Ep 3 – Trubeck Part Two.mp3
David Trubek [00:00:08] Are law schools today better than they were before CLS started? Yes. Did CLS contribute to the overall improvement of legal education in America? Absolutely. Did CLS achieve what it hoped for in the transformation of legal education? No. Were those hopes unrealistic? Probably. Was it worth the fight? Absolutely.
Jon Hanson [00:00:38] Welcome to the Critical Legal Theory Podcast, where we hear from legal theorists and practitioners about the ideas that shape 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 second 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, now works as a researcher and project manager for several projects related to law in developing countries. He 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. In the second part of their conversation,
Professor Trubek talks about the factors within law schools that led to the creation of CLS and to its downfall. He describes the rigid, hierarchical nature of the classroom and the psychological toll taken by institutions like Law Review and the sexism of law schools at the time. Although Duncan Kendi’s biting critique, legal education and the reproduction of hierarchy would help to illuminate the problems with legal education, the traditions and illusions of meritocracy had been widely accepted before then. Trubek describes the momentum of the CLS movement after the first meeting, particularly as energetic debates erupted between more traditional leftists and the newer radicals. He ultimately traces the downfall of the movement not to those internal tensions, but to the crack down on calls from law schools, especially Harvard. Were the radical ideas and disruptive tendencies of the CLS movement the cause of its downfall? Or was all that the source of its popularity in the first place? Trubek’s answer is that it’s probably some of both. As the CLS brand became toxic, young professors became increasingly unwilling to risk being openly linked to it. Although the movement faded, many of its core ideas would repackaged continue to win adherents in the decades since. Trubek ends the interview by discussing his career after CLS at Wisconsin and in international law.
Will Burgess [00:03:18] [00:03:18]So while we’re talking about law school, you said that you were disappointed somewhat during your time at Yale. You were expecting something more progressive, more intellectually stimulating along those lines. What else about the law school experience influenced you? Duncan Kennedy writes a lot about the hierarchy of the law school and the the situation that the students were put in in the actual classroom. But what influenced you? [24.0s]
David Trubek [00:03:43] Well, of course, we didn’t realize that that was anything other than … nature. I mean, it never occurred to us when I was a student to question that hierarchy. This whole critique of hierarchy: it’s another thing that comes out of the sixties. So, you know, was it there? Absolutely. I mean, listen, it was so hierarchical, not only was the hierarchy between the faculty and the students tremendous, but there was the hierarchy among the students, and class rankings were published. And so everybody knew exactly where they were in the class. And the second and third year students would take bets on who was going to end up first, second and third. It was like a horse race in the first-year class. So the consciousness of the hierarchy in the students and then the Law Review was strictly on grades . . . . There was no writing on Law Review, and there was only one law review law. There wasn’t like sixteen law reviews. There was one the Law Review, and you were on that, or Law Journal in the Yale case, or your weren’t. And, you know, and that then put you on a track, and then you were on this track, and then you get a clerkship, and … blah blah blah. And so that, if I’d thought about it, maybe I would have been offended. What struck me and my wife, both of us coming from this big public university where we were very active politically — my wife and I were very active in campus politics — what struck us was the conservatism of the students and their sort of kind of acceptance of the hierarchy. And, of course, from my wife’s point of view was — of course in her class there were only six women — and the women were very marginalized. So . . . But the critique hadn’t yet emerged. So I can’t say that I walked away from legal education of 1958 to 1961, with any sense that I’d been subject to illegitimate hierarchy. I think my wife probably has come to see more in retrospect than she did at the time, or that most people did at that time, that this was really a very sexist operation. And the women were marginalized and scared to talk and, you know, treated with a kind of combination of paternalistism. And and and they were, you know, they were both ignored and treated paternalistically. So. So that whole part of the whole critique of legal education in The Reproduction of Hierarchy, I didn’t have that until Duncan Kennedy produced what one of my colleagues at Yale called the middle size red book. Because, you know, there was the Little Red Book of Mao and then Duncan was consciously trying to make it look like that. I’m sure that’s why he did it. And that was a feature of CLS — that what I would call the this sort of radical chic quality of CLS really was one of the things that got at all the legal academia and law and society people upset. They didn’t like that. They thought it was kind of juvenile and acting out. And to some degree, I think it was a little bit of . . . it was a little over the top.
