Ep 7 – Kennedy by Pierce Part One
Duncan Kennedy [00:00:07] The question is not what did you do in the war? The question is, what did you do in the sixties? So, you know, half the people are draft. Oh, everyone’s a draft dodger, practically. Very, very, very few people served in Vietnam. Almost none. The number of people in critical legal studies who actually went to Vietnam is actually close to zero, if not zero. This is a big, big deal not to have done that. But none of them went to Mississippi Summer in 1964 either. And quite a few of them did things like working for the CIA. This is not a pure record world.
Jon Hanson [00:00:48] Welcome to the Critical Legal Theory podcast, where we hear from legal theorists and practitioners about the origins of and influences on critical legal theory. I’m Jon Hansen, the Alan A. Stone Professor of Law and Director of the Systemic Justice Project at Harvard Law School. Over the last three episodes, we heard Abbey Marr’s interview with Duncan Kennedy, one of the founders of the Critical Legal Studies Movement. They discussed, among other themes, how CLS came into being, who it was for, and what it accomplished. In this episode, you’ll hear the first part of another interview with Kennedy, this time by Rio Pierce. In part one, Kennedy discusses the value of oral histories and delves into a personal and cultural history of CLS. He touches on ideas like what it really means when we refer to the elite, how the substance of movement politics might be affected by its leaders’ childhood and family life. What it means to be a self-serving solidaristic and ethically imperfect radical. And how the tumult of the sixties and shared experiences of a generation informed the movement as a whole. Throughout this episode, you’ll hear Duncan refer to people, events and scholarly works that impacted or interacted with CLS. You can find more information about most of those topics in the links in the show notes on our website. A quick warning that this episode includes explicit language. Here’s the interview.
Rio Pierce [00:02:29] I’m here with Duncan Kennedy, and we’re going to be talking about his biography.
Duncan Kennedy [00:02:34] Hi. Hi, Rio. Hi, Jon. So I just want to say, to start with that I’m incredibly honored by the whole project. So it’s really a thrill to have this going on. And I’m really grateful to you for the obvious lot of work you’ve done on getting ready for this and also for the questions which are great. I thought what I’d do is give a kind of introduction. To see that this is the first interview, you’re in a sort of a bad position in a sense, because this stuff I would like to be there for the other interviews and this seems to be the time to get it out rather than, you know, as we go along. So this is a kind of some background to my understanding of the project. Also, I wanted to say something about the biographical part. As I said to Jon, as he was sort of setting the whole thing up as a thought, I find that it makes me very nervous to be in this position as well as gratifying. So it’s both narcissisticly delicious and anxiety producing to think of myself as presenting myself, partly because people like me have a sort of exhibitionist streak and we like the idea of just showing off and being outrageous and having people applaud rather than booing you off the stage. So this is a real psychic danger, as I see it, of being in this position. So I’ve tried to figure out a way to deal with it that would stabilize me for the purposes of the exercise. But the biggest problem is the personal history part, because that’s where my personal history is obviously of great interest to me, and it’s everyone’s personal history that I think is of interest to them in a way that’s not exactly, let’s say it’s never objectively validated. It’s always totally distorted and crazy. So how do you decide what part of personal history to do?
