How Critical Legal Studies Transformed Law Schools

Episode Transcript

John Tomasi: Rebecca Roiphe, welcome to Heterodox Out Loud.

Rebecca Roiphe: Thank you so much for having me.

John Tomasi: It's our great pleasure. You're a lawyer. You are a visiting fellow in the Segal Center for Academic Pluralism, which means you're my neighbor down the hallway around the corner.

Rebecca Roiphe: That's right. And you're also working on a really important book provisionally entitled The Devil's Advocate, How Law Schools Abandoned the Law.

John Tomasi: Let's just start talking about the book. What's the book about?

Rebecca Roiphe: Yeah. So it's really about the transformation of legal education over the past 50 years from essentially a rigorous training ground for professionals. And it's a service profession, so professionals who will serve other individuals by helping to lead them through the technical legal system such that whatever it is that their beliefs are or their values or their interests are can be realized through this system of processes for resolving disputes and, you know, allocating resources and rights in our country. And from that to institutions that have a much greater emphasis on a social justice mission. So rather than about training professionals, it becomes about achieving particular substantive goals through the law. And a major, a major character in the book is this movement called critical legal studies. Yeah, it is. And I mean, I think it is part of the reason why it's interesting and important to focus on law schools, because as you said in your question, it's really kind of a petri dish law schools for our broader society and our broader country. And so by looking at what happens at law schools, you can see a lot of the broader transformations. You can see a lot of the causes of these broader transformations. And one of the sources, I think, of this change, as you say, is this movement called critical legal studies, which, you know, started out as kind of a niche academic field, but gained a lot of traction. And so part of the purpose of the book is to look at the intellectual trend and then also look at how it made its way into the infrastructure of law schools and really changed the mission and outlook and experience of students within those schools.

John Tomasi: And so what are some of the main ideas of critical legal studies?

Rebecca Roiphe: So critical legal studies essentially has, you know, two main assumptions. And again, it's a very, very, there are a whole bunch of different people. So I should say with that caveat, there are different, there are different emphases. But at its base, it stands for the notion that law is infinitely manipulable. It is not, there is nothing that you can look at on the page and say, this is, well, you know, we will feed a certain problem. Into this legal framework and we'll come out with a solution. It's infinitely manipulable. And then the second assumption is that it is used on behalf of powerful people. It is essentially a part of a structure that makes it such that powerful people maintain their power in this society. And the object then is to wrench the power from those, wrench the law from those people and use it on behalf of people who have been traditionally marginalized. So rather than, I mean, in a way it's helpful to understand this if you understand the backdrop of where it came from, right? So what it emerged from. And so I'll give you like a really brief sort of intellectual history of legal thought over the past century in two sentences or less.

John Tomasi: Let me just be sure. I want to put markers on the two things you said. So one thesis of CLS, as people call it, is that the law is infinitely or at least, well, maybe infinitely malleable.

Rebecca Roiphe: Yeah, malleable.

John Tomasi: And I think as a consequence of that, a second point would be that law is used by those in power. Since they have power and the law is manipulable, the law is not going to constrain them. They can use the law instead to maintain their position of power.

Rebecca Roiphe: Right. And it gives them like, the whole idea of CLS is it gives them the guise of being fair. It makes it look as if they're being fair. But they're hiding behind that and really just like pulling all the levers of power.

John Tomasi: Great. And that's why we hear things in different disciplines, but we hear things from the critical theory side about removing the mask or demasking.

Rebecca Roiphe: A hundred percent. That's a big part of it. Yeah. They want to delegitimize the illegitimate, as they would say, from their perspective, it's illegitimate. Right.

John Tomasi: So let's talk about that history. And before we came in, I think I was mentioning to you that I used to study some of this stuff a long time ago.

Rebecca Roiphe: Yeah.

John Tomasi: And I remember when I first started learning about critical legal studies, having it be connected to American legal realism. Let's talk about, we're talking about the roots of critical legal studies. And critical legal studies arises, what, 1970s?

Rebecca Roiphe: Yep. 60s and 70s.

John Tomasi: And Harvard was a hotbed.

Rebecca Roiphe: Harvard was really the place.

John Tomasi: So we're going to go, we're going to talk about, so we're actually now sort of three phases. We want to talk about the contemporary situation of legal education in America and what that means for our values. But to get to that, we want to know something about critical legal studies, which is the powerful dominant view from the 70s through now. And to do that, we're going to go back a little bit earlier to critical legal, to American legal realism.

Rebecca Roiphe: Yeah.

John Tomasi: Tell us a bit about that. When it was, what were the basic ideas?

