination of political correctness
(struggles of oppressed groups), legal correctness (the Constitution was law
and authoritatively demanded massive liberal reform), and philosophical
correctness (the fanciest moral philosophy supported left liberal law reform
on behalf of oppressed groups). Wow.

The c/s critique of rights

Against this background, the cls critique of rights (Mark Tushnct,3 Peter
Gabel,' Frances Olsen,' me6) was perverse. But it was not perverse for the
 304 POST RIGHTS

reason asserted by the first-stage critics of cis, who saw only one of its
originary strandsnamely, Marx's critique of rights as individualist rather
than communist, and specifically the Marcusian critique of "repressive
tolerance." There is an undeniable genealogical connection between this
critical strand and the communist practice of denying any legal enforce-
ment oí rights against the state, in the name of the revolutionary truth
that "bourgeois civil liberties" were a reactionary or counterrevolutionary
mystification.
The initial critics of cis on this front were veterans of the wars in the
forties and fifties and then again in the late sixties and early seventies
between the communists (and other orthodox Marxists and third world
Marxist-Leninist revolutionary types) and the liberals. For these anti-
Marxists (Louis Schwartz),7 antiNew Leftists (Phil Johnson,8 the New
Republic), and post- or ex-Marxists (Straughton Lynd,9 Edward Sparer,'°
Michael Tigar")any critique of rights automatically smacked of Stalinism.
But the crits were not the radical activists of 1965 tO 1972 reemerging
as Marxist academics to pursue the old war on a new front. Though they
preserved the radicals' animus against mainstream liberalism, their cri-
tique was perverse not because it was Stalinist but because it was modernist.
It developed, with many hesitations and false steps, exactly the kind of
minimalist internal critique, leading to loss of faith, that the crits had
applied to legal reasoning.
Feminists'2 and critical race theorists,'3 who took up the critique of the
critique after the anti- and post-Marxists, saw this clearly. They objected
not on the ground of totalitarian tendency, but on the ground that rights
really did or should exist, or on the ground that it was demobilizing to
criticize them. This response was plausible because rights played more or
less exactly the same role in their post-19605 political thinking that they
played in American political thought in general.

Rights in American political discourse

Rights play a central role in the American mode of political discourse. The
role is only intelligible as part of the general structure of that particular
discourse. It is a presupposition of the discourse that there is a crucial
distinction between "value judgments," which are a matter of preference,
subjectivity, the arbitrary, the "philosophical ," and "factual judgments,"
or scientific, objective, or empirical judgments.
 Rights in American Legal Consciousness 305

Rights mediate between factual and value judgments

Values are supposedly subjective, facts objective. It follows that the status
of all kinds of normative assertion, including moral or utilitarian assertion,
is uneasy. Claims that something is "right" or "wrong," or that a rule will
"promote the general welfare" are conventionally understood to be on the
subjective side of the divide, so much a matter of value judgment that
they have to be arbitrary and are best settled by majority vote.
While there are many ways to account for or understand the nature of
rights, it seems to me that in American political discourse they all pre-
suppose a basic distinction between rights argument and other kinds of
normative argument. The point of an appeal to a right, the reason for
making it, is that it can't be reduced to a mere "value judgment" that one
outcome is better than another. Yet it ¡s possible to make rights arguments
about matters that fall outside the domain commonly understood as fac-
tual, that is, about political or policy questions of how the government
ought to act. In other words, rights are mediators between the domain of
pure value judgments and the domain of factual judgments.
The word "mediation" here means that reasoning from the right is un-
derstood to have properties from both sides of the divide: "value" as in
value judgment, but "reasoning" as in "logic," with the possibility of cor-
rectness. Rights reasoning, in short, allows you to be right about your
value judgments, rather than just stating "preferences," as in "1 prefer
chocolate to vanilla ice cream." The mediation is possible because rights
are understood to have two crucial properties.
First, they are "universal" in the sense that they derive from needs or
values or preferences that every person shares or ought to share. For this
reason, everyone does or ought to agree that they are desirable. This ¡s the
first aspect of rights as mediators: they follow from values but are neither
arbitrary nor subjective because they are universal.
Second, they are "factoid," in the sense that "once you acknowledge the
existence of the right, then you have to agree that its observance requires
x, y, and z." For example, everyone recognizes that the statement "be good"
is too vague to help resolve concrete conflicts, even though it is universal.
But once we have derived a right from universal needs or values, it is
understood to be possible to have a relatively objective, rational, deter-
minate discussion of how it ought to be instantiated in social or legal rules.
The two parts are equally important. It is no good to be a believer in
 306 POST RIGHTS

universal human rights if you have to acknowledge that their application

or definition in practice is no more a matter of "reason" as opposed to
"values" than, say, the belief in Motherhood and Apple Pie. They have to
be both universal and factoid, or they leave you in the domain of subjec-
tivity.
The project of identifying and then working out the implications of
rights is thus a part of the general project of social rationality. As such,
the rights project is part of the same family as the project of identiing
and working out in practice a judicial method based on interpretive fi-
delity, rather than mere legislative preference. Moreover, since rights are
conventionally understood to be entities in law and legal reasoning, as well
as in popular discourse and political philosophy, the two projects are in-
termingled. But they are not the same project. We might think that extant
theories of legal reasoning fail to avoid the pitfall of mere preference, but
that rights theories don't, and vice versa. This possibility is real because
American political discourse presupposes that rights exist outside as well
as inside the legal system.

Inside and outside rights

I pointed out in Chapter 6, in the discussion of the structure of legal
discourse, that rights occupy an ambiguous status with respect to the
distinction between rules and reasons for rules. "Congress shall make no
law abridging the freedom of speech" is an enacted rule of the legal system,
but "protecting freedom of speech" is a reason for adopting a rule, or for
choosing one interpretation of a rule over another. In this second usage,
the right ¡s understood to be something that is outside and preexists legal
reasoning.
The outside right is something that a person has even ¡f the legal order
doesn't recognize it and even if "exercising" it is illegal. "I have the right
to engage in homosexual intercourse, even if it is forbidden by the sodomy
statutes of every government in the universe." Or "slavery denies the right
to personal freedom, which exists in spite of and above the law of slave
states."
The Constitution, and state and federal statutes, legalize some highly
abstract outside rights, such as the right of free speech in the First Amend-
ment or of property in the Fourteenth. Positive law also legalizes less
abstract rights that are understood to derive from more abstract, but not
enacted, outside rights. For example, in the nineteenth century, the Su-
 Rights in American Legal Consciousness 307

preme Court interpreted the constitutional prohibition on state impair-

ment of the obligation of contracts as legal protection of one species of the
more general, but unenacted, category of vested rights.
American courts have also, on occasion, argued that the Constitution
protects outside rights even when it does not explicitly enact them as law.
At various points in the nineteenth century, courts did this quite boldly,
claiming that the protection of unenumerated outside rights was to be
inferred from the "nature of free governments." lEn the twentieth century,
the Supreme Court has seen itself as protecting an unenumerated outside
right of privacy whose constitutional (legal) status the Court infers from
a variety of more specific provisions (for example, the Fourth Amendment
protection against unreasonable searches and seizures).
In classic Liberal political theory, there was an easy way to understand
all of this: there were "natural rights," and We the People enacted them
into law. After they were enacted, they had two existences: they were still
natural, existing independently of any legal regime, but they were also
legal. The job of the judiciary could be understood as the job of translation:
translating the preexisting natural entity or concept into particular legal
rules by examining its implications in practice.
While the language of natural rights is out of fashion, it is still true
that Liberal theory understands some part of the system of legal rules as
performing the function of protecting outside rights, rights whose "exis-
tence" does not depend on legal enactment, against invasion by private
and public violence. We don't need, for the moment, to go into the various
ways in which lay people or specialists understand the mode of existence
of these exta-legal or outside rights. The important point is that judicial
(or, for that matter, legislative or administrative) translation of the outside
into the legal materials is still a crucial element in Liberal understanding
of a good political order.
Thus we can distinguish three kinds of rights argument: the strictly
outside argument about what the existence of some right or rights requires
the government (or a private person) to do or not do; the strictly inside
argument about what the duty of interpretive fidelity requires judges to
do with a body of materials that includes rights understood as positively
enacted rules of the legal system; and the form characteristic of constitu-
tional law (and of some private law argument as well), in which the arguer
is engaged at the boundary between inside and outside, interpreting an
existing outside right that has already been translated into positive law.
Constitutional rights straddle. They are both legal rights embedded in
308 POST RIGHTS

and formed by legal argumentative practice (legal rules) and entities that
"exist" prior to and outside the constitution. For this reason, an argument
(rom constitutional rights mediates nor just between factual judgments
and value judgments, but also between legal argument (under a duty of
interpretive fidelity) and legislative argument (appealing to the political
values of the community). Once again, the word "mediation" means that
this form of argument participates in the characteristics of both sides of
the dichotomy.
On one side, the argument from constitutional rights is legal, because
it is based on one of the enacted rules of the legal system (the First Amend-
ment, say); on the other, it is normative or political, because it is in the
form of an assertion about how an outside right should be translated into
law. The advocates and judges doing constitutional rights argument ex-
ploit both the notion that adjudication proceeds according to a highly
determinate, specifically legal method of interpretive fidelity, and the no-
tion that the outside right is a universal, factoid entity from whose exis-
tence we can make powerful inferences. Their goal is to make the apparent
objectivity of rights theory dovetail perfectly with the apparent objectivity
of judicial method.'4

Rights in the universalization projects of ideological intelligentsias

Rights are a key element in the universalization projects of ideological

intelligentsias of all stripes. A universalization project takes an interpre-
tation of the interests of some group, less than the whole polity, and argues
that ir corresponds ro the interests or to the ideals of the whole. Rights
arguments do this: they restate the interests of the group as characteristics
of all people. A gay person's interest in the legalization of homosexual
intercourse is restated as the right to sexual autonomy, say. The right here
mediates between the interests of the group and the interests of the whole.
When groups are in the process of formation, coming to see themselves
as having something in common that is a positive rather than a negative
identity, the language of rights provides a flexible vehicle for formulating
interests and demands. There is an available paradigm: a group based on
an identity, from which we infer a right to do identity-defining things, a
right co government support on the same basis as other identity groups,
and protection from various kinds of adverse public and private action (a
right against discrimination). New groups can enter the discourse of
American politics with the expectation that they will at least be under-
stood, if they can fit themselves to this template)'
 Rights in American Legal Consciousness 309

Once the interests of the group have been assimilated to the interests
of the whole polity by recasting them as rights, the factoid character of
rights allows the group to make its claims as claims of reason, rather than
mere preference. Since you do or at least ought to agree that everyone has
this universal right, and that reasoning from it leads ineluctably to these
particular rights, it follows that you are a knave or a fool if you don't go
along. To deny these particular rights makes you wrong, rather than just
selfish and powerful.
This general Liberal idea is available to all. In other words, both liberal
and conservative intelligentsias argue that the group interests they rep-
resent should be recognized in law by asserting that the recognition would
be an instantiation of some set of outside rights. The proposed legal rules
are not "partisan" but rather represent political beliefs and commitments
that transcend the left/right divide. Rent control is unconstitutional. Like-
wise, the liberal intelligentsia argues that its program is just the vindi-
cation of outside rights, enacted in the Constitution, against their mis-
translation in wrong legislative, administrative, and judicial decisions.
I argued above that only since the 1970S has the left in general come
to rely on rights as the principal basis for universalizing its positions.
Before the 1970s, there had always been a live controversy between Marx-
ists hostile to the whole rights formulation, social democratic progressive
planners with a universalization project based on savings from eliminating
wasteful and chaotic markets, and civil libertarians.
For the conservative ideological intelligentsia, the alternative to rights
is efficiency. An efficiency claim has many of the same mediating properties
as a rights claim: it is a value judgment that is universal (who can be
opposed to making everyone better off according to their own understand-
ing of better-offness) and factoid (efficiency arguments are nothing if not
technical and they are supposedly empirically based). But while these al-
ternatives exist, rights now bear the main burden of universalization for
both camps.

The parallel investments of ideological intelligentsias in legal reasoning

and rights discourse
In the discussion of the empowerment effect, I tried to figure out the basis
for intelligentsia investment in the idea of a judicial method in general
and judicial review in particular. I argued, first, that people really like to
believe that whatever they believe in is validated by the mana of the Judge.
Then ¡ argued that legal correctness is a weapon equally of the left and
 310 POST RIGHTS

the right, so that neither side should see it as "in its favor," and that the
privileges of the intelligentsias do not seem to depend in any profound
way on belief in the nonpolitical character of judicial method.
Having thus cleared the ground, argued that American political in-
L

telligentsias of left and right experienced empowerment vis-à-vis legisla-

tive majorities through constitutional wishful thinkingthe belief that
correct judicial interpretations of the Constitution would make illegal
their opponents' programs, permit the moderate version of their own pro-
grams, and check the dangerous tendencies of the masses.
There is a clear parallel between the role of judicial method and the role
of rights. The double mediating effect of rights, between fact and value
and between law and politics, allows both camps to feel that they are
correct in their rights arguments, just as they are correct in their technical
legal arguments. Both claim a whole history of triumph over the other
side under the banner of rights. Each has colonized a part of the legal
corpus and believes that its colonized area represents correct decision ac-
cording to outside rights. Each recognizes that the other holds some ter-
ritory, but interprets this as manipulation of legal reasoning, or wrong
legal reasoning, to conclusions that violate outside rights.
For both sides, rights are crucial to countermajoritarian security as well
as to countermajoritarian reform. The general societal belief in rights, like
the parallel belief in legal reasoning, empowers intelligentsias that no
longer believe (or never believed) that they represent the "will of the peo-
ple." For the left in particular, the move to rights rhetoric meant aban-
doning any claim to represent an overwhelming (white male) working-
class majority against a "bourgeoisie" that was by definition a tiny minority
and getting smaller all the time.
A final parallel is that rights talk, like legal reasoning, is a discourse-
a way of talking about what to do that includes a vocabulary and a whole
set of presuppositions about reality, some of which I have been trying to
tease out. Both presuppose about themselves that they are discourses of
necessity, of reason as against mere preference. And it is therefore possible
to participate in each cynically or in bad faith.
Cynicism means using rights talk as no more than a way to formulate
demands. They may be "righteous" demands, in the sense that one believes
strongly that they "ought" to be granted, but the cynic has no belief that
the specific language of rights adds something to the language of morality
or utility. When one attributes the success of an argument couched in
rights language to the other person's good-faith belief in the presupposi-
 Rights in American Legal Consciousness 311

tions of the discourse, one sees the other as mistaken, as having agreed for
a bad reason, however much one rejoices in the success of a good claim.
Bad faith, as in the case of legal reasoning, means simultaneously af-
firming and denying to oneself the presupposed rationality of the discourse,
and of the particular demand cast in its terms. It means being conscious
of the critique of the whole enterprise, sensing the shiftiness of the sand
beneath one's feet, but plowing on "as if" everything were fine. Bad faith
can be a stable condition, as I argued at length above for the case of legal
reasoning. Or it can turn out to be unstable, resolving into loss of faith or
into renewed good faith.

Loss offaith in rights

Beginning with legal realism, the left-wing critical project has gotten its
impetus from the need to delegitimate particular instances of legal rea-
soning, right-wing instances, and to delegitimate the general claim of
judicial neutrality in order to bolster the power of "the people" (actually,
in the United States, liberal legislative majorities). In Chapter 4, ¡ distin-
guished three versions of critiquethe minimalist, which asserts no more
than that critique (internal and by parallel construction) invalidates extant
claims, that of the maximalists who think they can prove the indetermi-
nacy of judicial method, and that of the maximalists who think the judicial
method should have reached a particular outcome and use critique tactically
to demolish the case for the other side.
At this point, the critical project moves in a different direction accord-
ing to how one interprets the actual experience of the indeterminacy of
legal reasoning. People who adopt the minimalist position, by contrast
with the other two, tend to interpret indeterminacy as a cause of or occasion
for loss offaith in judicial reason. One group of maximalists interprets it
as a demonstration of the power of critical reason, not a loss of faith but
the demolition of an error. The other maximalist group interprets it as the
occasion to subject indeterminate legal reason to an "outside" normative
reason, namely, rights reasoning.
To lose your faith in judicial reason means to experience legal argument
as "mere rhetoric" (but neither "wrong" nor "meaningless"). The experience
of manipulability is pervasive, and it seems obvious that whatever it is
that decides the outcome, it is not the correct application of legal reasoning
under a duty of interpretive fidelity to the materials. This doesn't mean
that legal reasoning never produces closure. It may, but when it does, that
312 POST RIGHTS

experienced fact doesn't establish, for a person who has lost faith, that
closure was based on something "out there" to which the reasoning cor-
responded. It was just an experience and might have been otherwise (had
one followed another work path, for example).
As for attempts to demonstrate abstractly that legal reasoning does or
could produce closure, the extant examples within law look open either to
internal critique or to the critique of partiality by ignoring equally good
arguments on the other side. The post-faith minimalist critic finds not
that "it can't be done," but only that "it doesn't seem to have been done
yet, and I'm not holding my breath."
Loss of faith is a loss, an absence: "Once I believed that the materials
and the procedure produced the outcome, but now I experience the pro-
cedure as something I a to the materials to produce the outcome I want.
Sometimes it works and sometimes it doesn't, meaning that sometimes ¡
get the outcome I want and sometimes I don't." Loss of faith is one possible
resolution of the tension or cognitive dissonance represented by bad faith.
One abandons the strategy of denial of the ideological, or subjective, or
political, or just random element in legal reasoning. One lets go of the
convention that outcomes are the consequences of "mere" observance of
the duty of interpretive fidelity.
The loss of faith in legal reasoning is the across-the-board generalization
of a process that has gone on continuously with respect to elements within
legal thought at least since Jeremy Bentham's critique of Blackstone. Two
examples are the gradual loss of faith in the forms of action and in the
characteristic eighteenth- and nineteenth-century legal operation of "im-
plication." When faith is gone, people say things like Holmes's remark:
"You can always imply a condition. The question is why do you do it?"6
Or they write, "Much labor and ingenuity have been expended in the
attempt to find some general criterion of legal right and wrong, some
general basis of legal liability. But in vain; there is none."7
Loss of faith in legal reasoning bears a close analogy to one of the many
kinds of experience of loss of faith in God. The atheist who believes that
he or she, or "science," has disproved the existence of God is analogous to
the maximalist who believes that postmodern critical theory has proved
the indeterminacy of legal reasoning. The other kind of maximalist is like
the Catholic who becomes a Protestant, rejecting authority while contin-
uing to hold a theology. Loss of faith, by contrast, is not a theory and is
not the consequence of a theory.
I think of my own initial faith in legal reasoning as like the religion of
 Rights in American Legal Consciousness 313

eighteenth-century intellectuals who believed that there were good ra-

tional reasons to think there was a God, that the existence ola God justified
all kinds of hopeful views about the world, and that popular belief in God
had greatly beneficial social consequences. But they also had confirmatory
religious experiences that were phenomenologically distinct from the ex-
perience of rational demonstration.
They engaged in the work of critiquing extant rational demonstrations
and in that of constructing new ones, without any sense that their faith
was in jeopardy. And they had occasional experiences oí doubt without any
loss of interest in and commitment to the enterprise of rational demon-
stration. (This is me in the first year of law school.) Loss of faith meant
that they woke up one morning in the nineteenth century and realized
that they had "stopped believing."
It wasn't that someone had proved to them that God did not exist. They
didn't find any extant rational demonstration of this proposition convinc-
ing. Nor had they decided that it was impossible to prove that God exists.
It was just that they didn't find any extant proof convincing. They might
even continue to have experiences like those they had once interpreted as
intimations of the divine. But somehow the combinationthe processes
of critique and reconstruction of rational demonstrations, along with the
process of doubt and reaffirmationhad "ended badly."
It no longer mattered that more work might settle the question ration-
ally, that the idea of a world without God was profoundly depressing, that
they might lose their jobs in the clergy if anyone found out what they
really felt, or that a generalized loss of belief in God threatened all kinds
of terrible social consequences. It didn't even matter that people much
smarter than themselves were pushing rational demonstrations that they
hadn't refuted and perhaps wouldn't be able to refute when they tried.
They were in a new position. It was neither a position of certainty nor
one of uncertainty. It wasn't certainty because no certainty-inducing ra-
tional demonstrations had worked. It wasn't uncertainty because the only
possibility left was a surprise: someone might come along and prove that
God did or did not exist, and everyone would have to come to grips with
that development. In the meantime, there was no subjective state of won-
dering, no interrogation of the world. The question was "over," or
"parked." They were post-God.
I said earlier that loss of faith is neither a theory nor the outcome of a
theory. It is an event that may or may not follow critique. For example,
in the spring of my first year in law school, I was working on a law review
3X4 POST RIGHTS

case note. At lunch with a second-year student editor, J waxed eloquent

on the doctrinal implications of a paragraph in Chief Justice Warren's
majority opinion that indicated, I thought, an important change in the
Court's First Amendment theory. The editor looked at me with concern
and said, "I think you may be taking the language a little too seriously."
I blushed. It was (unexpectedly, suddenly) obvious to me that the language
I had been interrogating was more casual, more a rhetorical turn, less "for
real" than I had been thinking. No judicial opinion since has looked the
way some opinions looked before this experience.
Working for a law firm during the summer of my second year, I prepared
a brief arguing that a threatened hostile takeover of our client would violate
the antitrust laws. I was a fervent trust buster and "believed" my argument.
The lawyers on the case let me tag along when they visited the Justice
Department to urge the Antitrust Division to intervene. Back in New
York, in the elevator going up to the office, we ran into another lawyer
who told us that a new offer had persuaded our client to go along with
the takeover. The lead lawyer said to me: "You know the argument so well,
it should be easy to turn it around." Something in my face shifted him
from jocular to pensive. "On second thought, we'll get someone else to do
it," he said, and patted my arm. Ah, youth!
Nothing was "proved" in either incident, and in each case the person
who jolted me was trying, nicely, to induct me into bad faith, not no faith.
It would have happened some other time if it hadn't happened then, and
so forth.
Though it is arational, a "leap" in reverse, rather than a "consequence"
of critique, loss of faith is nothing like a fully random event. It is a familiar
notion that critique may "undermine" or "weaken" faith, preparing with-
out determining the moment at which it is lost. And loss sometimes
proceeds by a process like metaphor (or is it metonymy?) in poetry. For
example, in the rationalism/irrationalism debate, loss of faith seemed to
"spread" like a disease, or "jump" like a forest fire, from legal reasoning to
totalizing theories of law and economy.
In the next chapter, 1 describe the structural relationship between the
critique of legal reasoning and the critique of rights. The idea is nor to
explain but rather to describe the context within which occurred the mi-
gration of loss of faith from one domain to the other.
 '3
The Critique of Rights

this chapter describes a series of contexts for the loss of faith in rights,
arranged as a kind of route for the progression of the virus. ¡ begin with
the role of rights "inside" legal reasoning, that is, with the way judges
argue about the definition and elaboration of rights that are clearly estab-
lished by positive law. Doubts about this process suggest doubts about the
constitutional rights that "straddle" the inside and the outside. And these
lead in turn to doubts about popular rights discourse and fancy rights
reconstruction projects in political philosophy. I close with an attempt to
dispel some common misunderstandings oí the nature and implications of
rights critique.

From the critique of legal reasoning to the critique of constitutional rights

The point of closest contact between legal reasoning and rights talk occurs
when lawyers reason about inside rights. This practice is important for
rights talk because through it outside rights are "translated" into the legal
order. As we saw in the last chapter, this translation is a crucial part of the
Liberal program for a good society. Failure in the process of translation-
say, a loss of faith in the possibility of doing it while maintaining the
double mediation between factual and value judgments, and between legal
and political discoursewould be a failure for Liberal theory.
But it would pose (has already posed) another danger as well: doubt
about the coherence of legal rights reasoning at the business end, so to
speak, of the rights continuum threatens to spread "back" to constitutional
rights, which "straddle," and thence to fully outside rights. It is just such
a progression that I will suggest here.

315
316 POST RIGHTS

Legal rights in legal reasoning

The critique of legal reasoning operates on inside rights argument in the

same way it operates in general. It does not deny that it is "meaningful"
to speak of legal rights. For the judge under a duty of interpretive fidelity,
legal rules stated in the language of rights are part of the body of materials
that "bind" him, or that he transforms through legal work. Appeals to
legal rights, whether constitutional or just mundane common law rights,
influence the course of decision, as do appeals to legal rules that are not
stated as rights (such as rules about interstate relations), and to precedents
or policies (for example, security of transaction). The appeal to a rule cast
in the form of a right, or to a value understood to be represented by a
right, may produce the experience of closure: given this legalized right,
you can't think of a good reason why the plaintiff shouldn't lose the case.
Participants in ideologized group conflict formulate their demands in
rights language and then try to get particular rights legalized (enacted by
a legislature, promulgated by an administrative agency, incorporated into
judge-made law), both at the particular level (Miranda rights) and at the
more abstract level (the Equal Rights Amendment). If they succeed, "there
is a right to a lawyer during police interrogation," meaning that there is
a legal rule requiring a lawyer, one that influences real world practices as
do other rules in the system. In drafting a charter for a limited equity co-
op, it makes sense to provide for the "rights" of the cooperators, of the
community land trust, and so on.
While rights arguments have meaning and effect in legal discourse, it
is clear that they are open to the same analysis of open texture or indeter-
minacy as legal argument in general. The crucial point about the critique
of legal rights is that in the process of pursuing the general left-wing
project of showing the manipulability of legal reasoning, critique flattened
the distinction between rights argument and policy argument in general.
It did this in two distinct ways. First, when the asserted right deployed
in argument is seen as a legal rule, a positive prescription to be interpreted
(right to counsel during police interrogation), then we interpret it using
the whole range of policy argument. Whatever the right "is," is a function
of the open-ended general procedure of legal argument.
Second, when the arguer appeals to a right as a reason for adopting a
rule (protect free speech, secure the owner's property rights), minimalist
internal critique reduces legal rights reasoning to policy reasoning by
showing that it is necessary to balance one side's asserted right against the
other side's (protect the right to a nonabusive workplace, tenants' rights).
 The Critique of Rights 317

According to the critique, what determines the balance is not a chain of

reasoning from a right or even from two rights, but a third procedure, one
that in fact involves considering obviously open-textured arguments from
morality, social welfare, expectations, and institutional competence and
administrability. None of this precludes the phenomenon of closure or
apparent objectivity of the rule interpretation. lt merely undermines its
rational basis.

Legal argument about rights that are lega! rules

reduces to policy argument

Judges making legal arguments about interpretive fidelity in common law

adjudication and statutory interpretation typically convey that they are
dealing with a dense network of rules that have to be followed regardless
of their sources and regardless of what the judges think about their right-
ness or wrongness. The correct interpretation of the materials is a very
different question from the question what would be the best thing to do
under the circumstances (the "legislative" question), and from the "phil-
osophical" question of what political morality, or protection of natural
rights, say, requires under the circumstances.
In the context of common law or statutory interpretation, rights and
rights reasoning are submerged in the argumentative mass that includes
precedent, canons of statutory interpretation, institutional competence and
administrability arguments, general moral arguments for or against the
conduct of parties, utilitarian arguments about how different rule choices
will affect the conduct of private parties beyond the parties to the case,
and arguments about the welfare consequences of those changes. Since the
word "right" is generally used synonymously with "a rule legally protect-
ing an interest of a party," there is nothing even slightly odd about casting
a judicial opinion in the form: "We hold that the plaintiff has a right to
x, and the reason is that this will honor precedent, correspond to legislative
intent, keep us within our institutional competence, reward morality and
punish vice, be easy to administer, and maximize consumer welfare."
The critique of this kind of legal rights reasoning is aimed at the ability
of judges to produce convincing, closure-inducing, doubt-eliminating
chains of reasoning about particular lega! outcomes in the context of in-
terpretive fidelity. The rights are just legal rules, more or less abstract,
more or less formally realizable, that we are trying to interpret along with
all the other legal materials to justify outcomes.
Loss of faith in this discourse is loss of faith in the judge/legislator
 318 POST RIGHTS

distinction, or in the idea of the objectivity of adjudication. It is the

development and extension of the critical project that I described in Chap-
ter 4. Of course, it might mean loss of faith in law, or in legal authority,
as well. But the rightsthat is, the legal rules that don't produce clo-
suremight come from anywhere. They might be morally admirable or
monstrous; they might be grounded in majority rule, or natural law, or
custom, or whatever. In other words, no matter how threatening to legality,
the critique and loss of faith in legal rights reasoning does not necessarily
imply a loss of faith in normativity in general, or in the use of rights and
rights reasoning to decide what we leftists think the law should be.
Nonetheless, it is one part of the context of loss of faith.

Rights argument within legal reasoning reduces to balancing

and therefore to policy
I have been arguing that the rights system, like the rule system as a whole,
turns out to be open to strategic work designed to exploit or to generate
gaps, conflicts, and ambiguities in particular cases, with the goal of making
legal rules that will favorably dispose ideological stakes. Within the mass
oí argumentative strategies (deduction, precedent, policy) that apply across
the range of legal questions, there is a subset of rights arguments that are
virtually identical to those used in political philosophical rights discourse.
These are the "operations" that one uses to move from rights generally
stated ("everyone has a right to privacy") to specific outcomes. For example,
a right holder can lose because she waived the right asserted (versus, say,
a claim of duress) or forfeited it by misconduct (versus, say, a claim of
inevitable accident).
For the purposes of critique, the most important of these techniques are
those for generating a right that supports what your side wants to do or
what your side wants to stop the other side from doing. As Hohfeld showed
for property rights, the right your opponent is asserting will often be
defined in such a way that you can appeal to the very same right on the
other side.'
You can also work at constructing a new right by recasting what you
want to do as an instance ola more general interest, and then as an instance
of an already existing legal right that protects that interest. For example,
it was not until the 1930S that labor picketing was reconceptualized as
free speech.2 Or the advocate can claim that a set of precedents previously
viewed as protecting several different rights actually protect a single in-
 The Critique of Rights 319

terest, which should be legally protected as a new right. The classic ex-
ample is the generation of the right to privacy, first by Louis Brandeis in
the private law context, then by W. O. Douglas in constitutional law.1
Another part of the mundane legal practice of rights argument is the
critique of your opponent's rights claims. The most basic technique is che
internal undoing of a rights argument by showing that it relied on a false
deduction, typically on a conceptualist overstatement of what was entailed
in the definition of the right. The right to contractual performance does
not entail the right to expectation damages.'
The upshot, when both sides are well represented, is that the advocates
confront the judge with two plausible but contradictory chains of rights
reasoning, one proceeding from the plaintiff's right and the other from the
defendant's. Yes, the employer has property rights, but the picketers have
free-speech rights. Yes, the harasser has free-speech rights, but the harassed
has a right to be free of sex discrimination in the workplace. Yes, the
landowner has the right to do whatever he wants on his land, but his
neighbor has a right to be free from unreasonable interference. And each
chain is open to an internal critique.
Sometimes the judge more or less arbitrarily endorses one side over the
other; sometimes she throws in the towel and balances. The lesson of
practice for the doubter is that the question involved cannot be resolved
without resort to policy, which in turn makes the resolution open to ideo-
logical influence. The critique of legal rights reasoning becomes just a
special case of the general critique of policy argument: once it is shown
that the case requires a balancing of conflicting rights claims, it is im-
plausible that it is the rights themselves, rather than the "subjective" or
"political" commitments of the judges, that are deciding the outcome.
Once again, the prevalent experience, first, of the manipulability of legal
rights reasoning and then of its reduction to balancing tests, doesn't pre-
clude instances in which rights reasoning produces the opposite experience
of closure. Nor does it show that outside rights don't exist. lt is just another
context for loss of faith.

Rights mediate between lau' and policy

The application of the critique to legal reasoning about inside rights re-
veals yet a third mediating function of rights in political culture. Within
legal discourse, rights arguments are situated midway between merely "tech-
nical" or deductive arguments about rule application, appealing to ideas
320 POST RIGHTS

like the plain meaning of words, legislative intent, stare decisis or the
"will of the parties," and "pure" policy argument. Remember that policy
arguments are understood to be inevitably present within legal argument,
but they are disfavored and marginal in status, compared to arguments
that appear more consonant with the supposedly objective character of
adjudication.
Rights arguments involve something more than the logic of the valid,
because they explain and justif rules, rather than merely apply them, but
they are less "subjective" than pure policy arguments, because of their
"factoid," half-fact/half-value character. Loss of faith, or the failure of me-
diation, occurs when we begin to see the techniques of "manipulative"
rights argument as potent enough to reduce "every," or at least any par-
ticular, rights argument to a question of balancing.

The proliferation of balancing testi reduces constitutional rights questions

to policy questioni

The second context for loss of faith in rights is the specific history of
balancing, or of conflict between rights, in constitutional law. I think the
attitude of political lawyers in the United States toward rights has been
profoundly influenced by this nationally specific history. As I see it, it has
four parts.

i. The legal realist attack on the rights reasoning by which conserva-

tives had embedded a particular understanding of property rights in
constitutional law. The realists argued that because the conservative
constitutional rights case against reform statutes necessarily involved
mere policy argument, the courts had no specifically legal basis for
overruling legislative judgments.
The moderate and conservative attack on the liberal attempt, in the
195os, to embed a particular understanding of freedom of speech
and equal protection in constitutional law. Moderates and conser-
vatives argued that because all the courts could do was balance rights
against powers, or rights against rights, they had no specifically legal
basis for overruling legislative judgments.
The liberal success, in the 195os, 1960S, and early 1970S, in getting
the liberal conception of equal protection and identity rights em-
bedded in constitutional law (the victim perspective), followed by
 The Critique of Rights 32 I

an equally successful conservative counterattack, in the 1970S and

1980S, that embedded a contradictory understanding of rights in
constitutional law (the perpetrator perspective).
4. The emergence, in the 1970S and 1980s, of contradictory rights
claims within the liberal coalition, based on different conceptions of
identity.