Duncan Kennedy [00:04:25] So I tried to develop. I developed an idea, which is I’m going to try to present myself personal-history-wise with the following idea–that this is the beginning of my sort of substantive introduction: I think what makes this project worth it for me, aside from the narcissistic side, is that it will contribute, I hope, to a kind of archive, an archive of a particular type. Critical legal studies seems to me to have been very interesting, exciting. It was really a trip and a half while it lasted. But also, I think I do think and I don’t think this is pure narcissism, that it does have some interest as an historical matter on two fronts: as an example of radical activism, of a very particular kind, which I’ll say something about in a minute. And as an incident in the history of American legal thought. Hard to know how important, but it’s, you know, of some interest in that way. A basic kind of a question is how does something like that happen? I’m interested in how something like that happens, primarily with the archive idea. Archive idea. The archive is only useful is useful to Antiquarians. The world is full of Antiquarians. They love archives. They’ll just do the archive for the sake of the archive, not me. The archives’ other interest is people looking for something they can use. And from my point of view, that’s like legal realism was to us. So we had a complex but fragmentary legal realist archive. And Morty Horwitz in his second book, does an amazing job of sort of evoking it as a crazy moment with the idea of using it as a kind of oblique model for critical legal studies. So his chapter about, by the way, I’m not going to block a million names because I’m 70 years old. I can’t Rio?. Yeah, Jon. Anyway, so the archive idea here is [00:06:32]activism, radicalism, craziness, leftism, counterculturalism comes in waves. It comes and it goes. It’s up and it’s down. Well, it’s been down for a while compared to what it was in the period between about 1965 and 1975, and then for law between the late seventies and the early nineties. So for law, it hasn’t been down as long as it’s been down for other things, for complicated historical reasons, which my story as it unfolds will help to explain, I think. But it’ll come back, I think. And when it comes back, people will be looking for stuff. So one of my ideas is to provide some of that. [38.6s] And then I have a very specific idea, which is [00:07:14]I think that at the beginning of activist movements, a basic question for people who are thinking about doing it is “what do you have to be like to do something like that?” And we all had doubts at the beginning of our round, deep doubts about whether we would be able worthy to have the capacity to do it. So I think it’s interesting to get a look at the phenomenon of beginnings for this kind of thing. [32.0s] So that’s my introduction for that part. The next part. What I would like to do is first, I want to give a definition of critical legal studies as it interests me. And this I mean, all of this stuff is basically here partly so that it will be useful to other people doing other interviews sometimes. But the personal stuff. But lots of it not.
Duncan Kennedy What is critical legal studies, from my point of view, as I’m thinking about at the moment, sort of a rough way to describe it. It’s two overlapping projects. One overlapping project is, I want to define this, a series of adjectives. It’s a project of radical leftist institutional activism in legal academia. [23.6s] So it’s a very restricted definition. And many people in critical legal studies would say, if it’s only that shit, what are we bothering for? And my line, as you may already know from reading some of my stuff throughout, was, that’s stupid. If we could do that, it would be brilliant. I mean, come on, we’re not going to take power. Please. So that so that’s a very basic initial idea of critical studies. The other project, I guess I should say, that that activist project is strongly influenced by the act. So this is a thing: [00:09:04]it’s influenced by the activism of the sixties, but it’s a ’70s ’80s project. So this is very important to understand it it’s not a sixties project, it’s a post sixties project. And it really has very little directly in common with sixties. 67 to 75 stuff. The activist elements that were most important would be the early civil rights movement. Second wave feminism that was taking off through the seventies, didn’t really begin in the sixties, just barely was beginning in 68, 69, 70, but took off through the seventies. And by the time critical study started, it was very much going full steam so early in the anti-Vietnam War, the various kinds of Vietnam War things. [48.3s] But it’s but the differences between CLS as a post sixties activist movement and the activist movements is something I’ll get to in a bit. It’s very important. So that’s half the project.
Duncan Kennedy [00:10:06] [00:10:06]The other half of the project I would describe as follows that it’s a radical left theory project, specifically a legal theory project which attempts to put together various influential strands: [14.4s] a European strand, a European critical theory strand, which covers everything from Marxism to existentialism to structuralism and post structuralism. So those are all important European influences and an American strand that everyone always says puts together European critical thinking, studies European critical theory with legal realism. But it’s actually much more complicated than that. Legal realism, very important. But the other American strands, I would say, would be institutional economics is a certainly an important influence on critical legal studies policy thinking, but then also the new left, also anti-racist and feminist thinking. And this is an important element. Countercultural sixties stuff. So the sixties, it’s not all just doctrinaire politics. Another very important American ? of feminism is American feminism. The anti-racist stuff is American. There are not European there. We, I think, often saw them as significantly in advance, in a way of the European stuff. There’s some of this in the thing that I wrote called [00:11:28]Radical Intellectuals in American Culture and Politics, [1.6s] which you probably read. So it is an attempt to put together it’s a transatlantic kind of a thing. Now, a word about, let’s see, I guess, radicalism. So that was a word about critical legal studies, a point about radicalism. No, actually, for you, give me your questions.
