Ep 2 – Trubek Part One – Loosely Edited Non-Verbatim Transcript
David Trubek [00:00:08] I was really enthusiastic about going to law school and being involved in some kind of social action. And it was a good education, but it was much more conventional. That was kind of a disappointment. So it was out of the turmoil of the sixties that there sort of began to crystallize a group of young junior faculty and students who were dissatisfied with both the theoretical and the political position of the law schools of the sixties.
Jon Hanson [00:00:42] Welcome to the Critical Legal Theory podcast, where we hear from legal theorists and practitioners about the ideas that shaped their critical approach to legal theory and law. I’m Jon Hanson, the Alan A. Stone professor of law and Director of the Systemic Justice Project at Harvard Law School. In this season, we share a collection of interviews from 2013 and 2014 conducted by students in courses that I taught on the history of the Critical Legal Studies movement. The interviews explore the intellectual, political, social and economic context, shaping the CLS movement and some of the effects that CLS scholarship had at the time and continues to have today. This episode is the first part of an interview of Professor David Trubek by Will Burgess. Professor Trubek, having retired from full time teaching and administration at the University of Wisconsin is currently a senior research fellow at Harvard Law School as part of the Program on the Legal Profession and the Institute for Global Law and Policy. He works as a researcher and project manager for several projects related to law in developing countries. In this portion of their conversation, Professor Trubek traces the origins of the critical legal studies movement back to Yale Law School in the 1960s, where some junior faculty, including Professor Trubek and a group of students like Duncan Kennedy and Mark Tushnet, began developing a network of like-minded legal scholars and law students whose ideas and attitudes towards the hierarchies and traditions of law and legal education were shaped by the student movements and Zeitgeist of the 1960s. Professor Trubek also sketches some of the interpersonal, intergenerational, theoretical, and methodological tensions that were apparent even at initial CLS meetings, and that would continue to dog the movement until its demise.
Will Burgess [00:02:43] I’m here today with Professor David Trubek, the former dean of international studies at the University of Wisconsin-Madison. Professor Trubek was a leader in the formation of critical legal studies, along with Professor Duncan Kennedy and others. Much of his work is focused on international development, particularly as it relates to Brazil. Thank you very much for joining us. [00:03:02]Would you be able to start off and give us a little bit of background in your development and interests in CLS and law generally? [7.1s]
David Trubek [00:03:11] I went to law school in the late fifties — 58 started in 58 — the Yale Law School, where I thought that I would be sort of in a progressive, interdisciplinary environment. But I wasn’t. It was not particularly progressive and it was not particularly interdisciplinary.
David Trubek [00:03:31] I had this image of Yale and the progressive movement and legal realism that I picked up from college. I’d taken a law course in college which was, of course, taught for law students and undergraduates in separate sections. And I picked up quite a bit of, you know, information, and I was really enthusiastic about going to law school and being involved in some kind of social action. And it was a good education, but it was much more conventional.
David Trubek [00:03:58] There was an old left at Yale when I was a student. People who had been active in a much earlier period, but they were pretty marginalized at the time. There was one guy, a little bit of a new left, but not particularly influential. And the center of gravity of the school was relatively conventional, liberal legal legalism, some of kind of, you know, standard type. That was kind of a disappointment.
David Trubek [00:04:28] Then I clerked on the Second Circuit for Judge Clark, who was an old legal realist, Democratic activist. And that was a very inspiring experience. Charlie Clark was that had been the dean of the law school, being one of the leading legal realists, was outspoken, you know, engaged for a federal circuit judge–quite, quite progressive. So that was a good experience. And then I went to work for the U.S. State Department in the Agency for International Development, where I got involved in Brazil, as eventually I worked as a lawyer in the agency for a couple of years in Washington. And then I went to Brazil and I was in Brazil right after the coup when the United States lavished its support on the military regime, which wasn’t exactly what I had thought was going to happen when I was in JD, but it was a very exciting time from a technical point of view. And I was a young lawyer and I just, you know, I was not even 30 yet and I was the only lawyer working for a program at that time in today’s dollars would be, you know, several billion dollars a year. So it was very heavy thing for me.
[00:05:36] And then I ended up back teaching at Yale in the sixties when the world in America had changed, where I was basically, although I was in Washington and from 62 to 64, I was traveling in Latin America most of the time, so I wasn’t engaged in much of the day to day turmoil of, you know, the U.S. in the sixties, and then I was in Brazil for two years, so I really was out of touch with what was going on. Of course, I came back into the maelstrom of a Vietnam War protest, Black Panther trial, which took place in in New Haven and a student movement led by such people as Duncan Kennedy, who was one of the most visible and active of the student radicals and with whom I got to be quite good friends, started teaching some courses, seminars that attracted people like Dunan Kennedy, Mark Tushnet, other people who went on subsequently to be important in CLS. So the germs of CLS were planted at the Yale Law School in the period, say, 1969 to 1973, where you had me and Mark Tushnet and Rick Abel and Duncan Kennedy, all of whom were among the people who launched the first critical legal studies enterprise four years later.