Before I briefly describe each of these contexts, I want to reemphasize

that none of them compelled loss of faith. Loss of faith is an event that
occurs for some people in one context, and for others in another. Some
people lost their faith in constitutional rights reasoning in the 1930s.
Others lost their faith in the late 198os. Many lost faith and then regained
it, or lost faith in one kind of rights reasoning but not in another, and so
on.
What the contexts have in common is that they each presented the
problem of how to make abstract rights (property rights, free-speech
rights, equality rights, reproductive rights, privacy rights) concrete at the
level of rule choice within the legal system. The initial question was,
"Given that we all agree there is a right of free speech, can a city restrict
leafleting on downtown streets?" Or, "Given that we all agree that there
is a right of privacy, can a woman decide without the consent of the father
to abort her fetus in the first trimester of pregnancy?"
The second thing the contexts have in common is that the inquiry into
how to concretize the abstract right occurs in the presence of a counter-
vailing right, or of a power of the legislature presumed to derive from
majority will, or from the legislatures duty to protect the rights of parties
other than the claimants. This means that there are two opposing concre-
cization projects going on, one from the plaintiff's side and the other from
the defendant's. It is always possible that the judge or observer will see
these two projects as producing a "draw" or a "stalemate" or a "clash of
absolutes."
The third thing the contexts have in common is that the opposing sides
in the dispute attacked each other's concretization projects as unsuccessful,
on their own terms, in linking the preferred rule to the abstract right.
Each side then accused the other of motivated error, that is, of having
consciously or unconsciously masked an ideologicala deeply contested-
claim about what the law ought to be in a false claim about interpretive
fidelity to the body of extant legal materials.
 322 POST RIGHTS

The liberal legal realist origin of the critique of rights

The historiography of balancing in American legal thought is in its in-

fancy.6 But the idea has well-known legal realist origins. Holmes (not, of
course, a liberal, just a hero to liberals) is a convenient starting point. In
numerous private law and constitutional decisions, he emphasized that the
recognition of rights was a matter oí degree, of quantity not quality.7 No
one got recognition of his or her right to the full extent that might be
justified by consideration of its definition in the abstract. Where the right
of one parry ended and that of the other began had to be determined by
looking at the consequences of drawing the line in one place rather than
another. The mere recognition and definitional statement of the right (free
speech, property) was inadequate because it would seem to justify more
for the claiming party than was consistent with equally well established
rights claims of the other side.
This kind of formulation fit the scientistic, antimetaphysical, relativist,
pragmatist biases of realism. But it was given a kind of bite that survives
the biases by Hohfeld's insight that the word "right" sometimes means a
privilege to hurt someone without having to pay and sometimes means a
claim to be compensated when hurt. When we talk about property, in
particular, we are referring to a collection of rules some of which authorize
injury and others of which forbid it. Whenever there is a gap, conflict, or
ambiguity in property law, one side can invoke all the rules in the "bundle"
that suggest protection, and the other the rules in the bundle that suggest
freedom of action.8
Learned Hand, who saw himself as a devoted follower of Holmes and
Hohfekl, proposed balancing tests in a series of contexts, including the
law of unfair competition,' antitrust,'° the definition of negligence," and
the definition of free-speech rights threatening to national security.'2 For
Hand, as for Holmes and Hohfeld, the move to balancing was initially
part of the liberal critical project, because he saw overt judicial balancing
as formal acknowledgment that judges decide questions of policy without
any methodology that distinguishes them from legislators.
If that is what judges do, there is less basis than there would otherwise
be for judges to overrule legislatures. Indeed, if judges can't decide con-
stitutional questions without balancing, one can ask why their balance,
their views of policy, should prevail over those of the elected representatives
of the people. If balancing means looking in detail at the consequences of
 The Critique of Rights 323

drawing the line in one place rather than another, then it would seem that
judges are less "institutionally competent" to the task than legislators.'
The realist position was that interpretive fidelity just "runs out" in many
(not all) cases, because they involve conflicts for which there is no other
resolution than balancing. In other words, the emergence of balancing was
an extension of point two of the basic minimalist critical routine: given
the internal critique of extant attempts at determinative legal reasoning,
many questions of law can be resolved only by looking at them as questions
of policy that will evoke differing responses according to one's ideology.
This extension of the critique did not necessarily produce loss of faith
in constitutional rights. The emergence of balancing occurred in an odd
and complex context. Balancing was initially liberal because, in private
law (right against right), it undermined the claim of judicial objectivity
and, in public law (right against power), it undermined the legitimacy of
the Supreme Court's protection of property rights against progressive leg-
islation. As such, it was not antirights but only antiproperty rights. At
the same time that the liberal Court was drawing most clearly the conclu-
sion that questions of economic regulation were so "legislative" that ir was
inappropriate to interfere, the liberals were gearing up for the defense of
human rights, through the Carolene Products footnote'4 Powell y. Ala-
bama,' "picketing as free speech,"6 and the flag salute cases.'7

Balancing and the conservative critique of liberal rights claims

When the Democrats gained control of the Supreme Court in the New
Deal, their legal realist appointees developed a new body of constitutional
law doctrine that glorified legislative power. The Supreme Court exploited
the gaps, conflicts, and ambiguities of legal rights doctrine, plus the power
to overrule its own decisions, to make legal reasoning a principal support
of legislative supremacy.'8 The realist critique of adjudicationthat it
often involves policy choices, which amount to value judgments that are
ideologically contestedwas an important element in the argument for
this turn.
But once the liberals were in control, and fascism and Stalinism emerged
as the threat, the realists abandoned the project of internal critique, in
favor of the more pressing task of managing the new liberal, regulatory,
interventionist state. As post-1945 legislatures turned conservative, while
liberals retained control of the judiciary, the left intelligentsia went for
324 POST RIGHTS

the adjudicatory empowerment effect. That is, it adopted the position that
the federal Constitution enacted a wide range of liberal policy preferences
and flatly prohibited a wide range of conservative policy preferences.
It is important to see that this project had two parts. One was to develop
the kind of reasoning from individual constitutional rights that liberals
had allowed a marginal survival during the period of their attack on con-
stitutionalized property rights. Faced with McCarthyism, police brutality,
and conservative gerrymandering, and positively committed to racial jus-
tice, the left liberals attacked the jurisprudence of legislative supremacy
they themselves had constructed, and became civil libertarians with a ven-
geance.
The second part was to reconstruct the theory of the judicial role, re-
pairing the damage that their parents and grandparents, or they them-
selves, had done to the mana of the Judge in the process of storming the
robing room. Though some, like W. O. Douglas, weren't able to do it
with a straight face, the liberal intelligentsia in general followed Herbert
Wechsler (neutral principles)'9 or Hugo Black (absolutes),2° according to
taste, in reaffirming the possibility of judicial neutrality and the distinc-
tion between law and politics. Here again, balancing was the key.
The initial battle was over the criminalization of the Communist Party.
Moderates and conservatives argued that because it was necessary to bal-
ance communist free-speech rights against the legislative power to protect
national security, and because the balancing process was nothing more than
the redoing of the (ideologically charged) policy decision that the legis-
lature had made in passing the statute, the judges should "defer" to the
legislature.2' In short, they used the liberal legal realist critique of judicial
activism against the left.
The left liberals answered that the First Amendment was an "absolute,"
thereby both firmly tying their position to the vindication of individual
rights against the state and establishing a basis for nonideological judicial
enforcement through adjudication.22 The conflict played out in a long
series of cases. Though the liberals won many of these cases, "absolutism"
did not survive the realist critique.23 Balancing became a paradigm for
constitutional decision in one area after another.
In the second round, the moderates and conservatives critiqued judicial
activism in the civil rights areas, producing counterrights that had to be
balanced against left liberal claims. Wechsler, in his famous article, pointed
out that white segregationists were asserting their right of free association
with just as much subjective sense of entitlement as the blacks demanding
 The Critique of Rights 325

integration. Since there was no "neutral principle" by which to decide

between the two demands, the judges should have deferred to the legis-
lature.21 In other words, to assert that the Court should straightforwardly
balance in favor of blacks would have been a usurpation of legislative
power.
The moderates and conservatives also developed a second strand of pre-.-
World War II progressive argumentation, that which had favored federal
deference to state government regulatory initiatives. Hart and Wechsler's
famous casebook, The Federal Courts in the Federal System,2' provided a theory
not of states' rights per se but of common interests in the viability of
decentralized government. These interests had to be balanced against the
rights-based demands of the civil rights movement for intervention against
racist Southern government officials and private parties. Once again, the
inherently ideological nature of the choice, the necessity of balancing,
argued for federal judicial (though not necessarily congressional) deference
to state power.
Neither these balancing disputes, nor those in the area oí apportionment
(right to vote versus states' rights) or regulation of police conduct (suspect's
rights versus right of the community to protection from crime), necessarily
led to loss of faith. Indeed, since the left was usually arguing for a rec-
ognized individual constitutional right against a proxy (national security,
states' rights, police power) for "rights of the community," it was possible
to see each conflict as "good" rights of the individual against "evil" powers
of the majority.
Nonetheless, there was something "weakening" or "undermining" about
the fact that the liberals were using exactly the rhetoric they had de-
nounced before World War II, about the failure to come up with any
alternative to balancing as a methodology for protecting rights, about the
very facility they began to feel at inventing new rights (privacy being the
most striking case), and about the parallel facility of their opponents at
inventing counterrights of one kind or another.26

Revalidated constitutional rights reasoning switches sides in the i 9705

The violent Southern racist reaction to the civil rights movement, com-
bined with the triumph of the liberals on the Court of the 196os, had an
impact on the critique of rights quite similar to the impact of fascism,
Stalinism, and the Roosevelt Court on the realist critique of adjudication.
In short, there are no atheists in foxholes.
326 POST RIGHTS

As I mentioned above, there was a persistent radical 1960s critique of

the judiciary as a tool of the Establishment, a critique that fed on every
hesitation, compromise, or betrayal by the liberal Supreme Court. It was
also grounded in the experiences of local activists, movement lawyers, and
legal services lawyers with the arbitrariness or just plain conservatism of
local courts of all kinds. But for the liberal ideological intelligentsia, and
particularly the legal part of it, these were minor themes compared to the
major theme oí empowerment through adjudication based on rights
claims.
Faith in rights within law fed on the explosion of different popular
movements in the 1960s and into the 1970s. The "corrosive" effects of the
realist critique of conservative property rights, and of the conservative
critique of t95OS personal rights, were internal to the legal intelligentsia.
Faith flooded in from outside, at just the moment when liberal lawyers
found that their rights arguments had an almost magical effect on the
liberal judges with whom they shared the agenda of adjudicatory empow-
erment.
The dramatic reversal brought about, over fifteen years, by the Burger
and Rehnquist courts changed all this. Conservative judges deployed a
new version of rights rhetoric and drew on a new version of conservative
white, male, straight, working- and middle-class popular rights culture.
The familiar arguments, which had come to seem "correct" in part just
because they worked to mobilize the mana of the Judge, stopped persuad-
ing. The rights of "victims" gave way to the rights of "perpetrators," per-
haps most dramatically in Bakke,27 and then across the board. Balancing
was everywherethe left had no alternativeand was everywhere patently
an invitation to conservative ideological intervention.
The left in the 198os was in the position of the right of the 1940S,
which had relied for several generations on a rhetoric of property rights
that made no careful distinction between natural rights arguments and
arguments based on the Fourteenth Amendment. The right had achieved
massive victories in getting the Supreme Court to strike down all kinds
of social legislation. In the process, it had woven the natural right to
property more and more tightly together with the constitutional right to
property, until the legal part of the position was much more developed,
more coherent, and more convincing than the "external" part. The left of
the 1960S had performed a similar operation with the equal protection
clause.
The right in the late 1970S and the 1980s exploited the gaps, conflicts,
 The Critique of Rights 327

and ambiguities in the system of rules, the open texture of the doctrine of
stare decisis, and the semiotic, formulaic, pro/con character of policy ar-
gument to cut back and dismantle the liberal victories much as the liberals
had done with the conservative victories forty years earlier. Of course, it
was possible to interpret this trend, yet again, as no more than the triumph
of vice over virtue. But the demonstration, yet again, of the manipulability
of rights arguments back and forth across the political spectrum provided
a third context for loss of faith.

The internal disintegration of left rights rhetoric

In the late 1970S and the 198os, at the same time that the left legal
intelligentsia was constructing its version of the sixties as a constitutional
rights revolution, organizers, activist lawyers, and theorists all began to
come up against a kind of rights-overkill problem. Rights for gays, old
people, the mentally retarded, Native Americans, children, mental pa-
tients, animals, prison inmates, endangered species, the handicapped, pros-
titutes, crime victims, people with AIDS, all made sense, if what one meant
by each of them was a specific program of law reform in favor of the group
in question. But remember that the whole point of adopting rights rhetoric
was to get beyond or outside the posture of the mere ideological or interest
group demanding something on policy grounds.
Left thinking evolved in reaction to internal debates about the content
of these "proliferating" rights claims, whether phrased in terms oi equality
within the legal order or in terms of substantive rights to freedom of
action. The most striking of the equality debates addressed "equal treat-
ment versus special treatment" within the feminist legal community. A
series of efforts to use the notion of a right to equal treatment as the basis
for a program of law reform ran up against the classic problem of deciding
between formal and substantive equality as the content of the right. In so
much as the debate had an outcome, it seemed to be that rights definition
should proceed ad hoc, through something very like balancing.2
The equivalent within the black community was the dispute about
whether equal protection meant affirmative action in the form of integra-
tion or in the form of development of black institutions. In such contexts
as schools and housing projects it seemed that the price of integration
would be subjection to unending white racial hostility, acceptance of white
social norms, and loss of black power and opportunity within the inte-
grated settings.29 At the same time, a black conservative movement began
328 POST RIGHTS

to challenge affirmative action in general, arguing for a definition of the

right to equal protection as formal equality.30
The substantive branch of identity/rights doctrine has to do with a
newly formed identity-based group demanding its rights. The group typ-
ically demands lifting of restrictions on its characteristic, identity-defining
activities, affirmative governmental support for the group's interests, and
the imposition of restrictions on other individuals or groups that are at-
tempting co suppress the newly asserted identity. Thus the left supports
the pregnant woman's right to abortion over the right to life of the fetus,
and the right to engage in consensual adult homosexual intercourse over
che community's right to prohibit what it views as evil conduct.
But then there are splits about whether the woman's right to abort
excludes any rights at all for the father, about whether the state should
suppress Nazi or Klan neighborhood marches, pornography, and racist and
sexist speech on campus. Leftists who combine antistate libertarian com-
mitments with cultural pluralist commitments find themselves constantly
balancing freedom-of-action rights against security rights.3'
Finally, there is the problem of "intersectionality": rights that suppos-
edly flow from a particular group identity may be oppression for subgroups
that have a crosscutting allegiance. For example, black feminists face the
nationalist assertion of a black male right to "discipline" black women and
of a black community right to freedom from majority or state interference
with this practice.52
In white feminism, first came the argument that Equal Rights Amend-
ment advocates were denying or attempting to suppress more "traditional"
forms of female identity, then that white feminists had defined female
identity in essentially white terms, and then that cultural feminists in the
antipornography movement were abridging the rights of pro-sex or sex-
radical women to read and write erotica. These quarrels were totalized by
postmodern feminists under the banner of anti-essentialism and given
added bite when gay men began to challenge the monolithic cultural
feminist construction of male identity»
For some, the project of identifying identities and then defining rights
to protect them, in their freedom to engage in defining practices, in claims
on public resources, and in protection against discrimination, began to
seem a pipe dream. One might lose faith in it as a project, without losing
enthusiasm for cultural pluralism or for one's particular list of law reform
proposals, just because the process of deciding what the rights were was
no different from general policy analysis. The project of identity rights
 The Critique of Rights 329

looks uncomfortably like the nineteenth-century project oí guaranteeing

"everyone's right of freedom of action as long as they don't interfere with
the security rights of others," or sic utere tuo ut alienum non laedas.
But, once again, there is nothing inevitable about this interpretation.

While I have no theory of loss of faith, I would hazard the hypothesis that
in the legal context "erosion," "undermining," "unraveling," and "conta-
gion" are likely to be precipitated by the spectacle of reversal: the anti-
rights arguments of the old left used by the new right, the left occupying
the exact position of an earlier right. This kind of flip by the two opposing
camps undermines belief in the technique in question in a way that criti-
cizing something that is simply analytically incoherent and politically
incorrect doesn't. I wonder how abolitionist litigators dealt with their own
dramatic shift, from nationalists to states' rights advocates, after the Fu-
gitive Slave Law put the federal government on the side of the South
against resisti ng Northern state governments.
A second hypothesis is that it is undermining to experience the unex-
pected disintegration oían apparently robust rights discourse within one's
own camp. In both the 1950S and the 1980s, a discourse understood un-
problematically as a righteous weapon against the wrong thought of ene-
mies suddenly foundered on the inability to convince one's supposed allies
that a particular right was good rather than bad.

From the critique of constitutional rights

to the critique of outside rights

Does the flattening of constitutional rights argument into policy argument

have any relevance to the outside rights that are supposedly "behind" or
translated by legal enactment? The loss of faith in reasoning about legal
rights raises the question of whether one can still have faith in the nor-
mative rights project carried on outside legal discourse. If the inside dis-
course, the translation, is "mere rhetoric," under constant suspicion of
ideologica! partisanship, then isn't that likely co be the case for the "out-
side," "original" text as well'
The critique shows only that there is often no difference between an
argument that you have a constitutional right to x, y, or z, and an argument
that on general moral, political, utilitarian, competence grounds it would
be better overall for the legal system to intervene on your side. It does not
show chat there is no valid procedure for reasoning from rights as prelegal
330 POST RIGHTS

entities to conclusions about what law should be. This was the mode of
reasoning of those abolitionists who saw the Constitution as a pro-slavery,
hence immoral, document. They were antilegalists but in no sense critical
of rights.
Moreover, it is still possible to believe that one chooses one's intralegal
rhetorical posture by reference to the extra- or prelegal element in consti-
tutional rights discourse. Advocates making constitutional rights argu-
ments can go on believing that the part that is outside, existing prior to
the legalization of the right in the Constitution, has a kind of reality quite
different from the reality of the right understood as incorporated into
positive law, and subject to all the mechanisms of legal interpretation.
If you can be correct about the outside right, it isn't so bad to have to
give up the objectivity of legal rights reasoning. You can be extremely
"legal realist," or even "nihilistic," about law but still believe that correct
reasoning from rights solves ethical problems. The point, then, is just to
get judges who will manipulate the plastic substance of legal reason to
achieve the results that are correct in terms of outside rights.
Or you can believe in the correctness of the outside rights judgments
but believe that these judgments are "in the abstract." They may have to
be modified "in practice" by the kinds of nonrights considerations typically
raised in legal reasoningutilitarian or institutional competence con-
straints, for example.34
But if the inside/outside divide is breached, and the critical spirit gets
applied to the outside rights, there may be trouble. Given the content of
the critique of constitutional rights, there is little reason to hope that either
fancy theory or lay rights discourse will be able to sustain their extralegal
normative claims.

Critique of the lay discourse of rights

In lay discourse, the word "right" is used in all the ways it is used in
constitutional discourse. There is, to begin, a strictly legal positive usage:
"women have no rights in Iran," "there was no right of free speech in
Stalin's Russia." Rights just mean rules in force to protect particular in-
terests. But the word is also used in lay legal argument about what the
U.S. courts should do about particular statutes or executive actions. The
speaker assumes the existence of a "straddling" constitutional right, and
reasons from it to a conclusion, deploying some version of the standard
legal interpretive techniques, including precedent (consistency) and moral,
utilitarian, institutional competence and administrability arguments.
 The Critique of Rights 33'

Lay discourse also uses rights in self-consciously legislative argument,

with the issue no longer interpretive fidelity but rather what people with
law-"making" (as opposed to law-interpreting) authority ought to do. Here
is an example:

Civil libertarians shriek about the right to privacy of those infected with
AIDS. To me, Kimberly Bergalis had more a right to live than her dentist
had to privacy. In the balancing act, there is no contest. But it is im-
portant to protect those who test positive with strong antidiscrimination
laws.
Those opposed to mandatory testing argue that the risk of patients
contracting AIDS from workers is very low, that workers are more likely
to contract AIDS from patients. So why not test all patients who are to
undergo "invasive" procedures, while at the same time testing health care
workers who perform such procedures? Protect everyone, rather than no
one."
In this passage, the writer treats rights argument very much as would
a lawyer disabused of the sense that "rights are trumps." Rights conflict;
they are quantitatively rather than qualitatively powerful; they have to be
balanced; how we do the balance depends on the practical context and on
nonrights arguments about things like the degree of harm that will flow
from different resolutions of the conflict.
The same presuppositions may underlie statements like "there is a con-
flict between privacy rights and free-speech rights," "the statute gives in-
adequate recognition to the right of free speech," "the statute should have
recognized a free-speech right," "we should recognize a right of privacy,"
"our society has a consensus in favor of a right of privacy," "this is an
attempt to cut back the right of privacy," "we have to find a way to rec-
oncile landlord's rights with tenant's rights."
The justifying role of rights here is ambiguous. The speaker might go
on to explain that the reason the statute gave inadequate recognition to
free speech was that free speech is an interest more important than the
interest in, say, national security, that there were other ways to achieve the
national security objective, that the resolution gives courts too much
power, and so on. Rights then function as no more than interests (perhaps
with an exclamation point). Because the discourse treats rights arguments
as no more than policy arguments, they perform no mediating function,
produce no transcendence of the fact/value or law/politics divides, as those
are commonly presupposed in the discourse.
The same is true of explanations like "we should establish a right of
privacy in order to safeguard people from unreasonable searches. ." or "to
332 POST RIGHTS

assure a woman control over her reproductive life." Here, the idea is to
change a legal rule by inserting a right-concept, but the reason given is
to change a state of affairs defined otherwise than in terms of violation of
the right. If you have lost your faith in the mediating power of legal rights
discourse, having come to experience it as no more than a form of ideo-
logically permeable policy talk, then you are not likely to see these forms
of lay discourse as any different.
Sometimes lay people appeal to fully outside rights without employing
either positivist legal reasoning or legislative policy argument. The rights
claim is intended to be something more than just a claim about what is
politically and morally best. The speaker seems to presuppose that it is
more "objective" or "absolute" or "conclusive," that it is possible to "be
right" about it, to make a "correct" argument, in a way that differentiates
it from other kinds of claims: "Banning abortion is wrong because it denies
a woman's right to control over her own body," "rent control is wrong
because it denies the landlord's right to private property."36
When challenged, the speaker may quickly turn to defense of the right
in the normal legislative way, offering all kinds of arguments as to why a
legal decision maker should agree. (Institutional competenceit should
be up to the woman rather than the court to decide; social welfareback-
alley abortions will increase and are an unacceptable cost.) When this
happens, it reemerges that the right is a "value judgment," supported by
a rhetoric, perhaps a rhetoric one finds utterly convincing, but without
the mediating power promised in the initial formulation.
When the speaker sticks to unadulterated rights talk, the problem is
that the assertion is conclusory. The speaker seems unaware that there is a
counterright that can be asserted in the same tone of voice and that cancels
out the first right. I may be missing the existence of a lay rights discourse
that avoids this pitfall without slipping into mere balancing. But my own
experience has been that the critique of constitutional rights reasoning has
spread corrosively from legal to lay discourse.
It is not, not at all, that someone has proved that rights "do not exist,"
or that they are "nonsense on stilts." It is not a question of proof. It is a
question of mediationof whether one gets any more from rights talk
than from social welfare or morality or administrability talk.

From the critique of constitutional rights to reconstructive projects

in political theory

That we don't find convincing rights talk in popular discourse doesn't

mean it can't be done convincingly somewhere else. The whole function
 The Critique of Rights 333

of fancy theory is to show that it is possible to construct rights arguments,

using the most sophisticated philosophical apparatus, that will validate
left-wing popular assertions of rights. Here the problem is not that the
discourse is conclusory but that it has the same sophisticated indeterminate
quality as legal reasoning, at a less complex and interesting level.
There are an infinite variety of possible nonlegal, purely rights-oriented
defenses of statements like "a woman has a right to reproductive freedom
and therefore a right to abort her fetus." Without ever straying into ob-
viously contestable utilitarian or institutional competence or "mere value
judgment" arguments for the asserted right, fancy theorists can try an
indefinite number of strategies to achieve closure or, if not closure, some-
thing a lot better than mere political rhetoric.
I would say about this enterprise what I have said already about the
closely analogous, indeed overlapping enterprise of showing how judges
can decide cases according to an adjudicative method that is not mere
policy. On the one hand, as a minimalist, I don't believe it has been shown
that it is impossible to do a successful argument from outside rights or
even to reconstruct the discourse. On the other hand, the last time I looked
into it, it seemed as though critics of each particular rights argument from
fancy theory are still managing to show, for one contender after another,
that it doesn't quite work on its own terms.37
At some point, one just loses the energy to do another internal critique.
You can't prove it can't be done. Conceded. Therefore it is possible that the
most recent contender is successful. But you don't believe anyone has done
it in the past, and don't believe anyone is likely to do it in the future, and
it seems like a waste of time to take up each new challenge in turn. In
short, the project of reconstructing outside rights through political phi-
losophy is another context for loss of faith.

Things the critique of rights is not

People sometimes say, "A critique of rights? But if you got rid of rights,
then the state could do anything it wanted to you! What about the right
of privacy? We wouldn't have any way to object to state intrusion!" They
are just missing the point!
In the Western democracies, rights "exist" in the sense that there are
legal rules limiting what people can do to one another and limiting the
executive and the legislature. The critique of rights recognizes the reality
of rule-making, rule-following, and rule-enforcing behavior. It is about
faith in the rational procedures through which legislators, adjudicators, or
334 POST RIGHTS

enforcers elaborate gaps, conflicts, and ambiguities in the "text" of inside

or outside rights.
There is nothing in the critique that might suggest a reduction in the
rights of citizens vis-à-vis their governments. Having lost one's faith in
rights discourse is perfectly consistent with, indeed often associated with,
a passionate belief in radical expansion of citizen rights against the state.
Moreover, loss of faith is consistent with advocacy of greatly increased
tenant rights in dealings with landlords, as well as with the reverse, just
as it is consistent with favoring more or less government control over
abortion decisions. It is not about the question of how we ought to define
rights but rather about how we should feel about the discourse in which we
daim them.
When people want to claim things from the legal system, they put their
demands into rights language, as they once put them in religious lan-
guage.38 But rights are more than just a languageor we might say that,
like any language, rights talk does more and less than translate a clear and
constant meaning from one medium into another. Rights talk was the
language of the groupthe white male bourgeoisiethat cracked open
and reconstituted the feudal and then mercantilist orders of Western Eu-
rope, and did it in the name of Reason. The mediating power of the
language, based on the presupposition of fact/value and law/politics dis-
tinctions, and on the universal and factoid character of rights, was a part
of the armory of this group, along with the street barricade, the newspaper,
and the new model family.
Since the bourgeois revolutions, one group after another has defined its
struggle for inclusion in the social, economic, and political order as a
rational demand for enjoyment of the same rights oí freedom and equality
that belong to a postulated "normal," "abstract" citizen in a bourgeois
democracy. An important part of the struggle between liberals and con-
servatives within these societies has been over how far to go in incorpo-
rating those not included in the initial Liberal formulation of the Rights
of Man into the order the revolutions established for a select few.
There has been a connection between rights language and the acquisi-
tion by these oppressed groups of an identity in the subjective sense.
Rights talk has been connected to daring to claim things on a basis that
might previously have been disqualifying, to claiming things "for" blacks,
women, gays, or Hispanics, when the feeling before might have been that
"because" one was one of these things one was disentitled to make claims.
(I think it is as easy to exaggerate as to underplay the role of rights talk-
 The Critique of Rights 335

as opposed to religious or moral or just rebellious or even acquisitive dis-

coursein popular rebellions against oppressive circumstances. And it is
not at all clear to me that oppressed groups needed rights talk to know
that they were oppressed.)
The critique is not an assertion that these demands for inclusion, for
acceptance as equals by the dominant groups in these societies, are wrong
or misguided. lt is certainly not an assertion that they should chasten their
rights rhetoric, when it operates effectively, to suit the evolution of belief
within a fraction of the white left intelligentsia. But, in its minimalist
form, it "applies" to excluded groups, as they have defined themselves on
the left since the 196os, as much as it applied to the white male working
class of the nineteenth century, to which Marx originally addressed it.

Marx's critique of rights

The Marxist origin of the critique of rights lies in the project of showing
that the inclusion of the proletariat in the regime of the Liberal Rights of
Man did not end illegitimate domination of that class. Its first point was
that if you had, under capitalism, all the revolutionary freedoms, and
strictly equal civil and political rights, you would also have, through the
very economic mechanism defined and protected by those rightsthe "free
market"exploitation even to the point of death.39
Its second point was that rights were by their very structure, their
definition as "trumps" against the claims of others, immoral, because they
were based on the idea that the invoker of the right can disregard the
wishes, over some subject-matter domain, of the people under the duty
corresponding to the right. This was Marx's utopian communist critique
of Lasallean "equal rights" socialism, quite distinct from the positive anal-
ysis of how the property and contract system necessarily worked under
capitalist conditions. It was an argument about how to conceptualize a
good society. Specifically, it was an antiformalist assertion of the priority
of consensus, sharing, and sacrifice over any assertion (group or individual)
of the legitimacy of ignoring a person affected by one's accions.°
Though they are important origins, neither the first nor the second point
is implicit in the minimalist internal critique of rights. Marx's necessitar-
ian model of the evolution of capitalism was a "rationalist" construction.
It has been, I argued above, a victim of minimalist critique rather than an
extension of it. As to the second point, the minimalist internal critique
and the posture of loss of faith do not suggest an alternative faith that,
336 POST RIGHTS

because human nature is intrinsically "good," we can do without coercion.

If the critique suggests anything, it is the constant possibility of under-
mining or "corroding" any faith in the derivation ola utopian scheme from
a theory of human nature.
It is an expression of loss of faith in the possibility of conclusively
formulating or even of initially deciding on substantive demands through
a "logic" or an "analytic" or a "reasoned elaboration" of rights. It is an
attack on the claim that rights mediate between fact and value, the rational
and the subjective, the political and the legal, law and policy. It is a posture
of distance from a particular attitude of some people, some of the time,
when they are demanding things from within the liberal order, and when
they are demanding inclusion from a position of exclusion and oppression.
The distance comes from loss of faith in the presupposed rational character
of the project of rights definition.
There was a third element in Marx's critique. The Liberal constitutional
regimes that emerged from the bourgeois revolutions fostered, he argued,
a particular kind of false consciousness. He saw Liberalism as based on the
fantasy that, by the exercise of universally valid political rights (voting,
speech), we participate in a benign collective process of guaranteeing our
universally valid private rights (property and contract). It is these rights
that define the capitalist mode of production, and their enforcement, their
entrenchment in the Liberal constitutions, guarantees that real life in "civil
Society" will operate according to principles of selfishness and exploitation
that are the exact opposite of those proclaimed in political theory.41
I have been arguing throughout that there is no more a legal logic to
Liberal rights than there is an economic logic to capitalism. For this reason,
Marx's presentation of the selfishness and exploitation of civil society as
necessary consequences of abstract property and contract rights seems se-
riously wrong. But his psychological analysis, of the public/private dis-
tinction and of rights consciousness, is the prototype for the kind of al-
ienated-powers theory l've been developing throughout this book. His
notion was that the belief in universal political rights functioned, together
with the belief in universal private rights, as a fantasy resolution of our
contradictory experience of being, at once, altruistic collective and selfish
individual selves. At the same time, the fantasy performed, for the bene-
ficiaries of capitalism, the apologetic function of explaining why they were
entitled to the profits they derived from exploiting the propertyless.
I don't think it plausible that rights consciousness, in and of itself, plays
either an intrinsically progressive or an intrinsically conservative role in
our current politics. But, from my post-rights perspective, and with def-
 The Critique of Rights 337

erence to believers, I do think the view of rights as universal and facroid,

and so outside or above politics, involves denial of the kind Marx analyzed.
As with the denial of the ideological in adjudication, there are many ways
to theorize the conflicts that give rise to this particular form of (what seems
to me) wishful thinking.42 And, as with adjudication, psychologizing de-
nial involves suspending dialogue with those for whom the reality of rights
is close to tangible.

Why do it?

In part for these reasons, leftists engaged in the rights debate, myself
included, often feel that it is dangerous. I don't mean now to critique an
argument but to describe an emotion. The discussants may be willing to
confront the critique and take in good faith the risk of loss of faith. But
isn't it an experience we should all wish to avoid if that were only possible?
One part of this question I have already discussed in the analogous contexts
of legal reasoning and rationalism versus irrationalism. It is the sense that
if "we" lose our belief in rights, we will be disarmed in dealing with our
opponents. The notion is that rights rhetoric is or at least once was effec-
tive, and we would be giving that up by losing faith in rights.
Of course, it is not an argument in favor of rights that rights rhetoric
"works." The critique is not about effectiveness, though possibly useful in
understanding that subject." One can lose one's faith in an utterly effective
rhetoric and keep it in a rhetoric that practically no one seems to find
plausible. And it is not a response to the critique of rights rhetoric chat
everyone uses it, or that our heroes or our parents used it, any more than
it is a critique of rights that conservatives used or use them to great effect.
But to explain the sense of danger, one might respond that if "we" lose
our faith ¡n rights rhetoric but "they" don't, then they will gain an ad-
vantage over us. This is plausible ro the extent that the "we" in question
derives some measure of power, in confrontation with "them," from the
sense of righteousness, of mediation, that rights have historically provided.
"Giving up" rights would be like a professional athlete giving up steroids
when all her competitors were still wedded to them.
If you have already lost your faith in rights, the argument has the sound
of that in favor of religious faith for the masses, no matter how delusive,
on the ground of its beneficial consequences. It is the same kind oí idea
of beneficent error that Scott Altman propounds for judges. Yet if we are
really talking about effectiveness, it seems merely conjectural.
My own experience has been that some people who lose faith in rights
338 POST RIGHTS

become more politically committed, some become less, and some stay the
same. Some switch sides, and some gain rhetorical astuteness in dealing
with the good-faith, bad-faith, or cynical rights arguments of opponents,
becoming more powerful rather than less. Many committed leftists, in-
cluding most of those in the anarcho-Marxist, or Western Marxist, or neo-
Marxist anti-Stalinist tradition, today and yesterday, never had faith in
rights to begin with. If we are speaking of actual, empirical effects, I think
it's hard to make the case one way or another.
Rights are not the "core" or "centerpiece" or "heart" of Liberal legalism,
either as an ideology or as a social formation generating a complex mix of
happiness and unhappiness, legitimacy and oppression. The prevailing
consciousness doesn't have, to my mind, a heart or a core. It is an enor-
mously plastic, loose congeries of ideas, each of which appears from mo-
ment to moment to have the force of many army divisions and then no
force at allfrom Gramscian hegemony to Roseanne Rosannadanna's
"Never mind." The critique of rights, even when totally convincing, is a
good deal less "effective" than it seems from the position of threatened
faith.
But there is an aspect of the sense of danger that I want to acknowledge
as rationally grounded. Undermining faith in rights threatens to under-
mine the unity of the left and its sense of inclusion in "American citizen-
ship." If some on the left have lost faith in rights, and others have not,
then those who have will face a constant dilemma, forced to choose between
arguing with those who haven't, keeping silent, or engaging in cynical or
bad-faith manipulation of the discourse within the movement.
Given that the critique is not a solution to any problem of the left, not
a panacea or a program, given that the consequences for militancy and
commitment are at best uncertain and at worst disastrous, then why
do it?
 '4
Conclusion: Landscapes along the Highway
of Infinite Regress

do it? This chapter sketches a justification for the critique of ad-

judication in general and rights in particular. It is a two-part argument.
First, both critiques are part of the mpm factional version of the left pro-
ject. Second, they are related, obliquely but I think closely, to the left!
mpm project of politicizing professional/managerial workplaces in late-
capitalist societies.
The mpm version of leftism is quite different from common or garden
American radicalism, and it is very much a minority strand. lt chooses the
ethos of post-ness, doubleness, yearning, irony and the aesthetic, the ele-
ment of self-conscious formal manipulation in the name of unknowable
primal underforces and dangerous supplements, cut by the critiques of the
subject and of representation.' It chooses them over the traditional course
of leftist righteousness (whether in the mode of post-Marxist "systemacity"
or of identity politics) and, with equal intensity, over the compromises of
left liberalism. I will try to convey how the critique of adjudication looks
from within such a project, contrasting the picture sharply with the way
it looks from more familiar left vantage points.
In the specific circumstances oí the American left today, the critique of
adjudication seems, at least, to have a second kind of importance. It is one
element in the argument that leftists should buck against, fly in the face
of, or subvert the pervasive demand that managers and professionals deny
the political element in their workplace practice.
Taking it as a given that statecraft is not for us, that we are not and
will not become either judges or legislators, what is the significance of the
insight that judges engage in strategized strategic behavior in interpre-
tation, both with regard to legal reasoning and with regard to rights dis-
course? My answer is that judges are like the rest of us. In our various

339
340 Conclusion

positions within the bureaucratic institutions of our system, we do the

same. Like them, we have to confront the question of bad faith, and, like
them, we might gain from critique a margin for boldness.
L claim no intrinsic political spin for this or any other form of critique.
It is always possible that a given critical practice, by undermining or
inducing loss of faith in a particular mode of rightness, will sap the will
to resist. As I said at the end of the last chapter, this seems to me an
empirical question. Moreover, the mpm impulse within leftism, the im-
pulse to "trash," demystify, and undermine the modes of bourgeois self-
certainty, whether liberal or leftist, has an autonomous psychological and
social dynamic, which I will try to describe honestly. This dynamic has
nothing specifically leftist about it. The point of the left/mpm project is
to keep it in tenuous but exciting balance with the equally autonomous
impulse to fight the status quo from the left.
A person who experiences self-certainty, rightness, or righteousness, who
finds himself or herself possessed of the truth about what's wrong and what
to do about it, is unlikely to see anything good in left/mpm, aside from
the occasional instance of local internal critique that can serve a particular
tactical purpose. Likewise, the characterologically quite distinct difference
splitter within the left, who wants to be progressive but also well loved
by his or her more moderate colleagues, to be "effective." For both types,
it is self-evident that reconstruction should ideally always follow critique,
and that the critical impulse should be carefully, protectively channeled
away from those elements in the left analysis that have instrumental po-
litical value in the larger project. I don't think I can prove that such an
attitude is wrong. My strategy aims only to undermine and entice.

Why do it?