Rebecca Roiphe: Right. So, I mean, you know, you can think of American legal realism as kind of CLS light. So, essentially, there were some observations about legal realism that most people now, most lawyers, most academics accept. The idea behind legal realism is that law, you can't really figure out what a legal, you know, what the law is simply by looking at words on a page. That, you know, rational inferences and the way in which we think in a lawyerly way and the way in which judges reason itself alone is not enough for us to figure out what the result of a particular legal problem will be. In fact, you know, the kind of refrain is, you know, that law, it's not law in books, it's law in action, right? That it's really what officials do about disputes is what the law is. Or in another way of putting it, it's sort of law is just another form of policymaking, right? So, that judges are much more motivated by the facts, reality, policies, the results of what will happen when they apply the law than, you know, the particular words on the page. So, that's the claim that in many cases, judges are, and maybe lawyers as well, are sort of reverse engineering the conclusions they want and they find the reasons available in the big body of law. All those books of the law, professors are always famous for having on their shelves. They can find within that whatever they need to sort of get there. Exactly. And the conclusion that you draw from that is that, you know, it's actually good for us, if we want to improve the law, we need to understand society. So, we need the social sciences, we need sociology, we need anthropology, we need these, we need to understand the world. And that way, we can improve judges' decision makings, because they can, they're not just like thinking, oh my God, I'd much rather if it like looked like this, so I'm going to manipulate it that way. Instead, they're going to say, really think about the world and think about what will make the world a better place. And it was fundamentally part of a progressive movement, pretty optimistic. You know, the idea is there is such a thing as the public good. There is such a thing as what's commonly good for everyone. We want judges to be particularly good at ascertaining that, and kind of massage the law in that direction. So, the law is not necessarily infinitely malleable, but the law is certainly malleable. And we want to provide the tools to judges and to advocates to be able to help that process along to improve our whole society. So, that was legal realism.

John Tomasi: Let me pause now.

Rebecca Roiphe: Right.

John Tomasi: I wanted a couple things I want to ask you more about that.

Rebecca Roiphe: -huh.

John Tomasi: But what you were saying a moment ago about the use of the law, is that the way philosophers think about this is that there is a distinction between the right and the good. So, in society, you have a set of rules, which are hopefully content-neutral, viewpoint-neutral rules that apply to everyone equally. And then there's also some goals that society has, like the substantive things that legislators or politicians talk about when they run for office. And that a well-functioning liberal democratic society has a strong set of rules of the road, which are determinate, which do constrain the power of all of us. Because they apply to us all equally, they give us all equal standing in social interactions. And then there's a separate thing, which is this drive to make the world a better place through different concepts of what the good is. So, American legal realism is going to erode the idea that there's something like the right?

Rebecca Roiphe: So, I think that there are different – I mean, I think we're getting into really complicated ground. Because I think there might be different thinkers within legal realism might have had different positions with regard to that. But I think there's a general sense that, yes, that there is a view – there's this notion of what is commonly good for everyone. And that the law is not entirely separate from that because when judges are applying the law, they're constantly always considering what would be good for everyone. What kind of rule – when we apply it, it sort of takes on a new meaning. What kind of rule, what kind of meaning for this law would be best for everybody? So, there is a kind of collapsing of the difference between the is and the ought, which I take it to be your question.

John Tomasi: Good. That's a better way of saying it.

Rebecca Roiphe: That's right. The is-ought collapse is exactly a much better way to say it.

John Tomasi: Just one more thing on American legal realism. So, this is a movement that starts, I think, in the 1920s, 30s?

Rebecca Roiphe: Yeah.

John Tomasi: Something like that, right?

Rebecca Roiphe: 20s, mm-

John Tomasi: And that's a time in which people were in other fields – but I think the American legal realists were part of this, too – They became increasingly aware about the penumbral ambiguities of ordinary language.

Rebecca Roiphe: Yeah.

John Tomasi: So, you're given some black-letter law, in the case of law now, and the American legal realists said, Well, these words that we see on the pages have ambiguous penumbras around them, and there's lots of different words, so there's lots of different ambiguities. And I remember the second major point from them was that something like, with any given case, there are a variety of different laws that might apply.

Rebecca Roiphe: Right.

John Tomasi: So, in a famous example, an uncle decides to give his estate to his nephew on the condition that the nephew would not smoke cigarettes or drive drunk.

Rebecca Roiphe: Mm-

John Tomasi: There's rules about driving drunk. There's rules about cigarette use at certain ages. There's rules about inheritance. There's rules about constraints.

Rebecca Roiphe: Right.

John Tomasi: And so, they would say, the realists would say, Well, which rule we're going to choose to be the governing rule in this place is also ambiguous. So, as I think of that movement, and you know more about it than I do, obviously, as I think about that movement, it's those ambiguities in the nature of law that allow them to say that there's room for maneuvering.

Rebecca Roiphe: Right.

John Tomasi: Something like that.

Rebecca Roiphe: Right. And room for maneuvering is different. I mean, not to get ahead of ourselves, but room for maneuvering is different from saying it's only maneuvering.

John Tomasi: Okay. Rebecca, take it away. So, tell us what – I dragged you back to the American realists because that is kind of a pet interest of mine.

Rebecca Roiphe: Yeah.

John Tomasi: But it does lead to this critical CLS. Tell us more about CLS.