[00:07:00] So it was out of the turmoil of the sixties that there sort of began to crystallize a group of young junior faculty and students who subsequently went on into legal education careers who were dissatisfied with both the theoretical and the political position of law schools of the sixties and early seventies. So those connections, that network that was started then and brought in some other people like Roberto Unger, who was doing graduate work at Harvard at the time, was the nucleus around which we formed the first CLS meeting.
Will Burgess [00:07:48] [00:07:48]Now, you spoke about the student movement led by Duncan Kenney and others at Yale. What was the reaction of the rest of the student body, the faculty, to this movement, this radical left movement? [11.9s]
David Trubek [00:08:00] Well, there were more than one movement. It would be a mistake to say that . . . In the first place, there was the black the black movement, and there was sort of white radicals, and there were sort of proto feminists. So there were a variety of different sort of student tendencies, and I don’t think you could say that it was uniform or that it was all coordinated. So to talk about the student movement would be just a little misleading.
[00:08:30] But I think that the you know, the strands were … this was when there was a lot of pressure on Yale to have more minority students and pressure from the minority students when they arrived for a more supportive environment. So that was one dimension. Then there was the sort of more left radical dimension, which was, you know, allied with but not the same as the black power, if you want to call that, movement. And and then there was the antiwar movement. So don’t forget, this is the height of the anti-war movement, draft resistance and things like that. So you had sort of three, at least three, if not more different strands. And there were many different leaders depending on which of these strands you want to look at.
[00:09:24] How did the rest of the student body react? This sort of radicalism or protest or conflictual approaches went pretty deep in the student body of that time. These were people who were coming out of college in the sixties. And and so while it certainly wasn’t uniform, and I’m sure there were plenty of students who said, “what the hell is this all about?” And “I just want to learn federal jurisdiction and corporate law or whatever,” you know, there was a pretty wide swath. Now, the faculty was aghast — the senior faculty — they were shocked. They were stunned. They were scared. They were angry. One professor thought that the student radicals: it was the equivalent of the Nazis taking over the German universities, and it had to be fought with every tool in the armory. That was the kind of extreme reaction, and that was probably a view shared by a significant number of faculty members. That was an extreme, but versions of that were shared. So the tension between the students and the faculty was severe. And of course, those some of us who were the junior untenured faculty who were closer in age and maybe closer in political sympathies to the students than the senior faculty, we were caught in the middle in this vice that, you know, this this situation, which would become very polarized and led to a lot of tension. And, of course, a lot of people didn’t get promoted. And we all sort of dispersed around around the world, around the country. Most of the junior people who were there at that time and were caught up in it did not get promoted. And most of us left. And some of us, not all, kept contact with some of the leading students like Tushnet and Kennedy. Tushnet then came out . . . I got a job at Wisconsin. Rick Abel went to UCLA. Tushnet got a job at Wisconsin. There was a guy named Tom Heller who had been a little earlier than this period at Yale as a fellow, and he got a job at Wisconsin. So we were . . . he sort of became part of a network. Roberto Unger was part of the network. And Duncan and I sort of crafted out of this group, out of this nascent network, the first CLS meeting, which was held in Madison in 1977.
Will Burgess [00:11:51] [00:11:51]Would you be able to describe a little bit more of the the environment surrounding that first CLS meeting in Madison and what what gave rise to this meeting? Why did you want to build this movement to more of a national issue? [12.3s]
David Trubek [00:12:05] Well, I think there were multiple motives. I think Duncan at that time, he was already teaching at Harvard. He’d been there. I don’t know how many years. A few years, though, because and there were students at Harvard who he was working with who were attracted to the more radical approaches both to law and politics. So, Catherine Stone, Karl Klare, these are names I’m sure you’ve, if you haven’t come across, you will, because they were very active in the early days. People like that, Peter Gable. So Peter Gable, and Karl Klare, and Catherine Stone were Harvard students, and Duncan thought . . . who were on their way to an academic career. I mean, I don’t I can’t tell you exactly what year they were in or where they were, but they were people who Duncan had befriended as a Harvard professor. And clearly they were on their way. And so Duncan thought of creating a wider environment and context in which they could find more space to do work and find more sympathetic people, … that was one motive.