Leftism is aimed at transformation of existing social structures on the basis

of a critique of their injustice, and specifically at the injustices of racist,
capitalist patriarchy. The goal is to replace the system, piece by piece or
in medium- or large-sized blocs, with a better system. Mpm is a critique
of the characteristic forms of rightness of this same culture and aims at
liberation from inner and outer experiences of constraint by reason, in the
name, not of justice and a new system, but of the dialectic of system and
antisystem, mediated by transgressive artifacts that paradoxically reaffirm
the "higher" forms of the values they seem to traduce.
Critique is always motivated. The practitioners of the critiques of ad-
judication and of rights have often had mixed motives of the kind I am
 Conclusion 34'

describing here. One motive is leftist and the other is mpm. Suppose for
the moment chat one didn't have to worry about the leftist implications,
what would be mpm motives for critique? The answer is that legal cor-
rectness and rights are important parts of the overall project of bourgeois
rightness, or reason, or the production of texts that will compel imper-
sonally. An important strand, a defining strand in the mpm project, is a
particular attitude toward rightness.
This is the attitude that the demand for agreement and commitment
on the basis of representations with the pretension to objectivity is an
enemy. The specific enemies have been the central ethical/theoretical con-
cepts of bourgeois culture, including the autonomous individual choosing
self, conventional morality, the family, manhood and womanhood, the na-
tion state, humanity. But the central ethical/theoretical concepts of the
left have also been targets, including the proletariat, class solidarity, party
discipline and socialist realism, and, more recently, sexual and racial iden-
tity.
The mpm impulse is to counter or oppose the producers of these artifacts
with others. The transgressive artifacts are supposed to put in question the
claims of rightness and, at the same time, induce a set of emotionsirony,
despair, ecstasy, and so onthat are crushed or blocked when we experi-
ence the text or representation as "right."
1f we define the left project as the struggle for a more egalitarian and
communitarian society, it is not intrinsically connected to rightness in any
particular form. But within the left project it has always been true that
rightness has played a central role. Leftism has been a bourgeois cultural
project within which many leaders and many followers have believed that
they were not just left but also right, in the strong sense of possessing
coherent and complete ("totalizing") descriptive and prescriptive analyses
of the social order.
Of course, critique has been crucial to the dominant "rightness" faction
of leftismthat is, critique as ground clearing for the erection of new
edifices of rightness. In the Marxist tradition, the slogan of the "scientif-
icity" of Marxism was the repository of the impulse to be right. For the
non-Marxist left, the slogans of "planning," "rational social policy," and
"the public interest" played the same role. But in the United States, by
the end of the 1970s, with the rise of identity politics, left discourse
merged with liberal discourse, and the two ideas of the rights of the op-
pressed and the constitutional validity of their legal claims superseded all
earlier versions of rightness.
Moreover, in the diffuse general culture of the bourgeoisie, the rule of
342 Conclusion

law and rights seem to function as crucial paradigms of rightness for ev-
eryone. There has been a kind of concentration of experiences of rightness
into the two contrasts of law versus politics and rights versus mere pref-
erences. Finally, in the specialized legal academic culture of the United
States, legal discourse in general, and rights discourse in particular, un-
derwent an aborted, or perhaps just a compromised, modernist revolution
in the legal realist period. Some 1950S postrealist scholars adopted a de-
tached, superior, ironic, nostalgic posture toward law and lawyers and their
fellow law professors, a kind of dandified modernism (particularly associ-
ated with international law, naturally, since American modernists have
always been fascinated by Europe and North Africa). But legal culture as
a whole seemed to slide backward into a combination of resurgent for-
malism with a reified version of policy analysis.
Remember that we are assuming, just for the moment, that it is possible
to pursue the mpm project without hurting the left project of change in
an egalitarian and communitarian direction. A person with mpm aspira-
tions would "naturally" choose adjudication and rights as targets, and try
to counter or oppose the demand of leftists for agreement and commitment
based on correct legal reasoning or on the existence of rights. And such a
project would have a larger mpm appeal to the extent that the rule of law
and rights have become prime vehicles of rightness for the whole society,
and for legal discourse in particular.
The mpm counter to rights and the rule of law looks, at first, like the
more traditional mode of left theory, based, say, on the model of alienated
powers. It deploys internal critique to loosen the sense of closure or ne-
cessity that legal and rights analyses try to generate. But rather than put-
ting a new theory in place, it looks to induce, through the artifactual
construction of the critique, the modernist emotions associated with the
death of reasonecstasy, irony, depression, and so forth.
There are two familiar ways to misunderstand this kind of mpm proj-
ectas proposing "authenticity" as an alternative to classical form, and as
proposing a theoretical demonstration of the impossibility of objectivity.

The transgressive artifact

Mpm is the search for intense experience in the interstices of a disrupted

rational grid. The characteristic vehicle is a transgressive artifact or per-
formance that "shatters" the forms of "proper" expression in order to ex-
press something that those forms suppressed. This kind of definition,
 Conclusion 343

which is supposed to get at the characteristic intention of the modernist-

postmodernist "auteur," is different from a definition in terms of the spe-
cific styles of modernist and posrmodernist art, the styles of avant-garde
twentieth-century painting, music, dance, fiction, poetry. It is also
different from a definition in terms of the specific styles of twentieth-
century theorizing in the neo-Marxist, poststructuralist, psychoanalytic,
and literary critical traditions.
To escape the oppressive force of the different reified modes of bourgeois
representation, one must go through something more than a critique. lt
is the artifact, not the analysis, that dissolves the reified concept. But the
experience mpm proposes as solvent, as a way of living through the concept
out onto the other side of it, is always in danger of being captured along
the way in forms of expression that will deprive it of that solvent power.
Formal innovation is an attack on our will to normalize experience, an
attack on our impulse to make experience consistent with, a mere instan-
tiation of, the reified concepts.
The mpm auteur produces an artifact or a performance that is supposed
to have this disruptive, potentially ecstatic effect on its audience, but the
auteur doesn't imagine that he or she is beyond or outside formquite
the contrary. A basic mpm goal is to create a style at the same time that
you destroy a style. Once the style is there in the artifacts or performances,
other people can adopt and adapt it to their purposes. Le Corbusier can be
a model for the dreary skyscraper style of the 1950S through the 1970S,
until postmodern architects innovate again and create a new style that will
soon be old and dead.
So we have to distinguish between the disruptive intention that the
artifact did or did not realize, and the style that the artifact did or did not
launch. By analogy, the intention behind a critique of rights in a particular
momentour ownis a particular kind of disruption. The critique might
succeed as disruption in its context and then get reproduced as a theoretical
routine, as a piece of critical "normal science," performed over and over
again without either disruptive effect or disruptive intention. First-year
law teachers teach that sic t#ere tuo is a bad reason for an outcome, without
the slightest sense that they are being bad in the way Holmes was being
bad when he first formulated the critique.
In short, the whole idea of the transgressive artifact or performance is
that it does something, the disruption, that can't be fully accounted for
by looking at its content outside its context of belief. And if the artifact
succeeds in disrupting its context, it destroys the basis on which it pro-
344 Conclusion

duced its effect, surviving its context as a mere object of admiration or

imitation and, of course, as a potential element in a new message.
The left-wing activity of ideology-critique is not part of the modernist/
postmodernist project when it aims at clearing the ground for a new con-
struction that would perform the same function as that which is destroyed.
But internal critique is part of the project when it is aimed at the pleasure
of shedding Reason's dead skin. Mpm internal critique can be leftist in
two senses: (a) when it is carried out by people who see themselves as
doing to leftism what mpm artists see themselves as doing to "art," that
is, moving it along by attacking its presuppositions and opening it to
what it wants to deny; (b) when it proposes that the left should confront
those with whom it is ideologically engaged through transgressive arti-
facts, as well as (or instead of) rational analysis.

Mpm is not about "authenticity"

I might describe the "origin" of the left/mpm attack on adjudication and

rights in terms of a respectable left aspiration to make the left more ef-
fective by getting rid of some analytic errors that made it hard to link
theory and practice. But this would be to betray what is mpm about mpm
critique. It would be better to say that by the late 1970S there were,
scattered around, people ("diverse" people) who wanted to be leftists, in
the sense of wanting to struggle in whatever way for more equality and
community, but who experienced the discourse of the leftnot just that
of its spokespeopleas at the same time self-righteous and simple-
minded. Left discourse had moved from its "rational social policy" phase
through a brief, late-sixties Marxist phase, in the direction of the Liberal
rule of law and rights discourse of the general political culture. But it
seemed as reified, indeed as premodern, as ever, in the eyes of people whose
allegiances were to modernist and postmodernist sensibility, as well as to
leftism.
The question was whether it was possible to challenge this quality of
the discourse. The challenge seemed to be working when we identified
adjudication and rights as things to critique, and then self-consciously
stopped affirming that the trouble with law was that it had a right-wing
bias, and that what we needed was to recognize the rights of the oppressed.
We began to listen to both plain and fancy legal and political discourse
with an ear for the flaws developed by internal critique, and to find them
everywhere, and immediately.
 Conclusion 345

In the first, intoxicated phase, you don't expect the rights argument to
work any more. You even stop wishing or hoping that it will work. Most
of the time it seems all right, indeed even preferable to be "grappling with
the real issues," at least when one compares one's situation to that of people
who still spend a lot of time generating and believing in rights arguments
that seem transparently circular, ambiguous, or incomplete. Grappling
with the "real issues" can produce frustration or despair but also wild
moments of breakthrough insight and intense moments of emotional in-
volvement with others who are also grappling, perhaps with youin short,
it can produce intersubjective zap.
You purge the conclusory or otherwise "incorrect" use of rights discourse
from your own vocabulary, though you find yourself occasionally sponta-
neously producing it. Then you have to wonder, as you work at the internal
critique of your own utterance, whether to interpret it as "just a hangover,
a bad habit," in which "the language is speaking me rather than me speak-
ing the language," or as "a trace of a true discourse that I have subordinated
by a mere act of power." After working at this conundrum for a bit, you
give it up, just the way you gave up trying to prove, first, that legal
reasoning, second, that "scientific" social theoretical discourse, and, third,
that rights rhetoric "can never work." lt might be a trace oí a true dis-
coursethere's no way to be sure it's not.
On the other side of this experience is the anxiety that is often expressed
and often responded to in both the legal and the literary theory versions
of the debate, that if you can do this to rights discourse, you can do it to
any other discourse as well. In the legal version, both Jeremy Paul2 and
Jack Balkin3 have interpreted my own work as presupposing that critique
made room for "authentic" discourse and as failing to see that there is no
possibility of authenticity, given the critique of the subject as situated
within discourse and, Balkin adds,4 the "social construction" of everyone's
subjectivity.
"Authenticity" is the last thing people like me meant to appeal to as
the "behind" that we might liberate through the critiques of adjudication
and of rights. It would be more accurate to say we were trying to liberate
"contradiction," "alienation," "desire," "irony," "doubleness," "despair,"
"ecstasy," and "yearning." Of course, maybe we wanted to liberate them
because we thought that they were authentic and that the conventional
forms of legal discourse were not. But it seems, at least in hindsight, more
accurate to say that we wanted to liberate them because we felt them, and
felt their exclusion as a wound.
 346 Conclusion

The crucial difference is between, on the one hand, having a theory of

authenticity that might be opposed to a practice of conventional deadness
and, on the other hand, feeling contradiction, irony, alienation, despair,
and so on, and wanting to get them in play, into the discourse. You don't
have to believe that they are authentic in some premodern, perhaps ro-
mantic sense in order to feel them, their exclusion, and the potential ex-
citement of their inclusion. You might even say that the whole point of
these hallmark modernist experiences is that they deny pretensions of au-
thenticity. It's true that the worst thing in the world, from my 1950S
viewpoint, was to be "phony," but the best thing was to be "cool," and
then to be "blown away."
Critique, even of adjudication and rights, sometimes delivers (not pro-
duces, or causes, but just drives up to the door in a big square truck with)
these hallmark experiences. We found ourselves alienated both from still-
believing rights speakers and from ourselves, as occasional, inadvertent
rights speakers. It was ironic to realize the boundless yet meaningless
possibilities of rights discourse, to become its masters, at the price of being
able to speak it any way "we" wanted to. Irony was also a way to say to
someone else that, although we agreed with what they were advocating,
we thought their left legalist assertions were nonsense.
And it was ironic to find oneself saying in rights outbursts just what
one thought one didn't think. There was doubleness, both in the experience
of having to communicate with believers without believing, and within
oneself. Ecstasy came when, after rights talk, one found oneself passionately
planningbuzzed out by confrontation but still desirously connected-
something to do with others of like mind. Loss, nostalgia, yearning, de-
pression, despair, all describe the way it feels to be zapless in a rightsless
world.

Modernism and postmodernism in mpm

In art, postmodern style follows the cultural modernist style I've been
talking about, whereas postmodern "theory" follows not that, but another
modernismthe rationalist modernism of "the Enlightenment." These
usages give rise to a lot of confusion. The mpm I'm referring to has cultural
modernism, the avant-garde of the period from the 189os through the
195os, as its referent for "m." It has both postmodern style in architecture
and painting and postmodern theory, in the sense of Foucault, Derrida,
Jane Gallop, and Judith Butler, as its referent for "pm."
 Conclusion 347

This makes mpm an odd duck. I have been emphasizing the "unity" of
mpm by defining it in terms of formal innovation, disrupted rational grids,
prima! underforces, and dangerous supplements. Just now, I tried to draw
them together in the critique of rightness, whether in the sense of repre-
sentational objectivity in art or descriptive and normative objectivity in
theory. But one might critique this formulation by emphasizing the dif-
ferences between artistic and theoretical practices, or the ways in which
both aesthetic and theoretical postmodernism have a critique of aesthetic
modernism, as well as a critique of the Enlightenment.
Aesthetic modernism as I've been reading it is revolt against the En-
lightenment fetishes of rationality and objectivity, and the bourgeois fetish
of conventional morality, but it is open to the posrmodern critique that it
glorifies the auteur. In modernism, the moment of critique and the mo-
ments of alienation, doubleness, irony, ecstasy, and despair, especially as
condensed in the artist's moment of transgressive artifact creation, all can
still be totalized or theorized as an aesthetics and an ethic, even a heroic
ethic.
Moreover, the auteurs insisted on theorizing their practicethe creation
of transgressive artifactsin just this way. Wassily Kandinsky wrote about
painting, Ezra Pound about poetry, Henry James about the novel, Le Cor-
busier about architecture, François Truffaut about cinema, Arnold Schoen-
berg and Omette Coleman about music. Ernest Hemingway propagated
his own mystique.
Postmodernism generalizes the critical element, turning it against mod-
ernism as aesthetics, as ideology, as ethic, as system, as mystique, accusing
the avant-gardists of mythologizing the subject as the locus or site of the
dissolution of everything that was not the subject. Postmodern art end-
lessly critiques the auteurflaunting eclecticism, copying, the mundane,
and the mechanical, in the face of our hope for Prometheus. Postmodern
theorists argue their hypercool ethic against Prometheanism through the
critique of the subject/auteur as the product rather than the creator of
culture. But here again there is a case for the continuity of the project.
The postmodern critique applies far better to the writings of modernists
about modernism than to the artifacts they created. The artifacts seem no
less "critical of the subject" than those ofpostmodernism. The Promethean
auteurs were premodern as critics; they slid back into mere rationalism or
romanticism the minute they began to theorize their transgressive artifacts.
By contrast, the postrnodemn critics are modernist performers. Derrida and
Jane Gallop and Judith Butler are stylistically Promethean, and their writ-
348 Conclusion

ings have power as transgressive artifacts, power that the critic/auteur

hopes goes beyond the analytic value of the theory of performance that is
ostensibly the thing being performed.
One way to see mpm is as the bleeding together of surrealism with the
structuralist critique of the scientism and humanism of both Liberalism
and Marxism, under the sign of Friedrich Nietzsche, perhaps. But as long
as it's convincing that there is something in mpm that can be talked about,
it doesn't seem important to get the genealogy just right.

Critique of critical maximalism

The easiest of all the ways to misread mpm is as a global internal critique,
an impossibility theorem that invalidates or refutes the possibility of ob-
jectivity, rationality, subjectivity, or representation, or all of them at one
blow. In law, for example, the moment oí loss of faith has been, since the
beginning of the realist critique, often formulated in Holmes's general
proposition that "general propositions do not decide concrete cases." In
the first attempts to appropriate postmodernism for the use of cls (after
the rationalism/irrationalism debate but before the rights debate), it was
common to read Jacques Derrida in particular as proposing a general im-
possibility theorem about representation that could be applied to all claims
of determinacy in law. A recent pragmatist version of critical maximalism
is the following from Frank Michelman and Margaret Radin:

Universality implies transcendence of difference, a reach for consensus.

So it requires that an order's fundamental premises of right be cast at
very high levels of abstraction. But from highly abstract principles of
right, convincingly neutral and consistent treatments of concrete cases
cannot be derived.6

But what we mean by deciding a case by applying a rule is that the

abstractions of the rule produce, deductively, an outcome. Whenever we
apply a rule, an abstract proposition decides a concrete case. And we apply
rules all the time. I see two possibilities: Perhaps every time we apply a
rule we are making a mistake and have only the illusion that we have
achieved a "convincingly neutral and consistent treatment." Or, perhaps
the problem is not with all abstractions, which would include all concepts
in the critique, but only with abstractions that are "highly" abstract.
Against the first possibility, I would argue, as I did in Part Three, that
we endlessly do experience abstractions as deciding concrete cases, and we
 Conclusion 349

fail in our attempts to disrupt the experience of closure. It may be true

"in theory" that it is always possible to operate this disruption, but to
assert that as truth is to substitute a metaphysics of absence for one of
presence, a substitution that doesn't seem like an improvement to me.
Minimalist internal critique asserts simply that often, very often, we do
succeed, using a socially constructed and transmitted repertoire of critical
techniques, in opening closure. But even when we succeed, we have no
warrant in the success that what we did was an accurate representation of
the "true" openness of the question, as opposed to a mere effect of our
critical operations on it.
As to the second possible interpretation, it doesn't seem plausible to
distinguish "highly" from otherwise abstract propositions, except in the
sense that if the argument from the abstraction succumbed to critique, we
know, ex post, that it was "too" abstract. Sometimes abstractions that seem
highly abstract are used to decide quite concrete cases"Thou shaft not
kill" may be quite enough to produce closure in a particular case. And
sometimes propositions that don't seem abstract at all produce a lot of
controversy"No vehicles in the park," for example.
Minimalist internal critique asserts simply that we often escape the sense
of being impersonally compelled to agreement or commitment, with at-
tendant modernist emotions, through an attack on the application of the
abstraction. Of course, we unhesitatingly resort to abstractions ourselves
in the next moment. Recall the critique of formalism as overestimating
the power of particular abstractions (as opposed to the critique of formal-
ism as the theory that all cases can be resolved deductively).
This debate within legal theory has a close parallel in the general cul-
ture, where "deconstruction" is sometimes interpreted as a theory that "you
can always deconstruct" a claim to objectivity or rationality or represen-
tational truth. I think it much more plausible to interpret deconstruction
as a practice of minimalist internal critique, as an operation that you can
always try on a text, but without any guarantee that it will work in any
particular case. When it doesn't work, it doesn't follow either that the text
was "in fact" objectively true or rational or that you were a failure at a
game someone else could have played successfully.
A deconstruction is better understood as an artifact that "works" in
relation to another artifact (the deconstructed text), by dissolving the sec-
ond artifact's "effect" of impersonal compulsion, always in the name of an
unrepresented something (the dangerous supplement, the primal under-
force). A deconstruction that works, works like a piece of abstract art that
350 Conclwion

plays off expectations of representation, denying those expectations yet

somehow managing to induce new versions of the emotions that we
thought we could have only as responses to representation.
In this interpretation, deconstruction doesn't invalidate or refute claims
to representational or normative objectivity, except case by case. Postmod-
ernism doesn't show that the subject is "just an intersection in language,"
or is socially constructed in a way that refutes free will, or even authenticity
or spontaneity, except in particular cases. Postmodernism can't refute your
personal claim to be the voice of universal reason, when you opine on, say,
the decline of academic standards, until it brings its critical technology to
bear on that claim; and when it does, who knows, your claim may survive
the assault.
I want to be careful not to fall aporetically into the interpretation I'm
rejecting here. I'm not sure that it's impossible to showmaybe someone
can showthat objectivity, rationality, the subject, and representation are
all impossible. I just don't think anyone has shown it so far, but I could
be wrong. I've lost faith in the enterprise of trying to show it, as I have
in the idea of a perpetual motion machine, in spite of the fact that I have
neither a good grasp of the third law of thermodynamics nor a theory of
why it's impossible to show that objectivity is impossible.
I can't resist adding a bit of left/modernist critique of postmodernist
internal critique. From the Promethean modernist point of view, the post-
modern commitment to internal critique seems associated with a psycho-
logical commitment to being right in the critique of rightness, and to
avoiding either submission to or production of commitment, at any cost.
For this reason, it is both funny and satising when Derrida, the master
of double-invaginated critiques of representation, reveals himself, in Spec-
tres o/Marx, as a Social Democrat (and one without much in the way of a
cultural politics).7

Psychologizing the mpm project

I have been describing a series of contexts for loss of faith. In each context,
the precipitating factor is critique, and then critique "spreads" to a new
context. But critique, when it has an mpm motive, doesn't spread of its
own accord, and it is "no accident" when it produces loss of faith. Here
are two explanatory frameworks in which one might understand what is
happening as something that people do to themselves and to others. The
 Conclusion 35'

point is that mpm as a critical practice is very much "socially constructed,"

and the point is also "so what if it's socially constructed?"
First, we might understand critique as a deliberate act of destruction
aimed at the experience of rightness in all its forms. It succeeds, as ag-
gression, when the sense of rightness is destroyed in oneself or in others.
There is an element of sadism when we direct critique at the beliefs of
others, and of internal self-wounding when we direct it at ourselves. We
could interpret it as hostility, and in a Freudian way as Oedipal, with
rightness figuring as the Father and the superego. The sense of loss and
the depression may be consequences of doing in the symbolic father and
having no one left to be mad at but oneself.
Second, we might see mpm psychology as exhibitionism, by which I
mean the desire to take one's clothes off in public and find oneself ap-
plauded rather than punished. Outrageous display that demands approval
is the extreme version of the mpm commitment to the artifact, the inter-
mediate term between "official" art and the mundane, between theory and
practice, between thought and event. The idea is to turn daily objects into
art objects, and daily living patterns into theater or dance, in a way that
disrupts both poles, rather than affirming their harmonious distinct exis-
tences, and still to please.
Seeing mpm as aggression and exhibitionism is an antidote to seeing it
as nothing more than the characteristic style of a cultural moment. A
defining element of the cultural moment has been the existence of net-
works self-consciously pursuing the project oí changing "traditional" into
mpm culture, understood as a culture of "permanent revolution." It seems
to be an open question whether this is the first time in history that such
networks have existed (how do they compare with early Buddhist or Chris-
tian communities?). The point is that mpm is not just the project of
changing one style into another, of bringing about a particular innovation,
but also the project of originality, of innovation for its own sake, the "cult"
of innovation.
Sanford Levinson and Jack Balkin8 describe the cultural moment as
one in which even the people who are most hostile to modernism and
postmodernism, that is, self-conscious "traditionalists," are themselves
modernists and postmodernists willy-nilly. They are caught in the same
contradictions, deal with the same issues, and use the same vocabulary as
the "avant-gardist" networks. They can be traditionalists only in the mode
of antiquarianism or political reaction, because the unselfconscious char-
352 Conclusion

acter of the premodern moment can never be restored. But it is only from
a peculiar positioneither far above the fray, or very frightened of en-
gagementthat the relationship between action and reaction, between
aggression and victimization, between exhibitionist and audience, is so
utterly effaced.
Closer to the ground, it is obvious that the aggression and exhibitionism
are directed not mainly at reactionaries but rather toward the unselfcon-
scious. The project has always been situated within capitalism, with its
complex relationship between intelligentsias, middle classes, and masses.
It arose and thrives on cultural heterogeneity, but not just any heteroge-
neity. It is directed at the vital, or at least still breathing, traditions of the
bourgeoisie and at the bourgeois project of assimilating peasants, and then
workers, into a particular version of "Western" culture.
It has also always drawn on, without merging with, "subjugated knowl-
edges," from African art and African American jazz and rock and roll to
"the feminine," "the sexually perverse," and the addicted.9 In other words,
we have to put it in the same frame with leftism, an alternative opposi-
tional/utopian project, but aiming at bourgeois cultural hegemony rather
than at bourgeois ownership of the means of production. This is not to say
that the image from physics of action and reaction saves us from confusion.
The modernist action that "produces" reaction is itself produced just a
little earlier (though not necessarily in the family romance). Further, the
exhibitionist strand in the modernist project makes it dependent on the
proffered attention of an audience, an atTention that structures the pro-
vocateurs.

Mpm as a socially scripted project

This leads us to another perspective on mpm as opposition and innovation.

We do it as a culturally scripted project, as the acting out of a part made
available, in Western culture, for relating to authority, headed, through
the predetermined activity of internal critique, to the predetermined
epiphany of loss of faith, toward the predetermined attitudes and artifacts
that follow it. The mpm "experience" of giving up and acting out, of
dissolution, is not something that just happens; because it is ideologized,
it is "one way to go," it gets you allies and texts to read, and these exert
normative pressure in the direction of letting go and acting out. Post-
modernist, no less than modernist, subjectivity is a norm of culture, a
 Conclusion 353

choice that is preformed before "you" adopt it as one of the postmodernist

lonely crowd.
It happens to the same person over and over again, and to thousands of
different people, in very similar ways. A congeries of literatures instruct
us in how to do (simulate) critique, how to recognize (induce) our own
loss of faith, how to describe (invent) the appropriate post-loss emotions.
If one does it with others, they discipline one if one diverges from the
norm. Within the project, there are scripted variations and deviations (re-
bellion against the project, time serving, entrepreneurship . . .). One can
succeed or fail within mpm, become addicted to its sequences, "do it"
cynically or in bad faith, just as one can "do" belief in rightness. The mpm
progression is long since normalized, become an institution.
At the same time, it seems (at least some of the time) like an act of choice,
within a constraining context, by a subject unsure if he or she is a subject
at all. Mpm is a project, but it is not the only one. People are coerced and
seduced into the project, as well as into other ones, but they sometimes
experience vertiginous moments of undetermination, though it may always
be an illusion.
After choosing to work a bit at this conundrum (am I a chooser, or
what?) as it applies to my own case, and then choosing to work at the
general problem (free will, or what?) for ain my case, very shortbit,
I find myself adopting the attitude that I can't see any prospect of solution
but can't prove it can't be done; attention flagging, I move on, Oedipally,
according to script, to something else. (Then there is the scripted character
of the Oedipus complex, the chosen character of that scriptand so on
around the circle, until, "Frankly, my dear, I don't give a damn.")

Mpm as an elite project

Mpm is undeniably an elite projectas a matter of factin three quite

different senses. First, it is a development within bourgeois, and usually
upper-middle-class bourgeois, culture, dependent on particular forms of
elite education to provide the rational grids that it disrupts. It is intelli-
gible as disruption only to people who have mastered the various formal
languages it targets. This doesn't have to be so, and there are analogous
forms of resistance within popular culture. But as long as it is so, it suffers
from all kinds of class blindness.
But mpm as already mentioned has always been a project full of people
354 Conclusion

from oppressed, marginalized, and victimized groups, and mpm types have
identified, however hypocritically in the eyes of their critics, with "out-
laws." This makes it elite in a second sense, in the sense of being a society
of self-conscious "illuminati," who reject conventional ideas and indicia of
status in favor of the superior ethics, taste, and style of mpm, seen as a
project of opposition to the bourgeoisie. lt is important to understand that
mpm types from nonelite backgrounds often come to it through experi-
ences of rejection or marginalization in their own oppressed communities.
Their presence confirms the sense of secret society, both for them and for
those from privileged backgrounds.
In this second sense, mpm networks tend to be elitist as well as elite.
By this I mean that, just as they are driven by aggression, exhibitionism,
and the desire to successfully enact a particular script, they are driven by
the pleasures and fears that are associated with belonging to a group that
sees itself as "better than," more sophisticated than, ahead of, those it
habitually opposes.
There is an analogy to the way liberals in the United States have tended
to regard conservativesthat is, as in some sense primitives, people who
"just don't get it," as behind the curve cognitively as well as politically.
But mpm elitism is neither that of the left in regard to the right, nor that
of the "cultural elite" in regard to the "masses." My sense is that it is best
grasped by the notion of the "revenge of the nerds," meaning specifically
the revenge of the alienated fringe of the intelligentsia against the middle-
brow establishments of bourgeois culture, on the one hand, and against
the bourgeois leadership of committed leftist groups, on the other.
Finally, mpm is elite, and open to the charge of elitism, because it is
organized around performance (the production of transgressive artifacts
rather than political "actions") that is supposed to produce reaction. Mpm
takes the premodern cultural Other as object (audience), whether that
Other is conceived as premodern through and through or as an only par-
tially realized mpm person like the artist herself. lt aims to épater les bour-
geois (rather than to nationalize their property), in the modes of aggression
and exhibitionism described above. It presupposes the superiority of
mpm, the "right" of mpm performers to hurt the audience, as well as to
induce ecstasy and depression, in the name of higher values accessible to
the artist/performer and "good for" the audience (while commonly de-
nyingdefensively and hypocriticallythat it cares at all about audience
reaction).
 Conclusion 355

Tit for tat

Elitism is a very bad thing in American popular culture, and particularly

in the culture of the American left. But the popular and left critiques of
mpm elitism are open to an mpm response. Yes, it is true that mpm vices
are elitism, snobbism, condescension, and cultural arrogance. But the anti-
elitism of popular and left culture goes well beyond condemnation of these
bad attitudes. It looks, from the mpm perspective, like a demand for
conformity, a demand for agreement and commitment within culture, that
flows from a combination of philistinism with class anxiety. American
popular culture insists hysterically on anti-elitism because the dirty secret
of the society is intense stratification, and elites pay the price for owning
and running absolutely everything in the cheap coin of ordinary-guy-ism.
Within the left, those who are most offended by mpm elitism are the
representatives of oppressed masses, whether workers or blacks or women,
who are themselves overwhelmingly highly educated, upwardly mobile
middle-class people who see themselves as acting for those less well off
than themselves. Their anti-elitism represents an implicit deal with those
they imagine to be their constituencies (who often include their own par-
ents), a deal that has the same structure as that of the class bargain. Anti-
elitism is the price they pay for their roles as leaders.
The mpm strand in leftism rejects these implicit deals, for reasons that
vary from person to person. The part of left/mpm elitism that is defensible
is the attitude of finding secret allies, sharing various kinds of shame and
hopelessness, but affirming the reverse superiority of the outcast group,
including its genealogy of transgressive artifacts and performances that
signi that we have always been a force in the larger culture on whose
rejection we feed.
This kind of elitism is associated with the refusal even to want to be a
leader, if the cost includes denying doubleness and claiming a place of the
kind that liberal, systematizing, and identity political leftists seem willing
to claim. It is elitism with a stoic qualityit can be validated only through
despair that is not denied or sublimated into a sense of entitlement,
whether the entitlement operates through reason, rights, or victimized
identity.
The elitism of left/rnpm is in part a fight with the elites of the society
over the definition of the obligations of privilege, and in part a fight both
against the pretensions of left elites to speak for their constituencies and
356 Conclusion

against the compromises those elites are willing to make on the cultural
level to sustain what they imagine are more serious political projects.

Left critique of mpm

It is common for anti-mpm leftists to respond simply that what they mean
by leftism is a set of goals, and a set of methods for achieving them, that
are incompatible with mpm, so that mpm leftism is an oxymoron. It is
also common for them to respond that if we regard mpm not as an (er-
roneous) theory, but as a set of attitudes or a cultural style, then it is an
unattractive, obnoxious style that is inferior to the style of the rest of the
left. And it is common to argue that if mpm is to be regarded as one of
the theories available for use by leftists, then leftists should be wary of its
"tendency," which is to demobilize, to sap the will to fight.
The basic left/mpm response here is not to claim that there is a superior
definition of leftism that would allow us to be included as leftists, let alone
to show that we are the only "true" leftists. A project, as I defined it in
Chapter i, is an amalgam of a social organization with a textual tradition,
and (outside the world of party-building groups) there is no mechanism
to settle disputes about inclusion and exclusion other than long-term so-
cial/intellectual conflict within the milieus and the discourse of the project.
In short, we left/mpm people engage in ideological struggle with others
who define themselves as leftists, hoping to convert them if possible, to
win particular battles, and to acquiesce with good humor when we lose,
and the dialogic moment gives way to the moment when people have to
take action of various kinds without full agreement.
This section responds to two versions of mainstream left critique of left/
mpm: first, that it trashes objectivity, rationality, representation, subjec-
tivity, legal correctness, rights, and identity, just at the moment when
previously oppressed and marginalized groups have, at last, a chance to
deploy them against the dominant discourse; and, second, that mpm cri-
tique (a) destroys our ability to decide what to do, and (b) leads to total-
itarianism.
First, however, let me list some genealogies of left/mpm, for no other
reason than to suggest that we have been present within the left for a long
time. Victor Serge and Rodchenko and Stepanova; the early Wilhelm
Reich, Jean-Paul Sartre, and Herbert Marcuse; Ralph Ellickson, James
Baldwin, Harold Cruse, and Michelle Wallace; surrealism, situationism,
and Michel Foucault; Virginia Woolf, W. H. Auden, and Jean Rhys; the
Dos Passos of U.S.A., Alan Ginsberg, and the yippies.
 Conclusion 357

Taking the marbles and going home

One way to respond to a new player is to fold the game. Isn't it "odd" that
just when women and minorities are getting some rights, the left/mpm
types (or is it "white males" in general?) decide that rights are meaningless?
Just when third-world peoples overcome colonialism, these same "allies"
produce a supposedly devastating critique of sovereignty. And so it goes.
The people doing the trashing have seen themselves as, in some sense,
"free" to do it, because they have not been contending for state power or
for mass acceptance of their ideas. Initially, it didn't seem sensible to ask
questions like, "what will happen to the women's movement if people lose
faith in rights?" But, over the last fifteen years, identity politics has revived
the academic left. The newly arrived white women and minority academic
activists see themselves as having both an audience in the educated non-
academic left and some voice in the national policy debates organized by
the media. They have revived the question of the political consequences
of different rhetorical choices.
In the last chapter, ¡ argued that it is an empirical issue whether loss of
faith increases or decreases activism, and that the argument "but they use
steroids" embraces bad faith without, to my mind, making a case that
there really is a nasty trade-off between honesty and effectiveness. More-
over, liberals have trashed Marxist grand theory, Marxists have trashed
rights theory, and left/mpm types have trashed both, for generations, since
long before the civil rights movement or the second wave of feminism. All
this trashing may have been wrong from the start, but mpm types have
engaged in it for a long time as a strategic activity, and not only as a
response to the (limited) empowerment of oppressed groups.
The left/mpm position is critical of the middle-class intellectual leaders
of the new social movements, to the extent that they assimilate themselves
to the dominant discourses of legality, rights, and identity, whether they
do so out of faith or as an effective maneuver. It is not a "demand" that
they stop doing so, nor a claim that there is a more effective alternative
way, but merely a comradely expression of disagreement, in the form of a
transgressive artifact or two.
A variant is that it is easy enough for upper-middle-class white males
to trash legal correctness, rights, and identity because they don't need
them, being immune through white skin privilege and maleness to the
oppressions visited on Others. The discourses of legal correctness and
rights are, I argued at length in Parts Four and Five, powerful stabilizing
elements in the American political system. If one can imagine a left aca-
358 Conclusion

demic critique that "destroyed" them, then I suppose one can imagine a
political free-for-all, in which conservatism would have a good chance of
doing in liberalism and moving the system as a whole ro the right in a
way far more profound than the Gingrich Revolution. The principal vic-
tims of such a shift to the right would be the poor, white women, and
minorities.
So, as I said in the last chapter, I am all in favor of deploying these
discourses for strategic reasons, whether before courts or in general political
debate, as long as the deployer has in mind the element of bad faith in his
or her performance. And I agree that there is an element of "luxury" in
the identity position of the academic who renounces the struggle for state
power, so as to be "true" to the truth-telling impulse, even while denying
the possibility of truth. The left in left/mpm supports spending some time
looking for ways to intervene in policy debates that seem likely to be good
for the oppressed, without betraying mpm. And, as I will argue at the end
of this chapter, it also supports, without requiring one to choose, the
alternative of left workplace politics, localism without national resonance.
One presupposition of left/mpm is that the system is stable over the
long term, in spite of the endless Marxist and post-Marxist production of
crisis theories and in spite of real crises all the time in particular places.
A second is that developments in academic theory have virtually no con-
sequences for national politics (other than to provide, in the titles of PMLA
panels, material for right-wing parody).'°
This may be wrong, and it may be that academic leftists should spend
all of their time developing rhetorically effective interventions in national
political debate and no time helping the virus on its course. I think this
makes some sense for left liberals and for white women and minorities in
general. But I don't think it makes sense for the very small group of
academics, male and female, white and of color, whose post-Marxist or left/
mpm sentiments make it difficult to imagine masquerading effectively as
mainstreamers. And I don't believe the reason I think this is that I per-
sonally have less to lose from, say, the erosion of civil liberties than my
colleagues whose backgrounds are less privileged than my own.
It was once plausible to make the much stronger response that mpm
was intrinsic to leftism, because loss of faith represented the recovery of
alienated powers. In other words, internal critique showed us the ways in
which we allowed our understanding to be controlled by reified entities,
forms of necessity invented and projected out onto nature or society (God,
the market, the law, Marxism). And the projections could be seen as em-
 Conclusion 359

powering experts, the owners of the technical discourses of religion or law

or economics or Marxism, to pursue their conscious or unconscious polit-
ical projects through the manipulation of the supposedly objective and
rational "sciences" of understanding society.
In this model, mpm critique is leftist per se, because it is a necessary
part of the egalitarian and communitarian project. It returns to "ordinary
people," or to "mobilized masses," powers that they had delegated to ex-
perts under the illusion that the experts possessed knowledge not accessible
to them. Left/mpm would then represent the antinomian or anarchist
strand within leftism, with at least a claim to be the true (antifaith) faith.
We might even add that leftism is just as essential to mpm as mpm is to
leftism, because the various forms of hierarchy and alienated community
block or frustrate the production of mpm. This sometimes seems true to
me, but more often it seems impossible to fuse leftism and mpm this way.
First, there is nothing to guarantee that the disempowerment of experts
through de-reification would lead to egalitarian or communitarian deci-
sions by ordinary or mobilized people. Second, what you get from de-
alienation is not authenticity, as I argued above. There is no end to the
layers of reification, or even a meaningful sense in which one could function
without reification. Third, mpm sometimes thrives on repressive structures
and withers in their absence. In order to believe in an organic connection
between critique and the egalitarian and communitarian impulses, one has
to go beyond left/mpm and believe in reconstruction.