Rebecca Roiphe: Okay. So, it's helpful to understand CLS against that backdrop because they understood themselves against that backdrop. So, essentially, what they were saying is taking this one step further. So, instead of what you were saying, sort of penumbras, their ambiguities, their ways in which the law can be manipulated and we want to understand that margin and help judges toward the better manipulation, toward a better social outcome. So, critical legal studies takes that one step further by saying it's meaningless.

John Tomasi: Right.

Rebecca Roiphe: There is nothing in the text that dictates where we go.

John Tomasi: Right.

Rebecca Roiphe: It's all about the usage. It's all about the individual judge or whoever wrote that law or whoever's applying that law or whoever.

John Tomasi: So, they're radicalizing it.

Rebecca Roiphe: They're radicalizing it.

John Tomasi: And can you just – who are the major figures?

Rebecca Roiphe: Roberto Unger, Duncan Kennedy. I mean, you know, there are a whole set of them and they mostly were Harvard – Nesson, you know, the whole bunch of professors at Harvard at the time. And each of them had slightly different views. But, you know, this is what they – what their view was. And they saw themselves as a movement.

John Tomasi: As a movement, for sure. Because at the time, they had the realists behind them.

Rebecca Roiphe: Yeah.

John Tomasi: But they were still the young Turks, I suppose.

Rebecca Roiphe: Yeah. I mean, and they were a set of radicals from the, you know, from the 60s. They viewed themselves as that. They were like radicals who'd infiltrated. You know, it's like, what happens? We stormed the gates. So, anyway, that's one piece. And then the second piece is they no longer believed that there was a public good. There's no one thing that is good for everybody, right? It's all just a power grab. So, that, in fact, law is not just a sort of neutral response to social needs. And we need to figure out what the social needs are to make sure that law isn't, you know, properly calibrated to what are, you know, is in the interest of everybody. No longer. Now it's just a whole bunch of individuals fighting for power. And so, law has been, in their view, always the tool of the powerful. The tool of the powerful in the two ways that we've said. One, they can use it to their own end. They write it so that it works for them. And then they are the ones who apply it. So, they apply it so it works for them. And two, they're hiding behind it. So, every time an outcome comes and they're like, oh, oops, sorry, that labor union doesn't get to organize. My bad. That's just the law, you know. So, it's a way of making it look as if whatever outcome it turns out to be is neutral and necessary. As opposed to it's really just them consolidating their power.

John Tomasi: Let me, let me, let's, let's go on a little closer on that. As you know, at HxA, we have these set of virtues we have up on the wall in front of us. One of them is be intellectually charitable. Yeah. I'll focus on that one. You're being charitable, I know, but I want to be even more charitable. I want to try to think, okay, now, why, what would lead someone to think what you just said? It might not be something like this. They might be saying that already now in the 60s and the 70s, let's say. Do they say, or are they thinking? Most law, most people who go to law school are from wealthy families, from elite backgrounds, who tend to be advantaged. They produce a set of laws and the society goes on maintaining these class divisions in America, for example. So are they, are they, are they, is that in their minds? Is the social, is the socioeconomic reality of American inequality and the fact that we are a free market, roughly a market-based society. Is that in the background explaining why power is working the way it does?

Rebecca Roiphe: Yeah. Because they've seen it. And yes, and historically, I mean, think about what's going on. I mean, I'm a historian. So it's like, think about what's going on historically. I mean, these are people who, you know, there were more optimistic times that the, that the legal realists live in, New Deal, Great Society, you know, things are looking up. Like, we just need to improve things for everybody. And, you know, there's a way in which we can find rules that would be good for everybody. And then, you know, you've got the civil rights movement, you have Vietnam, you have Watergate, and everything looks as if it's just, you know, a whole bunch of people behind, you know, behind curtains manipulating things. And, you know, that, I mean, that's a spirit of that time. And I, you know, I get it, and I'm sympathetic to it. I actually am. And the, you know, these professors were, you know, really dynamic because they had this zeitgeist, you know? It was, it's like, why is the world, you know, we keep saying, oh, make, just make it a little bit better for everybody. Just make it a little bit better for everybody. And it never is. Why? You know, like, this is messed up.

John Tomasi: And I want to add even some more, some more fuel on this fire, if I may. So, at the same time that the critical legal studies people, that movement's beginning, it's a time when universities are going through this massive change where they're attempting to do inclusion in a serious way for the first time.

Rebecca Roiphe: Yeah.

John Tomasi: So, now we're finding, we're finding now elite law schools, Harvard, Yale, other places, Chicago, Stanford. I shouldn't start listening to them because our members of these schools, I don't listen to them. I sort of stopped myself for, for, and, sorry, sorry, sorry, people. But, so, the great, universities are becoming more inclusive in a variety of ways.

Rebecca Roiphe: Yes.

John Tomasi: Women are allowed in. All kinds of groups have been kept out. So, that's happening. And there's a question, I suppose, about what we make of that. Do we say, this is a great thing now, we're finally doing inclusion, does that go that way with it? Or do we say, it's a great thing because now the marginalized are going to have a tool we're going to give them to tear down the structure of this whole system.