Jon Hanson [00:06:48] Duncan Kennedy’s medium sized red book was titled Legal Education and the Reproduction of Hierarchy. Kennedy’s ideas, plus his chosen means of pushing the envelope, acting from within mainstream hierarchical, elite law schools meant that his presence and the presence of CLS threatened those invested in the status quo and the collegial norms of the academy. Of course, those were the very sorts of people that Kennedy worked with or rubbed elbows with at elite law schools. As future episodes will highlight, this made many of the political confrontations about CLS very personal.
David Trubek [00:07:30] And that was so this was part of the cultural differences and the age difference, of course, as well.
Will Burgess [00:07:37] How have you seen that environment change?
David Trubek [00:07:40] Law Schools?
Will Burgess [00:07:41] Since law school. How have you seen that change? And what change still needs to be done?
David Trubek [00:07:48] Well, I think that, you know, the teaching methods, the same as Socratic method. The Kings. . . I mean, Kingfield is not is not a caricature. It’s not a caricature. I mean, that’s what it was like William Moore, James William Moore, the civil procedure guy … I mean, he really would terrify you and you get up there and he would badger you. It was you know, we felt that way, the way Marine recruits feel when they’re, you know, out on the firing range or, you know, marching around. I mean, this is we were getting ready for the war and so we did not see this as illegitimate. I do see it as illegitimate. And I don’t think it really had the effect and it certainly did terrorize people. So yeah, and I think that’s gone now. I’m not sure what’s replaced it is necessarily so great. I think, you know, there’s kind of no longer you know, you get everything from just conventional lectures, which are not very good forms of legal education, to really interesting, interactive, dynamic kinds of things. So that’s good. Of course, the range of things that are considered, you know, important and legitimate in legal education has broadened tremendously. And again, I think, you know, CLS has played an important role in legitimating a kind of academic approach, a kind of critical approach with a small C, with a small C, which can be done from the left, from the right, from the center, from anywhere where you’re not just trying to, you know, reproduce the system, you’re trying to analyze it, critique it and so forth. I think there’s more of that. I think that the clinical movement which started about … don’t forget, the clinical movement starts exactly this time in the sixties in the sort of mid-sixties, you know. There were no clinics when I was in law school. No one had ever of a legal clinic. You couldn’t get credit for actually doing any legal work. Nobody even heard of that. That was the crazy thing; that was the crazy thing. So if you wanted to actually get some legal experience or do something for the poor or, you know, you could volunteer to work at the Legal Aid Bureau, but it was unpaid, and and you were not getting any credit for it. There was no supervision. You just went down there and they threw you some crap work, you know. I did it for a semester, so clinics were coming on and that, I think, has proved to be a very positive thing. And so, you know, but on the other hand, now the law schools are facing a new crisis, which is this whole well, there’s the crisis which is which is created by them, the you know, the crisis of the legal profession. But there’s also this sort of feeling that maybe the academic move went too far and we’ve got to go back and do more skills training. I’m not great. I’m not a great proponent of that. I’m not I’m not sure I’m not against it. I think it’s important to have a skills-based component, but I’m not sure that it’s a panacea the way some people now are treating it. And, of course, legal education is going to have to go through some major, major changes to adapt to a smaller market. I mean, I think we just have to face it. There’s a secular decline in the number of law jobs in America. We’re not quite as bad as the music industry or that or the book or the book publishing or or newspapers. But some of the same forces are slowing. And then there are other forces. You know, I do a lot of work on the legal profession, and I’ve been focusing now on emerging economies where everything is booming. I do try to keep up with the U.S. legal profession literature. At least I skim it. So the current crisis of legal education is nothing to do with CLS or legal realism or anything. It has to do with overexpansion, excessive cost and a