Against reconstruction

It was once the case that the answer to left/mpm was a theory, whether
Marxism or Liberalism. That is no longer the case, at least in che academic
left. The answer to left/mpm is rather a charge, the charge of "nihilism,"
a critique of the bad consequences of nihilism, and a projectreconstruc-
tion.
Sometimes the author has a specific reconstruction in mind and presents
it full blown as the next step after critique» as something to replace what
has been critiqued. When this is the case, the only fair response is to
critique it in its turn, subscribe to it, or just ignore it. More often, the
author proposes the project of reconstruction, rather than any particular
reconstruction. One favors the project not because one has a proposal but
because one believes that we ought to do it, or at least try it, that bad
consequences will follow if we fail, and that there are at least some inter-
360 Conclusion

esting possibilities, some hopeful avenues, some useful bits and pieces
available for the task.
A striking aspect of calls for reconstruction is that the author not un-
commonly treats critiques as decisive refutations of previous theories. An
important trope is the suggestion that critique is easy, while reconstruction
is hard, that it is self-indulgently pleasant to go on trashing one thing
after another, since we all know how to do it, but morally bracing to roll
up our sleeves and get down to the less fashionable but in the long run
more constructive task oí reconstructing.
A second striking aspect is that the same reconstructionist who asserts
the validity of prior critiques, and claims that they are easy to do, is likely
to explicitly or implicitly call for reconstructions that will perform just
the same function that was performed by the critiqued entities. This is the
function of representing social order in a way that would allow us to have
some assurance that we are right to be left, and right to pursue particular
strategies in favor of equality and community. Here is an example, from
the very end of an article about international legal scholarship:
Ultimately, by following modernism to its logical conclusion, the New
Scream puriststhose arguing from within the limits of critical epis-
temologyproduced what can be understood as the last modernist text
of international law . . The next wave of international legal literature
.

must find a way to overcome what seems a fundamental tension between

objectivism and criticism. From the modernist perspective, international
law cannot transcend its problematic. 1f international law discourse stands
a chance to live up to the role created for it in the fight for world justice,
we must conceive of an ethical foundation for international social life
beyond modernism.12
This style of reconstructionism can be seen as the disinherited scion of
the classical project of recuperating alienated powers. The idea is that
internal critique dissolves the reified entities that we project onto nature
or society in order to explain the necessity and justice of the way things
are. But it does this only as ground clearing for a new theory, one that
locates agency in human beings, discrediting the way things are while
simultaneously indicating how to make them better. The survivors of the
shipwreck of grand theory have always believed in internal critique, for
example in Marx's critique of bourgeois political economy, or in a prag-
matist critique of the way individualism corrupts social policy, and they
have never believed in rights or identity in their modern forms. But they
still believe in the "systematiciry" of social order and in the possibility of
an ethical foundation.
 Conclusion 361

This form of endorsement of critique doesn't problematize the category

of theory. Quite the contrary, critique is in the service of ultimate rightness,
and the call for reconstruction is an affirmation of faith in theory as way
to rightness. The project of reconstruction (as opposed to any particular
proposal) looks, from a left/mpm point of view, like the reification or
fetishism of theory, in a mode parallel to the fetishism of God, the market,
class, law, and rights. Left/mpm, by contrast, is caught up for better or
worse in the "viral" progress of critique, and in so much as there is a lesson
from the progress of the virus, it would seem to be to anticipate loss of
faith in theory in general and general theory in particular. But I hasten to
add once again that losing faith in theory doesn't mean giving up doing
theoryit just means giving up the expectation of rightness in the doing.
It will come as no surprise that I don't think I can demonstrate that
reconstruction is impossible. But, as usual, I do think something can be
said about the rational side of faith. Here, as elsewhere, as in the case of
God, legal correctness, and rights, reconstructionists urge us to believe in
and strive for reconstruction because there would be many bad conse-
quences of its failure or impossibility, such as that we wouldn't have any
assurances either in our leftism or in our particular leftist strategies, that
we would become rotalitarians, and so forth. Although I don't think these
are the real issues, I'll address them as best I can.

Nihilism

Mpm critique, the induction oî loss of faith, and characteristic associated

emotions, seen as a project, negate a particular experience, that of right-
ness, in favor of another experience. When it comes to "deciding" whether
or not to be a leftist, this project has nothing to offer. Because of these
commitments, to critique and loss of faith, without commitment to pro-
viding other forms of rightness in the place of what is dissolved, it is
common to describe it as nihilist. And it is well known that nihilism is
both wrong and of evil tendency.
As Michael FischI has pointed out, there is something odd about this
argument. It seems to presuppose that we prefer error to enlightenment,
when enlightenment is at the cost of beliefs that seemed useful when we
still believed in them. Why wouldn't we welcome the critique, no matter
how leftfmpm its ulterior motive, as long as after hearing it we were no
longer convinced of the truth of our previous view?
Critique doesn't leave us with "nothing," in the sense of making it
impossible to decide what to do, say, whether or not to be a leftist, or of
362 Conclusion

making it impossible to figure out enough about how the social order
works to choose a strategy of left action within it. Those of us who are not
moral realists (believers in the objective truth of moral propositions) are
used to committing ourselves to projects, and deciding on strategies, on
the basis of a balancing of conflicting ethical and practical considerations.
In the end, we make the leap into commitment or action. That we don't
believe we can demonstrate the correctness of our choices doesn't make us
nihilists, at least not in our own eyes.
We misunderstand internal critique if we imagine that it might lead to
a situation in which we had lost faith in "everything," so that we just
wouldn't know what to believe in or do. Critique changes our attitude
toward a particular theory (whichever we successfully critique) that gen-
erated a particular sentiment of rightness. It leaves us whatever we had
before critique, in the way of tools for working out our commitments and
our concrete plans for the future. It seems odd to me to suppose that we
could ever, conceivably, be without resources of this kind, even if each of
us was a veritable Hercules of critical destruction.
Of course, a person might be committed to egalitarianism only because
of belief in rights, and in particular rights. The loss of faith in rights in
general might lead such a person to abandon egalitarianism, in favor of
another attitude, say, belief in natural inequality, that seemed more plau-
sible when not countered by a particular belief in rights now undermined
by critique. But the causal chain might move in the other direction as
well: loss of faith in property rights might permit previously thwarted
egali tarjan sentiments to flower.
It might be possible to make convincing generalizations about the causal
tendency of the left/mpm project of critique, loss of faith, and attendant
emotions. After the proposal that the tendency is demoralization, the most
popular may be that left/mpm leads to Hitler and Stalin. As I understand
this argument, it goes something like this. Stalinism and Nazism represent
the powerful, irreducible force of evil in human nature. But they inflicted
previously unimaginable suffering, degradation, and destruction, far be-
yond the normal. They were able to do this because they were nihilist,
meaning that they denied the validity of fundamental human rights.
Nietzsche's cult of the Superman and the moral relativism of Weimar are
responsible.
The mirror image: Stalinism and Nazism represent the powerful, irre-
ducible force of evil in human nature. But they inflicted previously un-
imaginable suffering, degradation, and destruction, far beyond the normal.
 Conclnsion 363

They were able to do this because they were totalitarian, meaning that
they proclaimed the absolute truth of their theories. Therefore, skepticism
is the true antidote to the repetition of the Holocaust and the gulag.
Hegel's cult of Absolute Reason and blind obedience to authority are re-
sponsi ble.
It may be possible to combine the theory that the evil of the twentieth
century is caused by the denial of reason (nihilism) with the theory that
it is caused by excessive commitment to reason (totalitarianism). Perhaps
on a higher level true believers are nihilists and vice versa. Or perhaps one
should be a true believer in fundamental human rights and a nihilist about
racist and Marxist theories.
But from the point of view of loss of faith in reason (which is not an
impossibility theory about reason), it seems unlikely that either believing
or disbelieving in reason in general, or in any particular rational construc-
tion, has this kind of causal power. It seems more likely that belief and
denial of reason can each have many different meanings and combine in
an infinite number of ways with idiosyncratic or socially constructed at-
titudes, sentiments, and dispositions. Belief and denial more likely were
constitutive but not controlling elements in many forms of collaboration
with and opposition to Nazism and Stalinism, rather than elements with
a single intrinsic or inherent tendency.

Left/mpm as an intersectional project

Left/mpm artifacts are at the intersection of two projects, one leftist and
the other mpm. These are designed to play two dramas on this single
stage. One idea is to modernize or postmodernize the leftist project, and
the other is to move the world leftward by doing in right-wing forms of
rightness. What this means is that there is strategic behavior within the
intersection. The mpm part of left/mpm aims to move the left project
along rather than to destroy itallegiance to mpm is no more "absolute"
than allegiance to leftism. In ideological struggle/dialogue with the right,
we choose our themes/targets with an eye to converting waverers, and avoid
themes/targets that can be predicted to demoralize other leftists (would
that we were so powerful) when the left/mpm payoff is small or nonexis-
tent.
In other words, the left, as I am using the term, is a "site" for particular,
outward- and inward-looking ideological encounters and coalitions, rather
than a set of principles or a program.'4 It is, for me, a "position" as well,
364 Conclusion

by which I mean that I much prefer to hang with liberals, identity poli-
ticians, and post-Marxists, rather than with the varieties of right-wing or
centrist/mpm types. But it is no more conceivable, to me, to be left
through and through than to be mpm through and through.

The social construction of rightness

I think the protective impulse toward one's own sense of rightness is so-
cially constructed, by which I mean that we learn rightness as a way to
deal with despair, depression, and internal contradiction, and also learn it
as a script that promises social power to those who master it. I don't mean
to propose a theory of human nature, an anthropology that would explain
or be right about the origins of rightness. The following Foucaldian ac-
count of legal education is meant to suggest that there are investments in
rightness that one might give up without threatening one's selfhood, rather
than to show what rightness "is."
I want also to urge a social theoretical claim about modern Western
society: that legal discourse and legal education are sites for the production,
through discipline, of the modern subject's commitment to rightness.
Rightness may be a defense mechanismarmory through reified texts
against fears and longingsor it may be the superego, but it is also a
structural element in a disciplinary society. Law and legal education are
among the producers of the attitude of the professional who operates dis-
ciplinary mechanisms from the location of a disciplinarian self constituted
by discipline.

Rightness and legal education

Novels, movies, and television shows about elite legal education and law
practice are staples of American popular culture. The portrait they offer
makes the first year of law school look strikingly like the institutions
Foucault describes in Discipline and Punish." He was preoccupied with
disciplines that transformed bodily capacities and constituted desires, as
in monastic, hygienic, sexual, and military discipline. Legal education is
focused on a different complex: the capacity to be right about the exercise
of state power, and the desire to put that capacity to someone else's use.
But the parallels are numerous.
Legal education uses the techniques of "normalization," that is, of oral
examination, written examination, the compiling of dossiers, and the pro-
 Conclusion 365

duction of résumés that allow us to understand each person involved by

placing him or her in relation to others on measurement scales. It does
this much more intensely than other American educational institutions,
with the exception of medical school, which is the object ola similar pop
cultural fascination.'6
The centerpiece of legal education, as of all the Foucaldian disciplinary
institutions, is the "examination" (the military review, confession, hospital
"visitation"), in the form of the Socratic method. As in Bentham's pan-
opticon, the teacher observes from the front of the class. He or she can at
any time require any student to produce legal discourse in response to a
question, and then offer small pellets of praise or punishment according
to the performance.
The goal is to induce "thinking like a lawyer," that is, to constitute the
student as a subject who can perform according to the disciplinary plan as
a matter of internal commitment, rather having to be controlled from the
outside by threats and promises specific to each situation. The extraordi-
nary exposure of the Socratic method is designed to change the student,
so that this very kind of supervisory technique will be unnecessary when
the student becomes a lawyer. As with the other forms of discipline, the
idea is to produce an "automaton," to shape the will rather than to break
it, to give it new, particular capacities (thinking like a lawyer) that go
with a new, particular submission to authority (the client and the judge).
From the beginning, the teacher conveys that there are right and wrong,
or at least better and worse, answers to her questions, but there is no
formula offered by which the student can "compute" these, no verifiability,
and the teacher, in the pure version, never gives an answer herself. The
sequence of questions is supposed to lead the student and the class to
recognize that the student's formulation of a rule or of a reason for a rule
(a "principle") is wrong because inconsistent with what the student and
the class already know but hadn't seen as relevant.
The teacher requires students to speak as if they knew they were right
about the legal question before the class, and then to take the consequences
if they turn out to be wrong. (The most important consequences have to
do with fear of failure and loss of face.) The teacher rejectstreats as
wrongresponses in the form ola question, an expression of ambivalence,
a request for more information, a distanced comment on the situation
("isn't it interesting that. . ."), and especially a lay normative evaluation
("it doesn't seem fair that. . ."). The only way to be right is to perform in
the role of law speaker. But the teacher does not explain why an answer
366 Conclusion

offered in role was wrong, except by demonstrating that it leads to a

contradiction with the answer to another hypothetical. To be right is sim-
ply not to be shown wrong.
In this situation, students hunt (often desperately) for a mode of response
that will be effective in the setting. What they find is that they get by
the first hurdle only by speech that presupposes that there is a correct legal
answer to the question, and that the speaker knows it and is offering it.
In other words, at this first level, they can't participate unless they accept
the self-understanding of the profession that its discourse is autonomous
from the general political (ideological) discourse of the time. Students learn
to produce the mode of law speech appropriate to the institution of ad-
judication (as opposed to legislation) by trial and error, looking for what-
ever the teacher will accept. They discover, not in a book, but in themselves
and in their fellow students, the voice of the neutral law speaker, willing
to commit to a particular solution, and it works.
When it comes to the way to be right once one has learned to speak
(not think) like a lawyer, the situation is much more complicated. In gross
terms, conservatives teach students to be right by deduction and liberals
teach them to be right by policy argument. But there are the reversals of
(deductive) conservative economic policy argument and (deductive) liberal
rights argument.
The well-prepared elite law student learns to adjust the response to the
type of rightness the teacher is looking for, learns the variety of discourses
of rightness that prevail in the academy, as models of the variety of neces-
sitarian discourses that judges will accept. Here again, students know they
are doing well only because in fact their production of necessitarian dis-
course works with the particular teacher, inducing a good grade in response
to the teacher's induction of their new lawyer subjectivity.
The quite surprising, even shocking, power of all this as transformative
experience has to do with the following paradox. The student learns, first,
to distinguish a meaningful contribution to the process of decision from
the various evasions that we endlessly engage in, through the classroom
experience of the rejection of all statements that don't focus on what the
law is or should be. Second, the student learns that there is a limited set
of discourses of necessity, and that they work.
But the student learns no metadiscourse that permits necessitarian
choice between necessitarian discourses. Indeed, the overwhelming sug-
gestion is that there is no such discourse available in the setting. The only
thing that works is to figure out what side you are on (later, what side the
 Conclusion 367

client is on) and then argue according to the predilections of the decision
maker (here the teacher, later the judge). The self that emerges from this
experience will be committed to the kind of bad faith I described in Chap-
ter 8. Strategic behavior is everywhere. But the student and the lawyer
learn that they must always suppress it, submerge it in a necessitarian
discourse that everyone knows is only part of the story.
Rightness is a complex technique one has masteredsomething other
people can't do, something that has effects in the world (first grades, then
appellate decisions)and simultaneously "just a rhetoric." On the surface,
the law speaker says that he is right because the materials and good legal
reasoning in the particular situation compel the outcome (whether a jury
verdict or a rule choice) impersonally. Below the surface, we scramble to
psyche out the client and judge as anything but impersonally motivated,
with predictions of effectiveness the only basis of choice about what to do.
It is, I think, easy to see how one develops a deep investment in rightness
thus understood. For the lawyer and the judge, though in different ways,
rightness is simultaneously power and safety: power because it works,
safety because it protects against the charge of moral nihilism for the
lawyer and against the charge of arbitrary violence for the judge who wields
state power. But it also delivers these with a safety valve: legal rightness
is not totalitarian, because "everyone" understands that, at the same time
that it empowers and protects in fact, one doesn't have to take it altogether
seriously.
This may explain its iconic status in popular culture. The lawyer and
the judge are hardly omnipresent in everyday life. But the attitude they
represent, the bad faith, inside-outside, strategized production of the dis-
course of rightness, is omnipresent. In both the corporate world and in
that of public administration, actors constantly assert that they are just
following the rules, doing their jobs by the book, without responsibility
for the "political" consequences. They plead compulsion by correct inter-
pretation to do things they would never do, they claim, if they were them-
selves the legislator (board of directors).
The objects of administration, both in the private corporate sphere and
in the public one, are more and more likely to be themselves administrators
in another context. We know, from our lives as administrators, that when
those who are administering us speak the language of rightness in the
interpretation of their bureaucratic mandates, they are as likely as we are
in our jobs to be strategizing for or against, rather than merely "applying
the regs." And we know there is real drama in their decisions, because we
 368 Conclusion

know that sometimes we ourselves are "really" bound, that we allocate our
time according to ideological projects that may be no more than prejudices,
but may be also what we believe in most deeply, and that in the allocation
we make endless economic choices about credibility and plausibility with
our interpretive communities.

Legal discourse as an instance of managerial discourse in general

I have written at length elsewhere on left/mpm strategies for changing

legal education to reduce its complicity in constituting the particular sub-
jectivity I have been describing.'7 This section pushes the argument in a
different direction. As I pointed out in the last paragraph, many institu-
tions operate through discourses that have the same bad-faith quality as
legal discourse. There are two levels to the parallel.
First, most large organizations that employ professionals, technicians,
and managers have "missions" that define them: private corporations are
supposed to maximize profits while "serving" their customers, hospitals
and schools and universities have health and education missions, govern-
ment bureaucracies have statutorily defined goals under the general rubric
of the public interest. These roles are partial from the point of view of
ideological conflict: the organizations are part of a system of division of
labor, of role specialization. The theory is that each should "do its job"
rather than either the jobs of other institutions or the "political" job of
looking out for its impact on the system as a whole.
The role of looking out for the system as a whole is supposedly (a)
located in the legislative branches of local, state, and federal governments
(themselves geographically and jurisdictionally specialized) and (b) "polit-
ical" in just the sense that the specialized subroles of businesses, nonprofit
organizations, and government agencies are not. Liberalism and conser-
vatism, and all the other types of politics as well, are supposed to be present
there, but not in the organizations of "civil society." In this respect, the
relationship of the judiciary to the legislature is a special case of the very
general mode of organizational role specialization of the advanced mixed-
capitalist societies.
The second element in the parallel is that the people who participate
in collective decision making within these bureaucracies know that their
decisions have big effects on the distributional conflicts that are organized
through the ideas of liberalism and conservatism. Moreover, these big ef-
fects are not clearly determined by the initial definitions of organizational
 Conclusion 369

roles. What the corporation does will, for example, sometimes have a mas-
sive effect on the economic life of the community where it is located. But
profit maximizing is far too vague to specify how to direct that effect.
Internally, everyone knows that different workplaces have radically differ-
ent "corporate cultures," ranging, for example, from the relatively hierar-
chical and formal through the relatively egalitarian and informal. Man-
agement consultants develop typologies on the assumption that corporate
culture is not uniquely determined by mission.
Like judges making legal rules with distributive effects, managers cast
decisions about what these organizations should do, externally and inter-
nally, in the manipulable rhetorics of institutional mission, profit making,
health, education, and public interest, all referring back to the explicit
mandates of corporate organizational documents or statutes. The strategy
chosen, within the general role specification, is like a judge-made rule, in
that it may have massive distributive effects without being compelled by
the discourse that legitimates it. This seems equally true for corporations,
hospitals, schools, universities, and government agencies.
The people who run institutions operate in bad faith in the same way
judges do. On the one hand, they often experience their missions as suf-
ficiently defined, given the practical circumstances, so that they are com-
pelled to adopt particular strategies and reject others. To do anything else
would be "unprofessional," a "breach of trust," "suicidal from the point of
view of the bottom line," or whatever. On the other hand, they also ma-
nipulate the discourse of necessity to present all kinds of strategic choices
that are not thus compelled as necessary and right. They constantly deploy
their resources, they constantly work, just as judges do, to shape and re-
shape the necessity that they are supposedly merely submitting to. Com-
petent "players" know this to be crue, although there will often be dis-
agreement about when and where there is "really" discretion. But the
public discourse, as opposed to the back-room discourse of the organiza-
tion, resolutely denies it.
Like lega) discourse, the discourses of management seem remarkably
stable, by which I mean that, for most participants, most of the time, there
seems to be no alternative to casting decision making in their terms and
little danger that the widely perceived element of indeterminacy will lead
to erratic or even unpredictable organizational behavior. To some extent,
this stability reflects the prevalence of the experience of being bound or
constrained by widely accepted mission definitions. Organizations do what
they do because chat's what they were organized to do. But given the
370 Conclusion

indeterminacy, given the possibility of strategically directed work, the

stability has to have other sources.
One such source is the common perception of liberal and conservative
managers that, while it is permissible to manipulate "at the margins" in
a liberal or conservative way, it is important not to "go too far" in trying
to achieve extradiscursive political objectives. The exercise of discretion
shouldn't upset the general balance that exists, at any given moment,
among overtly or implicitly organized internal factions. This "metarule"
of moderation gets much of its force from an implicit theory: If you take
your liberal or conservative views about how to handle the distributively
significant leeways within the mission statement too far, you risk "polit-
icizing" the institution, and you will be seen as "disloyal."

Politicization and disloyalty

The idea of politicization is complex. It refers, on one level, to the content

of debate about what decisions to make and, on another, to its quality as
a reflection of the life of the institutional community in question. At the
level of content, we say the debate is politicized when participants have
"agendas" that go beyond the implicit or explicit definition of the mission
of the institution and push those agendas beyond the leeways that everyone
understands to be inevitable. The cardinal sin is to abandon the convention
that the discourse is one of necessity, openly acknowledge its manipula-
bility, and appeal beyond it to general political right and wrong.
But politicization also connotes a "slide" into immoral behaviors that
go beyond interpretive infidelity. There is the Madisonian idea of faction,
often the referent of the word "partisan." Loyalty to a faction can take
precedence over loyalty to the institution. People support their friends
even when they know they are in the wrong, and submit blindly to clique
discipline, forfeiting their ability to exercise independent, principled judg-
ment without regard to persons. Another reference is to corruption, to
actual cheating, lying, or stealing in order to increase one's share of money
or power or prestige, without regard to the common interest.
Paradoxically reinforcing this idea of the triumph of the merely personal
is the idea that the politicizer has been seized by ideology in the bad sense,
in which it indicates fanaticism, willingness to let the end justify immoral
means out of a misplaced excess of righteousness. The ideological politi-
cizer demonizes enemies, treating his own side as all good and the other
as all bad, guided not just by the spirit of faction, but also by a deluded
 Conclilsion 371

sense that his own side has a correct theory that shows that the other side
is evil. The ideologue is a character, unable to compromise, a polarizer or
splitter, the enemy of collective good feeling.
This diffuse combination of connotations, including faction, corruption,
and the fanaticism of the "true believer," puts the ideologue outside the
tenuous, intermediate position of bad faith. In bad faith, one honors both
the idea that the discourse of decision is a neutral one, within which the
parties are searching for a right answer, and the idea that we all know that
there is an element of manipulability to that same discourse. Staying in
bad faith is tricky work. You push your agenda through the discourse,
never indicating the slightest doubt about its necessitarian presupposi-
tions, while honoring the implicit rules about what would be going too
far.
Politicizing is disloyal almost by definition. First, it endangers the or-
ganization's ability to perform its mission. Second, it endangers everyone's
investment in institutional life, including the investment in a particular
set of "private" patterns of interaction and the investment in the prestige
of the institution in the world it serves.
Loyalty is partly a contractual idea and partly a notion of solidarity based
on the concrete history of group life. When you join the institution, you
implicitly sign on to the set of arrangements, styles of nteraction, collec-
tive conceptions of role, and so on, that define it. When you work with
people every day, depending on them in many ways that aren't codified,
and don't have anything to do with large political issues, you need an ethic
of mutual forbearance, of compromise and boundary observance, or every-
one will be miserable. Avoiding this misery is more than a matter of self-
interestthere is an ethic of collegiality that is independent of interest,
just as it is independent of politics.
Loyalty is a "spirit" that you can have more or less of and that you can
also just plain lack. Then you are disloyal, which is positively to be bad,
rather than ranked low on a common scale. Groups reward people accord-
ing to loyalty, but they sanction them for disloyalty. Moreover, loyalty
issues invoke the raison d'état aspect of administration. Usually, you aren't
fired for it, or formally sanctioned in any way. But once your bosses, per-
haps tuned in to coworker gossip, clearly identify you in their own minds
as in this category, then everyone expects them to exercise all their different
kinds of low-level discretion to make sure, for the good of the organization,
that you don't get promoted or otherwise rise to power.
Everyone understands that gossiping groups, administrators, and clique
 372 Conclusion

leaders operate on a kind of benefit-of-the-doubt system with regard to

loyalty. We know that we can't see into the soul directly, and that the
concept is sufficiently fluid as to allow many situations in which equally
loyal people have different interpretations of what loyalty requires. But it
is also true that disloyalty is something a person would want to hide, both
because it is intrinsically shameful, and because if it is found out, there
will be terrible sanctions.
So suspicions or doubts about disloyalty can exist, which are quite dif-
ferent from disagreements about what loyalty is or about how much of the
virtue of loyalty people have. As a negative quality of the soul, people can
let it slip or betray themselves as betrayers in unthinking moments. Vio-
lating a rule that everyone had agreed was necessarily implicit in the idea
of loyalty is one of the few ways a person can make his or her disloyalty
positively known. And, from time to time, people quite blatantly behave
this way, because they have to honor their other commitments, or because
they are a little crazy, or because they can't help bearing witness to their
vices.
In this context, to be loyal is to be committed to preserving the integrity
of the bad-faith discourse, first, by never openly challenging its necessi-
tarjan conventions and, second, by not pressing its leeways so far that the
fragile structure of denial threatens to collapse into politicization. I think
there are many participants in institutional politics, in our system, for
whom it goes without saying that there is a real trade-off here: they believe
that the institution should play a different, more left-wing role than it
does, but they fear that to push for this role would risk politicization and
would be perceived as disloyal.
The notion that this is the real choice gets strength from real experi-
ences, in which people, at whatever institutional level, get embroiled in
destructive conflicts, cast in terms of rightness, that bring out the monster
and the lunatic in all concerned. And sometimes people who, to the ob-
server, seem merely naive or stubborn or idealistic or literal-minded, rather
than vicious, get tagged as disloyal, never manage to shake the tag, and
suffer career disaster.

Disloyalty as loss offaith

Loyalty to the institution, in this complex sense of the will to preserve its
bad-faith discourse, so as to preserve its external and internal equilibrium,
can be the faith of bad faith. By this I mean that loyalty can be deeply
 Conclusion 373

felt, even though it can also be feigned; it can be wholehearted even though
it can also be coerced. Loss of faith in loyalty as something to strive for
can be like loss of faith in God or legal correctness. Sometimes one feels
loyalty as a fact, as one feels legal constraint as a fact. But one loses any
sense that it is better to be loyal than disloyal, that the constraint when
one feels it is the reflection or emanation of something behind, that is
"intrinsically" right, and so forth.
Disloyalty of this kind is a characteristic left/mpm attitude. It starts
from the idea that you are wherever you are, so that "if you don't like it
here, go back to Russia, where you belong" isn't an alternative. The con-
tractual idea lacks force, because we middle-class, highly educated types
grow up in a world in which the question is which large organization to
work for. They all have missions that are partial and ethics of loyalty that
you will be expected to sign on to. But they are also compromised or
complicit in the larger order.
From a left point of view, there are a few public interest organizations
that have explicit progressive goals such that loyalty to the organization
does not require even a pro forma renunciation of the idea that political
and private life can be integrated. If, for one reason or another (including,
perhaps, lack of moral fiber, mpm intolerance, or student loans), you are
not going to work for one of these, you have to decide what attitude to
take toward che particular mission definition and demand for loyalty im-
posed by an ostensibly apolitical organization.
A typical attitude is to recognize the left critique of the organization,
and to hope, first, that it won't be as bad as its bad rap and, second, that
the leeways of the bad-faith discourse will permit moving it in a progres-
sive direction, once one has done one's time and acquired some power.
Liberal recruiters subtly or blatantly encourage this understanding. But
often, often, it turns out that the leeways are narrow, and the implicit
metadiscourse of avoiding politicization and demonstrating loyalty effec-
tively closes down any possibility of left workplace politics.
Then you will find yourself not believing in what they say you have to
believe in if you are to be a "true" member of the community. If you
declare this, you will be ostracized. So you play the game, but without
giving up your reservations. You find yourself endlessly speaking a lan-
guage of rightness, while internally denying its presuppositions. You re-
sign yourself, but feel complicit in the retrograde aspects of the organi-
zation's performance and guilty about not using your institutionally
granted powers for the good of the oppressed.
374 Conclusion

In a short time, the cognitive dissonance between what you said to

yourself you were doing (boring from within) and your actual situation
(bored with your job) becomes intolerable, and you find yourself unthink-
ingly reproducing the implicit stabilizing consensus, rather than resisting
it. You develop a variety of mentor-mentee and coworker relationships
that provide depoliticized forms of personal happiness. The contract now
has a new form. First, leaving becomes more costly with each passing year.
Second, internal strategies that might disrupt the bad-faith discourse will
jeopardize relationships that make daily life tolerable.
Disloyalty can be a vice. But, in this situation, it is more matter-of-
fact. You just aren't loyal, though you might, you can see, looking down
the road, become loyal (like "them"). That might be a bad outcome. If you
think so, disloyalty is refusal of allegiance rather than a vocation of be-
trayal.

In defense ofpoliticization and passivity

For people who have lost (or never had) faith in bad faith, who have lost
the capacity to believe and not believe at the same time, so that they
experience the discourse sometimes as brute (desacralized) constraint and
sometimes as merely instrumental, the demand for loyalty to avoid polit-
icization is completely understandable, however unmeetable. Indeed, one
reason for keeping up bad faith is the belief that if one loses faith in it,
one has to choose between politicization and hypocrisy or time serving.
What about the left/mpm project? If there's nothing else to do, I'm all in
favor of abandoning it.
But it can't be that there is never anything else to do. If there are any
possibilities at all, I'm proposing not a solution but an attitude, taking
hope from Holmes's aphorism that every idea is an incitement. Sometimes
it makes sense to strategize, not the best result within the discourse that
will leave the discourse and its implicit metanorm of moderation intact,
but the politicization of the setting. Sometimes it doesn't make sense, in
which case passivity by ail means. Alternating between politicizing and
passivity might be a better attitude than alternating between bad faith
and passivity. Better a contradiction than a defense mechanism.
Politicizing the environment doesn't mean setting out to destroy it, and
in the mpm version of leftism, it obviously doesn't mean believing fanat-
ically in one's truth. It does mean trying to set up a political identity to
the left of liberal bad faith, without being or seeming to be a wrecker.
 Conclujion 375

Sometimes, politicizing means using the resources of the bad-faith dis-

course to push its contradictions to the point where everyone feels, though
still within the discourse, that something fundamental is at stake, that the
discourse has been changed by the revelation of deeper levels of disagree-
ment than had previously been allowed access to consciousness. Sometimes
it means challenging the presuppositions, in the name of left/mpm anti-
truthcoming out of the closet, or being "off the wall."
The politicizer must respond to the objection, not that he is urging
civil disobedience, but that he is urging disobedience to two less formal
norms. The first is that because the system as a whole has specialized
political mechanisms for dealing with oppression, and your institution has
a different, nonpolitical role, you must leave the big issues for others. The
second is that by joining the institution, you signed on to the general
understanding of its nonpolitical nature and to the antipolitical norm of
collegiality, so that politicizing the setting is betraying it.
It is common, in discussions of civil disobedience, to argue that if the
regime as a whole is sufficiently evil or unjust, an institutional actor has
a moral obligation to disregard role constraintsto disobey the law or to
refuse to participate in applying it. lt is common to see lying or other
kinds of disloyal behavior as fully justified and appropriate if, for example,
the society in question is Nazi Germany or Stalin's Russia. In this all-or-
nothing context, it is often implicit that if one can't condemn the regime
the way, in our society, we wholeheartedly condemn Nazi Germany or
Stalin's Russia, then the role constraints of obedience to law, or faithful
application of it (if a judge), are assumed to apply. Likewise, the role
constraint of institutional loyalty in the general universe of management.
I don't think the limiting cases of Nazi Germany and Stalin's Russia
illuminate the left/mpm actor's situation. Much more relevant is Joseph
Raz's question "whether only degenerate societies fail to be decent societies,
or at least approximately decent ones." He continues,

If, as some would argue, most human societies to date fail this test, if
most of them are such that their members (ought to) feel shame in their
societies and guilt by association for their character and actions, then
there is little we can learn about the law in general from the notion of
an approximately decent society.'8

If, as a leftist, one feels shame in one's society and guilt by association
for its character and actions, then the dilemma posed by the alternatives
of politicizing, of bad-faith strategic behavior in interpretation, and of
376 Conclusion

passivity is a real one, even though this is neither Nazi Germany nor
Stalin's Russia.
The left/mpm actor who politicizes insists that it is not enough, in
defending a particular course of institutional conduct, external or internal,
to appeal to the general understanding that the organization has a spe-
cialized, nonpolitical role in the social division of labor. If in the particular
context there is enough shame and guilt by association, then there needs
to be some further discussion of whether it isn't possible to exploit gaps,
conflicts, and ambiguities or frankly to reject the norm of role specializa-
tion given the circumstances. Of course, the left/mpm actor won't propose
a general theory of how far we can go in bending the mission statement
before we break it, or of when we ought to break it.
Politicization has its attendant costs, including the risk of defeat, the
deterioration of the quality of group life that comes from finding the
political everywhere when it had been elsewhere, and the risks to one's
own career and to the careers of friends and allies that are present the
minute one goes against this particular grain. Sometimes these costs are
worth paying. I am talking about a balance, not politicization at all costs,
above all not "principled" politicization, which to my mind is just another
way to be right.
Rather, opportunist politicization that recognizes four maxims: find a
friend/collaborator, live to fight another day, extremism in the defense of
liberty is indeed a vice, the personal is political. When these maxims
suggest that, in the particular circumstances, oppositionism is the wrong
thing to do, then quit or go back to passivityanother form of disloy-
altyrather than denial. In other words, doubleness, in the mode of
W. E. B. Du Bois's doubled consciousness of people of color, vis-à-vis the
very institutions that nurture us and make it possible for us to fight against
their complicity, our complicity, in group oppression.
NOTES
INDEX
 NOTES

I. INTRODUCTION
x. Jean-Paul Sartre, Being and Nothingness: An Essay on Phenomenological Ontology,
trans. Hazel Barnes (New York: Citadel Press, 1965); Jean-Paul Sartre, Critique of
Dialectical Reason, trans. Alan Sheridan (London: Verso, ¡990).
Herbert Marcuse, Reason and Revolution: Hegel and the Rise of Social Theory (Bos-
ton: Beacon Press, 1968); Herbert Marcuse, One Dimensional Man: Studies in the Ideology
of Advanced Industrial Society, 2d ed. (London: Routledge, 1991).
Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheri-
dan (New York: Vintage, ¡979); Michel Foucault, Power/Knowledge: Selected Interviews
and Other Writings, 1972-197 7, ed. and trans. Colin Gordon (New York: Pantheon
Books, 1980); Michel Foucault, The History of Sexuality, 3 vols., trans. Robert Hurley
(New York: Vintage, 1988-1990).
See Duncan Kennedy, "Psycho-Social CLS: A Comment on the Cardozo Sym-
posium," 6 Cardozo L. Rev. 1013 (1985); Gerard Clark, "A Conversation with Duncan
Kennedy," The Advocate; The Suffolk University Law School Journal, 24 (no. 2, Spring
¡994), 56; Duncan Kennedy, "Noce sur l'histoire de cls aux états-unis," in Dictionnaire
encyclopédique de théorie et de sociologie du droit, 2d ed., ed. André-Jean Arnaud (Paris:
L.G.D.J., '993).
Guy Debord, The Society o/the Spectacle. trans. Donald Nicholson-Smith (New
York: Zone Books, ¡994).
Paul D. Carrington, "Of Law and the River," 34f. Leg. Ed. 222 (1984).
Ludwig Feuerbach, The Essence of Christianity, trans. G. Eliot (New York: Pro-
metheus Books, ¡989).
Karl Marx, "On the Jewish Question," in Writings o/the Young Marx on Philos-
ophy and Society, ed. and crans. Loyd Easton and Kurt Guddat (Garden City, N.Y.:
Anchor, ¡967), p. 216; Karl Marx, "The Fetishism of Commodities and Its Secret,"
in Capital: A Critique ofPolitical Economy, vol. 1, trans. Ben Fowkes (New York: Vintage,
1977), p. 163. See Chapters ii and 13 and, on the fetishism of commodities, Duncan
Kennedy, "The Role of Law in Economic Thought: Essays on the Fetishism of Com-
modities," 34 Am. Univ. L Rev. 939, 968 (1985).