Rebecca Roiphe: Right.

John Tomasi: They kept their grandparents and their parents oppressed.

Rebecca Roiphe: Right.

John Tomasi: Something like that, right? Does the law mean, does inclusion in the law point us toward a future of inclusion under the law?

Rebecca Roiphe: Right.

John Tomasi: Or does inclusion under the law perhaps get waylaid by a group that says inclusion means tear down the law?

Rebecca Roiphe: Right. I mean, it's just a matter of, like, you know, how radical a view does one have? And I think, you know, it's just important to suggest. I mean, 1978 is when the Supreme Court said, you know, diversity is a value. And to diversify the student body is a way in which we achieve educational value. Is this the Bakke case? The Bakke case. And so… Tell our listeners just a bit about Bakke. Oh, yeah. Just super briefly. Right. Briefly. So Bakke is a decision which the Supreme Court, it struck down sort of strict quotas but allowed a great deal of affirmative action under the justification that the government has an interest in promoting diversity and education. And that is the justification, not because we are paying people back for harms that happened in the past, but because it promotes diversity in education. And that opened the doors to this, what you were talking about, which is the opening, you know, opening higher education to a whole bunch of different sorts of people. And as you say, you know, you could have the sort of, you know, the view that this is just going to make us have a more nuanced understanding of what our common good is, you know, and how to achieve that through the law. Or you can say, you know, right. I mean, this is, you know, this is where we start tearing it down from the inside.

John Tomasi: And I want to know more about critical legal studies, but I guess maybe I want to ask you something else that's just on my mind, so I'm not sure what you'll think about this. I'm just imagining now, sorry, what year did you start law school? 1997. So you started in 97. Did you have women professors at law school?

Rebecca Roiphe: Yeah.

John Tomasi: So that change had already been happening.

Rebecca Roiphe: Yes.

John Tomasi: When I'm trying to, what I want to try to track, maybe we can't do it together, but I want to track is what does critical legal studies seem like if you're a student entering law school? You don't know beans about law at this point. So here you are walking on campus, looking at your course list. How do you start, how do students start encountering critical legal studies?

Rebecca Roiphe: I mean, it's so interesting because it happens now that, you know, I teach law. It's so funny how I experienced it because it happens in our first year law classes. So it's, you know, these great pillars of critical legal studies who were like a wacky character are like teaching first year law. And so they're not teaching what you would think. You go into a class that's like, you know, civil procedure, criminal law, and you think you're going to get, you know, what is the, like, what, what is that? What are the procedures? What are, and that's not what they're teaching. When you go home and you try to study, you study, you learn the basics yourself because what you're learning in class is exactly what we're talking about here. It's about power dynamics. It's about binaries, breaking down binaries. It's all of this stuff. And I will say also, just to be fair, there was a kind of parallel movement on the right called law and economics where I had one professor, my torts professor, who was like, if you mention negligence, like, you're leaving my classroom. Like, there's no such thing. And he was like, the only way we analyze the law is local loser number one, local loser number two, local loser number three, which was all about economic analysis, which also said there are no neutral laws.

John Tomasi: Right.

Rebecca Roiphe: So it was like everybody was.

John Tomasi: That moment says there's no neutral laws.

Rebecca Roiphe: No, all there is is individual interests and how they play out. So it's like economic efficiency is the motivator.

John Tomasi: Okay, good. But let me, on that one, law and economics, I think of as sort of working on prisoners' dilemmas and rational choice kind of mechanism where people are locked in these kind of competitive games. And what law is trying to do on their theory is to find the positive some outcome for both of us.

Rebecca Roiphe: Right.

John Tomasi: So you're interested in yourself. I'm interested in myself. Well, if we could find some way to cooperate, then we could create something good, which is, you know, is sort of the basis of the liberal ideal of pluralism from the 1600s was that this, you know, people before that had always thought, have a good society. You first have to have agreement about what the good is. Then we agree on it or we force it and we make that the society. And this crazy liberal idea in Scotland and in England was that maybe from pluralism and difference, Protestants, Catholics, others too. If you have the right rules in place.

Rebecca Roiphe: Right.

John Tomasi: You can solve the prisoner's dilemma.

Rebecca Roiphe: Right.

John Tomasi: You can solve the, you want this and that's your life now. I want this. That's my life. Maybe by you, if you can find the right set of rules.

Rebecca Roiphe: Yes.

John Tomasi: We'll create a better world for both of us.

Rebecca Roiphe: For both of us.

John Tomasi: Even though we don't intend it.

Rebecca Roiphe: Right. Right.

John Tomasi: This is not law and economics.

Rebecca Roiphe: Yeah. Law and economics, a little bit. But yeah. I mean, and so law and economics, I mean, we're really good.

John Tomasi: I know, I know. I'm sorry. I'm sorry.