shrinking market. And so this is sort of a classic industry structural challenge that other industries have gone through and the law schools are just beginning to face up to and haven’t yet figured out how to handle it. I think there are very few law schools and, of course, Harvard they don’t have to worry about. You know, … it’s not Harvard, it’s not the top ten schools, maybe 15. But but you get below 12, 15 in the hierarchy and everybody is affected by this. In the first place some law schools are going to close, some are already closed. But these are the really marginal ones. But a lot of these schools like in New York, you know — we know people in every law school — and I’d say that there are at least three law schools in the New York region that are really in trouble. They’ve had huge declines in the number of students. These schools are totally tuition dependent. So they could have a 30 to 40% drop off in their revenue from one year to the next. But of course their cost are fixed because what? What is the budget of a law school? It’s. It’s salaries. You might . . . it’s salaries. That’s it. I mean, that’s 80%. 90%. Well, all adjuncts and all short timers, all people who don’t have long-term contracts or tenure, are, you know, are being dropped like flies. And they’re holding on, but they’re going into their endowments in order to avoid, you know, laying off tenured faculty and untenured people. So the challenges of legal education right now are of a totally different order than the kind of problems that we’ve been talking about. And of course, they will affect these things. For example, I think there’ll be less . . . . I think one big thing that’s happened and this has nothing to do with CLS or anything but it’s a major project of mine was the law schools have become much less parochial and much more open to the rest of the world. More courses, international comparative courses, more students from overseas, including in the JD programs. Now you’re getting lots of foreign students that are doing JDs. This is something nobody ever heard of. And the number of foreign students, you know, in all levels has gone up substantially. So they’re going to be less of that because of the pressures to get people jobs in the U.S. There’s going to . . . Unless, and this is a possibility that schools will go out to try to get more and more foreign students to fill the gap. And that is happening in some places.
Will Burgess [00:14:16] [00:14:16]Let’s shift back to the history of CLS. You talked about the first meeting at Wisconsin. What did that meeting catalyze and how did the movement grow from that meeting? [13.4s]
David Trubek [00:14:32] You know, one of the tragedies of … that occurred to me was the university was … I left the law school in 1989 to become the dean of International Studies, which is a university job. And I ran the International Institute, which is interdisciplinary research and training and foreign stuff, you know, and I put all my files in storage at the law school, including all my CLS files, because I mean this is when CLS was over essentially. We didn’t have more meetings. And they tore down the library and rebuilt the building and they lost my files. It’s a tragedy. So I don’t have my CLS files. So I have rely on my memory, which is not very good. Anyway, what happened? Well, what happened was that it consolidated the network that was already there. And maybe the tension with the law and society people was helpful because it helped define this group. And we didn’t really realize the extent of the tension until the second meeting, which was also held in Madison. And my role was to really get Wisconsin behind this project, and I was able to get that for two years but after that, it was clear that, you know, in the first place we needed to move somewhere else, partly because the center of gravity of the people who were now coming in were from the East Coast. Madison is not an easy place to get to, and it’s expensive. So, you know, just for pure logistics reasons. So it consolidated the small network which then began to grow, and it picked up tremendous momentum. And we would hold all these meetings and I’m sure, you know, you can find out more than I can because people’s memories is better or people have better files. Karl Klare is the one who has all the files, He had, as I understand it, he’s got the best archives. So to the extent that anybody wants to, you know, look at archival materials or at least refresh . . . to have somebody refresh their memory, you know, Karl . . . But Duncan knows this better than I do. So anyway, I mean, so the answer is it took off; it caught a moment. A lot