2. THE DISTINCTION BETWEEN ADJUDICATION

AND LEGISLATION
,. Norberto Bobbio, Stato, governo, societa: Per una teoria generale della politica (Turin:
Einaudi, 1980).
379
 380 Notes to Pages 24-3 I

See Jules L. Coleman and Brian Leiter, "Determinacy, Objectivity, and Au-
thority," 142 U. Pa. L. Rev. 549 ('993); Heidi L. Feldman, "Objectivity in Legal
Judgment," 92 Mich. L. Rev. 551 (1994).
Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Liter-
ature," 6o Texas L. Rev. 551 (1982).
David L. Shapiro, "Courts, Legislatures, and Paternalism," 74 Va. L. Rev. 519,
556-557 (1988)(emphasis mine).
Jeffrey Rosen, "Breyer Restraint," New Republic, June ii, 1994, p. 20.
1 don't mean to be taking sides in any extant debate here. Even Ronald Dworkin

agrees that judges make law in the minimal sense indicated in the text. Ronald Dwor-
kin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986), p. 6.
Linda Greenhouse, "Fierce Combat on Fewer Battlefields," New York Times,July
3, 1994, S. 4, p. i.

Anthony Flint, "Breyer Set for Senate Hearings," Boston Globe, July 10, 1994,
s. i, pp. i, x6.
John Noonan, "Master of Restraint," New York Times Book Review, May i, 1994,
p.7.
IO. Vincent Blasi, "Judge Him Unpredictable," New York Times Book Review, June
19, 1994, p. 3.
ii, Adam Levine, letter to the editor, "Unpredictable Justice Powell," New York
Times Book Review, July IO, 1994, p. 3'.
H. L. A. Hart, The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994).
Hart's attitude toward this question is perhaps well represented by this state-
ment: "At this point [where the law runs out] judges may again make a choice that
is neither arbitrary nor mechanical; and here often display characteristic judicial vir-
tues, the special appropriateness of which to legal decision explains why some feel
reluctant to call such judicial activity 'legislative.' These virtues are: impartiality and
neutrality in surveying the alternatives; consideration for the interest of all who will
be affected; and a concern to display some acceptable general principle as a reasoned
basis for decision." Ibid., p. 200.
Hans Kelsen, Introduction to the Problems of Legal Theory, trans. B. Litschewski
Paulson and S. L. Paulson (Oxford: Clarendon Press, 1992), s. 36. For an interesting
collection of essays on Kelsen's theory of interpretation, see Cognition and Interpretation
of Law, ed. Letizia Gianformaggio and Stanley Paulson (Turin: G. Giapichelli, '995).
i. Roberto M. Unger, Knowledge and Politics (New York: Free Press, 1975), p. 88.
i 6. Mark V. Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law
(Cambridge, Mass.: Harvard University Press, 1988), pp. 52-57.
17. Gary Peller, "The Metaphysics of American Law," 73 Cal. L. Rev. i,,,, zi8i
(1985).
i8. James Boyle, "The Politics of Reason: Critical Legal Theory and Local Social
Thought," 133 U. Pa. L. Rev. 68, 710-711 (1985).
,9. Owen Fiss, "Objectivity and Interpretation," 34 Stan. L. Rev. 739 (1982).
 Notes to Pages 32-37 38!

Paul Brest, "Interpretation and Interest," 34 Stan, L. Rev. 765 (1982).

Duncan Kennedy, "Legal Formality," 2f. Legal Studies 351, 364, nfl. 21, 22
(1973); Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89
Hart L. Rev. 1685, 1687-1688 (1976).
Southern Pacific y. Jensen, 244 U.S. 205, 221 (x9I7XHolmes,J., dissenting).
See Thomas C. Grey, "Molecular Motions: The Holmesian Judge in Theory and Prac-
tice," 37 %Vm. & Mary L. Reti 19 (1995).
Felix FrankÑrter, "The Supreme Court of the United States," in Law and Poli-
tics: Occasional Papers of Felix Frankfurter, ed. Archibald Macleish and E. F. Pritchard,
J r. (New York: Harcourt, Brace, ¡939), p. 21.
Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon
Press, 1979), ch. 10.
See Lon Fuller, "Positivism and Fidelity to Law-A Reply to Professor Hart,"
7f Harv. L. Rev. 630, 666 (f958).
Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale Univer-
sity Press, '957).
Karl Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little,
Brown, 1960).
Lon Fuller, "The Forms and Limits of Adjudication," 92 Harz L. Rev 353
(1978).
Henry M. Hart and Albert Sacks, The Legal Process: Basic Problems in the Making
and Application of Law, ed. William Eskridge and Phillip Frickey (Westbury, N.Y.:
Foundation Press, ¡994).
3°. Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press,
1978), chs. 7 and 8.
3f. J. M. Finnis, "On 'The Critical Legal Studies Movement,'' 30 Am.J.Jurispru-
dence 21, 38(1985).
Dworkin, Lau": Empire.
Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University
Press, 1985), p. 2.
Fuller, "I'he Forms and Limits of Adjudication," pp. 393-405.
Hart and Sacks, The Legal Proass, pp. 646-647.
Dworkin, A Matter of Principle, p.
Gerald Postema, 'Protestant' Interpretation and Social Practices," 6 Law &
Phil. 283, 289 (1987).
Dworkin, A Matter of Principle, p. 2.
Dworkin, Law's Empire, p.411.
4o. See Mitchel Lasser, 'Judicial (Self-) Portraits: Judicial Discourse in the French
Legal System," 104 Yale L.J. 1325, ¡343 (1995).
i. André-Jean Arnaud, Les juristes face à la société du XIXe siècle à nos jours (Paris:
Presses Universitaires de France, 1975).
 382 Notes to Pages 39-55

3. IDEOLOGICAL CONFLICT OVER THE DEFINITION

OF LEGAL RULES
r. Universalization, as I'm using it here, is a defining characteristic of normative
discourse of the type Habermas calls "practical reason," which I think well describes
legal argument. See Jürgen Habermas, The Theory of Communicative Action: Reason and
the Rationalization of Society, vol. i, crans. Thomas McCarthy (Boston: Beacon Press,
1984), pp. 16-19.
See, generally, Antonio Gramsci, Prison Notebooks, ed. Jospeh A. Buttigieg,
crans. Joseph Buttigieg and Antonio Callan (New York: Columbia University Press,
¡992).
Four interesting takes on these phenomena are Robert Gordon, "Law and Dis-
order," 64 md. L.]. 287 (1989); Robin West, "Progressive and Conservative Consti-
tutionalism," 88 Mich. L. Rev. 64 ('990); Jack Balkin, "Ideological Drift and the
Struggle over Meaning," 25 Conn. L. Rev. 869 (i993); and Frank Michelman, "Prop-
erty, Federalism, and Jurisprudence: A Comment on Lucas and Judicial Conservatism,"
5 Wm. & Mary L. Rev. 30! ('993).
See Michel Foucault, The Order of Things: An Archaeology of the Human Sciences,
crans. Alan Sheridan (New York: Vintage, '973).
,. See Thomas Kuhn, The Structure of Scienufic Revolutions, 2d ed. (Chicago: Uni-
versity of Chicago Press, ¡970).
See Brian Bix, Law, Language, and Legal Indeterminacy (Oxford: Clarendon Press,
1993), p. 53.
Norberto Bobbio, Destra e Sinistra: Ragioni e sign:ficari di una distinzione politica
(Rome: Donzelli, ¡994).
Duncan Kennedy, "The Structure of Blackstone's Commentaries," 28 Buff L.
Rev. 205 (1979). Much more sophisticated than the inference of a conspiracy theory
was the response of Alan Hunt: "Throughout his discussion of Blackscone, Kennedy
tends to employ the idea of 'intention' more frequently than that of 'motive'; it thus
seems clear that his analysis requires the imputation oían explicit or conscious intent
to Blackstone in particular, and by inference to legal actors in general. The flavor of
this usage of intention is caught by his characterization that it was Blackstone's 'in-
tention to vindicate the common law against the charge that it was inconsistent with
the enlightened political thought of his day' (1979:2 34) and later that 'his ultimate
intention was to legitimate both judicial institutions and the substantive law they
enforced' (1979:2 37). This mode of analysis rests on the imputation of intent that is
not substantiated, Yet without the insertion of 'motive' the theoretical structure that
seeks to move from 'doctrine' to the 'hidden political intention' is undermined. In
other words Kennedy's methodology is not able, without an assumed intentionality,
to establish the connection between doctrine and its historical context that critical
theory promises." Alan Hunt, "The Theory of Critical Legal Studies," in Explorations
in Law and Society: Thward a Constitutive Theory of Law (New York: Routledge, 1993),
 Notes to Pages 56-63 383

pp. 153T 54. I think Hunt misunderstood the method I was then and still am trying
to deploy, because he imagines that the imputation of motive or intent (or preference-
I use them all interchangeably), in the phrases he quotes, could be "substantiated" in
the sense of "proven," or, for that matter, disproven. Substantiation in his sense is,
first, impossible and, second, unnecessary for the analysis to work as it is supposed to.
My imputation of an "apologetic" or "legitimating" motive to Blackstone was of the
hermeneutic kind, although what I imputed to him and, by mere "inference," to legal
thinkers in general, was neither liberalism nor conservatism. I tried to substantiate
the imputation by critiquing Blackstone's explanations of the rules as unconvincing,
indeed close to unintelligible, unless read in light of a motive of the type I proposed.
L had and have no direct evidence as to whether his motive, if it was as I interpreted

it, was conscious, unconscious, or half-conscious. See Chapters 8 and i i.

9. Although I don't find his critique persuasive (see previous note), Alan Hunt
was right, I think, to see my presentation of Blackstone as at odds with the more
familiar neo-Marxist way of conceptualizing ideology as an element in a theory of
modern Western welfare-state capitalist societies. I will deal at some length with neo-
Marxist theories addressed specifically to law in capitalism in Chapter T 1.
io. See, generally, Duncan Kennedy, "The Stakes of Law, or, Hale and Foucault!"
in Sexy Dressing, Etc. (Cambridge, Mass.: Harvard University Press, 1993), pp. 83-
T 26.

xi. See ibid.

In deciding, from a particular ideological perspective, which of two rules is
better, one can combine the good and the bad of the rule seen intrinsically with the
good and the bad seen instrumentally, or "balance" the intrinsic good against the
instrumental bad. One can say that prohibiting strikes is good, because striking is
immoral, but that, on balance, the bad distributive consequences for labor would
be so extremely immoral that we should allow them. Or one can balance the moral
bad from the instrumental view (labor will end up with too much power if strik-
ing is allowed) against the (intrinsic) right to engage in the conduct (the right to
strike).
See, generally, Duncan Kennedy, "Legal Formality," 2f. Leg. Stud. 351 (I 973);
Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Harv. L.
Rev 1689 (1976).
Duncan Kennedy, "Paternalist and Distributive Motives ¡n Contract and Tort
Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power,"
4! Maryland L. Rev. 563 (1982); Duncan Kennedy, "The Effect of the Warranty of
Habitability on Low Income Housing: 'Milking' and Class Violence," 15 Florida St.
L. Rev. 485 (1987).
i. Thomas C. Grey, "Holmes and Legal Pragmatism," 41 Stan. L. Rev. 787, 834-
835 (1989).
¡6. See Alan Hyde, "The Concept of Legitimation in the Sociology of Law," 1983
Wisc. L. Rei 379 (1983).
 384 Notes to Pages 65-7 7

17. See, generally, Brian Tamanaha, "An Analytical Map of Social Scientific Ap-
proaches co the Concept of Law," z, Oxford). Leg. Studies 501 (s9).
i8. Karl N. Llewellyn, The Bramble Bush, or, Our Law and Its Study (New York:
Oceana Publishing, 1960), p. 12 (emphasis in original).
See Tamanaha, 'An Analytical Map," pp. 515_5 ii.
Sally Merry, Getting Justice and Getting Even: Legal Consciousness among Working-
Clais Americans (Chicago: University of Chicago Press, 1990); Barbara Yngvesson,
Virtuous Citizens, Disruptive Subjects: Order and Complaint in a New England Court (New
York: Routledge, 1993).
Robert H. Mnookin and Lewis Kornhauser, "Bargaining in the Shadow of the
Law: The Case of Divorce," 88 Yale L]. 950 (içî,'9).
See, for example, Duncan Kennedy, "Sexual Abuse, Sexy Dressing, and the
Eroticization of Domination," in Sexy Dressing, Etc., Pp. 131-162; Molly McUsic,
"Reassessing Rent Control: Its Economic Impact in a Gentrifying Housing Market,"
ici Han'. L. Rev. 1835 (1988); Lawrence Kolodney, "Eviction Free Zones: The Eco-
nomics of Legal Bricolage in the Fight against Displacement," i8 Ford. Urban L.J.
507 (xu).
Marc Galanter, "Why the 'Haves' Come Out Ahead: Speculations on the Limits
of Legal Change," 9 Law &Soc'y Reu 95
Alice Dembner, "Female Athletes Gain in Legal Game," Boston Globe, October
1, 1994, S. 1, pp. i, 20.
Ibid.

4. THE PARADOX OF AMERICAN CRITICAL LEGALISM

z. Agostino Carrino, Ideologia e coscienza: Critical Legal Studies (Naples: Edizioni
Scientifiche Italiane, 1992), pp. 45-51.
Franz Neumann, The Democratic and the Authoritarian State: Essays in Political
and Legal Theory, ed. Herbert Marcuse (Glencoe, Ill.: Free Press, 1957), pp. 22-68.
Rudolph von Ihering, "The Heaven of Legal Concepts," in Morris Cohen and
Felix Cohen, Readings in Jurisprudence and Legal Philosophy (Boston: Little, Brown,
1951), p. 678.
John Dawson, The Oracles of the Law (Ann Arbor: University of Michigan Law
School, 1968).
. Sadok Belaid, Essai sur le pouvoir créateur e: normatif du juge (Paris: L.G.D.J.,

1974).
6. Mitchel Lasser, "Judicial (Self-) Portraits: Judicial Discourse in the French Legal
System," 104 Yale L.]. 1325 ('995).
. H. L. A. Hart, "American Jurisprudence through English Eyes: The Nightmare

and the Noble Dream," ii Ga. L. Rev. 969, 971 (1977).

Ibid., p. 972.
Ibid., pp. 972-973.
 Notes to Pages 78-85 385

ro. Ugo Mattei, "Why the Wind Changed: Intellectual Leadership in Western
Law," 42 Am.]. Comp. L.att' 195, 205 (1994).
r z. Rodolfo Sacco, "Legal Formants: A Dynamic Approach to Comparative Law,"

39 Am.]. Comp. I.aw. 1,343 (,ç,i).

Hart, "American Jurisprudence," p.971.
For example: "Following the prevailing fashion in judicial opinions, [this opin-
ioni proceeds to its conclusions chiefly by a process of deductive reasoning from ap-
parently fixed premises supposed to be established by prior cases. The fact that in the
last analysis the decision really turns upon notions of policy entertainedconsciously
or unconsciouslyby the members of the court is thus thrown into the background."
Walter Wheeler Cook, "Privileges of Labor Unions in the Struggle for Life," 27 Yale
U. 779, 783 (1918). See also Arthur Corbin, "Offer and Acceptance, and Some of
the Resulting Legal Relations,' 26 Ya/e L.]. 170, 206 (i9ri); Roscoe Pound, "Me-
chanical Jurisprudence," 8 Co/um. L. Rev. 605 (1908).
For example, Lawrence Tribe, "The Puzzling Persistence of Process-Ba.sed Con-
stitutional Theories," 89 Yale U. 1063 (1980).
i. Henry Terry, "Legal Duties and Rights," 12 YaleLj. 185, ,88 ('903).
i6. George Gardner, "Observations on the Course in Contracts" (1934), reprinted
in Lon Fuller and Robert Braucher, Basic Contract Law (St. Paul: West Pub. Co., 1964),
p. 151. The father of contradictionism in law appears to have been Rudolph von
Jhering, Geist des Romischen Red,ts (Leipzig: Breitkopf und Harte!, 1852-1865). Some
major works of realist and postrealist contradictionism, as I see it, are Karl Llewellyn,
"What Price ContractAn Essay in Perspective," 40 Yale U. 704 (i93 r); I.on Fuller,
"Consideration and Form," 4' Co/um. L. Rev. 799 ('94'); Freidrich Kessler and Edith
Fine, "Culpa in Contrahendo, Bargaining in Good Faith and Freedom of Contract,"
77 Harv L. Rev. 401 (1964); Stewart Macaulay, "Private Legislation and the Duty to
ReadBusiness Run by IBM Machine, the Law of Contracts, and Credit Cards," 19
Vand. L. Rev 1051 (1966); and Grant Gilmore, The Death of Contract (Columbus: Ohio
State University Press, 1974). The cnt and quasi-crit variants are well represented by
Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Harv. L.
Rev. 1685 (1976); Frances Olsen, "The Sex of Law," in The Politics of Law: A Progressive
Critique, ed. David Kairys (New York: Pantheon, 1990), p. 473; Elizabeth Mensch,
"Book Review," 33 Stan. L. Rev. 753 (1981)(reviewing P. Atiyah, The Rise and Fa//of
Freedom of Contract); Paul Brest, "The Fundamental Rights Controversy: The Essential
Contradictions of Normative Constitutional Scholarship," o Yale U. 1063 (1981);
Roberto Unger, The Critical Uegal Studies Movement (Cambridge, Mass.: Harvard Uni-
versity Press, 1986); Frank Michelman, "Justification (and Justifiability) of Law,"Jus-
tifiation: Nomos XXVII, ed. J. Ronald Pennock and Robert Chapman (New York: New
York University Press, 1986), p. 7'; Robert Gordon, "Unfreezing Legal Reality: Crit-
ical Approaches to Law," r F/a. St. L. Rev. 195 (1987); and Joseph Singer, "The
Reliance Interest in Property," 40 Stan. L. Rev. 6i J (1988).
17. Oliver Wendell Holmes, "Privilege, Malice, and Intent," in Collected Lega/Pa-
386 Notes to Pages 85-90

pers (Buf1lo, N.Y.: William S. Hein, 1985), p. I 17 (originally appearing at 8 Harv.

L Rev. 1, 8 [1894)).
¡8. Ibid, p. 128.
Ibid., p. 120. "Therefore, decisions for or against the privilege, which really
can stand only upon [policy) grounds, often are presented as hollow deductions from
empty general propositions like sic utere tuo ut alienum non laedas which teaches nothing
but a benevolent yearning, or else are put as if they themselves embodied a postulate
of the law and admitted of no further deduction, as when ir is said that, although
there is temporal damage, there is no wrong; whereas, the very thing to be found out
is whether there is a wrong or not, and if not, why not."
W. N. Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning,"23 Yale L.]. ¡6 (1913). See Joseph Singer, "The Legal Rights Debate in
Analytical Jurisprudence from Bentham to Hohfeld," ¡982 Wisc. L. Rev. 975.
Felix Cohen, "Transcendental Nonsense and the Functional Approach," ¡935
Co/um. L. Rev. 809, 820.
Robert Hale, "Bargaining, Duress, and Economic Liberty," 1943 Colum. L. Rev.
603, 625-.626.
Duncan Kennedy and Frank Michelman, "Are Property and Contract Effi-
cient" 8 Hofsira L. Rev. 7'' (1980).
See Cohen, "Transcendental Nonsense"; Walter Wheeler Cook, "Privileges of
Labor Unions in the Struggle for Life," 27 Yale L.]. 779 (1918). On Holmes, see
Thomas C. Grey, "Molecular Motions: The Holmesian Judge in Theory and Practice,"
27 Wm. & Mary L. Rev. 119 (i99).
Jerome Frank, Law and the Modern Mind (Gloucester, Mass.: P. Smith, ¡970).
Thurman Arnold, The Folklore of Capitalism (Garden City, NJ.: Blue Ribbon,
1941); Thurman Arnold, Symbols of Government (New Haven: Yale University Press,
¡935).
Joseph Hutcheson, "The Judgment Intuitive: The Function of the "Hunch" in
Judicial Decision," i Cornell L.Q. 274 (1929).
Max Radin, "The Theory of Judicial Decision, or, How Judges Think," i i
A.B.A.Journal 357 (i92).
For an example, see David Richards, "Constitutional Legitimacy and Consti-
tutional Privacy," 6x N. Y.U. L. Rev. 800 (1986Xon Bowers y. Hardwick).
For example, Richard A. Posner, Problems ofJurisprudence (Cambridge, Mass.:
Harvard University Press, 1990), pp. 124-143.
Karl N. Llewellyn, The Bramble Bush, or, Our Law and Its Study (New York:
Oceana Publishing, 1960).
Karl N. Llewellyn, "Remarks on the Theory of Appellate Decision and the
Rules or Canons about How Statutes Are to Be Construed," 3 Vand. L. Rev. 395 (1950).
Llewellyn, The Bramble Bush, p. 68 (emphasis in original).
 Notes to Pages 91-95 387

See Chapter io.

Ronald Dworkin, "Is Wealth a Value" 9f. Legal Stud. 1191 (1980).
Before we begin Suzanna Sherry's respectful but total demolition olCass Sun-
stein's new book, Ligal Reasoning and Political Conflict (New York: Oxford University
Press, 1996), we learn that she is "working on a book about social constructivism and
law." Suzanna Sherry, "Law and Order," New York Times Book Rez'ieu September 8,
1996, p. 17.
Andrew Altman, "Legal Realism, Critical Legal Studies, and Dworkin," x
Phil. & Pub. Aif 205 (1986).
"The language was the work of ChiefJustice William Rehnquisc and four other
appointees of Presidents Reagan and Bush. The alignment was unfortunate, suggesting
devotion co an ideological agenda rather than legal principle." Editorial, New York
Times, March 29, 1991, S. i, p. 22.
The best example I know of is Pietro Barcellona, Formazione e sviluppo dei diritto
privato moderno (Naples: Jovene Editore, 1995). For a description and critique of the
American versions of these approaches, see Duncan Kennedy, "Paternalist and Dis-
tributive Motives in Contract and Tort Law, with Special Reference to Compulsory
Terms and Unequal Bargaining Power," 41 Maryland L. Rev 563, 575-583 (1982).
For a critique of the Marxist versions, see Chapter 11.
André-Jean Arnaud, Les juristes face à la société du XIXe siècle à nos jours (Paris:
Presses Universitaires de France, 1975). See also Stefano Rodotà, Repertorio difine secolo
(Rome: Laterza, 1992). There may be an aspiration to overcome the dichotomy, but
by informal means.
Two European tendencies that are not "critical" but have something in common
with the American viral strand are the "école de Bruxelles," see Chaim Perelman and
L. Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation, trans. John Wilk-
inson and Russell Weaver (Notre Dame: University of Notre Dame Press, I969Xbuc
it is wedded to practical reason for all its preoccupation with the semiotics of topoi),
and the "scuola di Sacco" in Italy, see Sacco, "Legal Formants" (but Sacco is a classic
external critic in that he believes that "legal formants" determine legal rules through
the vehicle of indeterminate legal dogmatics).
See Kennedy, "Form and Substance in Private Law Adjudication," pp. 17 IO-
1711.
For a somewhat more filled out version of the critique in the text, see Duncan
Kennedy, "Comment on Rudolph Wietholter's 'Materialization and Proceduralizarion
in Modern Law,' and 'Proceduralization of the Category of Law,'" in Critical Legal
Thought: An American-German Debate, ed. Christian Joerges and David Trubek (Baden-
Baden: Nomos Verlagsgesellschaít, 1988). 1 critique, summarily, the distinction be-
tween private law and regulatory law in Duncan Kennedy, "The Political Significance
of the Structure of the Law School Curriculum," 14 Seton Hall L. Rev. I (1983). On
 388 Notes to Pages 98-105

the public/private distinction, see Duncan Kennedy, "The Stages of the Decline of the
Public/Private Distinction," 130 U. Pa. L. Rev. 1349 (1982).

5. POLICY AND COHERENCE

i. Oliver Wendell Holmes, "Privilege, Malice, and Intent," in Collected Legal Pa-
pers (Buffalo, N.Y.: William S. Hein, 1985), p. i 17 (originally appearing at 8 Harv.
L. Re& , 8 [1894]).
2. 1 will use che word "deduction" to denote all these versions, without meaning
to take a position in the various disputes about the technical meanings of the different
terms. See Thomas Grey, "Langdell's Orthodoxy," 45 U. Pitt. L. Rev. z, 12, n. 37
(1983).
3. Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press,
1994), chs. 2 and 3.
4. For example, see Texas Refining and Marketing, Inc. y. Samowitz, 570 A.2d
170 (Conn. 1990).
. Restatement (Second) of Torts, s. 936.

Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Han'.

L. Rev. i68 (1976).
See, generally, Frederick Schauer, "Formalism," 97 Yale L.]. 509 (1988).
See Charles Fried, Contract as Promise: A Theory of Contractual Obligation (Cam-
bridge, Mass.: Harvard University Press, 1981), pp. 18-19.
Lon Fuller and William Perdue, "The Reliance Interest in Contract Damages,"
46 Yale U. 52 (1936), pp. 57-60.
o. Ibid., pp. 65-66.
i,. Lochner y. New York, 198 U.S. 45, 76 ('905) (Holmes, J., dissenting).
Melvin Eisenberg, The Nature of the Common Law (Cambridge, Mass.: Harvard
University Press, 1988), pp. 64-76.
W. Page Keeton et al., Prosier and Keeton on the Law of Torts (St. Paul, Minn.:
West Pub. Co., 1984).
E. Allan Farnsworth, Farnsworth on Contracts (Boston: Little, Brown, 1990).
i. See OBrien y. O'Brien, 489 N.E.2d 7X2 (N.Y. 1985), and Susan Keller, "The
Rhetoric of Marriage, Achievement, and Power in Judicial Opinions Considering the
Treatment of Professional Degrees as Marital Property," 21 Vr. L. Rev. (1996).
i6. But see, for the revival of interest in analogy as a way out of the bind, Cass
Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press,
1996); Scott Brewer, "Exemplary Reasoning: Semantics, Pragmatics, and the Rational
Force of Legal Argument by Analogy," 109 Han'. L. Rev. 923 (1996).
17. Rudolph von Ihering, "The Heaven of Legal Concepts," in Morris Cohen and
Felix Cohen, Readings in Jurisprudence and Legal Philosophy (Boston: Little, Brown,
1951), p. 678.
 Notes to Pages 105-113 389

¡8. Roscoe Pound, "Mechanical Jurisprudence," 8 Co/um. L. Rev. 605 (1908).

Felix Cohen, "Transcendental Nonsense and the Functional Approach," 1935
Co/um. L. Rev. 809.
For a terrific exposition of what formalism might mean, see Grey, "Langdell's
Orthodoxy," pp. 6-i i, especially n. 30. The closest thing to an American formalism
is probably Langdell's theory, developed by Beale, which conceived law as a "science."
Grey points out that even the legal scientists did not think they could dispense al-
together with what Grey calls "acceptability," meaning policy broadly conceived. Ibid.,
pp. 13-14.
Why exactly they believed they could refute formalism in this way is by no
means clear, and Grey's explanation, ibid., pp. 43-47, is unilluminating.
Thomas C. Grey, "Molecular Motions: The Holmesian Judge in Theory and
Practice," 27 Wm. & Mary L. Rev. 119 (1995).
But see Symposium on Legal Formalism, ¡6 Harv. J. Law & Pub. Pol. (no. 3,
Autumn 1993); Ernest Weinrib, 'Legal Formalism: On the Immanent Rationality of
Law," 97 Yale L.J. 949 (1988).
For example, see Lucas y. So. Carolina Coastal Council, 505 U.S. 1003, 1015-
ioi8, Io3o-1o3 i (1992Xopinion of Scalia, J.).
Thomas Grey, "Holmes and Legal Pragmatism," 41 Stan. L. Rev 787 (1989).
Duncan Kennedy, "Toward an Historical Understanding of Legal Conscious-
ness: The Case of Classical l.cgal Thought in America, 1850-1940," in Research in Lazy
and Society, vol. 3, ed. Steven Spitzer (Greenwood, Conn.: Greenwood Press, 1980).
Kennedy, "Form and Substance," pp. 1725-1728.
Mitchel Lasser, "Judicial (Self-) Portraits:Judicial Discourse in the French Legal
System," 104 Ya/e U. 1325 (1995). In Italy, it is common to refer to the "values'
and "human rights" embodied in the general clauses of the Italian Constitution in a
way that resembles American policy argument. See Stefano Rodotà, Repertorio difine
secolo (Rome: Laterza, 1992).
This recluirement is occasionally stated explicitly in American theories of ad-
judication. See, for example, Harry H. Wellington, "Common Law Rules and Consti-
tutional Double Standards: Some Notes on Adjudication," 83 Yale L.). 221, 225-226
('973); Melvin Eisenberg, The Nature o/the Common Law (Cambridge, Mass.: Harvard
University Press, 1988), pp. 29-31. On universalizability, see Jürgen Habermas, The
Theory of Communicative Action: Reason and the Rationalization of Society, vol. i, trans.
Thomas McCarthy (Boston: Beacon Press, 1984), pp. 16-19.
For an amusingly "retro" version of this position, see Lino Graglia, "Do judges
llave a Policy-Making Role in the American System of Government?" 17 Hart'. J.
Law&Pub. Pol. ¡19 (1994).
See Chapter 2, n. 7.
Gary Peller and William Eskridge, "The New Public Law Movement: Mod-
eration as a Postmodern Cultural Form," 89 Mich. L. Rev. 707, 762-763 (1991).
 390 Notes to Pages 115-119

For a perceptive description and critique of this state of mind, see Pierre Schlag,
"Normative and Nowhere to Go," 43 Stan. L. Rev. 167 (1990).
DeShaney y. Winnebago County Dept. of Social Services, 489 U.S. 189, 203-
112 (1989XBrennan, J., dissenting).
Lucas y. So. Carolina Coastal Council, 505 U.S. 1003, 1036-1061
(1992XBlackmun, J., dissenting).
Benjamin Cardozo, The Nature oftheJudicial Process (New Haven: Yale Univer-
sity Press, 1957), p. 98. Llewellyn's "situation sense" and "rule of the Singing Reason"
are contextualized versions of the same idea. See Karl Llewellyn, The Common Law
Tradition: Deciding Appeals (Boston: Little, Brown, 1960), p. 6o. See Charles Clark and
David Trubek, "The Creative Role of the Judge: Restraint and Freedom in the Com-
mon Law Tradition," 71 Yale L.]. 255 (1961).
Lon Fuller, "The Forms and Limits of Adjudication," 92 Harv. L. Rev. 353
(1978). See James Boyle, "Legal Realism and the Social Contract: Fuller's Public Ju-
risprudence of Form, Private Jurisprudence of Substance," 78 Cornell L. Rev. 37!
('993).
Henry M. Hart and Albert Sacks, The Legal Process: Basic Problems in the Making
and Application of Law, ed. William Eskridge and Phillip Frickey (Westbury, N.Y.:
Foundation Press, 1994). See Gary Peller, "Neutral Principles in the i 9505," 21 Univ.
Mich.]. Law Reform 561 (1988).
Hart and Sacks, The Legal Process, p. ii 3.
Ibid., ch. i.
Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harp.
L. Rev. i ('959).
See Peller, "Neutral Principles in the 1950'S," p. 6i,John Ely, Democracy and
Distrust: A Theory ofJudicial Review (Cambridge, Mass.: Harvard University Press,
1980), p. 87.
William Eskridge and Phillip Frickey, "Historical and Critical Introduction,"
in Hart and Sacks, The Legal Process, pp. licxxxvi.
A dramatic example is Henry Hart and Edward Prichard, "The Fansteel Case:
Employee Misconduct and the Remedial Powers of the National Labor Relations
Board," 52 Harv. L Rev. 1275 (iç».
See Henry Hart, "The Supreme Court, 1958 Term, Foreword: The Time Chart
of the Justices," 73 Harv. L. Rev. 84 ('959) (endorsing Herbert Wechsler's critique of
Brown y. Board of Education in "Toward Neutral Principles"), and see generally Mor-
ton Horwitz, The Transformation of American Law, 1870x 960: The Crisis of Legal Or-
thodoxy (New York: Oxford University Press, 1992), pp. 252-268.
Specifically, Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Har-
vard University Press, 1978); Ronald Dworkin, A Matter of Principle (Cambridge,
Mass.: Harvard University Press, 1985); Ronald Dworkin, Law's Empire (Cambridge,
Mass.: Harvard University Press, 1986).
See, generally, Ronald Dworkin and Contemporary Jurisprudence, ed. Marshall Ber-
 Notes to Pages 120-125 39'

man (Totowa, N.J.: Rowman and Allanheld, 1984). My favorite liberal critiques are
Andrew Altman, "Legal Realism, Critical Legal Studies, and Dworkin," i Phil. &
Pub. Aff 205 (1986), and Joseph Raz, "The Relevance of Coherence," 72 B. U.L. Rev.
273 (1992). See also Peter Gabel, Book Review, 91 Haro. L. Rev. 302 (x977Xreviewing
Ronald Dworkin, Taking Rights Seriously).
Dworkin, Law's Empire, pp. 167-168.
Ibid., at pp. 225, 255.
Dworkin, Taking Rights Seriously, pp. 22, 90; Dworkin, Law's Empire, p. 223. 1
discuss Dworkin's elaboration of this distinction at note 74 below. Deduction plays
almost no role at all in Dworkin's theory. His view of precedent is even more radical
than Liewellyn's-see Taking Rights Seriously, pp. lIC-113, 122.
,,. H. L. A. Hart, "American Jurisprudence through English Eyes: The Nightmare
and the Noble Dream," ii Ga. L. Rev. 969 (1977).
Raz, "The Relevance of Coherence," p. 273.
MacCormick, Legal Re.asoning, ch. 9.
Dworkin, Taking Rights Seriously, pp. 95, 97, 102, io6.
Dworkin, "Liberalism," in A Matter of Principle, pp. ¡8 1-204.
6. Dworkin, "Law as Interpretation," in A Matter of Principle, pp. 164-165. Al-
though this article appears before "Liberalism" in A Matter of Principle, it was first
published four years after that article.
Dworkin, L.au"s Empire, p. 399.
Ibid., at pp. 4 5-46.
Ibid., at pp. 359-369.
6o. Ibid., at pp. 369-379.
6,. Dworkin, "Law as Interpretation," p. x6o.
Dworkin, Taking Rights Seriously, p. 6o; Dworkin, A Matter o/PrincipIe, pp. 137-
145.
Dworkin, Taking Rights Seriously, p. ii8.
Dworkin, Lau"s Empire, p. 354.
Ibid., pp. 269-27 1.
Dworkin, Taking Rights Seriously, pp. 83-85; Dworkin, Lau"j Empire, pp. 243-
244.
Dworkin, Taking Rights Seriously, p. 184 ("[t]he debate does not include the
issue of whether citizens have some moral rights against their Government. It seems
accepted on all sides that they do").
Dworkin, Taking Rights Seriously, p. 88.
Dworkin, Lau's Empire, p. 378; see also pp. 397-398.
Dworkin, A Matter of Principle, p. 70.
Dworkin, "Law as Interpretation."
Kent Greenawalt, "Policy, Rights, and Judicial Decision," ji Ga. L. Rev. 991,
992 (1977).
Dworkin, Taking Rights Seriously, p. 294.
 392 Notes to Pages 125-133

Dworkin's detailed response is to my mind perhaps the least satisfying of his

writings-it seems to me a small masterpiece of equivocation in the use of the word
"right"-and I know of no one who has read it who claims to understand it. I see it
as the Waterloo of what we might call the First Empire, leading eventually to the
Second Empire, in which the interpretive right answer based on fit, along with lib-
eralism as legitimate political theory, largely supersede rights as the base for the dis-
cursive superstructure. It is interesting that it seems to have been the evidence for
antebellum policy orientation Morton Horwitz mustered in The Transformation of
American Law: 5788-x 86o (Cambridge, Mass.: Harvard University Press, iç7') that
pushed Dworkin into a fruitless attempt to maintain a sharp distinction between policy
arguments and rights arguments while unequivocally severing the distinction from
that between consequentialist and nonconsequentialist arguments. For my view of
rights argument thus divorced from nonconsequentiaLism, see Chapters 12 and 13. I
should also add that I agree with the distinct criticisms put forward by Altman and
Raz in n. 47 above.
Farwell y. Boston & Worcester R.R. Corp., 45 Mass. ( Met.) 49, 58-59(1842).
Duncan Kennedy, "The Structure of Blackstone's Commentaries," 28 Buff L.
Rev. 205, 351-354 ('979).
Dworkin, Taking Rights Seriously, p. 293.
Dworkin, Law's Empire, p. 399.
Dworkin, Taking Rights Seriously, pp. 192-193.
Ibid., pp. 206-222.
8i. Ronald Dworkin, "Is Wealth a Value," 9f. Leg. Stud. 1191 (1980); Dworkin,
"Law and Economics," in A Matter of Principle, pp. 267-275.
Dworkin, Taking Rights Seriously, p. 273.
Dworkin, A Matter of Principle, pp. 89-90.
Ibid., p. 68.
Ibid., p. 364.
Ronald Dworkin, Life's Dominion (New York: Knopf, 1993).
Dworkin, A Matter of Principle, pp. 107-I 13.
Ibid., p. 388.
Ronald Dworkin, "Women and Pornography," New York Review, 40, October
21, 1993, p. 36.
Dworkin, Law's Empire, p. 398.
Ibid., p. 399.
Ibid.
See n. 46 supra.
Dworkin, Law's Empire, p. 275.