Rebecca Roiphe: No, no, no, no. I'm doing it. I mean, I guess what I'm trying to say, like just taking a broader view, what I'm trying to say is that there was a sort of, you know, it's like, go back to public choice theory, which says that there is no, you know, law and economics grows out of public choice theory, where it's like, there is no common good. There's essentially just, you know, each actor, you know, is like, you know, you don't have government actors acting in their own constituents' interests. They are always acting in their, everybody's acting in their own self-interest. And that law has no determinate meaning. It is just a whole bunch of interests. So yeah, you can say perfecting it, you know, they might've had a view of how to perfect it a little bit more, but there's still a sense that it's not, you know, you're not learning law. You're learning this something else. And so that's what first year law school at Harvard was like, not all the classes, but you know, a lot of them, enough of them that it was a real part of the fabric of what we were studying.

John Tomasi: Right. So, should we talk about what law educate, what, what CLS is now in the law schools? Well, how do you want, where do you want to go from here? I want to get, I want to move into your, into your book and your arguments. So yeah, yeah. So guide me.

Rebecca Roiphe: Right. So I want to, I mean, so critical legal studies is like a huge piece of this book, but it's not all of it because, you know, part of what I'm trying to do is track essentially two changes. So one is a change in the mission of law schools, the mission of law schools, primary focus. I don't want to overemphasize it. It's not that it's no longer a focus, but the primary focus used to be we train professionals to serve their clients, right? Their goal is that we just want to produce these lawyers who are doing good in society because they are helping to funnel diverse interests through predetermined processes governed by a set of laws. and that in and of itself is a noble profession, right? Because it's a way, this is the way our society is organized to, resolve disputes in an incredibly pluralistic world. so that would, was the emphasis. Now we move to over the course of this 50 years to what is a different emphasis, which is on students using the law to benefit the world in a very particular way, which is to obtain, it's to obtain social justice and social justice seen as helping marginalized groups gain power over those who had previously been in power. and it is kind of ironic when this moves out of Harvard into like mainstream, like where I teach, it's like my students are not going to be social justice warriors. You know, the vast majority of them are just going out to serve some clients and even they are being told at commencement in, you know, orientation throughout their classes that the purpose of the law is to right these wrongs. And like, they're not even going to have an opportunity to do that. You know, they're like going to be representing a plaintiff against somebody who like, you know, I don't know, like big, I don't know what they're going to do, but like, you know, real estate law or, or, or, or divorce law or like, you know, that's, that's what my students are doing. So it's like disputes between businesses, like small businesses.

John Tomasi: But how are they being trained then? So are they, are they being, at New York law school, are they being trained to, to be professionals to go serve clients or are they not, or where do they get that training?

Rebecca Roiphe: Right. I mean, I think, you know, to a certain extent the training comes, but it comes through, you know, there's a lot more emphasis on clinical education and clinical education tends to be, you know, a focus on, you know, those who are less powerful in the world. So, you know, they get trained that way, but you know, they're, they're, it's a recipe for kind of misery. If you think your purpose in life is to right social wrongs and you end up going out into the world and you're just serving clients who may be, you know, sometimes good, sometimes not good, who knows? Like, you know, the traditional ideas, like we don't know in the law, the traditional ideas, the, the law itself determines who's right. Like you as lawyer are not the gatekeeper. Like you just help your client have access to the system that sorts root rights, responsibilities, resources. And now it's like you, your self-worth has to do with whether or not you are substantively serving society by serving good clients.

John Tomasi: So, you know, by, by helping good clients get, you know, manipulate the law to their benefit rather than, you know, allowing whatever, you know, big oil, tobacco, whatever to have all about you, you said, your self, whether you're best to get your self-worth, can we substitute for that something like that's what it means to be a good lawyer?

Rebecca Roiphe: Yes. That's what it means to be a good lawyer.

John Tomasi: So that's, I'm just trying to understand this. It seems like there's a mismatch between what law students are learning in law school and what the job market for lawyers makes available to them.

Rebecca Roiphe: Yes.

John Tomasi: Is that right? Or is it the case? Because I assume some people from law school go into corporate law and do all kinds of, you know, whatever main white shoe law, whatever it's called. And other people do social justice work and nonprofits, for example. Do all law students now get trained for nonprofit work and then try to make it in the corporate world? Do they not go to the corporate world? I mean, what, what, how does this happen?

Rebecca Roiphe: And I mean, and they're looking for their corporate jobs that where they can do a lot of pro bono work. I mean, you know, that, that, that, you know, and they're, and they're fighting, you know, they're boycotting firms who serve big tobacco and they're, you know, they're trying to make fit this, this, this, this square peg into a round hole. And, you know, that's, that's, that's, that's where we are.

John Tomasi: I'm interested in this because we at HxA, we're tracking some broader trends of the similar phenomenon, what people are learning in college and the kind of majors they choose and the kind of work they do. And then the kind of lives they lead or the work lives and their personal lives are, there's a mismatch there often. The skills that we need to get along in the, in the workplace, often in the workplace, things like the ability to work across teams, to work with people who don't see the world the same way you do, to be creative and open to changes and also do, to believe in a system and actually go to work early and do your, do work really hard. Isn't necessarily what they're being taught as undergrads, but in law school, it sounds like something very similar is going on. And is the, well, does the market not just correct that with the law, are the law firms are the law firms, changing their own norms to adjust to this?

