Friday, May 26, 2006

Duncan Kennedy, Peter Gabel and Critical Legal Studies.



















Tous les livres en anglais de Juan Galis-Menendez http://www.amazon.fr./exec/obidos/ASIN/141160413X/qid=1148694498/sr=1-19/ref=sr_1_0_19/171-539... (I hoped to write that someday.) 

Accompanying this essay is a photo of Peter Gabel and Duncan Kennedy (Kennedy is the guy in the helmet), shortly after they were ejected from a recent American Bar Association (ABA) forum entitled, "Preserving Decorum in Law." The images in this blog are always under attack, as are all of my writings. The picture meant to accompany this essay may be blocked at any time.

I am one of those people who continues to find law -- both doctrine and theory -- intellectually fascinating. Although I regard much of it as fiction, like the various strategies in chess playing. I read more jurisprudence and Constitutional theory now than I ever did as a law student or practitioner. I am now an impoverished writer and (for a small fee) a lecturer. I also do weddings and Bar Mitzvahs. I will speak for forty minutes on corruption in New Jersey at the drop of a fee.

The United States is not in a "revolutionary situation," to put it in Marxist terms, and the American "problematic" is so unique and complex that it would take volumes even to clarify the issues for non-Americans or for interested people in the U.S. who lack some formal legal education. The "action" in American political discourse and the only real possibilities for meaningful ideological or transformative theoretical discourse is in legal settings. (See Professor Kennedy's famous talk at the Gramsci Institute.)

America's public intellectual life (is there such a thing?), meaning the only place to get into fundamental political or philosophical controversies that are defining of the society, is found in the legal world and, maybe, in academia. American academics are mostly irrelevant to practical politics. Paradoxically, it is that legal world which now deflates and sanitizes all such conversations by reducing them to familiar juridical controversies. Perhaps all of American academia is pretty irrelevant to the workings of real power in the society.

Law school is a kind of intellectual Disneyworld. Legal academia is fifty or a hundred years behind in debates on substantive philosophical or political issues now being played out on the world stage. Someone like, say, "Antonio Negri" will be unknown to the average law professor or attorney. Legal culture is narrow and insular, an accessory to the bar and judiciary. Mostly, legal scholars follow and do not lead.

Kennedy and Gabel are two brilliant guys. They're law professors, who are deeply political and wise about the struggle for social justice and need for reform, but also (in a European way) philosophically and theoretically adept, while being engaged, publicly, in the eternal effort to "comprehend our time in thought." (Hegel)

Kennedy is a combination of Foucault and John Cleese; while Gabel is Thomas Merton or Martin Buber and Paul Ricoeur, all rolled into one. Roberto Mangabeira Unger is a genius law professor and philosopher, who merits separate treatment. Others in the movement include Mark Tushnet, Robert M. Gordon, Mark Kelman, Elizabeth Mensch, and many more. I am probably forgetting many "Crits," who will be pissed off because of this and refuse to communicate with me. Morton ("Mort the Tort") Horowitz is must reading on the "transformations" of American law. Drucilla Cornell is also in a separate category, again, as a major political and legal philosopher. I read a lot of Richard Delgado's work years ago. I am not sure whether Delgado is best classified as a "Crit" or more into Critical Race Theory (CRT), which is a dark-skinned cousin of the movement.

I wrote Tushnet a letter once saying I wanted to "join" CLS. He said, basically, "O.K." There are no dues and you don't get a merit badge or anything. You're just kind of in it. I have no idea whether I have now been kicked out. Actually, I don't think that's possible. CLS is like the Mafia: once you're in it, it's forever. Scholars in the movement, to paraphrase Woody Allen, are "like pigeons or Catholics, they marry for life." No matter how much trouble you're in it can only be a plus in CLS. It cannot be confirmed whether CLS people have been transported to Guantanamo, Cuba. If this happens, however, many of them will be quite pleased with the outcome.

I would not be surprised by either an assassination attempt or a frame-up of some kind as a response to some of my comments from the boys in Jersey -- if they are still acting in character, that is -- since these are the typical responses from such people to the kind of criticisms that I have published here. I am serious about this. Yet I am not planning to change what I write. As they used to say in the sixties, "power to the people." By the way, there's a lot more coming.