6. POLICY AND IDEOLOGY

i. Ferdinand de Saussure, Course in General Linguistics, trans. Roy Harris (La Salle,
Ill.: Open Court, 1986).
 Notes to Pages 133-144 393

Claude Lévi-Strauss, The Savage Mind (Chicago: University of Chicago Press,

1966).
Jean Piaget, Play, Dreams, and Imitation in Childhood, Crans. C. Gaccegno and F.
Hodgson (New York: Norton, 1962).
See, generally, Duncan Kennedy, "A Semiotics of Legal Argument," 42 Syracuse
L. Revi 75 (1991), and the same article with "European Introduction: Four Objections,"
in Collected Courses of the Academy of European Lau vol. 3, book 2, pp. 309-365 (Am-
sterdam: Kluwer Academic Publishers, 1994).
Compare two doctrinal structures: "a voluntary invasion is a trespass unless
justified by necessity," and "good faith is required in contractual performance, but a
requirements contract buyer does not have to have any requirements at all." In each
case we have a rule-exception structure and a rule-standard structure. But in one case
the rule is a rule and the exception is a standard, whereas in the other the rule is a
standard and the exception is a rule.
Kennedy, "A Semiotics of Legal Argument." This approach was influenced by
Al Katz's unpublished manuscript "Studies in Boundary Theory: An Exploration of
Thought in the Context of Responsibility and Authority" (1980). For che extension
and sometimes the transformation of the argument-bite idea, see Mark Kelman, "In-
terpretive Construction in the Criminal Law," 33 Stan. L. Rev. 591 (1981); Gerald
Frug, "The Ideology of Bureaucracy in American Law," 97 Harv. L. Rev. 1276(1984);
James Boyle, "The Anatomy of a Torts Class," 3 Amer. Univ. L. Rev. 1003 (1985);
Jack Balkin, "The Crystalline Structure of Legal Thought," 39 Rutgers L. Rev. i
(1986); Jeremy Paul, "A Bedtime Story," 74 Va. L. Rev. 915 (1988); Pierre Schlag,
"Cannibal Moves: An Essay on the Metamorphoses of the Legal Distinction," 40 Stan.
L. Rev 92 (1988).
Note the analogy to the organization of rules into rule-exception or rule-coun-
terrule pairs.
Note the analogy to the general-particular structure within doctrine.
There is an analogy to the subject-matter structures of doctrine.
The Constitution also confers general powers on Congress, e.g., the commerce
power, and state legislatures are constitutionally endowed with a general "police
power." These are not usually understood to be self-justifying here in America, since
according to a fundamental legal/political argument, they exist in the service of rights
and the general welfare.
ci. See Karl N. Llewellyn, The Bramble Bush, or, Our Lau' and Its Study (New York:
Oceana Publishing, 1960); Karl N. Liewellyn, "Remarks on the Theory of Appellate
Decision and the Rules or Canons about How Statutes Are to Be Construed," 3 Vana'.
L. Ret 395 (1950).
12. See, generally, Duncan Kennedy, "Freedom and Constraint in Adjudication: A
Critical Phenomenology," 36f. Legal Education i8 (1986).
I 3. Kennedy, "A Semiotics of Legal Argument."
i. Ronald Sullivan, "Liability Waiver Barred at N.Y.U. Dental Clinic," New York
Times, December 30, 1990, S. i, p. 27.
 394 Notes to Pages 146-174

15. See Frances Olsen, "From False Paternalism to False Equality: Judicial Assaults
on Feminist Community, Illinois, 186ç-I895, 84 Mich. L. Rev. 1518 (1986).
i6. See, for example, Martin Shapiro, Freedom ofSpeeth: The Supreme Court andJudicial
Review (Englewood, NJ.: Prentice Hall, 1966), p. 103.
17. Javins y. First Nat'! Realty Corp., 428 F.2d 107! (D.C. Cir. '970).
r8. Escola y. Coca-Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436
(,944) (Traynor, J., concurring).
Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Harv.
L. Rev. ¡689 (1976).
Ibid., pp. 1702-1710.
Ibid., pp. 1766-1776. See also, Duncan Kennedy, "The Structure of Black-
stone's Commentaries," 28 Buff L. Rev. 205 (1979), and Duncan Kennedy and Peter
Gabe!, "Roll Over Beethoven," 36 Stan. L. Rev. i (1984).

7. IDEOLOGICALLY ORIENTED LEGAL WORK

i. In Dworkin's terminology, they behave as "pragmatists." Ronald Dworkin,
Law's Empire (Cambridge, Mass.: Harvard University Press, 1986), pp. 15 l-164. For
an introduction co the social science literature, see Sheldon Goldman and Austin Sarat,
American Court Systems: Readings in Judicial Process and Behavior (New York: Longman,
¡989).
I've dealt with this subject before, in Duncan Kennedy, "Freedom and Con-
straint in Adjudication: A Critical Phenomenology," 36f. Legal Education 518(1986),
and Duncan Kennedy, "American Constitutionalism as Civil Religion: Notes of an
Atheist," 19 Nova L. Rev. 909 ('995).
Owen Fiss, "Objectivity and Interpretation," 34 Sian. L. Rev. 739 (1982).
Remember that ideological projects have a collective dimension. An ideological
preference is "individual" and "personal," but not idiosyncratic in the way a preference
for litigants in blue shirts would be. See Chapter 3.
. There are also 'loopified" fields. They are the most "poscmodern," and perhaps

all fields are "really" loopified. See Kennedy, "Freedom and Constraint," pp. 68-69,
and Duncan Kennedy, "The Stages of the Decline of the Public/Private Distinction,"
130 U. Pa. L. Rev. '349 (1982).
See Paul Brest, "Interpretation and Interest," 34 Sian. L. Rev. 765 (1982).
Neil MacCormick, "Reconstruction after Deconstruction: A Response to CLS,"
10 OxfordJ. Leg. Stud. 539, 553-554 (z99o).
If he accepts interpretive fidelity, he will give up if he can't achieve what he
sees as the just result, and he will be open to conversion to the other side through the
experience of delving into the materials.
Reagan y. Farmers Loan & Trust, 154 U.S. 362 (1894).
io. DePeyscer y. Michael, 7 Selden 467 (N.Y. 1852).
i,. Brown y. Bd. of Educ. of Topeka, 347 U.S. 483 (19S4Xschool desegregation).
 Notes to Pages 174-185 395

Reynolds y. Sims, 377 U.s. 533 (l964Xreapportionment).

Miranda y. Arizona, 384 U.S. 486 (1966Xnotificarion of right to counsel).
'4. Dred Scott y. Sandford, 6o U.S. ('9 How.) 393 (t857Xcitizenship of African
Americans).
15. Lochnerv. New York, 198 U.S. 45 (1905) (constitutionality of minimum hours
laws).
i6. Escola y. Coca-Cola Bottling Co. of Fresno, 24 Cal. ad 43, 150 P.2d 46
(l944XTraynor, J., concurring).
17. Javins y. First Nat'l Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970).
i8. Duncan Kennedy, "A Semiotics of Legal Argument," 42 Syracuse L. Rev. 75
(1991), and the same article with "European Introduction: Four Objections," in Col-
¡«tea' Courses of the Academy of European Laus vol. 3, book 2, pp. 309-365 (Amsterdam:
Kluwer Academic Publishers, 1994). Jack Balkin, "Nested Oppositions," 99 Ya/e L.).
1669 (1990). See the excellent discussion in William Edmundson, "Transparency and
Indeterminacy in the Liberal Critique of Critical Legal Studies," 24 Seton Ha/IL. Ret
557, 570-574 (1993).
Ronald Dworkin, "The Model of Rules," in Taking Rights Seriously (Cambridge,
Mass.: Harvard University Press, 1978), pp. 26-27.
11. L. A. Hart, "American Jurisprudence through English Eyes: The Nightmare
and the Noble Dream," 11 Ga. L. Rev. 969 (1977).
Ibid., pp. 977-978.
MacCormick, "Reconstruction," p. (citing no examples).
In Chapter 11, 1 give many examples of this kind of analysis. It may be that
Andrew Altman's Critical Legal Studies: A Liberal Critique (Princeton, N.J.: Princeton
University Press, 1990) contains a criticism of this version of cls, but if so I haven't
been able to find it in his discussions of what he calls the "patchwork" and the "duck-
rabbit" theses, neither of which seems recognizably related to what I argued in Ken-
nedy, "Form and Substance," and think I am still arguing here. I would say che same
of Charles Yablon, "The Indeterminacy of the Law: Critical Legal Studies and the
Problem of Explanation," 6 Cardozo L. Rezt 917 (1985); Lawrence Soium, "On the
Indeterminacy Crisis: Critiquing Critical Dogma," 54 U. Chi. L. Rev. 462 (1987); and
Ken Kress, "Legal Indeterminacy," 77 Cal. L. Rev. 283 (1989). Nor does Edmundson,
"Transparency," see the issue the way I do. I hope this version is clearer and more
accurate than my earlier ones and will give rise to less misunderstanding. A view close
to my own is Elizabeth Mensch, "Book Review," 33 Stan. L. Rev. 753 (198 iXreviewing
P. Atiyah, The Rise and Fall of Freedom of Contract).

8. STRATEGIZING STRATEGIC BEHAVIOR

IN INTERPRETATION
i. Jeffrey Rosen, "Make Up Our Mind, Justice O'Connor," Neu' York Times. De-
cember 26, 1995, s. i, p. 21.
 396 Notes to Pages 187.-199

2, 1hope the reader will remember that I did not attempt to prove that legal
reasoning could never produce closure or that the experience of boundness is mere
illusion. My goal was only to show that there are gaps, conflicts, and ambiguities, that
these are a function of legal work as well as of the materials the judge works with,
that the experience of "freedom" to shape the legal field is common, and that one
cannot say with certainty that when closure occurs it is a product of a property of the
field rather than of the work strategy adopted under particular constraints.
Jerome Frank, Law and the Modern Mind (New York: Coward, McCann, 1935).
No rationalist version of explanation can be "saved" by interpolating a "text/
event" distinction at the last minute. But that is not the goal. The point in the text
is that we will sometimes reach explanatory closure, in the sense that we feel con-
strained, by our theory of why the case came out the way it did, to respond in a
particular way. If we feel constrained to the conclusion that the judge chose as she did
because she felt constrained by her understanding of her own liberalism, then it will
make sense to offer her an alternative version of liberalism, to invest energy in internal
critique. If we think she was bribed, or hates the particular class of plaintiffs, this
strategy will appear a waste of time, and we will act accordingly. This pragmatist version
of explanation is enough for me.
Sigmund Freud, "Certain Neurotic Mechanisms in Jealousy, Paranoia, and Ho-
mosexuality" (1922), in Sigmund Freud, Sexuality and the Psychology of Love(New York:
Collier Books, 1963), p' 151.
Anna Freud, The Ego and the Mechanisms of Defense, trans. C. Baines (London:
International Universities Press, 1937, 1966), p. 6o.
See Scott Altman, "Beyond Candor," 89 Mich. L. Rev. 296, nn. 6, (5990). My
approach differs both from the earlier realist versions and from his, not in my definition
of denial, but in the specification of what is being denied and why. Altman's specific
psychology of judging seems to me largely vitiated by his failure to distinguish clearly
between "following a rule" and "following the law" in the work of interpretation (rule
choice), and by his related failure ro distinguish clearly between what he calls "activ-
ism" and what he calls "manipulation." His development of the parallel between de-
fense mechanisms and cognitive dissonance is helpful, but there doesn't seem to be
enough difference between the vocabularies to merit incorporating cognitive disso-
nance theory into the discussion beyond the mention in the text. Altman's reconstruc-
tion of "the CLS position" on indeterminacy, id. at 333-347, is even more outlandish
than his self-described "caricature" of my position, id. at n. 48. Some earlier critical
discussions of denial in legal thought are Duncan Kennedy, "The Structure of Black-
stone's Commentaries," 28 Buff L. Rev. 205, 209-22 I (5979); Mark Kelman, A Guide
to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987), pp. 3,
286-290; Pierre Schlag, "Contradiction and Denial," 87 Mich. L. Rev. 12x6 (1989).
Anna Freud, The Ego, p. 48.
Ibid., p. o.
 Notes to Pages 200-222 397

to. Jean-Paul Sartre, Being and Nothingness: An Essay on Phenornenological Ontology,

trans. Hazel Barnes (New York: Citadel Press, 1965), pp. 89-ço.
ii. Henry Maine, Ancient Lau' (i 86i, Dent and Sons Everyman Ed., 1917), pp. 76-
77.
Anna Freud, The Ego, pp. 44-50.
The pop psychological usage is nonetheless different from Anna Freud's in at
least three important ways: for her, denial always refers to anxiety-producing external
facts, whereas repression is directed at anxiety-producing internal impulses; denial is
a normal mechanism of defense only in childhood, becoming sympotatic in adulthood;
and she was a true believer in Freud's basic concepts, rather than agnostic in the post-
Freudian mode.
Ronald Dworkin, "On Interpretation and Objectivity," in A Matter of Principle
(Cambridge, Mass.: Harvard University Press, 1985), pp. '7 '-'74.
'5. Ronald Dworkin, "Liberalism," in A Matter of Principle (Cambridge, Mass.:
Harvard University Press, 1985), p. i8,.
Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press,
1986), pp. 254-266.
Liberal theorists sometimes seem to deny because they identify with judges,
writing their law review articles as though they were judicial opinions. The discussion
in the text is of investments not based on this kind of direct identification with the
judge.
Altman, "Beyond Candor," pp. 318-327.
Sigmund Freud, Introd,ictoy Lectures on Psychoanalysis, trans. J. Strachey (New
York: Norton, 1916, 1966), p. 94.
Anna Freud, The Ego, p. 6o.
2!. For helpful discussions of Sartre's theory, see Gregory McCulloch, Using Sartre:
An Analytical Introduction to Early Sarrrean Themes (London: Routledge, 1994), ch. ,
and Matthew Kramer, Legal Theory, Political Theory, and Deconstruction: Against Rhad-
amanrhus (Bloomington: Indiana University Press, 1991), pp. 222-235.
Compare Altman, "Beyond Candor," n. 29.
See Thomas Ogden, "On Projective Identification," ¡nr. J. Psycho-Analysis 68
(1979), p. 357.
Marc Brodin, letter to the editor, Boston Globe, August 28, 1995, s. i, p. 10.
Sigmund Freud, "Certain Neurotic Mechanisms," p. 15i.

9. THE MODERATION AND EMPOWERMENT EFFECTS

t. Robert Reich, "After the Rights Revolution: Receiving the Regulatory State,"
New Republic, January 21, ¡991, pp. 38-39.
See Chapter 7.
See Richard Parker, "The Past of American Constitutional Theory-and Its
Future," 42 Ohio St. U. 223 (1981).
 398 Notes to Pages 224-23 6

4. Textile Workers Union y. Lincoln Mills, 353 U.S. 448 (1957).

. Jones V. Alfred Mayer Co., 392 U.S. 409 (1968).

Mentor Savings Bank, FSB y. Vinson, U.S. 57 (1986).

Southern Burlington County NAACP y. Township of Mt. Laurel, 336 A.2d
713 (N.J. 1975).
These are the obedience and conversion effects described in Chapter 3. See
Chapter ii for discussion of their empirical plausibility.
Norman Dorsen, "Talking Liberties," Civil Liberties, Winter 1990-91, p. i6.
Learned Hand, The Bill of Rights (Cambridge, Mass.: Harvard University Press,
1958).
i i. John Donahue, The Privatization Derision: Public Ends, Private Means (New York:
Basic Books, 1989), p. 21.
Laurence Tribe, American Constitutional Law, 2d ed. (Mineola, N.Y.: Foundation
Press, 1988), pp. io-i r (not present in latest edition).
Ethan Bronner, "High Court Moves to the Right on Criminal Law," Boston
Globe, April 26, 1991, s. 1, p. i.
See, for example, Thurgood Marshall, "Reflections on the Bicentennial of the
United States Constitution," zoi Harv. L. Rev, i (1987); Frank Michelman, "Judicial
Supremacy, the Concept of Law, and the Sanctity oí Life," injustice and Injustice in Law
and Legal Theory, ed. Austin Sarat and Thomas Kearns (Ann Arbor: University of
Michigan Press, 1996).
i. Compare Robin West, "Progressive and Conservative Constitutionalism," 88
Mich. L. Rev. 641, 644-645 (1990).
¡6. For extended speculations in this vein, see "Radical Intellectuals in American
Culture and Politics, or, My Talk at the Gramsci Institute," in Duncan Kennedy, Sexy
Dressing, Etc. (Cambridge, Mass.: Harvard University Press, 1993).

IO. THE LEGITIMATION EFFECT

1. The conception of legitimation I develop in this chapter and the next is Grams-
cian and Althusserian rather than Weberian. See Antonio Gramsci, Excerpts from the
Prison Notebooks, trans. Quintin Hoare and Geoffrey Smith (New York: International
Publishers, 197 i); Louis Althusser, "Ideology and Ideological State Apparatuses (Notes
toward an Investigation)," in Lenin and Philosophy and Other Essays, trans. Ben Brewster
(New York: Monthly Review Press, 1971), p. 127; Perry Anderson, "Origins of the
Present Crisis," in Tou'ards Socialism, ed. Perry Anderson and Robin Blackburn (Ithaca:
Cornell University Press, 1966), p. xi. On the Weberian conception, see Alan Hyde,
"The Concept of Legitimation in the Sociology of Law," 1983 Wisc. L. Rev. 379. The
use of legitimation in cis has two important forerunners: John Griffiths, "Ideology in
Criminal Procedure: Toward a Third 'Model' of the Criminal Process," 79 Yale U.
359(1970); and Douglas Hay, "Property, Authority, and the Criminal Law," in Albion's
Fatal Tree: Crime and Authority in Eighteenth Century England, ed. Douglas Hay et al.
(New York: Pantheon, ¡975), p. 17. Some representative cnt works are Karl Klare,
 Notei to Pagei 23 8-249 399

"Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Con-
sciousness, 1937-1941," 62 Mints. L. Rev. 265 (1978); Alan Freeman, "Legitimizing
Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme
Court Doctrine," 62 Mina. L. Rev. 1049 (1978); Duncan Kennedy, "The Structure of
Blackstones Commentaries," 28 Buff L. Rev. 205 (1979); Robert Gordon, "New Ap-
proaches to Legal Theory," in The Politics of Lau': A Progressive Critique, ed. David Kairys
(New York: Pantheon, 1982), p. 281; Peter Gabel and Paul Harris, 'Building Power
and Breaking Images: Critical Legal Theory and the Practice of Law," ii N. Y. U. Rev.
L. & Sx. Change 369 (1982-83); Gerald Frug, "The Ideology of Bureaucracy in Amer-
ican Law," 97 Hart'. L. Rev. 1276 (1984); Mark Kelman, A Guide to Critical Legal
Studies (Cambridge, Mass.: Harvard University Press, 1987), pp. 262-295. For a re-
view, see Carol Steiker and Jordan Steiker, "Sober Second Thoughts: Reflections on
Two Decades of Constitutional Regulation of Capital Punishment," 109 Hart'. L. Rev.
355, 429-432 (1995). 1 discuss cnt versions in specific doctrinal areas later in this
chapter and the relationship between the neo-Marxist and cnt versions in the next
chapter.
See Morton Horwitz, The Transformation of American Law, 1788-1860 (Cam-
bridge, Mass.: Harvard University Press, 1977), pp. 117-121.
James Bradley Thayer, "The American Doctrine of Constitutional Law," 7 Hart'.
L. Ret: 17 (1893).
Franz Wieacker, A History o/Private Law (u'ith Particular Reference to Germany),
trans. Tony Weir (New York: Oxford University Press, 1995), pp. 431-441.
Sally Merry. Getting Justice and Getting Even: Legal Consciousness among Working-
Class Americans (Chicago: University of Chicago Press, 1990), pp. 96-97.
Michel Rosenfeld, "Deconstruction and Legal Interpretation: Conflict, Indeter-
minacy, and the Temptations of the New Legal Formalism," it Cardozo L. Rev. ¡211,
1245 ('990).
Duncan Kennedy and Frank Michelman, "Are Property and Contract Elli-
cienc?" 8 Hostra L. Rev. 711 (1980).
There is an ambiguity as to why the structure of rules is in the background in
the first place. It might be because we think that they are obviously right, or that
they are the natural rules to govern this type of interaction, or that they flow logically
from some uncontroversial premise. But to be in the background is to be outside
continuous consciousness and attention. Naturalization in this sense is not a conscious
operation that people perform on the rules; it is more like an assumption. The rhetoric
of naturalness and necessity comes into play only when for some reason people advert
co the background, and then it is most likely a way to dismiss it and get back to the
foreground. This gives rise to the question whether the rules don't get naturalized
because they are in the background, rather than backgrounded because naturalized.
We dont need to solve this conundrum. Even if backgrounding some elements, and
naturalizing what is background, are cognitive necessities, we can still work at par-
ticular figure/ground reversals.
See, generally, Duncan Kennedy, "The Stakes of Law, or Hale and Foucault!"
 400 Notes to Pages 249-254

in Sexy Dressing, Etc. (Cambridge, Mass.: Harvard University Press, xc). This way
of looking at the constitutive role of law in the economy also applies to conflict between
firms. See Rudolph Peritz, Competition Policy in America, 1888-1992: History, Rhetoric,
Law (New York: Oxford University Press, 1996); Kipp Rogers, "The Right of Pub-
licity: Resurgence of Legal Formalism and Judicial Disregard of Policy Issues," i6
Beverly Hills BarAnoc.J. 65 (7982).
io. Hagai Hurvitz, "American Labor Law and the Doctrine of Entrepreneurial
Property Rights: Boycotts, Courts, and the Juridical Reorientation of 1886-1895," 8
md. Rel. L.]. 307 (1986); Ellen Kelman, "American Labor Law and Legal Formalism:
How 'Legal Logic' Shaped and Vitiated the Rights of American Workers," 8St.John's
L. Rev, i (1983); John Nockleby, "Tortious Interference with Contractual Relations in
the Nineteenth Century: The Transformation of Property, Contract, and Tort,' 93
Harv. L. Rev. 1510 (1980).
xi. William Forbath, Law and the Shaping of the American Labor Movement (Cam-
bridge, Mass.: Harvard University Press, 1991).
Felix Frankfurter and Nathan Greene, The Labor Injunction (New York: Mac-
millan, 1930).
Klare, "Judicial Deradicalization," p. 62. The second foundational piece is
Katherine Stone, "The Post-War Paradigm in American Labor Law," 90 Yale U. 1509
(1981).
Stone, "Post-War Paradigm," pp. 1514-15 15.
i. Klare, "Judicial Deradicalization," pp. 309-310.
Karl Klare, "Critical Theory and Labor Relations Law," in The Politics of Law:
A Progressive Critique, ed. David Kairys (New York: Pantheon Books, 1982), p. 82.
The labor critique was preoccupied from the start with race and gender issues,
and it quickly incorporated the later cls approach co law as constitutive of sexual and
racial identity. See Karl Klare, "The Quest for Industrial Democracy and the Struggle
against Racism: Lessons from Labor Law and Civil Rights Law," 6x Oregon L. Rev, 157
(1982); Karl Klare, "Power/Dressing: Regulation of Employee Appearance," 26 New
Eng. L. Rev. (1992).
i8. Neatly summarized in Robert G. McCloskey, The American Supreme Court (Chi-
cago: University of Chicago Press, 1960), pp. '44-15°. See Edward S. Corwin, Com-
merce Power vs. States Rights (Princeton: Princeton University Press, 1936); Robert Stern,
"That Commerce Which Concerns More States Than One," 4 Harv. L. Rev. 1375
(1934).
Summarized in William O. Douglas, "Stare Decisis," 49 Colum. L. Rev. 735
('949).
Henry Hart and Herbert Wechsler, The Federal Courts and the Federal System
(Brooklyn: Foundation Press, 1953).
2 I. Nathaniel Berman, "'But the Alternative Is Despair': Nationalism and the
Modernist Renewal of International Law," io6 Harv. L. Rev. 1792 (1993).
22. See David Kennedy, "The Move to Institutions," 8 Cardozo L. Rev. 841 (1987);
 Notes to Pages 254-25 7 401

Berman, "'But the Alternative' "; Nathaniel Berman, "Modernism, Nationalism, and
the Rhetoric of Reconstruction," 4 Yale J. Law & Human. 351 (1992); Nigel Purvis,
"Critical Legal Studies in Public International Law," 32 Harv, ¡nl. L.]. 8i ('99');
Olivier DeSchutter, "Critical Legal Studies dans le Droit International," 31 Droit et
Société i (1992).
David Kennedy, "Primitive Legal Scholarship," 27 Han'. ¡'it. L.]. i (1986);
David Kennedy, "Spring Break," 63 Texas L. Rev. 1377 (1985); David Kennedy, "The
International Style in Postwar Law and Policy," 1994 Utah L. Rev. 7; David Kennedy,
"The Sources of International Law," 2 Amer. Univ. J
¡ni. Law & Polity i (1987);
Nathaniel Berman, "Nationalism Legal and Linguistic: The Teachings of European
Jurisprudence," 24 N. Y.UJ. mt. Lau' & Politics 1515 (1992); Karen Engle, "Interna-
tional Human Rights and Feminism: When Discourses Meet," i Mich.]. Int'l Law
517 (,92).
Gerald Frug, "The City as a Legal Concept," 93 Hart'. L. Rev. 1057 (1980);
Gerald Frug, "Decentering Decentralization," 6o Unit Chic. L. Rev. 253 (1993); Ger-
ald Frug, Local Government Lau' (St. Paul, Minn.: West Pub. Co., 1988); Richard Ford,
"The Boundaries of Race: Political Geography in Legal Analysis," 107 Hari L. Rev.
¡843 (1994).
Gerald Frug, "The Geography of Community," 48 Stan. L. Rev. (May 1996);
Ford, "Boundaries of Race."
Derrick Bell, "Brown y. Board of Education and the Interest Convergence Di-
lemma," 93 Han'. L. Rev. i8 (1980).
Derrick Bell, And We Are Not Saved (New York: Basic Books, 1987).
Alan Freeman, "Legitimizing Racial Discrimination," p. 1049; Alan Freeman,
"Antidiscrimination Law: A Critical Review," in The Politici 0/Law: A Progressive Cri-
tique, ed. David Kairys (New York: Pantheon Books, 1982).
Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and
Legitimation in Antidiscrimination Law," 101 Harv L. Rev. '33' (1988).
Gary Peller, "Race Consciousness," 1990 Duke L.]. 758; Neil Gotanda, "A
Critique of 'Our Constitution Is Colorblind': Racial Categories and White Supremacy,"
44 Stan. L. Rev. 1 ('99').
See Critical Race Theory: The Key Writings That Formed the Movement, ed. Kimberle
Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas (New York: New Press,
¡995), "Introduction," pp. xiiixxxii.
Catharine MacKinnon, Only Words (Cambridge, Mass.: I-Iarvard University
Press, '993).
Words That Wound: Critical Race 7'heory. Assaultive Speech, and the First Amendment,
ed. Mari Matsuda et al. (Boulder, Colo.: Westview Press, 1993).
Mark Tushnet, "Corporations and Free Speech," The Politics ofLau': A Progressive
Critique, ed. David Kairys (New York: Pantheon Books, 1982); Jack Balkin, "Some
Realism about Pluralism: Legal Realist Approaches to the First Amendment," 1990
Duke U. 375; James Boyle, "A Theory of Law and Information: Copyright, Spleens,
402 Notes to Pages 259-261

Blackmail, and Insider Trading," 8o Calif L. Reu 1413 (1992); John Nockleby, "Hate
Speech in Context: The Case of Verbal Threats," 42 Buff L. Reti. 653 (1994).
Robert Stein feld, The invention of Free Labor: The Employment Relation in English
andAmerican Law and Culture, 1350-1870 (Chapel Hill: University of North Carolina
Press, 199!).
Catharine MacKinnon, "Feminism, Marxism, Method, and the State," 8 Signs
650 (1983).
Frances Olsen, "The Family and the Market: A Study of Ideology and Legal
Reform," 96 Harv. L, Rev. 1497(1983); Frances Olsen, "The Myth of State Intervention
in the Family," i8 Micb.J. Law Reform 835 (1985); Frances Olsen, "The Politics of
Family Law," 2 Lau' & inequality 1 (1984).
Andrea Dworkin, Right-Wing Women (New York: Putnam's Sons, 1983); Andrea
Dworkin, Intercourse (New York, Free Press, 1987).
Olsen, "The Family and the Market,"
See Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law
(Cambridge, Mass.: Harvard University Press, 1987), p, ; Dworkin, Right-Wing

Women, pp. 2 1-23. See also Kennedy, Sexy Dressing, pp. 147-162.
4 1. Mary Joe Frug, "A Post-Modern Feminist Legal Manifesto (an unfinished
draft)," 105 Harv. L. Rev. 1045 (1992); Janet Halley, "Sexual Orientation and the
Politics of Biology: A Critique of the Argument from Immutability," 46 Stan. L. Rev.
503 (i). Cf. Robin West, "The Difference in Women's Hedonic Lives: A Phenom-
enological Critique of Feminist Legal Theory," 3 Wisc. Women's L.J. 8i (1987).
42. Clare Dalton, "An Essay in the Deconstruction of Contract Doctrine," 94 Yale
L.J. 999 (1985); Mary Joe Frug, "Re-Reading Contracts: A Feminist Analysis of a
Contracts Casebook," 34 Am. Univ. L. Rev. 66 (1985); Elizabeth Schneider, "Describ-
ing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony
on Battering," 9 Women's Ris, L. Rep. 195 (1986); Vicki Schultz, "Telling Stories about
Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in
Title VII Cases Raising the Lack of Interest Argument," 103 Hart'. L. Rev. 1749(1990);
Lama Abu-Odeh, "Crimes of Honour and the Construction of Gender in Arab Socie-
ties," in Feminism and islam, ed. Mai Yamani (Reading, Eng.: Garnet, 1996), p. 141.
Frances Olsen, "Statutory Rape: A Feminist Critique of Rights Analysis," 63
Tex, L. Rev. 387 (1984); Engle, "International Human Rights,"
Susan Keller, "Viewing and Doing: Complicating Pornography's Meaning," 8i
Georgetown L.]. 2195 (1993); Lama Abu-Odeh, "Post-Colonial Feminism and the Veil:
Considering the Difference," 26 New Eng. L. Rev. 1527 (1992); Dan Danielsen, "Rep-
resenting Identities: Legal Treatment of Pregnancy and Homosexuality," 26 New Eng.
L, Rev. (1992); After Identity: A Reader in Law and Culture, ed. Dan Danielsen and
Karen Engle (New York: Routledge, '995).
,. For example, Susan Keller, "The Rhetoric of Marriage, Achievement, and
Power: An Analysis of Judicial Opinions Considering the Treatment of Profes-
 Notes to Pages 262-2 64 403

sional Degrees as Marital Property, 21 Vi. L. Rev. (1996. See also Chapter ii,
n. 21.
Kimberle Crenshaw, "Mapping the Margins: Identity Politics, Intersectionality,
and Violence against Women," 43 Stan. L. Rev 1241 (1991).
Kendall Thomas, "Beyond the Privacy Principle," 92 Co/um. L. Rei' 501 (1992);
Danielsen, "Representing Identities"; Halley, "Sexual Orientation."
For example, Duncan Kennedy and Leopold Specht, "Limited Equity Cooper-
atives as a Mode of Privatizacion," in A Fourth Way? Privatization. Property, and ¡he
Emergence of New Market Economies, ed. Gregory Alexander and Grazyna Skapca (New
York: Rourledge, içsØ, p. 267.
Elizabeth Schneider, "Equal Rights to Trial for Women: Sex Bias in the Law
of Self-Defense," 15 Harz'. C.R.-C.L. L. Revi 623 (1980).
Merle Weiner, "From Dollars co Sense: A Critique of Government Funding for
the Battered Womens Shelter Movement," 9 Lau' & Inequality 1985 (1991).
Gregory Alexander, "Pensioners in America: The Economic Triumph and Po-
litical Limitations of Passive Ownership," Karl Klare, "Legal Theory and Democratic
Reconstruction: Reflections on 1989," and William Simon, "Republicanism, Market
Socialism, and the Third Way," all in A Fourth Way? Pris'atization, Property, and the
Emergence of New Market Economies, ed. Gregory Alexander and Grazyna Skapca (New
York: Routledge, 1994); Katherine Stone, "Labor and the Corporate Structure: Chang-
ing Conceptions and Emerging Possibilities," U. Chi. L. Rev. 73(1988); Karl Klare,
"Workplace Democracy and Market Reconstruction: An Agenda for Reform," 38 Cath.
U. L. Rev 1 (1988); Alan 1-lyde, "In Defense of Employee Ownership," 67 Chi.-Kent
L. Rev 159 (1992). For a similar approach ro agricultural law, see Marjorie Benson,
Agricultural Lau' in Canada, 18671 995: Vitli Particular Reference io Saskatchewan (Cal-
gary: Canadian Institute of Resources Law, 1996).
Words that Wound (see n. 33).
Regina Austin, "Employer Abuse, Worker Resistance, and the Tort of Inten-
tional Infliction of Emotional Distress," 41 Stan L. Rev i (1988).
Gerald Frug, "Decentering Decentralization."
Lawrence Kolodney, "Eviction Free Zones: The Economics of Legal Bricolage
in che Fight against Displacement," 18 Fordham Urban L.). 507 (1991).