Rebecca Roiphe: Yeah. So I'll talk a little bit because, so right now I have the book structured so that, you know, I talk about that change. And by the way, the other piece of the change, just so that I get that out there is one is in the mission of the law schools. And the other piece of the change is in the, heterodox, you know, sort of the loss of, open dialogue and discourse and willingness to engage across difference and openness to academic freedom and openness to ideas. A stark, stark decline. So those are the two changes I'm tracing. and then I talk about, you know, CLS and pedagogy and some of the sort of intellectual origins of that change. And then my last part of the book is structured as what are the implications? So that, that's why I'm, I structured it so I can get to your question, which has to do with the last part of the book. And one of the implications is what's happening to the legal profession as a result. And, and, and one of the things that I think is really important implication of this is that there's an increasing, silo of the legal profession, across ideological difference so that what you're seeing is that, that in, in, that there's, there's certain law firms that are kind of most law firms cast as like liberal. And then there are some law firms that become sort of the, the more conservative law firms. You see, you know, certain partners being kicked out of law firms because they're representing clients that are unpopular in the liberal world. And, you know, there's a certain point, this is just, you know, polarization more generally, but it's also a lot of pressure coming from law students on the job market who say, I won't work at that, you know, at that firm, if you represent gun manufacturers.

John Tomasi: And so Harvey Weinstein, Harvey Weinstein, well, right.

Rebecca Roiphe: And that's a whole other story. You know, that's a part of my story too, the, the willingness, you know, to, to punish people for the client they represent. That is just antithetical to liberal democracy. The idea is that lawyers represent clients. They don't embrace their client's view. They're just ushering this person, the good that they do is ushering them through the legal system, giving them a shot. That's a liberal ideal that is being undermined. The adversarial system. The adversarial system. The idea that, you know, every, even the most despised client deserves good representation. And that, that is such a pillar of the rule of law and liberal democracy that is being undermined by this. And you see its effect on, you see the siloing of the legal profession, and then you see this pushback against that notion that, you know, representing a client doesn't mean you've embraced that client's view, and that, you know, a particular client, even if they're powerful like Harvey Weinstein, are in, in the legal system when they're accused of what he was accused of, lack power. It's the oversimplistic view of power dynamics that make it such that we cannot sustain, this principle, in, in, in our legal profession anymore. And that's, you know, it's, it's, it's, it's, it's very disturbing to see.

John Tomasi: Let me, let's, let's pause a bit on that devil's, on the, advocacy system and your books called The Devil's Advocate, because it goes to these basic issues that HSA cares about across the academy about, does it, do we believe that the exchange of ideas from differing viewpoints done intelligently, maybe under a pressure cooker on laws, a special case, but in, on any conversation that debate on campus with another person, whether between professors, that knowledge arises through that. We find there's some benefit in our epistemic under, under epistemic condition in the world by going through these processes of adversarial interaction or constructive disagreement, as we call it at HxA. your book's called The Devil's Advocate. Is that a reference to the Catholic traditions?

Rebecca Roiphe: it's supposed to have multiple different valences, but that's one of them.

John Tomasi: And can you say what that is for our listeners? The, the, the notion that you, that, that, well, you, you explain.

Rebecca Roiphe: Well, so, so if, if, when, when a, when a person's being canonized, someone, someone's being put up to become a saint, the Catholic church has a long tradition where they have one person who is part of the conversation who makes the case against it.

John Tomasi: Right. It's like red teaming.

Rebecca Roiphe: Yeah.

John Tomasi: It's like steelmanning.

Rebecca Roiphe: Yeah. Yeah. yeah, it's steelmanning. Yeah.

John Tomasi: so, but that idea now in the law and back to you in law in your book, that idea of the, of the advocate of the, adversarial system is just so fundamental to, it's a, it's a thesis about how we know things in the world.

Rebecca Roiphe: Right.

John Tomasi: And I gather this whole movement rejects that way of knowing things in the world. Is that right?