of young people coming into legal education saw it as an exciting possibility. There were the meetings were very intense. Duncan played a central role. There were fierce debates, but debates within the sort of on the left, debates on the left. A lot of the energy was the effort to sort of take what was a kind of rigid Marxist thought about law and infuse it with a poststructural and legal realist, and a more American and more flexible approach to the role of law in society and in political life, and the debates between the people who held out a more structuralist, more conventional Marxist materialist approach versus those who were pushing more poststructuralist ideas was probably the most significant intellectual activity that CLS carried on. And that was what created kind of a new synthesis. There’s this whole thing called the North-South debate. This was basically a very conscious effort on Duncan’s part to stimulate this debate, with the North being the more conventional, you know, leftist ideas and the South being more poststructural, and then and eventually more . . . there was also deconstruction that came in a little later. So that that provided a lot of energy and everybody was excited and feeling we were, you know, going somewhere. So there was a sense of we’re at the cutting edge. We’re the elite of the elite in terms of legal theory. We’re moving somewhere. And there was also at the same time, there was this whole debate between the old leftists who saw that being a leftist in legal education meant that you worked for the labor union, so you worked for the Poverty Law Center, or in other words, it wasn’t a project in legal education. It was a project of legal educators in the world. Well, CLS became a project of radicalizing the law school. So this theoretical project went along with the radicalize the law school project. And that was what really caused the backlash, the deep backlash in American legal education, because it was very threatening. And that was when people started talking about CLS. People should be kicked out of the university. You know that story. Paul Carrington. And this was a big flap and that hurt many careers.
Jon Hanson [00:19:51] For those of you who don’t know the whole story regarding tenure battles around critical legal scholars, you can learn more by listening to future episodes or by reading some of the articles we’ve linked to in the podcast shownotes on the Systemic Justice website.
David Trubek [00:20:10] So there were people whose careers were seriously hampered by people who might have moved up the hierarchy from, you know, school number 400, number 42 to school number ten or 12, whatever. Some people were helped by it, but other people were hurt by it. And there was just a tremendous reaction. And that cut off the supply of new blood, because once it became clear that that there was tremendous resistance to CLS in lots of law faculties, anybody who was aspiring to a legal education career, whatever their actual views, whatever their political affiliations, whatever their theoretical projects realized they better not go on the market saying they were friends of Duncan Kennedy. And Duncan Kennedy created this problem with his with a little red book with you know with this whole line of politicizing law school It scared people. And just as Duncan and the students at Yale had scared the faculty, so the empire struck back and there was real resistance. And that’s how CLS really came to an end, because then the supply of new people, that’s what kept it going, was new people would come in and, you know, they’d bring new ideas and people would try to proselytize them for their subgroup within. And this was all very good. It was all very good that there were these debates and then with these these different groups with different approaches and so on. But the moment that the moment the music stopped playing and the carousel stopped, then it was. It wasn’t.
Jon Hanson [00:21:57] Criticisms from others in the legal academy often centered on the idea that CLS scholars were willing to subordinate so-called academic excellence to their own political ideals. Crits were sometimes described as Marxist, which allowed some opponents of CLS to capitalize on familiar anti-communist rhetoric. Alternatively, they were labeled nihilists or merely incompetent teachers. Of course, it’s difficult to pin down a criticism that uniformly applies to all members of a group that self-consciously refuses to define itself. Michael Fischl wrote an excellent overview of the criticisms in his article “The Question That Killed Critical Legal Studies,” which you can link to in the show notes.