I I. ADJUDICA1'ION IN SOCIAL 'I'HEORY

i. See generally David Trubek and Marc Galanter, "Scholars in Self-Estrangement:
Some Reflections on the Crisis of Law and Development Studies in the United States,"
1974 Wisc. L. Rev. 1062; David Trubek, 'Complexity and Contradiction in the Legal
Order: Balbus and the Challenge of Critical Social Thought about Law," ii Lau' &
Sot-'y Rev 529 (1977); David Trubek, "Where the Action Is: Critical Legal Studies and
Empiricism,' 36 Stan. L. Rev. 575 (1984). David Trubek introduced me to the issues
discussed in this chapter in his seminar "Law and Development" at the Yale Law School
404 Notes to Pages 267-27 I

in the spring of 1970. His and Roberto Unger's work has continued to influence mine,
as is evident throughout the text that follows, in spite of their different emphases and
different conclusions. Roberto Unger, Knowledge and Politics (New York: Free Press,
'975); Roberto Unger, Law in Modern Society: Toward a Criticism of Social Theory (New
York: Free Press, 1976); Roberto Unger, The Critical Legal Studies Movement (Cam-
bridge, Mass.: Harvard University Press, 1986); Roberto Unger, Politics: A Work in
Constructive Social Theory, 3 vols. (New York: Cambridge University Press, 1987).
Susan Silbey, "Ideals and Practices in the Study of Law," 9 Leg. Stud. Forum 7,
io (1985).
Points a and b remain part of the conventional wisdom of the school of Amherst:
"By offering deconstructions of specific texts, critical legal studies tends to associate
law with the textual pronouncements of judges and legal theorists. The very idea of
law as rhetoric focuses almost exclusively on the discursive aspects of the lawthe
professional grammar invoked by those responsible for linguistically justifying the use
of a legal regulation or the imposition ola legal sanction. Such linguistic justification,
however, can be seen as but a small part of the law. Fitzpatrick, by contrast, reaches
toward a more capacious understanding of law, one which, though never explicitly
theorized, would include practices of administrators and legal 'subjects' rather than
merely pronouncements of judges." We learn that Peter Fitzpatrick "begins where
much of critical jurisprudence endsby observing the deeply contradictory nature of
law." Lawrence Douglas and Austin Sarat, "(De)Mythologizing Jurisprudence: Speak-
ing the 'Truth' about 'Myth," 19 Law & Soc. Inquiry 523, 529-530 (i994) (footnotes
omitted).
See the "implementation" research cited in Alan Hyde, "The Concept of Le-
gitimation in the Sociology of Law," 1983 Wisc. L. Rev. 379, 410, n. 89.
,. Jean Braucher, "The Afterlife of Contract," 90 Northwestern L. Rev. 49, 8o (1995)
(summarizing Robert Gordon, "Book Review," 1974 Wijc. L. Rev. 1216, 1223-1225).
Robert H. Mnookin and Lewis Kornhauser, "Bargaining in the Shadow of the
Law: The Case of Divorce," 88 Yale U. 950 (Içr,9).
See Duncan Kennedy, "Sexual Abuse, Sexy Dressing, and the Eroticization of
Domination," in Sexy Dressing, Etc. (Cambridge, Mass.: Harvard University Press,
1993).
Braucher, "Afterlife," p. 88.
In other words, the sociologists are suggestingwithout, lamentably, any at-
tempt at empirical verification-.--a legitimation effect.
io. See, for example, Rand Rosenblatt, "Health Care Reform and Administrative
Law: A Structural Approach," 88 Yale L.]. 243 (1978).
ii. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964).
12. Michel Foucault, The History of Sexuality, vol. i, trans. Robert Hurley (New
York: Vintage, 1978), pp. 92-96. See, generally, Duncan Kennedy, "The Stakes of
Law, or Hale and Foucault!" in Sexy Dressing, Etc, (Cambridge, Mass.: Harvard Uni-
versity Press, 1993).
 Notes to Pages 272-275 405

Hyde, "Legitimation," pp. 408-409 (footnotes omitted; the quote is from Hans
Adamy, "Legitimacy, Realigning Elections and the Supreme Court," 1973 Wicc. L.
Rev. 790, 808; emphasis in the original).

Frank Munger and Carol Seron, "Critical Legal Studies versus Critical Legal
Theory: A Comment on Method," 6 Law & Polky 257, 269 (1984).
Hyde, "Legitimation," p. 383, tI. 5.
Antonio Gramsci, Prison Notebooks, ed. Joseph A. Buttigieg, trans. Joseph But-
tigieg and Antonio Callan (New York: Columbia University Press, 1992).
Louis Althusser, "Ideology and Ideological State Apparatuses (Notes toward an
Investigation)," in L.enin and Philosophy and Other Essays, trans. Ben Brewster (New
York: Monthly Review Press, 1971), p. 127.
See Hyde, "Legitimation."
See Robert Gordon, "New Developments in Legal Theory," in The Politics of
Law: A Progressive Critique, ed. David Kairys (New York: Pantheon Books, 1982).
Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and
Legitimation in Antidiscriminacion Law," 101 Harv. L. Rev. 1331 (1988).
The "cultural studies" variant of cls shows that the rhetoric of opinions, say,
the images of women they deploy, is a part of the general cultural discourse of identity
and as such worth study. The discourse both reflects and contributes to the reproduc-
tion of widespread, culturally dominant ideas about what women and men, for ex-
ample, are naturally like. Moreover, cultural imagery may weigh more heavily than
either deduction or policy in influencing judicial rule choice. This is an extension of
the idea that appellate adjudication is a forum of ideology, where liberals and conser-
vatives fight it out and where the marginal, more extreme positions are "silenced."
The discourse of the forum may legitimate, say, gender roles. But this is not the kind
of effect I address in the text. Legitimation, as I am using the term, is an effect of the
specific institutional practice of adjudication rather than of authoritative discourse i n
general. See Peter Gabel, "The Mass Psychology of the New Federalism: How the
Burger Court's Political Imagery Legitimizes the Privatization of Everyday Life," 52
Geo. Wash. L. Rev. 263 (1984); Rosemary Coombe, "Contesting the Self: Negotiating
Subjectivities in Nineteenth-Century Ontario Defamation Trials," 11 Studies in Law,
Politics, and Society 3 (1991); Nathaniel Berman, "A Perilous Ambivalence: Nationalist
Desire, Legal Autonomy, and the Limits of the Interwar Framework," 33 Harv. mt.
L.]. 353 (1992); Lisa Binder, "'With More Than Admiration He Admired': Images
of Beauty and Defilement in Judicial Narratives of Rape," i8 Harv. Women's Law].
265 (1995); Susan Keller, "The Rhetoric of Marriage, Achievement, and Power: An
Analysis olJudicial Opinions Considering Professional Degrees as Marital Property,
21 Vt. L. Rev (1996).
See Sally Merry, Getting Justice and Getting Even: Legal Consciousness among Work-
ing-Class Americans (Chicago: University of Chicago Press, 1990), p. i t.; Barbara
Yngvesson, Virtuous Citizens, Disruptive Subjects: Order and Complaint in a New England
Court (New York: Routledge, 1993), pp. II-12.
 406 Notes to Pages 276-284

SeeChapter2.
Thomas Heller, "Structuralism and Critique," 36 Stan. L. Rev. 127 (1984).
See Joseph Singer, "The Legal Rights Debate in Analytical Jurisprudence from
Bentham to Hohfeld," 1982 Wisc. L. Rev. 975,
Roberto M. Unger, Knowledge and Politics (New York: Free Press, i7), p. 88.
Duncan Kennedy, "Legal Formality," 2f. Legal Studies 351, 364, im. 21, 22
(1973); Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89
Harv. L. Rev. 1685 (1976).
This form of normative external determination is the subject of the next two
chapters.
Richard A. Posner, Problems ofJurisprudence (Cambridge, Mass.: Harvard Uni-
versity Press, 1990), pp. 459-460.
Austin Sarat, "Legal Effectiveness and Social Studies of Law: On the Unfortu-
nate Persistence of a Research Tradition," 9 Leg. Stud. Forum 23, 30-31 (1985).
Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science, and
Politics in the Paradigmatic Transition (New York: Routledge, 1995).
What follows is an account of an actual debate, carried out over four or five
years at conferences and summer camps. The account is no doubt seriously defective
as history because of the vagaries of memory and the distorting influence of narcissistic
investment. The debate was only partly reflected in the writings of the participants I
refer to in the course of the narrative.
Morton Horwitz, The Transformation of American Law, 1788-1860 (Cambridge,
Mass.: Harvard University Press, ,çy,ri); Karl Klare, "Judicial Deradicalization of the
Wagner Act and the Origins of Modern Legal Consciousness," 62 Minn. L. Rev. 265
(1978); Peter Gabel, "Intention and Structure in Contractual Conditions: Outline of
a Method for Critical Legal Theory," 6x Minn. L. Rev, 6oz ('977); Mark Tushnet, "A
Marxist Analysis of American Law," i Marxist Perspectives 96 (1978); Trubek, "Com-
plexity and Contradiction"; Jay Feinman and Peter Gabel, "Contract Law as Ideology,"
in The Politics of Law: A Progressive Critique, ed. David Kairys (New York: Pantheon
Books, 1982).
Evgeny Pashukanis, Lawand Marxism: A General Theory, trans. Barbara Einhorn
(London: Ink Links, 1978); Isaac Balbus, "Commodity Form and Legal Form: An Essay
on the 'Relative Autonomy' of the Law," u Law &Soc'y Rev. 57' (1977).
Willard Hurst, Law and the Conditions ofFreedom in the Nineteenth Century Unirei
Stares (Madison: University of Wisconsin Press, 1956).
Lawrence Friedman, A History of American Law (New York: Simon and Schuster,
1973). For the neo-Marxist critique, see Mark Tushnet, "Perspectives on the Devel-
opment of American Law: A Critical Review of Friedman's 'A History of American
Law," 1977 Wisc. L. Rev. 8i.
Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Hart'.
L, Rev. 1685 (1976); Unger, The Critical Legal Studies Movement.
Horwitz, The Transformation of American Law.
 Notes to Pages 284-287 407

See Chapter 4 and the sources cited in Chapter 4, n. ¡6.

For example, Alan Freeman, "Legitimizing Racial Discrimination through Race
Law: A Critical Review of Supreme Court Doctrine," 62 Minn. L. Rev. 1049 (1978);
Alan Freeman, "Anridiscrimination Law: A Critical Review," in The Politici of Law: A
(New York: Pantheon Books, 1982); Frances
Progreisive Critique, ed. David Kairys
Olsen, "The Family and the Market: A Study of Ideology and Legal Reform," 96 Hari
L. Rev. 1497 (1983).

z. For example, Gerald Frug, "The City as a Legal Concept," 93 Harv. L. Reiz
1057 (1980); Mark Kelman, "Interpretive Construction in the Substantive Criminal
Law," 33 Stan. L. Rev 591 (1981); William Simon, "Visions of Practice in Legal
Thought," 36 Sian. L. Rev. 496 (1984); William Simon, "The Invention and Reinven-
tion of Welfare Rights," 44 AId. L. Rev. i (1985).
Robert Gordon, "Unfreezing Legal Reality: Critical Approaches co Law," 15
F/a. St. L. Ret' 195 (1987).
Hyde, "Legitimation"; Crenshaw, "Retrenchment."
Some examples of the underlying attitude I'm talking about are Alan Freeman,
"Truth and Mystification in Legal Scholarship," 90 Ya/e U. 1229 (1981); Mark Kel-
man, "Trashing," 36 Stan. L. Rev. 293 (1984); Duncan Kennedy and Peter Gabel,
"Roll Over Beethoven," 36 Stan. L. Rev 1 (1984).
5. I)uncan Kennedy, "The Structure of Blackstone's Commentaries," 28 Buff L.
Rev 205 (1979); John Nockleby, "Tortious Interference with Contractual Relations in
the Nineteenth Century: The Transformation of Property, Contract, and Tort," 93
Hart'. L. Rev 1510(1980); Kenneth Vandevelde, "The New Property of the Nineteenth
Century: The Development of the Modern Concept of Property," 29 Buff L. Rev 325
(1980); James Kamen, "Nineteenth Century Interpretations of the Federal Contract
Clause: The Transformation from Vested to Substantive Rights Against the State," 3 i
Buff L. Rev. 381 (1982); Joseph Singer, "The Player and the Cards: Nihilism and
Legal Theory," 94 Ya/e U. i (1984).
Kennedy, "Blackstone's Commentaries," pp. 362-363, n. 56; Duncan Kennedy,
"The Role of Law in Economic Thought: Essays on the Fetishism of Commodities,"
34 Amer. Univ L Rev 939 (1985).
Karl Klare, "Law Making as Praxis," Telos, Summer ¡979, 123.
Robert Gordon, "Critical Legal Histories," 36 Stan. L. Rev. 57, 110-113(1984).
W. N. Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning," 23 Ya/e U. 16(1913). See Joseph Singer, "The Legal Rights Debate in
Analytical Jurisprudence from Bencham to Hohfeld," 1982 Wisc. L. Rev 975.
50, Kennedy, "Form and Substance"; Duncan Kennedy, "Pacernalist and Distrib-
utive Motives in Contract and Tort Law, with Special Reference to Compulsory Terms
and Unequal Bargaining Power," 41 Mary/and L. Rev. 563 (1982).
51. Duncan Kennedy and Frank Michelman, "Are Property and Contract Effi-
cient)" 8 Hofsrra L. Rev. 7'' (1980); Kennedy, "Role of Law." See generally the dis-
cussion of "contradictionism" in Chapter 4, particularly n. i6.
 408 Notes to Pages 287-291

Leopold Specht, "The Politics of Property: Soviet Property as a Bundle of

Rights," unpublished S.J.D. thesis, Harvard Law School, Cambridge, Mass., 1994; J.
Kornai, The Socialist System: The Political Economy of Communism (Princeton: Princeton
University Press, 1992), p. 226.
Kennedy, "Role of Law"; Duncan Kennedy, Legal Education and the Reproduction
of Hierarchy: A Polemic against the System (Cambridge, Mass.: AFAR, 1983).
Duncan Kennedy, "Cost-Benefit Analysis of Entitlement Problems: A Cri-
tique," 33 Stan. L. Rev. 387 (1981); Kennedy and Michelman, "Are Property and
Contract Efficient?"; Kennedy, "Role of Law."
. See, for example,
Robert Steinfeld, The Invention of Free Labor: The Employment
Relation in English and American Law and Culture, 135-1 870 (Chapel Hill: University
of North Carolina Press, ix), ch. 6; Richard Abel, "Why Does the A.B.A. Pro-
mulgate Ethical Rules?" 59 Tex. L. Revs 639 (1981).
6. The progenitor of this kind of analysis was David Trubek, "Max Weber on Law
and the Rise of Capitalism," 1972 Wisc. L. Rev. 720.
For example, Morton Horwitz, The Transformation ofAmerican Law, ¡870-1960:
The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), ch. 3. But
see Mark Hager, "Bodies Politic: The Progressive History of Organizational 'Real
Entity' Theory," 50 Univ. Pitt. L. Rev. ,7 (1989). See also Wythe Holt, "Tilt," 52
Geo Wash. L. Rev. 280 (1984).
Georg Lukacs, "Reification and the Consciousness of the Proletariat," in History
and Class Consciousness: Studies in Marxist Dialectics, trans. Rodney Livingstone (Cam-
bridge, Mass.: MIT Press, 1971).
Gramsci, Prison Notebooks.
6o. Aithusser, "Ideology."
6x. Jürgen Habermas, Legitimation Crisis, trans. Thomas McCarthy (Boston: Beacon
Press, 1975).
On the fascist version of ideology-critique, see "Carl Schmitt Meets Karl Marx,"
in William Scheuerman, Between the Norm and the Exception: The Frankfurt School and
the Rule of Law (Cambridge, Mass.: MIT Press, 1994).
English neo-Marxist legal sociology has gradually abandoned all four of these
ideas, as Alan Hunt proudly explains in Explorations in Law and Society: Toward a
Constitutive Theory of Law (New York: Routledge, 1993), pp. 117-138, without, so far
as I can see, adopting any alternative conception. Sic transit
The intellectual genealogy of the popular American usage includes the writers
who developed the critique of "totalitarianism" (see Abbot Gleason, Totalitarianism:
The Inner History ofthe Cold War [New York: Oxford University Press, 1995], for whom
not Liberalism but communism and fascism are the quintessential examples), the in-
tellectual/historical tradition represented by Karl Mannheim, Ideology and Utopia: An
Introduction to the Sociology of Knowledge (New York: Harcourt, Brace, 1936), and the
"critical" line of thought, stemming from German idealism and very much present in
Western Marxism (for example, Karl Korsch, Marxism and Philosophy, trans. F. Halliday
 Notes to Pages 2 92-3 o8 409

[New York: Monthly Review Press, '9701) that emphasizes the impossibility of op-
erating without some inevitably partial cognitive framework.
Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard
University Press, 1987), p. 269.
Hunt, Explorations. p. 154. This formulation is meant to be responsive to Ha-
bermas's brilliant critique of structural Marxist theories in Knowledge and Human In-
teresu, trans. Jeremy Shapiro (Boston: Beacon Press, 1971).
For a great collection, see Michael Fischi, "The Question That Killed Critical
Legal Studies,' 17 Law & Soc. Inquiry 779, 78 1-782 (1ç)2).

12. RIGHTS IN AMERICAN LEGAL CONSCIOUSNESS

i. Cornel West, "The Struggle for America's Soul," New York Times Book Revieu
September 15, 1991, p. 13.
See Gary Peller, "Race Consciousness," 1990 Duke U. 758.
Mark Tushnet, "An Essay on Rights," 62 Texas L. Rev. 1363 (1984).
Peter Gabel, "The Phenomenology of Rights Consciousness and the Pact of the
Withdrawn Selves," 62 Texas L. Rev. 1563 (1984).
Frances Olsen, "Statutory Rape: A Feminist Critique of Rights Analysis," 63
Texas L. Rev. 387 (1984).
Duncan Kennedy, "Critical Labor Law Theory: A Comment," 4 Industrial Re-
lations U. 503 (1981); Duncan Kennedy, "The Structure of Blackstone's Commen-
taries," 28 Buff L. Rev. 205 ('979).
Louis Schwartz, "With Gun and Camera through Darkest CLS Land," 36 Stan.
L. Rev. 247 (1984).
Phillip Johnson, "Do You Sincerely Want to Be Radical?" 36 Stan. L. Rev. 247
(1984).
Staughton Lynd, "Communal Rights," 62 Texas L. Rev. 1417 (1984).
io. Edward Sparer, "Fundamental Human Rights, Legal Entitlements, and the
Social Struggle: A Friendly Critique of the Critical Legal Studies Movement," 36 Stan.
L. Rev. 509 (1984).
'i. Michael Tigar, "The Right of Property and the Law of Theft," 62 Texas L. Rev.
1443 (t8).
Martha Minow, "Interpreting Rights: An Essay for Robert Cover," 96 Yale L.J.
i86o (1987); Elizabeth Schneider, 'The Dialectic of Rights and Politics: Perspectives
(rom the Women's Movement," 6i N.YU.L. Rev. 589 (1986).
Patricia Williams, The Alchemy of Race and Rights (Cambridge, Mass.: Harvard
University Press, '99'); Richard Delgado, "The Ethereal Scholar: Does Critical Legal
Studies Have What Minorities Want" 22 Harv, C.R.-C.L. L. Rev. 30' (1987); Kim-
bene Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation
in Antidiscrimination Law," oi Harp. L. Rev. 331 (1988).
Since the late eighteenth century, there has been a metadiscussion within con-
 410 Notes to Pages 308-322

stitutional law about the proper role of unenacted outside rights. See Calder y. Bull,
3 U.S. (3 Dall.) 386 (1798), and Loan Association y. Topeka, 87 U.S. (20 Wall.) 655
(1875). Opponents of judicial reasoning from unenacted outside rights have insisted
that there is a clear difference between being outside and being inside, and that judges
should concern themselves only with the inside. Outside rights don't "really" exist;
even if they exist they are too much open to ideological controversy; even if they exist
and are clear they are nor "law."
The opponents of a "strictly positivist" position argue the flip side: that appeal to
outside rights can and should resolve gaps, conflicts, and ambiguities that arise when
the judge tries to ignore the normative sources of law, and so forth. In other words,
the positivists celebrate judicial method and denigrate rights theory, while the inter-
pretivists do the opposite. This discussion remains marginal. Most of the time, the
ideological intelligentsias that deploy constitutional argument confront each other in
the intermediate zone. In the intermediate zone, both sides claim enacted constitu-
tional rights and the objectivity of judicial method.
i. Minow, "Interpreting Rights"; Schneider, "The Dialectic of Rights and Poli-
tics"; Gabel, "Phenomenology."
i 6. Oliver Wendell Holmes, 'The Path of the Law," in Colleaed Legal Papers (Buf-
falo, N.Y.: William S. Hein, 1985), p. i8i.
17. Henry Terry, "Legal Duties and Rights," ¡2 Yale L.]. i8,
¡88 (1903).

13. THE CRITIQUE OF RIGHTS

i. Wesley Hohfeld, "Fundamental Conceptions as Applied injudicial Reasoning,"
26 YaleLj. 710 (1917).
Compare Vegelhan y. Gunter, 167 Mass. 92,44 N.E. 1077 (1896), with Hague
y. C.I.O., 307 U.S. 496 ('939).
Louis Brandeis and Charles Warren, "The Right of Privacy," 4 Harv. L. Rev.
193 (1890).
Griswold y. Conn., 38! U.S. 479 (1965).
Lon Fuller and William Purdue, "The Reliance Interest in Contract Damages,"
46 Yale U. 52, 373 (16-37). See Chapter . Hohfeld is again the most important
originator. Hohfeld, "Fundamental Conceptions."
But see Alexander Aleinikoff, "Constitutional Law in the Age of Balancing,"
96 Yale L]. 943 (1987).
. Pa. Coal y. Mahon, 260 U.S. 393 (1922), Hadachek y. Sebastian, 233 U.S. 394
(1915). See Thomas Grey, "Holmes and Legal Pragmatism," 41 Stan. L. Rev. 787,
8I-82o (1989).
Hohfeld, "Fundamental Conceptions."
Cheney y. Doris Silk Co., 35 F.2d 279 (2d Cir. ¡929).
U.S. y. Aluminum Co. of Am., ¡48 F.2d 416 (2d Cir. ¡945).
¡z. U.S. y. Carroll Towing Co., 159 F.2d ¡69 (2d Cir. ¡947).
 Notes to Pages 322-330 411

12. Dennis y. U.S., 182 F.2d 201 (2d Cir. 1950).

i 3. Learned Hand, The Bill of Rights (Cambridge, Mass.: Harvard University Press,
1958).
U.S. y. Carolene Products, 304 U.S. 144, 152-153, n. 4 (i38).
Powell y. Alabama, 287 U.S. 45 (1932).
Hague y. C.I.O., 307 U.S. 496 ('939).
W. Va. y. Barnette, 319 U.S. 624 ('943).
i8. William O. Douglas, "Stare Decisis," 49 Co/um. L. Rev. 735 ('949).
Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Hart'.
L Rev'. ¡(1959).
Hugo Black, "The Bill of Rights," 35 N.YU.L. Rev. 86 (1960).
Dennis V. U.S., 341 U.S. 494, 524-543 (1951) (Frankfurter,J., concurring).
See, for example, Alexander Meiklejohn, "The First Amendment Is an Abso-
lute," 1961 Sup. Ct. Rev. 245.
See, for example, Erwin Griswold, "Absolute Is in the Dark," 8 Utah L. Rev.
167 (1963); Paul Freund, The Supreme Court of the United States (Cleveland: World Pub.,
1961).
Wechsler, "Neutral Principles."
Henry Hart and Herbert Wechsler, The Federal Courts in the Federal System
(Brooklyn: Foundation Press, 1953).
Three quite different reactions of this general kind are Robert McCloskey, "Eco-
nomic Due Process and the Supreme Court: An Exhumation and Reburial," 1962 Sup.
C,. Rei' Jan Deutsch, "Neutrality, Legitimacy, and the Supreme Court: Some In-
tersections between Law and Political Theory," 20 Stan. L. Rev 169 (1968); and John
Griffiths, "Ideology in Criminal Procedure, or, A Third 'Model' of the Criminal Pro-
cess," 79 Yale U. 3, (1970).
Bd. of Regents of the Univ. of Cal. y. Bakke, 438 U.S. 265 (1978).
Ann Freedman, "Sex Equality, Sex Difference, and the Supreme Court," 92 Yale
L.). 91 (1983).
Derrick Bell, "Serving Two Masters," 85 Ya/eL.]. 470 (1976).
See the discussion of Thomas Sowell in Kimberle Crenshaw, "Race, Reform,
and Retrenchment: Transformation and Legitimation in Antidiscrimination Law," io,
Hat-v L. Rev. 1331, ¡339-1346(1988).
Thomas Grey, "Discriminatory Harassment and Free Speech," 14 Harv. J. Law
& Pub. Po/ky 157 (1991).
Kimberle Crenshaw, "Mapping the Margins: Identity Politics, Intersectionality,
and Violence against Women," 43 Stan. L. Rev. 124 i (1991).
Martha Minow, "The Supreme Court, October 1986 Term, Foreword-Justice
Engendered," io' Harv. L. Rev. 10(1987); Mary Joe Frug, Post-Modern Legal Feminism
(New York: Routledge, 1992).
Even if, for one of these reasons, the realist critique of legal rights reasoning
isn't very threatening to the belief that there are universal human rights, it should
412 Notes to Pages 33 1-339

still be plenty threatening to the idea that identifying them in the abstract will get
away from the kind of "value judgment" that you invented them to avoid. This doesn't
seem to have occurred to political philosophers outside law, but it is close to an
obsession, in the form of the "countermajoritarian difficulty," of American jurispru-
dence.
5. BelL English, 'Keeping Rights in Perspective," Boston Globe, July 22, 1991,
5. 2, p. 13.
36. "1 can engage in homosexual intercourse because I have a right to sexual free-
dom." "1 can organize a PAC with corporate contributions because I have a right of
free speech." "Slavery is wrong because it denies the inalienable rights of life, liberty,
and property." "Nondisclaimable strict products liability is wrong because it denies
the right of freedom of contract." "Compulsory membership in a labor union is wrong
because it denies the right of free association; the banning of strikes is wrong because
it denies the right to strike." "The banning of sale of contraceptives is wrong because
it violates the right to privacy."
3. An exemplary critique of this kind is Jeremy Paul, "Book Review," 88 Mich.
L. Rev. 1622 (z99oXreview of Jeremy Waldron, The Right to Private Property).
Martha Minow, "Interpreting Rights: An Essay for Robert Cover," 96 Yale L.].
x86o (1987); Elizabeth Schneider, "The Dialectic of Rights and Politics: Perspectives
from the Women's Movement," 6i N.YU.L. Rev. 589 (1986).
Karl Marx, Capital: A Critique of Political Economy, vol. i, trans. Ben Fowkes
(New York: Vintage Books, 1977).
Karl Marx, Critique of the Gotha Program (Moscow: Progress Publishers, 1971).
Karl Marx, "On the Jewish Question," in Writings of the Young Marx on Philos-
ophy and Society, ed. and trans. Loyd Easton and Kurt Guddat (Garden City, N.Y.:
Anchor, 1967), p. 216. This essay is full of neo-Hegelian anti-Semitic ideas. I think
this is one of those cases where the dross doesn't corrupt the gold. It is also typically
"early Marx."
See, for example, Peter Gabel, "The Phenomenology of Rights Consciousness
and the Pact of the Withdrawn Selves," 62 Texas L. Rev. 1563 (1984); Alan Freeman
and Elizabeth Mensch, "The Public-Private Distinction in American Law and Life,"
36 Buff L. Rev. 237 (1987); Duncan Kennedy, "The Structure of Blackstone's Com-
mentaries," 28 Buff L. Rev. 205 (1979); Duncan Kennedy and Peter Gabel, "Roll
Over Beethoven," 36 Stan. L. Rev. i (1984).
There are a number of critical analyses of the role of rights rhetoric at different
stages of social movements and at different moments in American political history.
See Gabel, "Phenomenology," and Alan Hunt, "Rights and Social Movements:
Counter-Hegemonic Strategies," ¡7]. Law & Soc'y 309 (1990). They aren't examples
of the rights critique, although they sometimes presuppose it.

14. CONCLUSION
i. To my mind, the best statement of this way of looking at mpm is Nathaniel
Berman's discussion of modernism in "Modernism, Nationalism, and the Rhetoric of
 Notes to Pages 345-358 413

Reconstruction," 4 Ya/eJ. Law & Human. 351 (1992). For an interesting interpretation
of cls as left modernism, see David Luban, "Legal Modernism," 84 Mich. L. Rev. i66
(1986).
Jeremy Paul, "The Politics of Semiotics," 69 Texas L. Rev. 1779, 1812-1813
(199!).
Jack Balkin, "The Politics of Legal Semiotics," 69 Texas L. Rev. 1831, 1846-
1848 (1991).
Ibid.
,. Clare Dalton, "Book Review," 6 Harv. Women's L. Rev. 229 (1982) (reviewing
The Politics of Lau; ed. David Kairys); Gerald Frug, "The Ideology of Bureaucracy in
American Law," 97 Harv. L. Ret: 1276 (1984); David Kennedy, "The Turn to Inter-
pretation," 8 So. Cal. L. Rev I (1985); Gary Peller, "The Metaphysics of American
Law," 73 Cal. L. Rev 1152 (1985); David Kennedy, "Critical Theory, Structuralism,
and Contemporary Legal Scholarship," 21 New Eng. L. Rev. 209 (1986). I tried to
counter this approach in Duncan Kennedy, "Freedom and Constraint in Adjudication:
A Critical Phenomenology," 36f. Legal Educ. 518 (1986), and Duncan Kennedy, "A
Semiotics of Legal Argument," 42 Syracuse L. Rev. 75 (1991) (and same article with
"European Introduction: Four Objections," in Collected Courses o/the Academy ofEuropean
Lau'. vol. 3, book 2 ['994], p. 309). The view I favor is close to that of Gerald Frug
in "Argument as Character," 40 Stan. L. Rev. 869 (1988), and Matthew Kramer, Legal
Theory, Political Theory, and Deconstruriion: Against Rhadamanthus (Bloomington: Indiana
University Press, 1991), p. 248: "Determinacy, for deconstructive critics, presents itself
as a function or a moment in an unstoppable interweaving of fixed structures and free
play. Dererminacy and indeterminacy generate and exclude each other in a process that
is itself both indeterminate and determinate . . . Derrida has made much the same
point . . : '[T]he production of differences, différance, is not astructural: it produces
.

systematic and regulated transformations which are able, at a certain point, to leave
room for a structural science. The concept of di//france even develops the most legiti-
mate principled exigencies of "structuralism" (citing Jacques Derrida, Positions [Chi-
cago: University of Chicago Press, 1981], p. 28)." But Kramer seems to me to fall
into the error of believing that it is always possible to deconstruct, even though it
may not happen in a given case, whereas to my mind deconstruction has nothing to
say about its own possibility or impossibility outside a particular instance. See Part
Three.
Frank Michelman and Margaret Radin, "Pragmatist and Poststructuralist Crit-
ical Legal Practice," 139 U. Pa. L. Rev ¡019, 1035-1036 (199!).
Jacques Derrida, Spectres o/Marx, trans. Peggy Knauf (New York: Routledge,
1994), pp. 77-88.
Sanford Levinson and Jack Balkin, "Law, Music, and Other Performing Arts,"
139 U. Pa. L. Rev. 1597 (1991).
. Michelle Green, The Dream at the End o/the World: Paul Bow/es and the Literary

Renegades of Tangier (New York: HarperCollins, 1991).