Rebecca Roiphe: Right. And so, so this is, so the, so the overall theme of the book is the idea that, you know, going back to the beginning of our conversation, we were talking about critical legal studies, the central tenant of critical legal studies, that there is no neutrality and that everything is infused with power dynamics, is fundamentally illiberal in the following sense. It undermines this notion that there are neutral ways in the world of coming to, coming, just resolving disputes between people within courtrooms to, having discourse across difference to sorting the, resources of society, like merit, you know, the idea that there's a neutral idea of, okay, you did well in this class, you deserve this job, you did less well, you deserve this job. The whole notion of merit is, is something that critical legal studies targets because it's this idea that there's a neutral way of sorting in society and coming to a resolution that we can all, even if we're not happy with the outcome, we can all agree is legitimate and instead saying, nope, it's always the more powerful person taking advantage of the less powerful person in a conversation. You have more power, power than me, John, you're going to get your view across and you're going to maybe even make me think that it's, that I share it, right. Or that I, that I buy into it or I accept it. And that's just a matter of your power. And that's that, that, that conversation in critical legal studies world is always going to be like that. Unless we do something to alter the, the, the power balance and put the person who was on the bottom on top. Now I can bully you into accepting my worldview and where I'm in power. Same with merit. Like you think you got this job because you deserved it. It's only because you were always in power, you know, you, and then you rigged the system, right. And so the system was rigged by, by people ahead of me who are like me to benefit people like me. And you know, back to like, you know, okay, what was it? What was it? Be intellectually charitable. Yeah. So there's some truth, right? There's some truth to the fact that power is a part of the way the world works. And observing that and being aware of that is a really great insight that came from critical legal studies to think about those power dynamics is not bad in and of itself. It's the view that that's all there is and that we can't mitigate it. That's troubling. And also what are we putting in its place?

John Tomasi: Right.

Rebecca Roiphe: So, you know, are we letting the perfect be the enemy of the good?

John Tomasi: Right.

Rebecca Roiphe: So, yes, of course, there will be some unfairness in all systems, like legal realism, you know, said. It's like, for sure. It's not just these abstract rules that are like, you know, we all follow and they sort things and it's completely without, you know, untroubling. But we can call it what it is and say it's troubling without saying it's there's nothing good there. And the problem is once you say there's nothing good there, then you say, okay, Duncan Kennedy, like Roberto Unger, what do you want? And their answer. Like what positive thing do you want? And their answer is bizarre, like because they're just weirdos. They're like, I think we need like a mind, like a mind love society. And they're like, what? What's a mind? What is that? And it's like, they're like, you smoke too much pot. Like, I don't know. Like, what? This is not the outsider's view of what happens in law school. So it's so funny. No, but like, it's like, you know, they were literary. Like it was an academic movement. They didn't really have a view. And so part of what is troubling is it, this thing that was like this intellectual, like whatever it was, it's now like kind of dominant because it made it way into the institutions, which is what I'm going to track how that happened. And, and when that happened, it didn't come with a, okay, and here's our plan for society that's going to be better than liberal democracy. It was just, we hate liberal democracy because it, all it is, is replicating power imbalances and making it worse and no plan for what will be better. Because you know what? Like they're really, you know, this may be the best we can do, even though it is problematic and recognizing the way it's problematic. Thank you, CLS scholars for helping us do that. But, oh my God, you know, this is not, this is really dangerous when it becomes this extreme and, and, and, and makes its way into our institutions and the way it did in law schools.

John Tomasi: And speaking about making its way into our institutions, these abstract ideas starting, I guess, in the twenties and then picked up and, and, and, energized in the seventies, more systematically by CLS, as you know, move quickly into kind of seamlessly into critical race theory and which leads to a foundation for DEI. Kimberlé Crenshaw was a law professor, a law student at Harvard at a key time when they're trying to decide whether to keep CLS in a central place in the curriculum or not. So that, that, that was kind of a steady, the DEI movement is coming out of these, out of this, these laws, law schools. And you and I were talking this this morning before we came on, on the show, about, you know, law professor, law, law lawyers are just so fundamental to the rule of law in a democracy that if you have a whole generation or two of lawyers who don't really believe in the law, who don't, does that mean they don't believe in democracy? Can you, can you connect it to democracy? You mentioned democracy a moment ago. Oh, why does the threat, there's a threat to merit. You mentioned, I just mentioned the connection to DEI. You want to say anything more about democracy and does it go, does it affect election integrity? I mean, how do we think about democracy?