I cannot even begin to do justice to Gabel's and Kennedy's thoughts within the constraints of a short Internet essay. I will limit myself here to saying something about what CLS is (or was?) -- it will always be present tense for me! -- and to mentioning some of the people you should read as a law or graduate student with a transformative political vocation. If you are serious about revolutionary legal work, there may be a price to pay. You are always much better off going to work for a corporate firm and making lots of money, except that the psychological cost of such a trade off may be even more lethal.

A friend in Italy used to say: "He who has bread has no teeth, but he who has teeth, has no bread." I have opted for teeth in middle age and no bread -- in every sense. (See "Is New Jersey Chief Justice Deborah T. Poritz unethical or only incompetent?" Sadly, the answer to that question, from my perspective, is probably "a little of both.")

CLS is an attempt to theorize our moment and predicament in American law, with an eye to reform and transformation in our thinking about what law is or how to go about doing law. The word "Critical" comes from the tradition of Continental Critical theory, which is Kantian (Kant's philosophy is called "Critical" theory because it begins with an effort to be clear about the contributions of the human mind to the world it seeks to understand).

CLS is also Hegelian-Marxist, looking to uncover "false consciousness," suspicious of power's omnipresence by way of ideology (Foucault, Gramsci), with a social meliorative vocation (Brandeis, Brennan, Marshall), borrowing from American Legal Realism (Holmes, Cardozo) and social sciences, also fancy literary theory (Derrida, Fish), and philosophy (Rorty, Putnam, West).

I will not provide a list of reading materials. If you really want to get into this legal theory, it helps to have a solid grounding in politics and philosophy. Many lawyers and judges -- including quite a few products of elite schools -- simply lack the education to understand this scholarship and lots of other things too. The fact that weird persons, like me, are sometimes a lot better read on these subjects (and sometimes even know more law) is an unforgivable offense and a further source for the establishment's hostility towards me. I like that. ("New Jersey's Feces-Covered Supreme Court" and "New Jersey's Political and Judicial Whores" then "New Jersey's Legal System is a Whore House.")

Law schools and the legal world create and preserve a kind of ideology that limits the style of arguments that can be made or that will be taken seriously in courtrooms, especially in appellate courts. One result of this ideology is to limit the terms of controversies to the confines of "safe" legal doctrine. This is accomplished through the use of a bundle of rhetorical devices amenable to all sorts of purposes, so as to water down dissent and limit rebellion by way of soothing compromises that always preserve the status quo. ("Law and Ethics in the Soprano State" and "New Jersey's 'Ethical' Legal System.")

The insistence on "decorum" and "respect" for tribunals, for example, is politically pacifying, conservative, deflationary. When going to court "dress for a rich man's funeral." When I was told this by an older lawyer, he never explained that the funeral was my own. Now I may wear a nice suit, Brooks Brothers tie, English shirt and black Converse high top sneakers, while sporting an earring, to a fancy lecture. None of this precludes me from being polite, when politeness is called for, or (when appropriate) being just the opposite of polite. ("What is it like to be tortured?" and "What is it like to be plagiarized?")

There is a cost in freedom that comes with a legal life. This is one of those aspects of the law school "deal" that are not mentioned, along with the political reasons for this grim reality. You must become a certain sort of safe person, a "docile subject," to be a successful lawyer in America. This has political significance. It also carries a psychological price tag. Make sure that you can afford to pay that price before you embark on such a life. Do you really want to wear those golden handcuffs? Some do; some think they do; and some know pretty quickly that they won't put up with such a life. ("Neil M. Cohen, Esq. and Conduct Unbecoming to the Legislature in New Jersey" and "Is Paul M. Bergrin, Esq. an Ethical New Jersey Lawyer?" as well as "Have you no shame, Mr. Rabner?")

Almost always these soothing compromises favor the powerful. But there are times when the system can be confronted with its own professed values and principles against the realities of violations of those principles and rules, so as to be shamed into doing the right thing. At least, I hope so. This is what I am trying to do, which may explain all of the harassments and obstructions directed at this blog or me. I support both the ACLU and National Lawyer's Guild. What is disturbing to New Jersey in this situation is being shown incontrovertible proof of the lie that is the Garden State's legal system. ("New Jersey is the Home of the Living Dead" and "New Jersey's Child Sex Industry.")