Will Burgess [00:22:46] [00:22:46]Well, you referred to this hostility in law school faculty against CLS. Could you talk about your experience with that at Wisconsin and at Harvard, what you felt on that? [11.9s]
David Trubek [00:22:59] Well, in Wisconsin, they left me alone. I was too important intellectually. Organizationally, I was Associate Dean. I brought in millions of dollars of research money. They couldn’t touch me, and they didn’t want to right? They tolerated me as long as I didn’t try to radicalize Wisconsin or try to infiltrate by bringing more of my CLS friends and effort, which I tried to no avail. I ran several people by the faculty who were promising CLS types, and the faculty didn’t buy it. And in some cases, I think in retrospect they may have been right but in others not. Probably the case that I think was most disturbing was Bill Simon. William Simon ended up at Stanford Wisconsin wouldn’t hire him. And he’s taught at Harvard. Now he’s at Columbia. So, I mean, you know, he was … and he wasn’t even a hard core critic, but he did come identified with CLS at the time. So Harvard was a very different story, right? Because I got caught up in the struggle between conservatives and the radicals at Harvard. And I suppose you know that the irony is that I became the candidate, not just of the left, but of the center. So the people who were among my supporters when I was being considered for a position here were the Dean, Jim Vorenburg, who was, you know, legal liberalist, nice guy, Al Sachs, former dean and people like that. Abe … Chayes. But the right led by Bob Clark, who subsequently became the Dean, were adamantly opposed. And while the faculty voted two thirds for the appointment– so I passed the faculty — but the president killed the appointment lobbied heavily by the right wing of the faculty. You know, it was clearly no holds barred politics. That’s what it was. And it was about the balance of the school because, you know, you could make an argument that if I’d been appointed and cleared Dalton gotten tenure, that the Crits would have a blocking power on all appointments. They were close to a third, or at least Crits and people who voted with them, because, you know, it’s a two thirds vote. And so if you have a third of the faculty plus one, you could stop appointments — you can’t make appointments, but you can stop appointments. And I think there was some concern about that, although I was never privy to the private conversations of the people who are leading the opposition. And it was a great experience in the sense that, you know, it was also one of these bonding experiences. I mean my relationship with David Kennedy, Duncan Kennedy, Henry Steiner, David Wilkins . . . . In the course of this week. I’m having dinner with David Kennedy, Duncan Kennedy, . . . I’m seeing David Wilkins for hours, and Henry Steiner. And those are all people, including David Wilkins, who just was a first year student, a first year professor who supported me. And that was a great relationship that has sustained; now of course I knew Duncan from way before and Henry also from before, but it sustained it and became part of my life. So, you know, I think I have . . . it came out all right. And in Wisconsin, they made me a little bit of a hero when I came back. That’s how I got to be dean of International Studies, because the president had read the story and she was very, you know, upset about it. And I wanted to do international. I was kind of tired of the law school, and I needed some big challenge. And there was we had this new president at Wisconsin, Donna Shalala, who then went on to be in the cabinet. You probably heard of her. She wanted to work well . . . People had persuaded her to build up the international programs at Wisconsin, which were pretty good, but had been sort of … hadn’t been taken care of for a while. And they were looking for somebody who would give a big push. And so they they they recruited me and I said, this is great. And so I left the law school. And the fact that I got this publicity over at Harvard, I got positive publicity in Madison over the Harvard thing. It probably helped me get that job, ironically. But that’s also the liberal Wisconsin liberal climate.
Will Burgess [00:27:26] You mentioned the tenure battles as something that led to the decline of CLS. Is there anything that CLS could have done differently to remain a movement in American law schools?
David Trubek [00:27:39] Well, these are these sort of counterfactual questions that are next to impossible, you know, if Duncan Kennedy wasn’t Duncan Kennedy. If Reagan hadn’t been elected, I mean, it’s you know, it’s so hard to answer that question. The answer is, I think, that the decision to try to politicize the law schools was not a mistake. But the methods might have been a mistake, that there might have been more a low key, more backroom, less kind of radical chic kinds of things. But this was also what gave the movement its energy. And and, you know, I’m not sure that, you know, a bunch of backroom Lyndon Johnson’s older radical left kind of negotiating would have it would have worked because it wouldn’t have, you know, mobilized and released the kind of energy that the more radical activity did. So it may have been, you know, we paid a price, but we got, you know, what we could get out of … out of a basically conservative institution that was not about to change very significantly without some major external pressure, which it never got. And still, it changed slowly. And, you know, and in some ways, I mean, I would say that looking back — and this was kind of a question you’re asking — are law schools today better than they were before CLS started? Yes. Did CLS contribute to the overall improvement of legal education in America? Absolutely. Did CLS achieve what it hoped for in the transformation of legal education? No. Were those hopes unrealistic? Probably. Was it worth the fight? Absolutely.