Duncan Kennedy [00:11:49] [00:11:49]I’d like to start with Elite. [0.8s] So the word elite figures in a whole bunch of questions. And it’s clearly an important category for a lot of people who are thinking about things like activism in our time. So this is just going to be very doctrinaire. So doctrinaire, a few thoughts about elite. One way of talking, I would say when I use the word elite, so this is not the way to use it, but it’s the way I tend to use it. I think of the elite. I think of three different meanings of elite, each of which is valid and each of which is useful for different purposes. So first of all, I’d say there is something called the elite. Your questions presuppose that there’s something called the elite. One sense in which there is an elite would be to say the people in the US who have higher education, at least college almost always at least a year or two of post college education who work in professional managerial technical jobs high up in the bureaucratic hierarchy. They’re not secretaries. They’re high up in the bureaucratic organizations, in the bureaucracies within which they work. And they’re paid a lot of money. They’re in the top 20 or 15% of the income distribution. They’re making. If they’re not making $100,000 a year, they feel very poor. They feel that they’re a failure. So that’s an elite. But that elite could be understood. There’s a lot of recent writing about this as a a self understood, meritocratic elite. The basic thing that all the people have in common is their understanding that you can get to that position in America on the basis of merit. And there it’s a multicultural elite. It’s ethnically diverse. It’s professionally diverse. So, you know, an African-American doctor can marry a white WASP Wall Street analyst and combine their incomes and they’re doing well. It’s religiously diverse. The thing that everybody has in common is their feeling, actually, of the educational system is the structure that produces it. And it has nothing to do with your origin or the culture of your family. You’re acculturated to this elite through the educational system, and when these two get married, it’s not that they played together in kindergarten unless . . . . Now, here’s the third meaning of the elite. That’s the meritocratic elite. When I talk about the elite, I also am often thinking and sometimes I think you may think this too it’s hard to tell what you mean by the elite, what you might call the. That’s a quasi meritocratic elite, by the way. I don’t want to really call it meritocratic, because I don’t believe that it is very pure meritocratic for several reasons that will emerge as we talk. But there’s also a quasi hereditary elite. And very often when people talk about the elite, they switch back and forth between these meanings. So the quasi hereditary elite I would define as people who have been members of the meritocratic and general elite for a in a couple of generations back. So at least one side, one person in the family history was also a managerial, professional or technical upper level person with a college or maybe a year of graduate education and earned in the top ten or 15% of the income distribution of the 1950s or 1930s. So you’ve got to go back. When you go back, a couple of generations doesn’t have to be everybody. And it’s really true that this hereditary elite is full of impostors and people who’ve snuck into it and people who are faking and so forth. But it’s a distinct thing. It’s much less multicultural. So it’s overwhelmingly in numbers white, Protestant, overwhelmingly and white mainstream Protestant. So there are very few Methodists and very few Baptists in the elite that’s defined in this way. There is an equivalent black elite which goes back to post-slavery times, which is brilliantly described by [00:15:47]E. Franklin Frazier in the book Black Bourgeoisie, [1.9s] which is one of, I think, the greatest books of American sociology, though few people now have read it, and the other person who describes it incredibly brilliant is [00:15:58]Harold Cruse in the Dilemma of the Negro Intellectual and Rebellion or Revolution, [5.9s] two fantastic books about American black experience by black intellectuals. That elite is, in a sense, like the more white Protestant elite because it’s generations deep. It has many similar, very powerful cultural joint things. And if you look at the people who today composed the black the the black elite in the quasi meritocratic sense, it’s totally disproportionately populated by the children of the black bourgeoisie. Look at Harvard Law School, and you would see very quickly that that’s true. And it’s true of the Yale Law School and the Columbia Law School and the Stanford Law School. If you look at the African-Americans in the faculty they come from. So this is a quasi hereditary elite as well. One of the things about the quasi hereditary elite that makes it interesting is that you can really fall out of it. You can’t fall out of the elite otherwise understood, because it’s not generationally organized. But you can totally fall out of the quasi hereditary elite and every hereditary