[00:13:16] The other motive was on my part was the thought that maybe this would be a way to energize the progressive wing of the law and society movement. Because before this was going on, I was very active in the law and society movement. The Law and Society Association was just really beginning to take shape. It had been in existence in ‘ 64, but it was a pretty modest operation until the early seventies, and I was active in that. And of course Wisconsin had been one of the major centers of the law and society movement. So … I had initially thought that these were mutually supportive, that there was the possibility of mutual support between the law and society movement, which had had a progressive political edge, but not this sort of radical lifestyle radicalism, academic intellectual radicalism, that was going on in CLS. Marxist deconstruction, well, deconstruction comes later, but post Marxist, structuralist, all these sort of European social theories that Duncan was particularly interested in and some of the other people who worked with him.
Jon Hanson [00:14:34] Here and throughout both part one and part two of this interview, you’ll hear Professor Trubek mentioned Duncan Kennedy as one of the key players in CLS throughout the life of CLS. Duncan was often seen as a or the leader. If he didn’t define the boundaries of CLS for legal scholars within the movement, he certainly played an outsized role in defining how CLS appeared culturally and politically to those outside it. Here, Kennedy’s interest in European social theory was self-consciously radical in a way that law and society was not, helping drive a wedge between the two approaches. You’ll hear more about Duncan Kennedy and his influence on the public perception of CLS in part two of this interview. But you’ll also hear from Duncan Kennedy in future episodes.
David Trubek [00:15:26] Somehow I thought with a certain degree of naivety that we could put these two things together and they would mutually benefit each other. The opposite happened. That is, a great deal of resistance on the part of the Wisconsin law and society people to CLS started at the very beginning and by the time we got to the second meeting, which was also in Madison, this resistance was very obvious and it was clear that … the law and society people at Wisconsin were not interested in participating in what they thought was a kind of crazy radical acting out kind of and, you know, and also moving completely away from the social science tradition into sort of European social theory, which they felt uncomfortable with. So, in fact, if the goal had been to bring about a marriage of these two strands of all, you know, on the left side of the American political spectrum, of the time, it was a failure.
Will Burgess [00:16:26] [00:16:26]Looking back, do you think there was a way that the two could have been brought together? [4.0s]
David Trubek [00:16:31] No. To answer your question, I mean, I was a little too short. I spent a lot of time — after I realized that there was this split — I spent a lot of time and did a lot of intellectual work trying to bridge this gap, because from my personal point of view, it was very stressful because from the Law Society point of view, they looked at me and said, you know, he’s a traitor. He’s gone over to the enemy camp. He’s with these crazy radicals. And from the CLS point of view, people say, oh, he’s still committed to this positivistic social scientists, which is just capable of reproducing the status quo and has no, no radical and contestataire quality. So I kept trying to find some point of intersection which actually came about much, much later, and these issues went away. So the answer was, could we’ve done it differently? At the time? I don’t think so. For issues on both sides. And I tried for a long time, and I wrote a lot of the articles, including several that I asked you to read, were efforts to try to bridge this gap. And I think 30 years later, people started to see that this really was kind of silly and CLS was no longer a threat.
David Trubek [00:17:46] Now, what you have to understand in understanding relationship between CLS and law and society is this: Law and society started as a relatively marginal enterprise in American legal education. There was some support from elite schools and elite centers. And briefly, Yale bought into the idea of law and society as an academic field, but it never really became an accepted field in law, recognized . . . for example, there’s really no significant law and society presence at Harvard. I mean, you’ve got a few people who’ve sort of been in and out, like Martha Minow, David Wilkins, but not people who are thought of primarily as people in the law and society tradition. There are law professors at Harvard who’ve dipped in and who’ve used some of this material and approaches. And at Yale, there’s nobody there anymore or practically nobody there anymore.
[00:18:44] So one of the issues between CLS and law and society was the law and society people who hoped that law and society could be accepted as an important field by the elite law schools of America saw the CLS people … many of whom were in the elite schools already, taking a lot of the oxygen away, getting all of the attention. They were the new, new thing. And it was a lot of resentment, which was also strengthened by the fact that CLS people were focusing on the critique of doctrine, where law and society had been founded on getting away from doctrine. So the status issues and the recentering of doctrine, which which had sort of drifted away from the center of mainstream work and legal education, all the sudden CLS revives it by saying, “oh, well, we can, you know, see in this doctrine, you know, we can decode the political messages in this doctrine.” So all of a sudden people are looking at the doctrine not to decide, you know, what is the right rule to be applied in this case, but to see how it reflects capitalism, patriarchy, or whatever, you know, left thing you’re looking for that week. And so this tension was sort of totally overdetermined, as the Marxist say, by the law, social science, doctrine versus empiricism split. And all of these things played out. And then, of course, the CLS people were very hostile to law and society.