Will Burgess [00:29:39] Now, moving into your international work . . .
David Trubek [00:29:43] Right, I was hoping we could do that.
Will Burgess [00:29:44] Right. So could you describe for us a little bit of your basis and interest in that and how you shifted from CLS into international work and what CLS then that came in?
David Trubek [00:29:56] No, that’s a that’s temporally wrong. I started in international work before I even went to law school. That is, I became very interested in international stuff in college, but I didn’t have any opportunity to really pursue it. So I didn’t go overseas. We didn’t have study abroad in those days in the public universities. It was just something for a few schools. So there were no study abroad opportunities. I mean now Wisconsin sends 2500 students abroad a year. Right? But but then there was nothing. But I was always there. And my father was in the chemical business and he was in business with a lot of people from Europe and from Latin America. So we had a kind of cosmopolitan environment at home. I mean, and my father was very much involved in helping Dutch Jews escape from Holland in the war, because that was one of his major business associates were the Dutch firm, and a lot of them were Jewish. So there were a lot of Dutch refugees around the house. And then he was very much involved with some planters in Haiti who went on to be people who challenged Duvalier politically. So I had that experience from my father, although he was a business man, not in any way international actor. So I went to law school and I, for reasons that I cannot explain and people have asked me this because, you know, I I’m doing several of these kind of interviews about where it was all like, why did I decide that I wanted to have a career as a lawyer in international development? I don’t know. And I did within the very narrow confines of the Yale Law School, what I could do to prepare myself for that. Now, there were no there were practically no jobs being a lawyer in international development. There was was the World Bank, they had a few lawyers. But of course, the number of American slots was very limited at that time. The US government’s foreign aid program had a very small number of lawyers. But but to get a job there, you had to have practiced law in in some big corporate firms for five years. They wouldn’t take people out of law school. There were a few private development organizations that had a couple of good jobs, but again, they tended to hire people from the big law firms, not right out of law school. And so you had to go and work for a White and Case, or whatever. But this was my goal and I took, as I said, you couldn’t really do much, but there were a couple of courses where I could pursue my interests. And then I went to Mexico to study Spanish. I had been a French minor, so I had a good background and I’d taken four years of Latin, so I had a good background in romance languages. And I went to Mexico and spent the summer in Mexico where I studied in a school called the Instituto Mexicano, Norteamericano de Culturales Jalisco A.C. And I always say that you to graduate, you just had to pronounce the name of the school with a sufficient accent. So then I go and clerk for Charlie Clark, and then Kennedy gets elected. Or about the same time Kennedy gets elected, and Kennedy decides to have a huge push, creates the Agency for International Development, which hadn’t existed until then, and the so-called Alliance for Progress, which was the American program that was supposed to provide the democratic capitalist alternative to democratic, progressive, social, democratic and but capitalism. Okay, that was the Alliance for Progress — tremendous hoopla. So I thought, wow, this is it. This is the real deal. And it just turned out by a piece of absolute luck that the lawyer who they brought in to be the A.I.D. Lawyer for Latin America had been a Yale Law School graduate and clerked for Charlie Clark ten years earlier. And Charlie Clark gave me a big letter of recommendation, and I was the first person to be hired in that office. And one of the few ever to be hired right out of law school . . . after a one-year clerkship. So there I was working in Latin America, working in Washington, working in Latin America, basically helping run a foreign aid program, which we thought was a progressive project that was helping Latin Americans find a democratic, progressive alternative to communism, something that, you know, people left liberals with vaguely radical sympathies like Duncan Kennedy was doing in the CIA at the time, and several other people in CLS had been had similar experiences of, you know, going into the Kennedy administration or, you know, subsequent administrations, too. So then I worked on the West Coast of Latin America and