family that doesn’t discipline its children appropriately and control genetically and everything else. There are the bad apples and the black sheep and that. And so that’s a big part of it. So that makes the hereditary, quasi hereditary elite feel more meritocratic than they otherwise would because they look around. It’s not true that you’re born with a silver spoon in your mouth, gets you to Princeton. It just doesn’t. It may be true that there’s a member of your family who was going to Princeton since 1905 and roomed with, you know, F. Scott Fitzgerald in 1990. Possibly. But here is your cousin who is a drug addict. I mean, it’s really true. So that’s a sort of. So there is there is the elite. So when you were going to ask me questions about the elite, say I challenge elite to the interviewer where you might try to ask the question in a way, don’t just read it. Try to ask me the question in a way that will give me a sense of what you’re talking about. And I think that will make it more interesting to try to figure that out. Okay. So that’s elites,.
Duncan Kennedy [00:18:13] So [00:18:14]radicalism: [0.0s] left wing radicalism, is what I’m interested in talking about the particular kind of radicalism that’s those projects, I said radical left projects, one of which is an organizing activist legal academy project, and the other is a left legal theory project. So that gives a clue to the first point about radicalism is that the radicalism that I’m talking about is not defined by a radical theory. It doesn’t require that you have any powerful theory, and it’s antagonistic to the idea that your radical practice, whether institutional in that way or theoretical would be simply the instantiation of a powerful theory. So it’s against that. No, no, no. It’s also that’s easy, relatively intelligible today. [00:19:05]But the more difficult point about this is that it’s not a radicalism of service or ethical purity. So the idea here, you don’t call yourself a radical because you believe that you have a superior ethical commitment or that you are more committed to your ethics than other people. Though an enormous number of liberals and conservatives experience the word radical, they associate it with self-righteousness, with the idea that and one of their favorite tropes is to say, if you’re so pure, so moral, if you exist in service to others, if you are a kind of pure Christian, what are you doing as a member of the elite, which we’ve now defined by your educational level, your income and your occupation? [43.6s] So it looks like a contradiction in terms. In fact, Richard Posner, in his Holmes lecture, said of me, “There’s something intrinsically ridiculous about the idea of a tenured radical.” So this is Richard Posner sticking it to me in the most sort of direct. It’s pretty amazing. This is a Holmes Lecture for Christ’s sake. And I’m a member of the faculty to which is delivering the lecture. So but but that’s been going on since the very beginning of the new left. The basic idea is, wait a minute, you guys are claiming that you represent a kind of morality, commitment service, that you represent others. But the radicalism of these projects is better described as self-serving and solidaristic. It’s not self-sacrificing. It doesn’t claim to represent the interests of non-elite groups. It does not claim to represent the interests of non elite groups. And programmatically it just says these people are being fucked over. Something more should be done for them. But it’s completely open as to what. The actual activity is not actually the same as the left or radical activism of most of the sixties people and all of their successors in the ’70s, ’80s, ’90s and, 2000s. This is really different from, say, doing legal services for the poor. It’s closely allied and many legal services people were in critical legal studies, but they weren’t in critical legal studies as legal services workers. They tried to use crit stuff in their legal services practice, and they did. So the Bellow Charge Legal Services Center is itself a critical legal studies institution, but that’s because they adapted their practice to that end. There’s a lot of feminist activist practice which is clearly influenced by queer theory in the same way that critical legal studies has been influenced by queer theory. But Critical Legal Studies is not a feminist activist project per say in that sense. It’s an elite practice. [00:22:06]So Critical Legal Studies is a radical left elite institutional practice carried on in the institutions of the quasi meritocratic, quasi hereditary and general elite, the institutions that are vulnerable to it, in this case, legal academia. [15.9s] Now, there are various other analogous projects in other institutional settings. And I think one of the claims that could be made for critical legal studies is if you look at the range of those practices that emerged in the seventies. Critical legal studies probably was the longest lasting as a self-consciously radical left, radical elite intervention. But none of them lasted forever, and neither the critical studies, but it lasted for a very long time.