Io. Pierre Schlag, "Normative and Nowhere to Go," 43 Stan. L. Rev. 167 (1990).
414 Notes to Pages 359-375

i i. In law, some different efforts of this kind that I am aware of are François Geny,
Science et technique en droit privé posiuj nouvelle contribution à la critique de la méthode
juridique (Paris: L. Tenin, 1914-1924); Roscoe Pound ,Jurispruànce (St. Paul, Minn.:
West Pub. Co., 1959); Harold Laswell and Myres McDougal, "Legal Education and
Public Policy: Professional Training in the Public Interest," 52 Yale L.]. 203 (ii);
Richard Posner, Problems ofJurisprudence (Cambridge, Mass.: Harvard University Press,
1990); Frank Michelman, "Law's Republic," 97 Yale U. '493 (1988); Margaret Radin,
Reinterpreting Property (Chicago: University of Chicago Press, '993); and Roberto Un-
ger, Politics: A Work in Constructive Social Theoy (New York: Cambridge University
Press, 1987). The last of these is full of things I agree with, for all my reconstructive
unmusicality.
Nigel Purvis, "Critical Legal Studies in Public International Law," 32 Harz
mt. U. 8i, 127 (199lXemphasis in original).
Michael Fischi, "The Question That Killed Critical Legal Studies," 17 L.au'&
Soc. Inquiry 779, 800 (1992).
Kimberle Crenshaw, "Mapping the Margins: Identity Politics, Intersectionality,
and Violence against Women," 43 Stan. L. Rev. 124! (199!). On the relation between
mpm metaphysics and politics, see Kramer, Legal Theory, pp. 246-247.
'5. Michel Foucault, Discipline and Punish: The Birth o/the Prison, trans. Alan Sheri-
dan (New York: Vintage, 1979).
i6. Scientific education also involves extensive normalization but is understood to
measure a much narrower band of capacitiesmemory and pure cognitive ability. Law
school resembles the prep school I went to, where you were called on in most classes
most days, took endless quizzes and tests as well as several different national aptitude
and achievement tests each year, and in one class got a grade on your oral recitation
in Greek every single day.
I 7. Duncan Kennedy, Legal Education and the Reproduction of Hierarchy (Cambridge,
Mass.: AFAR, 1983); Duncan Kennedy, "Liberal Values in Legal Education," 19 Nova
L.]. 603 (1986); Duncan Kennedy, "Politicizing the Classroom," 4 U.S.C. Rev. Law &
Women's Studies 8i (1995). See also Toni Pickard, "Experience as Teacher: Discovering
the Politics of Law Teaching," 33 Univ. Thronto L]. 278 (1983).
i8. Joseph Raz, "The Relevance of Coherence," 72 B.U.L. Rev. 273, 304, n. 52
(1992).
 INDEX

Abel, Richard, 408n55 ¡Sm, 293-294; in rights argument, 310-

Abu-Odeh, Lama, 402flfl42,44 314, 338, 358; in managerial discourse,
Ackerman, Bruce, 300 340, 367-376; in legal education, 367;
Activism: Dworkin's critique of, 124; realist and disloyalty, 372
critique of conservative, 322-323; conser- Balancing, ioo, io6, 111, 117, 147-150,
vative critique of liberal, 323-25 256, 383f I2 rights argument reduces to,
Administrability, 99, 137-139, 147, 317 316-333; in moral decisions, 362, 376
Aleinikoff, Alexander, 410fl6 Balbus, Isaac, 406fl34
Alexander, Gregory, 403t15 i Balkin, Jack, 345, 35!, 382n3, 393n6,
Alienated powers, 18-20, 67, 275, 280, 336, 395fl18, 401fl34
358, 360. See also Ideology-critique Barcellona, Pietro, 387n39
Althusser, Louis, 272, 290, 398f! Bargaining power, 86-87, 249-263. 269
Altman, Andrew, 91, 391fl47. 392fl74, Base/superstructure distinction. See Neo-
395fl23 Marxism
Altman, Scott, 206-207, 337, 396n7, Beale, Joseph, 389n2o
397f 22 Belaid, Sadok, 76
Altruism, 83, 151, 336. See also Contradic- Bell, Derrick, 256, 411029
tion Benson, Marjorie, 403fl51
Amherst seminar, 266, 278, 404n3 Berman, Nathaniel, 400fl2 I, 401 nn22,23,
Analogy, io, 152-155 4o5n21, 41201
Anderson, Perry, 398n1 Binder, Lisa, 4o5n2 I
Apology, 19, 55, 245, 293-294, 382n8 Bipolar judge, i8o, 202, 219-223, 226,
Argument-bites, 39, 47-48, , 89-ço, II!, 245, 273; defined, 185-186; and denial,
137-156, 165, 175-177; relation to ide- 197-198
ology, 176-177 Bix, Brian, 382n6
Arnauci, André-Jean, 94, 381n41 Black, Hugo, 324
Arnold, Thurman, 88 Blacksione, Sir William, , ,8, 127, 293,
Artifact: defined, 7, i6-i8; in mpm, 340, 312
342-344. 347-354, 357 Blasi, Vincent, 30
Austin, Regina, 403fl53 Board of Regents of the Univ. o/California y.
Authenticity, 344-346, 350, 359 Bakke. 326
Bobbio, Norberto, 379f!, 382n7
Background rules, 57-59, 87, 248-263, Boyle, James, 31, 390fl37, 393fl6, 401fl34
269, 274 Brandeis, Louis, 114, 319
Bad faith: in theory of alienated powers, 20; Braucher, Jean, 4o4nn5,8
in jurisprudence, 23, 129; in adjudication, Brest, Paul, 381020, 385n16, 394fl6
56, 67; and denial, 191-194; in different Brewer, Scott, 388n16
types of judges, 194-198; hall-conscious, Britain, , io8, 109, 112, 172-179; and
199-200; judicial form of, 205, 208; con- positivism, 34-35, 77-79, 8i, 95-96,
trast with Europe, 235 in Liberal legal- 121, 203

415
416 Index

Broadening, 140-142, 145, 147 z6o-,6i, 171, 205, 207; external vs. in-
Brodin, Mark, 211 ternal, i6,, 167; and deduction, 164; in
Brown y. Board of Education, 67, 80-8 1, 119, policy work, i6; frequency of, iva; in
127-128, 174, 206, 273 moderation effect, 220-22 i. See also Con-
Butler, Judith, 346-347 strained activist judge; Role constraint
Contested concept, 49-50
Calderv. Bull, 410n14 Continent, 32, 36-37, 92-95, 109, ¡79,
Capitalism, 18-19,92, 237, 249-251, 278, 263, 283. See also Europe
352; stages of, 278, 281, 283; role of law Contradiction: in judicial role constraint, 35,
in, 280-296; rights in, 335-337; manage- 120, ,8o, 202-2 12; ¡0 liberalism and
rial discourse in, 368 conservatism, 50-54, 187-19 i; 'contra-
Cardozo, Benjamin, 33, 35, 75, 96, 101, dictionism,' 83-92, 95, 239-240, 287; in
114, ii8, 120, 195 modernist legal consciousness, x; as mo-
Carrington, Paul D., 379n6 tive for denial, 193, 202-2 12; in psycho-
Carrino, Agostino, 384n1 analytic theory, 207-208; mode of in cnt-
Cheney y. Doris Silk Co., 4 10n9
¡cal legal studies, 284-285; in
Civil law, 36-37, 75-78, 102, 278; code neo-Marxist Ideology theory, 291; demo-
system in, 32, 36, 76-78, 83, 239, 241. bilizing, 295, 361-363; in managerial
See alio Continent; Europe discourse, 367-376
Clark, Gerard, 379fl4 Conversion effect, 114, 117, 124, 128, 227,
Clusters, 138, 145-146, 154 273; defined, 63-65, 70
Cohen, Felix, 82, 86-87, 105, 386n24 Cook, Walter Wheeler, 82, 385n13, 386n24
Coherence: in legal argument, 33-37; in Coombe, Rosemary, 405 fl2 I
civil law, 36-37, 6; of ideologies, o-s4; Corbin, Arthur, 82, 385n13
realist critique of in private law, 82-92; Cornell, Drusilla, 300
in continental critique, 92-95; and policy, Corwin, Edward S., 400n18
112-130; through evolutionary theory, Crenshaw, Kimberle, 262, 273, 4o1nn29,31,
z i8; through process models, ¡ ¡e-z i; in 407(143, 4o9n13, 41 ¡flfl3o,32, 414fl14
Dworkin, 119-120; and ideological work, Critical legal studies (cis): defined, 8-12; on
157, i6, 179; of constitutional law, 233- indeterminacy of legal rules, 31-32, 37;
235; of common law, 2 39-240; of regimes on rule of law, -7; and legal realism,
in social theory, 264 82-92, 113; and Dworkin, 121, 129-130;
Coleman, Jules L., 379(12 and British positivism, 172-179; and ju-
Common law: judicial regime change dicial role, 203; and delegitimation, 247-
through, 223-224; and legitimation, 263; critique of liberalism, 248, 274; as
238-247; legal realism and, 238-240; vs. radicalism, 248; contrast with legal real-
legislation, 240-247 ism, 249-263; policy proposals, 262-263,
Communism, 7, 8, 53, 73-74 271; and social theory, 265; mandarin ma-
Community, 6, 48, 359, 360 terials controversy, 265-280; skeptics cri-
Compulsory terms, 138, 145-155, 165, 176, tique, 265-280; rationalism/irnationalism
190 debate, 280-296; lack of a theory, 295;
Conservatism: defined, 46-48; ontology of, rights debate, 296, 337. See also Pink
50-54; determinacy of, z8o; in Theory
Dworkin, 121 Critical race theory, 256-257, 263, 286,
Constrained activist judge, i8o, 202, 219- 304, 327-329
223, 226, 245, 273; defined, 182-184; Critique: global internal, 32, 86, 92-95,
and denial, 194-196 179, 198, 276-277, 280; internal, 38,
Constraint: iconology of, -; by the text, 81-96, 117, 129, 164, 277, 288, 311-
 index 417

312, 344, 358, 360, 362; minimalist in- DeSbaney y. Winnebago County Dept. o/Social
ternal, 86, 91, 95, 179, 279, 280, 286, Services, 116
295, 304, 311-312, 349; maximalist, 89, de Sousa Santos, Boavencura, 4o6n3 i
311-312; local, 92; global external, 92, Determinacy: of legal reasoning, i 8-20, 60,
198; of determinacy of ideology, 187-191; 92, 98, 159, i6i, 265, 267, 275-280; of
of rights, 261, 301, 303-304, 315-338 economic theory, 18-20, 279-280, 286-
Cultural critique. 254, 261, 405fl21 289; of liberalism and conservatism, ,o-
54, i8o, 187-191; ontology 01,169-171,
174; as function of work, 170; of Consti-
Dalton, Clare, 402fl42, 413fl5
tution vs. constitutional law, 230-235; of
Danielsen, Dan, 402n44, 403n47
rights reasoning, 305-306, 311-314,
Dawson, John, 76
3 16-333; and deconstruction, 348-350;
Debord, Guy, 379fl5
of managerial discourse, 367-376
Deconstruction, 15, 267, 348-350
Deutsch, Jan, 41 1n26
Deduction, 25, 30-38, 97-108; mode vs. Difference splitting, 156; judge, i8o, 184-
policy mode, -ioo; defined, 98; kinds i8, 196-198, 202, 2 19-223, 226, 245.
of, toI-1o5; ontology of, 101,107,168; 273
legal realist critique of, 103-113; guided Distributive approach, 51, 65-69, 87, 242-
by policy, 1o4-1o5; revival of, io8; in 263, 265, 279, 302, 368-370
left project, ill; in evolutionary and pro- i
cess theories, z i8-i i; in Dworkin, 120;
Donahue, John, 398n1
Dorsen, Norman, 398n9
in structure of legal discourse, 135; com- Douglas, Lawrence, 404fl3
pared to balancing, 148; as constraint, Douglas, William 0., 319, 324, 400nl9,
as work, 164-165, i68; in rights ar- 41 ini8
gument, 318-3 19, 321; and deconstruc- s'. Sand/ord, 8o, ¡74
Dred Scoff
tion, 348-350; in legal education, 366 Dworkin, Andrea, 260, 402fl40
Delgado, Richard, 409fl13 Dworkin, Ronald, 24, 33-37, 50, 75, 91,
Denial: in theory of alienated powers, 2o; in 95-96, 117, 119-1 30, 148, 162, 172,
jurisprudence, 23; of ideological in adjudi- 176, 196, 204-205, 300, 380fl6, 394f!
cation, 55-56, 67, i8, 396n7; as judicial
strategy, i8o, defined, 191-194; in differ- Economic sympathies. See Ideological prefer-
ent types of judges, 194-198; half-con- ences
scious, 199-200; as collective phenome- Economics, law and, 111, ii6, 278; critique
non, 200-202; as response to role conflict, of, 287-288
202-205; motives for public, 205-207; Edmunson, William, 395nn18,23
and contradiction, 207-209; coercive con- Effect of necessity, 161-162, i68, 187, 275
sensus and, 209; projection and, 209-212; Eisenberg, Melvin, 388n12, 389n29
and jealousy, 211-212; in the moderation Ely, John, 390fl42
effect, 2 iB; in the empowerment effect, Empowerment effect, 246, 247, 249-262,
224; in the legitimation effect, 236; in 266, 273, 279. 292, 309, 324; and denial,
Liberal legalism, 292-294; in rights dis- 202, 224-235; defined, 216
course, 336-337; in art, 344; in manage- Engle, Karen, 401fl23
rial discourse, 370.-376 Equality, 237-238, 243-246, 359, 362; and
Dennis : U.S., 411 nn 12,21 left project, 6, 302, 327-328, 360; and
DePeysier y. Michael, 394fl IO liberalism, 47, 51
Derrida, Jacques, 31, 92, 300, 346-348, 350 Esco/a y. Coca-Cola Bottling Co. of Fresno, 149,
deSaussure, Ferdinand, 133 174
DeSchutter, Olivier, 401fl22 Eskridge, William, 113, 390n43
4x8 Index

Europe, 4-5, 73-79, 83, 92-95, 107-108,

235, 263, 278. See alio Continent
Frankfurter, Felix, 33, 114,
Nathan, 4001)12
i;
and Greene,

Freedman, Ann, 4111)28

Free law school, 37, 8i, i i8
Farwell y. Boiton & Worcester R. R. Coip.,
Freeman, Alan, 256, 399f!, 407nn40,44,
392fl75
4121)42
Fascism, 53, 73-74, 300, 323. 361-363
Freud, Anna, 6, 192, 199, 201, 207,
Federalism, 78, 99, 148, 150, 227, 255; le-
397fl20
gitimation in, 251-253, 325
Freud, Sigmund, 192, 207, 211, 397fl25
Feinman, Jay, 4o6n33
Freund, Paul, 4111)23
Feminist legal theory, 6, 258-263, 304,
Frickey, Phillip, 390fl43
327-329, 357 Fried, Charles, 210-211, 388n8
Feuerbach, Ludwig, i8, 280, 292, 299 Friedman, Lawrence, 266, 4o6n36
Fidelity, interpretive: as role constraint, 3-5; Frug, Gerald, 393fl6, 3991)1, 401flfl24,25,
in rule of law, i ; in separation of powers, 403fl54, 4071)41, 413fl5
27; abandoned by radicals, 117; in Dwor- Frug, Mary Joe, 402nn41,42, 411fl33
kin, 122-124; and ideology, 149, 157- Fuller, Lon, 33, 35, 75, 96, i i8, 120, 271,
158, 163, 3941)8; of constrained activist, 381n25, 385n16; and Perdue, William,
183; and role conflict, 202-2 12; in mod- 103-104, 4101)5
eration effect, 221, 222; in empowerment Functionalism, 65-69, 266, 28 1-286; and
effect, 230-235; in rights discourse, 306; evolutionary theory, i ¡8, 195
and manipulability, 311; in managerial
discourse, 370
Gabel, Peter, 303, 391fl47, 394fl21, 3991)!,
Field: concept of, r; force held model of
405n21, 4061)33, 407n44, 410fl15,
policy, 99-lOO, 149, 252; of doctrine,
41 2nn42,43
136; constituting the, 140-142, 144-147,
Galanter, Marc, 68, 403fl1
155; types of configurations, 168-169; as
Gallie, W. B., 50
affecting constraint, 172, 177, 179
Gallop. Jane, 346-.347
Figure/ground: statutes vs. common law, Gardner, George, 385n16
241-249, 261, 269, 273, 274, 399n8 Gender, law of, 258-262, 274, 285
Fine, Edith, 385n16 Geny, François, 4141)11
Finnis, J. M., 33 Gilmore, Grant, 385n16
First Amendment law, 257-258 Gleason, Abbot, 4o8n64
Fischi, Michael, 361, 4091)67 God: as model for judge, 3. 227, 229; in
Fish, Stanley, 24 theory of alienated powers, 18-20; and
Fiss, Owen, 31, 91, i6i Ideology, 291; loss of faith in, 312-313,
Fitzpatrick, Peter, 4041)3 358, 361, 373
Forbath, William, 400f! I Gordon, Robert, 382n3, 3851) 16, 3991) I,
Force field. See Field 404fl5, 4051) 19, 4071)1)42,48
Ford, Richard, 401nn24,25 Gotanda, Neil, 4011)30
Formal realizability. See Administrability Graglia, Lino, 389n3o
Formalism, 105-107, 113-I 17, 127, 249- Gramsci, Antonio, 263, 271, 272, 290, 338,
262, 275, 349 382fl2, 398n1
Forster, E. M., 8 Greenawalt, Kent, 125-126
Foucault, Michel, 5, 271, 346, 356, 364- Greene, Michelle, 413119
365, 382fl4 Grey, Thomas C., 381n22, 383n15, 3861)24,
Fractions. See intelligentsia 3881)2, 389flfl20,21,22,25, 4101)7,
Frank, Jerome, 88, 1 14, 190 411fl31
 index 419

Griffiths, John, 398m!, 41 1n26 conflict defIned, 41-42; ideological con-

Griswold, Erwin, 41 1n23 flict contrasted with dialogue and bargain-
Griiu'o/d , Connecikia. 4 0fl4 1 ing, 43-44, 57, 70; subjects of ideologi-
zed group conflict, 45-46; ontology of,
Habermas, Jürgen, 281, 290, 295, 300, 50-54, 187-191; determinacy of, s°-i.
382f!, 389fl29, 409fl66 187-191; stabilizers of, 52-54, 190;
Hadachek z'. Sebastian. 4 10fl7 intrinsic vs. instrumental ideological in-
Hager, Mark, 408fl57 terests, 57-59, 67; forum of, 69-70, 265,
Hague:. C.l.O., 4I0fl2,411n16 271-275; presence of in policy, 83, 88,
Hale, Robert, 82, 86-87
Halley, Janet, 402fl41, 403fl47
Hand, Learned, 30, 114, 230, 322, 411fl13
law, i-i;
133, 134, 147-156, 176; dynamics olin
denial olin adjudication,
180-212; and rule of law, 202-212; in
Harris, Paul, 399fl1 particular legal fields, 249-263; ideologi-
Hart, H. L. A., 31, 37, 77-79, 8i, ¡21, cal stare apparatus, 272, 282; neo-Marxist
177-179, 380fl13 theory of, 290-296; present in rights ar-
Hart, Henry, 83, 119, 127, 325, 400n20; gument, 332; in managerial discourse,
and Prichard, Edward, 390fl44 370-376; as fnaticism, 370, 374. See a/so
hart, Henry, and Sacks, Albert, 33, 35, 75, Ideology (capitalized); Ideology-critique
96, zi8, 120, 124, 196 ideology (capitalized), 290-296; defined,
Hay, Douglas, 398fl I 290-291. See a/so ideology
Heller, Thomas, 276 Ideology-critique, 73, 84, 179, a8, 286,
Hitler, Adolf, 362 299, 34. See a/so Alienated powers
Hohfeld, Wesley, 82, 8,
91, 276, 287, 318, Individualism, 48, 83, 87, 92-95, 15K, 287,
322, 4 10fl5 336
Holmes, Oliver Wendell, 33, 82, 8,
91, Institutional competence, 99, 119, 139, 253,
¡04, 113, 114, 312, 322, 343, 348, 374, 317
388f! intelligentsia: defined, 41-42; fractions, 69,
Holt, Wyrhe, 4o8n57 22 6-2 27
Horwitz, Morton, 390fl45, 392fl74, 399fl2, International law, 91, 253-254, 360
4o6nn33.38, 408fl57 incersectionality, 262
Hunt, Alan, 294, 382fl8, 383n9, 408n63,
41 2fl4 3 Javisu y. First Nat'/ Realty Corp., 149, 174
Hurst, Willard, 406fl35 Jealousy, 211-212
Hurvitz, Hagai, 400f 10 Johnson, Phillip, 304
Hutcheson, Joseph, 88 Jones y. A/fred Meyer Co., 224
Hyde, Alan, 272, 383n16, 398f!, 403n51, Judge: figure of, 3-5, 208, 235, 241, 245;
404n4, 405ff 15,18, 407fl43 mana of, 227, 229, 256, 309, 324, 326
Judicial review, 77-8!, ¡74, 273; If Dwor-
Identity: critique of, 263, 356; politics, kin, ¡23; argument-bites, 138; and legis-
300-302, 339, 355-359; and rights, 308, lative supremacy, 215-217, 224-235
320, 327-329, 334-335 Jurisprudence, 15, 23, 30-38
Ideological preferences, 8,
87, 134, ¡47,
157-158, 162, ¡72-179, t8o, ¡82, Kamen, James, 407fl45
394n4; defined, 54-56 Katz, Al, 393fl6
Ideology: in theory of alienated powers, 18- Keller, Susan, 388n15, 402flfl44,45, 405fl21
ao; in journalism about adjudication, 29- Kelman, Ellen, 400fl10
o; in jurisprudence, 30-38; as universali- Kelman, Mark, 393n6, 396fl7, 399f!,
zation project, 4 1-42; ideologized group 407fn41,44, 409fl65
420 Index

Kelsen, Hans, 31, 92, 102 Legitimation effect, 202, 216, 285; defined,
Kennedy, David, 400fln22, 4o1n23, 413fl5 2 36-238; of the status quo rather than of

Kessler, Friedrich, 385fl16 capitalism, 236, 290-296; and leftism,

Klare, Karl, 250, 399fl1, 400flfl15,16,17, 236-238, 246, 266, 267; in particular
403n51, 406fl33, 407fl47 fields, 249-263; skeptic's critique of,
Kolodney, Lawrence, 384n22, 403055 267-275; audience for, 27 I-275; neo-
Kornai,J., 408fl52 Marxist theory of, 290-296; and legal so-
Kornhauser, Lewis, 67, 404fl6 ciology, 404fl9
Korsch, Karl, 408064 Leiter, Brian, 38002
Kramer, Matthew, 397fl21, 413n5, 4140X4 Levinson, Sanford, 35!
Kress, Ken, 395fl23 Lévi-Strauss, Claude, 43, 133
Kuhn, Thomas, 382fl5 Lewin, Kurt, 15
Liberalism: defined, 46-48; ontology of, so-
5; determinacy of, 50-54, i8o; use of
Labor law, 91, 249-25 I, 258-262, 270, 274
Lasser, Mitchel, 77, 381fl40, 389fl28 rights vs. policy and balancing, iii, ii-
i r6, 256; 10 Dworkin, ¡21, 127-128; and
Laswell, Harold, 414f! I
Left/mpm, 74-75, 121, 130, 207, 263, 265, delegitimation, 247-263. See alio Liberal
271; defined, 6-12; and workplace poli- legalism; Liberalism (capitalized)
tics, 339-340, 358, 368-376; in relation Liberalism (capitalized): defined, 5, 27, 6-
to radicalism, 339-340, 355-359, 363- 57; in civil codes, 76; in private law, 83;
364; genealogy of, 356; and disloyalty, in continental critique, 92-95; deduction
372-376 and policy in, 100, iz; and majority
Left project: defined, 6-12; relation to cri- rule, 227-228, 231-235; and gender law,
tique of adjudication, 89, 178, 190 Euro- 2 58-262; Liberal legal theory and capital-

pean version,92-95, iii;socialism as, ism, 282, 291-296; and neo-Marxist Ide-
299; progressivism as, 299; rights as, ology theory, 290-296; and rights, 307,
300-301; identity politics as, 302-303; 334-337
critique of rights in, 311, 316, 337-338, Liberal legalism, 13o; dilemma of, 113-117,
340-342; and workplace politics, 339- 124; Dworkin as liberal legalist, 127-130
340, 358, 368-376; mpm critique of, LIe'wellyn, Karl, 33, 35, 6-66, 75, 82, 89-.
344, 355-356; critique of mpm, 356-364 90, 96, 120, 140, 173, 385n16, 390036,
Legal education, 364-368 391n50
Legal realism: Hart's explanation of, 77, 178; Loan Association y. Topeka, 410fl14
summary genealogy of, 82-92; view of Local government law, 254-256
policy in relation to ideology, 88; relation Lochnerv. New York, 128, 174, 225, 388011
to European social current, 92-95; cri- Loss of faith: defined, 8; in reason, 286; in
tique of deduction, 103, 164, i8o; project neo-Marxism, 288-289, 314, 358, 361;
abandoned, 112, 275; Dworkin in relation and will to fight, 295-296, 337-338,
to, i1; and balancing, 147; Mac- 340; in rights, 304, 311-314, 361; if le-
Cormicks view of, 178; theory of denial, gal reasoning, 311-314, 318, 361, 373;
192; and judicial role, 203; and common not a theory, 312; in God, 312-314, 358,
law, 2 38-244; and doctrinal fields, 249- 361, 373; psychologizing, 350-353; dis-
263; contrasted with critical legal studies, loyalty as, 372-374
249-263; and social theory, 264-266; Luban, David, 4I3fl1
books/action skepticism, 265-27!; cri- Lucas y. South Carolina Coastal Council, 116,
tique of rights, 311, 320-325 389024
Legislative supremacy, counterfactual, 14, Lukacs, Georg, 290
187, 215-217, 230-231, 238-240 Lynd, Staughton, 304
 Index 421

Macaulay, Stewart, 385flI6 minacy of ideology, 187-191; motive for

MacCc'rmick, Neil, 33, 37, 121, 172-173, critique of rights, 340-346; and artifacts,
388n3, 395fl22 342-344; not about authenticity, 344-
MacKinnon, Catharine, 260, 4o1n32, 346; m and pm in, 346-348; and decon-
402 fl40 scruction, 348-350; psychology of, 350-
Maine, Henry, 200-201 353; as elite project, 353-354; critique of
Managerial/professional discourse, 367-376 leftism, 355-356; left critique of, 356-
Mannheim, Karl, 4o8n64 363; intersection with leftism, 363-364;
Marbuiy y. Madison, 233 and managerial discourse, 367-376; and
Marcuse, Herbert, ,, 304, 356 disloyalty, 370-376
Marshall, John, 78, 8o, 227, 230 Morality: in liberalism and conservatism, 47,
Marshall, Thurgood, 398n14 148; in policy argument, 99, 138, 148;
Marx, Karl, 15, 264-265, 271, 280, 292, universal nature of, i io; as argument-bite,
299, 304, 335-337, 360. See aiso Marx- 138, 175-177; in relation to rights argu-
ism; Neo-Marxism ments, 317
Marxism, 6-7, 34, 55, 74, 92, 198, 259, Munger, Frank, 272
263, 264-265, 358; and critical legal
studies, 280-296; critique of rights, 304, Narrowing, ¡40-142, 145, 147
335-337. See also Neo-Marxism Nazism, 361-363
Matsuda, Mari, 401n33, 4o3n52 Neo-Marxism, 15, 57, 82, 92, 263, 264-
Mattei, Ugo, 385fb 265, 278-296; and legal indeterminacy,
McCloskey, Robert G., 400n18, 41 1fl26 279-280, 283-284; base/superstructure
McCulloch, Gregory, 397fl2 b distinction in, 279, 282, 286-289, 290;
McDougal, Myres, 414n11 theory of law, 281-283; stage theory of,
McUsic, Molly, 384fl22 283-289; irrationalist critique of, 285-
Mediation, 42, 110, 120, 305-308, 319- 289; theory of Ideology, 290-296; loss of
320, 332, 334, 336, 337 faith in, 314. See also Capitalism; Marxism
Meiklejohn, Alexander, 41 1n22 Nesting, 153, 175-177, 219
Mensch, Elizabeth, 385n16, 395n23, Neumann, Franz, 384n2
4 I2n42 Nihilism, 4, 83, 90, 95, 113-117, 128, 359,
Mentor Savings Bank, FSB p. Vinson, 398n6 36 1-363, 367
Merry, Sally, 66, 399fl5, 405fl22 Nockleby, John, 400fb, 402n34, 407n45
Michelman, Frank, 300, 348, 382fl3, Noonan, John, 30
385n16, 398n14, 399fl7, 407n51, Normative effects, 63-65
4o8n54, 414fb I
Minow, Marcha, 300, 409n12, 410fl15, Obedience effect, 114, 117, 124, 128, 227,
41 1fl33, 412fl38 273; defined, 63-65
Miranda v Arizona, 174, 271, 316 Objectivity: defined, 14-18; in adjudication,
Mnookin, Robert, 67, 4o4n6 24, 117; in definition of ideology, 52-53;
Moderation effect, 246, 266, 267, 273, 279, of deduction vs. policy, i-ioi; in Dwor-
292; and denial, 202, 217-224; defined, kin, 123, 129; of balancing, 148; of rights
216 reasoning, 304; critique of, 340-342, 347,
Modernism: defined, 7-8; contradiction in, 348-350, 356
¡52; in mpm, 346-348, 350. See also O'Briene. O'Brien, 388n15
Modernism/postmodernism; Postmodern- Obviousness gap, 167
ism Ogden, Thomas, 397fl23
Modernism/postmodernism (mpm): defined, Olsen, Frances, 260-261, 303, 385n16,
-i; on language, 134; critique of deter- 394n15, 402n43, 407n40
422 index

Oncology: of liberalism and conservatism, 350. See also Modernism; Modernism/post-

50-54, 187-191; of deductive vs. policy modernism
questions, 101, 107-108, 112, 164, ¡68; Pound, Roscoe, ¡05, 385n13, 414011
of rights, ¡23, 307, 319, 332, 333; of de- Powell n. Alabama, 323
rerminacy and indeterminacy, 169-. 17!, Precedent, 89, 98, 173
¡74; of psychoanalytic concepts, 201 Process theory, i i8-i 19, 253
Operations, 140-143; in rights argument, Progressivism, 7, 88, 249-263, 284, 287
318 Psychoanalysis, 15, 6, 191-194, 799-2 12,
263, 350-353
Purvis, Nigel, 401022, 414012
Parker, Richard, 397fl3
Pashukanis, Evgeny, 4o6n34
Queer legal theory, 262
Paternalism, 48, 51, 149-155
Paul, Jeremy, 345, 393fl6, 412037
Race, law of, 256-257, 285
Peller, Gary, 31, 113, 390nn38,42, 401n30,
409fl2, 413fl5
Radicalism, 8, ii-ii6, 198, 209, 216,
326; and Dworkin, 121, 128, l3o; and le-
Penelope, 91
gitimation effect, 236; and cls, 247-263;
Pennsylvania Coal y. Mabon, 41 0fl7
effacement of, 30 1-302; and left/mpm,
Perelman, Chaim, and Olbrechts-Tyteca, L.,
339-340
387fl4 I
Radin, Margaret, 300, 348, 414011
Peritz, Rudolph, 400n9
Radin, Max, 88
Phenomenology, 15, 82, 134, 157, 162
Racionalism/irrationalism debate, 280-296
Piaget, Jean, 133
Raz, Joseph, 33, 37, ¡21, 375, 391fl47,
Pickard, Toni, 414017
392074
Pink Theory, 265-296
Reagan n. Farmers Loan & Trust, 39409
Pleuy n. Ferguson, 206
Reconstruction, 82, 91, 182, 276, 299, 340;
Policy, 29, 32; in legal realism, 83-92; rela-
realist version, 113, i i8; evolution as,
tion co ideology, 83-92, 133, 134, 137,
i ¡8; process models as, i iS-i ¡9; Dwor-
147-156, ¡76; mode vs. deductive mode, kin's version, ¡¡9-130; in cls, 263, 295;
97-loo, 251; defined, 98-100; and against, 359-363
values, 99; force field model of, 99-100, Redistribution. See Distributive approach
149, 252; ontology of, 101, ¡07-108, Rehnquist, William, io6, 253, 326
i68; boundary with deduction, 107-108, Reich, Robert, 2x7-218, 22!
251; legal character of, ¡08-109; history Religion, 18-20, 110, 236, 245, 246-247,
of, 108-109; as unrationalized practice, 291, 312-314, 334-335, 337
111-112, 25l argument-bites about, Reynolds n. Sims, 174
rri-ii; in legal theory, 112-113; in Richards, David, 386n29
Dworkin, 119-130, 392n74; structure of Rightness: and mpm, 340-342, 347, 348-
discourse, 1 37-143; argument as work, 353, 361; social construction of, 364; and
i6-i66, i68; in delegicimating critique, legal education, 364-368; in managerial
248-253; rights argument reduces to, discourse, 367-376
316-333; in legal education, 366 Rights: as aspect of rule of law,¡; in Liber-
Positivism. See Britain alism, 27, i; in liberalism and conserva-
Posner, Richard A., 91, 276, 278, 386030, tism, 47, 148, 308-311, 320-327; in pol-
4 14fl 11 icy argument broadly defined, 99, 138,
Postema, Gerald, 36 ¡48; balancing in rights argument, 99,
Postmodernism, 198, 254, 255, 276, 296; in 3 16-333 universal nature of, ito, 305;
mpm, 346-348; and deconstruccion, 348- vs. policy and balancing, 111, ¡t-i ¡6,
 index 423

256, 332; in Dworkin, 119-130, 392n74; Scalia, Antonin, 8o, ioó, 253
oncology of, 123, 307, 319, 332, 333; as Schauer, Frederick, 388n7
argument-bites, 138, 175-177; as rules Scheuerman, William, 408n62
and as reasons, 139; constitutional, 139, Schlag, Pierre, 390n33, 393fl6, 396n7,
230-235, 315, 320-329; role in left pro- 413f 10
ject, 300-301; cls critique of, 303-304; in Schmitt, Carl, 4o8fl62
American political discourse. 304; Marxist Schneider, Elizabeth, 4o2n42, 403fl49,
critique of, 304, 335-337; "faccoid," 3°,; 409fl12, 410fl15, 412fl38
as mediators, 305-306, 331, 334, 336; Schultz, Victoria, 402fl42
decerminacy of reasoning from, 305-306, Schwartz, Louis, 304
316-333; inside and outside, 306-308, Semiotics, 15, 90, 133, 147, 176, 190, 254,
315, 316-320, 329-333, 410n14; objec- 327
tivity of reasoning from, 308; and iden- Seron, Carol, 272
tity, 308, 320, 327-329, 334-335; rea- Shapiro, David L., 25
soning from parallel co legal reasoning, Shapiro, Martin, 394n16
309-31 i; bad faith in argument from, Sherry, Suzanna, 387fl37
310-311, 338; realist critique of, 311, Sic ucere tuo, 85, 91, 329, 343
320-325,411n34; loss of faith in, 311- Silbey, Susan, 266, 275, 277-278
314, 311-338, 361-362; deduction in Simon, William, 4o3n5r, 407fl41
reasoning from, 318-319, 321; mediate Singer, Joseph, 385n16, 386n2o, 4o6n25,
between law and policy, 3 19-320, 336; 407nn45,49
reduction of to morality and social welfare Socialism, 287, 299
argument, 329, 332; lay discourse of, Social vs. formal conceptions of law, 92-95,
330-332; argument ideologically perme- 111
able, 332; and bourgeois revolutions, 334- Social welfare arguments: in liberalism and
337; mpm critique of, 340-346 conservatism, 47, 148; in policy argu-
Rodot, Stefano, 387n4o, 389n28 ment, 99, 138, 148; universal nature of,
Rogers, Kipp, 400fl9 iio;inDworkin, 120, 123, 125-127;as
Role constraint, 35, 120, 202-2 12 argument-bites, 138, 175-177; in relation
Rosen, Jeffrey, 38on5, 395f! to rights arguments, 317
Rosenblatt, Rand, 404f ¡0 Sociology of law, 14-18, 57-70; American,
Rosenfeld, Michel, 399n6 266-280; neo-Marxist, 280-296; and le-
Rule of law: defined, 13-14; in theory ofal- gitimation effect, 404n9
ienated powers, r8; in Liberalism, 27; in Solum, Lawrence, 395fl23
liberalism and conservatism, 47; contrast Southern Burlington County NAACP , Tou'n-
with ideology, in Europe vs. America, ship of M:. Liurel, 225
73-75; consistency with policy argument, Southern Pacific y. Jensen. 38! n 2
113; consistency with ideologically ori- Sowell, Thomas, 4111130
ented legal work, 163, 204; and denial, Sparer, Edward, 304
194-198; as guide vs. constraint, 202- Specht, Leopold, 4o3n48, 4o8n52
212; and moderation effect, 222; and em- Stalin, Joseph, 330, 362, 375-376
powerment effect, 227-228 Stalinism, 304, 323, 361-363
Rules of the game. See Background rules Standards, 99, 137, 138; as rules and as rea-
sons, 139, 144, 15 1-152, 393fl5
Sacco, Rodolfo, 78, 387n41 Status quo. See Ideology; Legitimation effect

Sarat, Austin, 278, 404fl3 Statutory interpretation, 89, 98; and modera-
Sartre, Jean-Paul, 6, 82, 199-201, tion effect, 2 17-223; and empowerment
205, 208, 356 effect, 224
424 Index

Steiker, Carol, 39901 U.S. a. Carolene Product,, 323

Steiker, Jordan, 399fl I U.S. a. Carroll Towing Co., 410011
Steinfeld, Robert, 402n35, 4o8n55
Stern, Robert, 400018 Validity: defined, 62
Stone, Katherine, 251, 400013, 403051 Vandevelde, Kenneth, 407n45
Strategic choice in interpretation, 157, Vegeihan a. Gunier, 4i02
163, 166-172, 180-187; of ideology, Viral strand, 4, 5, 11-13, 23, 73, 358, 361;
187-191, 396n4; and denial, 202-209; birth of, 8i; genealogy of, 82-96; realist
and intelligentsia class power, 228-230; abandonment of, iii;
liberal response to,
in Pink Theory, 265; and managerial ¡ 18-13o; and Dworkin, 129; and denial,
discourse, 339-340; in leftlmpm inter- 206-207; and social theory, 264; and irra-
section, 363; in managerial discourse, tionalism, 280; in rights discourse, i;
367-376 and nihilism, 361
Structuralism, 15, 89, 133, 263 von Ihering, Rudolph, 76, 105, 385016
Subject: constituted by legal rules, 251, 254,
256, 258-262, 274; in legal education, Warren Court, 94, II), 12!, 127, 130, 225,
364-368 314
Sunstein, Cass, 387037, 388fl16 Weber, Max, i,
264-265, 271, 272, 281,
Support systems, ¡38, 146-147, 154 295, 398fl1
Wechsler, Herbert, 119, 324-325, 400fl20
Tamanaha, Brian, 384nn17,19 Weiner, Merle, 403fl50
Terry, Henry, 82-84, 410fl17 Weinrib, Ernest, 389n23
Texa: Refining and Marketing, liw. y. Samowitz, Wellington, Harry H., 389n29
388fl4 West, Cornel, 302
Textile Worker: Union a. Lincoln Mill:, 224 West, Robin, 382n3, 398n15, 402041
Thayer, James Bradley, 239 We# Virginia s Barnelle, 4 1ff! 7
Thomas, Kendall, 403047 Wieacker, Franz, 239
Tigar, Michael, 304 Williams, Patricia, 300, 409fl13
Traynor, Roger, 149 Wittgenscein, Ludwig, 3!, 92
Tribe, Laurence, 385054, 398n12 Work, ideologically oriented legal, 154, 157,
Trojan horse, £1,97, 109-III, ii8, 119, 161-179, 180-187; in a medium, 158-
133, 137 x6o; against constraint, 6i; deductive,
Trojan War, 159 ¡64-165; policy, i6-z66; economics of,
Trubek, David, 403n1, 4o6n33, 408056; i66-i68; and determinacy, 169-172,
and Clark, Charles, 390n36 396n2; and denial, 202-208; in rights
Tushnet, Mark, 31, 303, 401n34, discourse, 3x6. See alio Strategic choice in
4o6nn33,36 interpretation
Workplace politics, 339-340, 358, 367-376
Unger, Roberto, 31, 37, 276, 385n16, Wright, J. Skelly, 149
404nI, 4i4nI I
Universalization project, 39, 110, 148, 229, Yablon, Charles, 395fl23
308-311; conflicts of, 1-44; ideology as, Yngvesson, Barbara, 66, 405n22
47, 50, 291-292
U.S. a. Aluminum Co. of America, 4! on io Zap, intersubjective, 345, 346