then finally a job opened up in Brazil, and I applied for it because that was my goal. This was before the coup, when the United States and Brazil were not seeing eye to eye. It was it was a fear of radicalism and expropriations and unrest and flirting with communist bloc things that worried the Americans. So our aid program was pretty small, of course we were trying to support the more conservative forces, not the federal government, which was, as we thought, controlled by the left. Then the coup came. I had signed up for this before there was a coup, before the coup had been dreamed up. But it takes about six months to make these transitions because they send you to school. I had to study Portuguese for four months. So I knew six months before. So the coup was in March, just March of ’64. So this is the anniversary of the coup, right? and I was told I was going to Brazil in September of ’63 and then all the rest was preparation. So then I spent and so I went to Brazil and I worked there. I like I’d like to say that I was disillusioned and I left in protest, but I didn’t I was disillusioned by didn’t leave in protest. I left because I couldn’t see a career in the Foreign Service. My wife couldn’t see a career . . . a life in the Foreign Service. And I went back and I applied for jobs and I got a job a Yale, which I never thought I would get. So I had this international interest and this interest in development before I went back to, you know, from the time I was in law school. And, and then when I went into teaching, I got this gigantic grant from the from A.I.D. to run a program on law and modernization and a million dollars in 1966. That’s a lot of money in today’s dollars. And so I ran this along with Rick Abel. I ran this program at Yale and we trained people from all over the world and we had a very exciting intellectual thing. And that was the seminar that Duncan and I really got to know each other in was a seminar connected with that program, and we offered Roberto a fellowship, but then Harvard offered him a fellowship and we had a little arms race over trying to get Roberto to come to Yale and other people: Robert Gordon, the historian . . . he didn’t come, but Tom Heller did. So we had a very interesting group, a guy named Boaventura Santos is now one of the leading left intellectuals in Europe. And that was a very exciting time. That was a very exciting time. And I was being educated by these students from all over the world. And we were able we had all this money so we could bring people from anywhere we wanted. So we brought famous law and society people, international people, and it was like going to college again all over again. So that’s how I got my education in international development. I worked with the development people at the Yale Economics Department, how I got my education in law and society, really, because I hadn’t gotten much in law school was there at Yale. So I went off to to Wisconsin. And unfortunately, the law and development slot was occupied. So there wasn’t any space for me to law and development as a teacher. I did work for ten years after I went to Yale, left Yale for ten years I worked. Well, no, actually, it started when I was at Yale, so until about ’78 or ’79, I worked in Brazil every summer. I worked for the Ford Foundation for several years. I taught in Brazilian universities several years. I worked one summer for the embassy, big project that they had, and I would spend every summer in Brazil. And then I wrote a book on the role of law in Brazilian development, particularly financial development. So I was totally a Brazil guy and you know, and doing it. But I had trouble at Wisconsin making it into a teaching niche. But I’m a big organizer and manager, and so I gradually sort of drifted into being associate dean of the law school. And shortly thereafter we got this big grant to do civil litigation research. I don’t know if you’ve seen that in my résumé, but this was a big project that I ran, so I got pulled into basically, you know, law and society research on the American legal system. I kept my Brazil contacts. And and I also did a lot of work on the European Union. I wrote a couple of books on the EU and stuff like that. So I always had this international interest and it was …. So two things then happened. First, I got this job running the International Institute and being dean of international studies so I could just do international stuff. Now, a lot of it was administration, big administrative job, but no teaching duties, zero teaching job. But I taught every year. We create … I created a interdisciplinary graduate program for people doing PhDs on development issues, really, development related issues. And we had millions and millions of dollars from the MacArthur Foundation, and that was a second education