David Trubek [00:20:17] So I remember I invited a very well known CLS leader, not Duncan, but someone else who’d come along as one of the leading figures to come to Wisconsin to a law and society event. And I remember one of my Wisconsin colleagues, who’s a real traditional progressive lawyer, using empirical data to advance progressive cause, sort of Elizabeth Warren. Think Elizabeth Warren. But not quite so sophisticated and without some of the technological advances that we’ve all had as a result of, you know, an improvement in the quality of empirical work. Think think Elizabeth Warren. So this guy said, “well, you know, we don’t think that CLS pays enough attention to law and society.”.
David Trubek [00:21:01] And this Harvard professor said, “We just don’t think you’re worth our time.” That’s really cool. That was really cool. That really helped a lot. I’d say thank you very much for helping me with this effort to bridge this gap. So it was you know, it was a lot of acting out on both sides. I think that, you know, these were old wars and now, you know, CLS is no longer a threat. Law and society kind of moved away from this positivist empiricist behavioral science approach. Cultural studies became a big deal in the university. Cultural studies and CLS all come from the same basic family, all drew on European social theory, and as younger people in social science departments and history departments who were in law and society …. And don’t forget, law and society is primarily not lawyers. It’s lawyers are a minority in the in the field and in the association. As these people in these various departments of sociology and political science and history and anthropology, as they became more attuned to cultural studies. Then then the lines were no longer so clear. And with critical legal studies no longer presenting a political threat or a threat to space, the war sort of … we forgot about these wars.
Will Burgess [00:22:20] [00:22:20]So you spoke earlier about legal realism being an influence for you. Yeah. And you also write a good deal about legal realism. How do you how did you see legal realism and the connection to both law and society and CLS playing out in those discussions between those groups of scholars? [20.3s]
David Trubek [00:22:42] Well, when I was … I went to undergraduate at the University of Wisconsin and they had this course legal process course, which, as I told you, they offered to undergraduates as a separate unit. You didn’t mix with the law students. And it was sort of meant to be an introduction to the role of law in society. And it was done . . . It was put together by people who were basically strongly influenced by legal realism or were legal realists. So we read Karl Llewellyn; the first thing you read was Karl Llewellyn, and then there was a lot of social science and social history because the probably the strongest intellectual force on this book was were Willard Hurst, the legal historian, who was a real legal realist, and Karl Auerbach and Sam Berman and Lloyd Garrison, names you probably don’t know.
David Trubek [00:23:34] So I was introduced to legal realism, and it seemed to combine two things a kind of intellectual force that downplayed the significance of legal doctrine and focused more on legal results and on the effect of law in society as what you should look at. So it was kind of a legal realism-cum-law and society. This book really was put together before there was a law and society association, before there was a law and society movement. Because I took this course in ’58, the Law and Society Association was founded in 64. So this was kind of proto law and society.
David Trubek [00:24:11] And then … So I kind of came to law school already thinking in terms of legal realism and sociological jurisprudence and law and society. I didn’t separate all these ideas at that time. I wasn’t quite so sophisticated and probably never really left that orientation, probably more basic to my own personal approach than some of the other influences that came later. Now, of course, this CLS project was to both revive legal realism, which by then … See, legal realism had sort of been absorbed by the time Duncan Kennedy arrived in law school; it had been kind of normalized through the legal process movement–not the Wisconsin legal process movement, but the Harvard legal process movement, which, you know, that’s where the movement started.
Jon Hanson [00:25:05] Legal realists or the old left, as Professor Trubek calls them, believed that judges reasoned from their own personal experiences, not from pure logic. Rather than finding law, judges made law and in an unpredictable and often chaotic way. While the legal process movement acknowledged as correct the central ideas of the legal realists, it sought to address the problem by emphasizing process over outcomes. Perhaps judicial subjectivity and unpredictability could be avoided and legal doctrine relegitimized, if a set of neutral principles guided judicial decision making and judges exercised restraint in their interpretation of the law. Despite the fact that legal process left unresolved many of the problems and tensions identified by legal realists. By the 1950s, legal process had largely supplanted legal realism. For their part, the Crits believed that the legal process movement’s emphasis on neutral principles was a disingenuous effort to evade responsibility for the normative value judgments that judges make every time they interpret the law.