You can quote rhetoric or dicta from judicial opinions about due process of law and avoidance of torture as "cruel and unusual punishment," then ask an appellate court in New Jersey to explain secret tortures and cover-ups, unofficial decision-making, graft, corruption or logical non-sequiturs in light of that rhetoric. I do not believe that there is such a thing as "therapeutic" theft and rape. I cannot accept that imbecility adds to the gravitas and bearing of a judge. Strangely enough, I object to being raped and stolen from by frauds who label me "unethical." ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "John McGill, Esq., the OAE, and N.J.'s Corruption.")

The naive hope is that one or two judges will have a modicum of intellectual honesty or integrity left, so as to admit that "mistakes were made." True, it is a small hope. All we "little people" have is such small hopes. They keep us going. The reason they keep us going is that we also have one another. ("Roberto Unger's Revolutionary Legal Theory" and "Richard Posner on Voluntary Action and Criminal Responsibility.")

For me, the anger that bubbles over and explodes in acts of violence or destruction (while understandable) is never the answer. It means that you have become what you despise. Judges and other legal functionaries are often unaware of the non-violent violence they do to people's lives through their imbecilities, notably in adopting behaviorist forms of torture-therapy as make-believe solutions to family legal issues and troubles. In fact, family court is often about getting files off judges' desks and getting rid of things and people, which is what really happens in too many courtrooms. "Hey, look at me! I disposed of more cases than any other judge today!"

"In my ... years of experience in the practice of law," Alan Dershowitz writes, "I have been more disappointed by judges than by any other participants in the criminal justice system." I concur. ("Steven J. Schaeffer and Conduct Unbecoming to the Judiciary in New Jersey" and "Maurice J. Gallipoli and Conduct Unbecoming to the Judiciary in New Jersey" as well as "New Jersey Superior Court Judge is a Child Molester.")

Mediocrity -- or even outright stupidity -- on the part of judges is lethal to any chance for justice in an American courtroom. (N.J.'s all-time moronic judge, Ms. Tolentino, is a case in point.)

With the politicizing of the bench in recent years, the judiciary in many states is saturated with political bag men and male/female "whores" of the power structure. If a lawyer were to say this in a courtroom -- however true it may be -- he or she might be sanctioned for a lack of decorum or breaching "ethics" rules that forbid "unseemly" criticisms of courts. Also forbidden are seemly criticisms of unseemly courts.

Yes, there are also exceptions. There are many fine judges scattered throughout the system. The people who would sanction and silence such an outspoken attorney, by the way, are the same persons entrusted with defending the First Amendment that guarantees absolute freedom of political expression. Go figure. For New Jersey judges and political whores to speak to me of "ethics" borders on the surreal. ("Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "No More Cover-Ups and Lies, Chief Justice Rabner!" then "New Jersey's Politically Connected Lawyers on the Tit.")

I think it is "unseemly" that racial minorities are ten times more likely to be convicted of offenses on the basis of the sort of evidence that will result in acquittals for white persons charged with the same offenses. It is unseemly that minorities will receive more harsh sentences if (or when) they are convicted. I think it is also unseemly that New Jersey's agents of legal ethics enforcement are among the least ethical attorneys around, but get away with what they do through intimidation or corruption. I wonder why so many OAE lawyers have so much cash in their pockets? ("New Jersey's Office of Attorney Ethics" and "Corrupt Law Firms, Senator Bob, and New Jersey Ethics.")

I think that it is obscene that we have a death penalty, but even more obscene that it is applied overwhelmingly to minority group members, especially African-Americans. See http://www.freemumia.com/ I urge you to read Justices Brennan and Marshall on the un-Constitutionality of death as punishment, in the now rejected decision in Furman v. Georgia, 408 U.S. 238 (1972). (I always capitalize when referring to the U.S. Constitution.)

Incidentally, I could not care less about the latest "Blue Book" rules. When I attended law school, the Blue Book citator was a small "fit-in-your pocket" item. Now it looks like the King James Bible. DSM VIII?

A minority person on the bench -- whose primary function is to legitimate oppression -- may know all of this, at some level, but he or she will never say it. Right, Jose? We won't discuss how you guys became judges. American legal debates constitute a hall of mirrors where what is said is a symbol-structure or patois that only points to what everyone knows is really going on, yet cannot be said publicly. ("Anthony Suarez Goes On Trial.")