because I really had the best students at Wisconsin. Wisconsin’s got very good graduate programs totally outside of law school. There were no law students in this: there just weren’t laws with the qualifications. And the program, you had to be in the program for five years and the law students never statyed long enough. Right? Unless they were doing doctorates, and we didn’t have a very robust doctorate program at the time. Still don’t really. So I worked with political scientists and anthropologists and economists and historians and people in international relations and that was fantastic. And that … and then the next thing happened was that this organization in Brazil called it the Getulio Vargas Foundation, or FTV, which was a very elite school in Brazil that was not a full scale university, but a business school, and an economics school of public policy school, decided to create law schools. And I was kind of recruited because of my previous work on legal education in Brazil to help create those law schools. And that pulled me back into Brazil, and I’ve never stopped. Now the other thing that was going on was NAIL, was post CLS. What happened to … where did CLS go? Where did it go? Where’d it go at Harvard. It went to David Kennedy. So David Kennedy, picked up the pieces, of CLS, built a program around foreign SJD students who were here. From their point of view, CLS didn’t die. CLS was some live thing. It was something you came to study. And there were real people like Duncan Kennedy, David Kennedy, Janet Halley, this was part of the tradition. We didn’t call it CLS; we called it something else, so we didn’t have to call it CLS. David called it for a while, he called it NAIL: new approaches to international law. Then there was TWAIL third-world approaches to international law and on and on and on. And now it’s called a IGLP. Right? So there’s all these sort of … but this is the this is what happens to CLS. If you want to know where CLS is, it’s down in the basement of of Langdell, at the far end in international . . . IGLP, the Institute for Global … Law and Policy. That’s the most lively … and this is a huge enterprise. So if you … so that was the other thing that I had this other world and because of the whole Harvard experience, I knew everybody and I made this part of my world. So I was there with the international programs of Wisconsin, legal education in Brazil now growing up, and all these IGLP people coming through. And so, for example, my wife was a visitor here in 2003. And I came along, I was on the sabbatical. I came along and we did a big conference on the sort of what’s happened to law and development. And Alvaro Santos, who’s one of these third world lawyers who then got a doctorate at Harvard, he worked with me. He was still doing work on his doctorate. And then we edited a book together, which you’ve seen. And so . . . and we brought in other people from that world that David Kennedy had kind of put together. And then I just stayed with that world. And I’ve been in and out, but generally that’s been one of the major sort of academic venues that I have engaged in ever since really, you know, the late nineties. So I think that the project of trying to build a critical tradition about international governance and international development has been the major project, intellectual project that I’ve engaged in in the last 15 years. And it’s been largely done through my affiliation with what I would call the post CLS, Harvard based IGLP network. And the people in Brazil that I have worked with through the two new law schools, one in Sao Paolo, one in Rio. And it’s not an accident that the book that is in my honor, the festschrift book, is called Critical Approaches to Global Governance, because that has been my project. It’s been to take the critical approach that was developed by CLS, law and society and CLŠ — because I’ve never been you know the idea that they’re mutually incompatible once you get past certain things — take those strands of legal thought and and analysis and methodologies and apply them to the international with my special interest being development and developing countries and now particularly the … countries. And that’s been the project and I consider it to be a complete continuation of the intellectual project that we built the CLS and the personal relations with people like Duncan Kennedy and David Kennedy, who are still central actors in that kind of an enterprise. That’s it.
Will Burgess [00:45:11] Well, thank you so much for your time today. I really appreciate it. And learn and learned a lot for sure.
David Trubek [00:45:17] It was fun.
Jon Hanson [00:45:19] Thanks 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. If you have questions or feedback, you can contact us via email at justice@law.harvard.edu.