Rebecca Roiphe: Yeah. So, I mean, you know, the rule of law is also a complicated notion and we've been talking about a lot of philosophical ideas and things like that, but I mean, basically rule of law is like, look, you know, we're all governed by a set of laws that are fairly, implemented, adopted, adjudicated, and that, you know, that is something that, is separate from power and that we can always turn to. So the powerful, the less powerful, all, all subject to these same laws. But if you think the laws are only the tool of powerful, then you really don't have that anymore. And the law just becomes another, source of power. And so you, what your object is, is not to ascertain what the law is and then make sure that we and our clients are abiding by that law, but rather to manipulate it and use it to its extreme for the clients, but right. Choose your right client, you know, choose your right cause. And that's a very different notion. And it means that you don't have lawyers as gatekeepers as a, as a break on anybody, you know, the powerful or those who are aspiring to power to abuse the law for their own ends. And I mean, everybody wants that. So it's like, you may think that's great when I'm the person who's manipulating the law, but you will always find yourself and particularly more so if you have less power, you will find yourself on the losing end of that game because you'll find a point in which you want to say, Hey, Mr. Person, I don't like who's trying to use the law to achieve some corrupt end. You can't do that because the law doesn't let you. And if you really are, have bought into this idea that it's actually just all a game, then you can't credibly claim that, you know, you can't. So, you know, just like, you know, when you wanted somebody, you wanted the people in the department of justice to say, I won't say there was massive election fraud because there wasn't massive election fraud. That is part of saying election fraud means something. It means something in the law. Election rules mean something and they have not been broken in the way that you suggest. and that is relying on a kind of notion of what the law is that requires law to be law. And, and so, and so if we don't have that, where are we, we really are just in a power grab. And like, you better be sure that you're on the winning end of that if you're going to play that game. And I don't want anybody, I don't trust anybody with that much power. I like the liberal democracy idea that there's a check, even if we can understand that it's an imperfect check. we're coming toward the end of our conversation, but I want to ask you, I want to invite you to talk to our listeners about, you know, what the, what the, what, what law schools are like now. So, you know, we hear about the federalist society gaining power and being ascended in, in, in, in elite legal circles. are, are law schools places where there are different viewpoints being discussed? There's active debates about critical legal studies. Is it a, is it a, what's, what's the environment like? Yeah. So, I mean, I think that there have been some recent changes that make things look a little bit more optimistic, but you know, for a while there, and even still now, I think that it really has no longer a place in which there are a lot of different ideas openly being discussed. I think that there is a lot of self censorship. I think organizations like the federalist society may be strong, but they're siloed. so in the past, you used to see a lot of cooperation between the federalist society and its liberal counterpart, the American constitution society. they post sponsor events. And one of the things I'm tracking my book is it stopped happening. and so you would have the, you know, you have your Federalist Society events, you have your ACS events, you know, you have your liberal. Is it because the ACS changed their view? Did they become credit, credit, credit, or are they still just, they don't communicate for other reasons? I, I, I, I mean, I, I don't, I hate to cast blame, but I think so. I mean, I think it's, it's that, you know, there was a sort of increasing, like, you know, I can't be in the same room as I won't, you know, like I won't do that. It's not always, and it's not everywhere. I, you know, caveats, but yes, as a general matter, I think that's what happened. and so, you know, that, that, that is, and I think there's a lot of, you know, concern that, you know, professors want a certain answer. Professors are all coming from this kind of, you know, everybody, every professor, even at the lower rank schools trained at Harvard, Yale, Columbia, and they all have this particular, not all of them, but vast majority of them have this particular political bias. So there's, you know, a lot of self-censorship in classes. I mean, I've noticed it over the course of my time teaching increasingly more so it's hard to have an open conversation about certain topics because people are scared of offending. And, and that's, you know, it's, it's really too bad because it's, it's not just, you know, it's a loss of this in the context in which it's terrible everywhere in the academy, but law particularly is about difference. It's about resolving difference. It's about, you know, how do we resolve difference in a pluralist society? How do we come together despite vast disagreement, you know, over these laws and we're, we're losing it in so many different contexts. It's, it's, it's, you know, it's really troubling. as a closing, closing word or closing paragraph or two, what's the future hold? Do you see, you just, I think you just said, I think I just heard you say that you think that you didn't use this phrase, but the fever is breaking a little bit, that there's, there's some, there's some healthy, some health on the horizon, perhaps. Can you say more about that? Are, are, are there green, I'm sorry, I'm mixing metaphors. Are there green shoots shooting up? What, what, what do law schools need and what, what can be done? Yeah. So I do think that there's reason for hope. I think that, you know, a lot of people have, I think right now there's a little bit of momentum, you know, particularly after October 7th for some of the, principles of discussion across difference about academic freedom and a more, a greater interest in that right now. What, what, what can we do? You know, I do think that one of the things that is helpful is to shed light on how, how we got here. And that's part of why I'm writing this book, because I think there are a lot of people who have been sort of fellow travelers in the better parts of critical legal studies. So when you and I were saying, okay, be intellectually charitable and both of you, and, and both of us thought of great things, insights from that movement, a lot of people are sort of like sympathetic to those great insights and have kind of gone along with some of the more extreme, more troubling, illiberal aspects of it. and I think by shedding that light, you, you kind of can hopefully peel off those people who are more rational, by showing what the implications are. and then my final thought is just what, what this organization does, I think is helpful because I just think that the more you voices you hear and the more empowered people are to voice disagreement, the more we back off from this position. Cause it kind of is self compounding.

John Tomasi: It's sort of like the more you think everybody's feeling like this, the more you don't talk or the more you leave institutions or go somewhere else. And so that's right. Yeah. That's why Heterodox Academy, it just feels so privileged to be able to host scholars like you to support books like the one you're writing. And, you know, you're a part of the conversations in the hallways and in our, in the open and create workshop. Rebecca, it's really lovely having you on the show.

Rebecca Roiphe: Oh, thank you so much.

John Tomasi: Thank you so much. And good luck with your book.

Rebecca Roiphe: Thank you.

S2 Episode 28: How Critical Legal Studies Transformed Law Schools with Rebecca Roiphe

What happens when the principles of law clash with evolving ideologies in academia?

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