David Trubek [00:26:21] And so it was sort of … It was either forgotten or was kind of normalized and incorporated and lost its sort of critical edge. Now, that debate flared up over neutral principles. Ok, this is a very important part of the intellectual history of that period. Essentially, this had to do with the critique of the Brown court, of the Warren Court, and particularly the Brown opinion and other other Warren Court opinions, which were … it was argued by the sort of centrist conservative … centrists and conservatives that they were violating the idea of neutral principles, that neutral principles were what the judges should be about. And really they were engaging in social engineering or some other bad stuff that you shouldn’t do. And I was cooking for Charlie Clark, who was a classical legal realist, and this book by Karl Llewellyn came out and Karl Llewellyn had been my hero. And this book called The Common Law Tradition came out and Clark read it, and he was very upset by the book because he felt that Llewellyn, who was, you know, one of the great legal realists, had bought this this idea of neutral principles in a very specialized and difficult to understand Llewellynish kind of way, but still was siding with the neutral principles people, which put him on the right, in terms of the current academic debates about the politics of the Supreme Court really was what this is about.
[00:27:42] And he and he asked me to read it and give me give me his reactions and write a memo on it. And I wrote this memo, and he liked it so much that he turned it into an article and put my name on it. So I was involved in this sort of defense of legal realism, kind of inadvertently as a law clerk. If you look at the article, it’s I think it’s on my website, Restrained and Freedom of the Common Law Tradition. And it’s a critique of those ideas and a defense of more older style legal realism. So I think that really was a very formative experience for me, which is very different than what anyone like Duncan … So don’t forget, I am by far the oldest person in the CLS movement. You know this, in chronological age and also in legal education age. That is, I’m the only one who went to law school in the fifties. I don’t know Morty, Morty Horowitz, was probably the second oldest and everybody else. Now, Duncan’s not that much … Duncan’s only seven years younger than I am, but I’m a fifties guy, and I was much closer to legal realists than they could be, because by the time they came to law school, they weren’t around, right, they were gone. So it was a historical thing. Now then the Crits reinvented legal realism, but with a totally different kind of philosophical basis. Right?
Jon Hanson [00:29:02] Professor Mark Tushnet’s article titled “Critical Legal Studies: A Political History” further contextualizes the origins and intellectual themes of CLS. There’s a link to a free download of the article in the show notes.
David Trubek [00:29:17] Although Llewellyn had dipped very heavily into continental philosophy and it actually spent a lot of time in Germany, actually fought in the German army in the first World War, and we know that. But most of them and most of them had not. And so this sort of marriage of American legal realism and continental philosophy was with neo Marxism, I mean, it’s quite a synthesis that CLS really created … was something really new. And legal realism was sort of a very important force. But I think, you know, not the sole or even the primary intellectual tradition on which really that CLS edifice was built.
[00:30:00] And you get Roberto Unger coming in from outer space in Brazil and totally another totally different tradition. And so … Although he wasn’t as important as Duncan was in building the whole intellectual tradition, but he was part of the early years and shook everybody up and everybody, you know, was moving out beyond the narrow confines of what legal education had been up until the mid-sixties. It was really very narrow. I mean, I think the thing that’s hard for a student today to understand is the extent to which the American law schools up until the mid sixties were really very narrow. I, you know, I always say that two things that really counted when I was a law student were corporate finance and federal jurisdiction. That was where you really the real legal intellectual was with international law, nah; jurisprudence, nah. Lefty stuff from the leftover lefties of the Yale Law School that was for, you know, wimpy public interest types, but the real serious people mastered federal jurisdiction, corporate finance, that was the was the big stuff. And that was the core. And the periphery was pretty small. Now, you know, now these things are still important. I don’t want to put either of them down, but the law school of today, particularly a place like Harvard, any of the major law schools, it’s just a totally different world. And that’s one of the things that CLS helped do. And that, you know, that CLS part of what I call the academization of the American law school. It wasn’t the only factor. It wasn’t the only force. There obviously many different streams that fed into this. But CLS comes along just as the American law school decides that it really should be part of the university and not really part of it, just part of the profession. And although, of course, formally they were part … had been part of the university for a long time, they still retained a certain distance from the traditions and the intellectual influences that were flowing to the arts and sciences schools of the time. That’s changed completely.
Jon Hanson [00:32:07] Thank you for listening to this episode of the Critical Legal Theory podcast, where we hear from legal theorists and practitioners about the ideas that shaped their critical approach to legal theory and the law. In the next episode, Will and Professor Trubek discuss the institutional backlash to CLS and the political and social forces that led to the movement’s downfall. If you have questions or feedback about this episode, you can contact us at email@example.com.