Meanwhile, we have the greatest Constitution in the world and a body of case law interpreting it, sitting in books on the shelves that are systematically ignored by (secret?) courts choosing to look the other way when faced with glaring violations of law and, thus, complicit in hideous human rights violations, perhaps in exchange for a little sex on the side. Right, Ms. Poritz? What will it take for Paula Dow to send me that letter? Need a stamp, Paula?

I am not surprised that much of the rest of the world is wondering what happened to the American legal system. Me too. It was here one minute, gone the next. This may be an excellent moment to insert more "errors" in this text or for N.J.'s "walking turds" (OAE) to engage in further protected cybercrime. That foul stench on the Turnpike is the aroma that hovers over Trenton's government lawyers. ("Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "Another Mafia Sweep in New Jersey and Anne Milgram, Esq. is Clueless.")

Anne, we know you're a dyke and want to protect your "gal-pals," but some of them will have to go prison if they continue to commit crimes -- like rape and theft. (Again: "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "Jennifer Velez is a 'Dyke Magnet!'" and "Marilyn Straus Was Right!")

Among the great theoretical insights from CLS is an appreciation of the complexity and ambiguity found in "paradoxes" (First Amendment versus legal ethics?) woven into the very fabric of our jurisprudence -- paradoxes hindering our quest for a just social order, together with efforts to "open up" legality to the values and spiritual claims essential to doctrinal and interpretive construction in the discourse of postmodernist American law. To paraphrase Duncan Kennedy, "we find ourselves implicated in the very evils that we wish to see transformed." (Again: "Corrupt Law Firms, Senator Bob, and New Jersey Ethics" and "Mafia Influence in New Jersey Courts and Politics.")

As an example and small taste of the "diagnostic" aspect of CLS work, I will quote Professor Kennedy's statement of the "fundamental contradiction" or paradox of sociability; as a taste of the "aspirational" or "therapeutic" component of the CLS stance, I will mention Peter Gabel's "Opening Statement" in his brilliant, highly recommended book, The Bank Teller and Other Essays on the Politics of Meaning.

What is the "fundamental Contradiction"?

Here is an initial statement of the fundamental contradiction: Most participants in American legal culture believe that the goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it. Others (family, friends, bureaucrats, cultural figures, the state) are necessary if we are to become persons at all -- they provide us [with] the stuff of our selves and protect us in crucial ways against destruction. Even when we seem to ourselves to be most alone, others are with us, incorporated in us through processes of language, cognition and feeling that are, simply as a matter of biology, collective aspects of our individuality. Moreover, we are not always alone. We sometimes experience fusion with others, in groups of two or even two million, [Sartre's "totalization"] and it is a good rather than a bad experience.   But at the same time that it forms and protects us, the universe of others (family, friendship, bureaucracy, culture, the state) threatens us with annihilation and urges upon us forms of fusion that are quite plainly bad rather than good. A friend can reduce me to misery with a single look. Numerous conformities, large and small abandonments of self to others, are the price of what freedom we experience in society. And the price is a high one. Through our existence as members of collectives, we impose on others and have imposed on us hierarchical structures of power, welfare and access to enlightenment that are illegitimate, whether based on birth into a particular social class or on the accident of genetic endowment.

The kicker is that the abolition of these illegitimate structures, the fashioning of an unalienated collective existence, appears to imply such a massive increase of collective control over our lives that it would defeat its purpose.

That's the predicament that we are in, boys and girls. Now here is where we want to go in order to get out of this predicament so as to "become the persons we are" (Nietzsche), in community:

The politics of meaning insists that people's collective longings for love, caring, meaning, and connection to a spiritual/ethical community larger than the self are as fundamental as the need for food and shelter in the purely physical or economic realm. We wholeheartedly support the struggle for economic justice and security, but we insist that people are fundamentally motivated by more than sheer physical survival, that we are social beings who long to be confirmed [or just to be SEEN and RECOGNIZED as human!] by others and to give to others, to emerge from our painful isolation and fully recognize one another in an experience of relationship that Martin Buber called "I and Thou." In Michael Lerner's formulation, each of us deserves to be recognized as created in the image of God, understood not as a supernatural being but as the ethical force [love] in the universe of which we are each a unique manifestation. And each of us deserves to live in a social world in which fostering the spirit of empathy, affirmation, and compassion that accompanies such a recognition would be the very centerpiece of public life.










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