Duncan Kennedy [00:22:48] So this idea of radicalism, what makes you a radical? You’re very pissed off and bored. You’re really willing to talk about quite big changes in the elite practices that you object to. It’s a movement of people inside, so it’s a kind of contradiction in terms to say, how can we do this and be inside. You can only do it if you’re inside, and it’s not claiming to be the left. So Gramsci’s idea is the left intelligentsia is the organic intelligentsia of the working class. There’s a classic formula. These organic intellectuals were middle class in radical communist movements in 20th century history. French left life still has the structure. The leaders are the intelligentsia, except when they’re fought back by representatives of lower social classes. This is not like that. No crit radical was claiming to speak for the working class, speak for women in so much as it was part of this thing. Okay. So this is really a basic sort of problem for understanding it. Now, I’m describing something that doesn’t really exist anymore. So what I’m describing is a development out of the sixties into the seventies.
Duncan Kennedy [00:24:13] So in the seventies and in the early eighties, there were a lot of people like me. And we described ourselves as radicals and we didn’t, you know, we weren’t communists. Some of us were Marxists. But you clearly conflated communism and Marxism. I was never in anti-Marxist. Communism clearly a very, very bad enemy. Marxism is not communism, it’s just not right. So Marx is an infinite fountain of fascinating, great shit. I mean, indispensable to understanding modern life. Communism is really bad. There’s almost nothing good that I can think of to say about communism. And when you ask me the question, I’ll tell you when I reach that very classical American 1950s conclusion was in 1957.
Duncan Kennedy [00:24:59] [00:24:59]So last thing is about generations. [1.1s] Critical legal studies in generations. The next thing is a generational thing. The generational thing is this. So critical legal studies is not a phenomenon of baby boomers. It’s audience in legal academia. The people who have recruited and organized and the people who joined it were baby boomers. [00:25:19]But the most basic fact about the people who organized it, and that would be, say, the 20 people closest to being in organizing roles, is that almost none of them were born after 1947. So if we say the baby boomers and those who were most of those were born in 1947 or 1948 or 1949. So it’s a pre boomer and very early boomer movement. So if you look at the old guys would be David Trubek, Morty Horowitz, Rick Abel, Jerry Frug. They’re all born in 1939 or not 38, 39, 40. They’re not boomers by any conceivable generations. 18, 30 years before, a lot of us were born in 42, 43, 44 or 45, that would include, you know, Peter Gabel, Alan Freeman, me, Rand Rosenblatt, Mark Tushnet, a bunch of others in 47, 48, Karl Klair, Kathy Stone, Mary Jo Frug [59.6s] was probably born in I think she was born in 1941. I’m not sure. [00:26:24]Fran Olsen [0.4s] was, I think born maybe in 1949. So both the men and the women, that’s the generational thing. These people are different from baby boomers in some very significant ways. So even the early boomers and the pre boomers, we belong to it in the analysis of the generations is the distinction of boomers between lace curtain boomers and shanty Boomers. So lace-curtain boomers are the beginning of the boom and also the people born up to ten years before. Shanty Boomers are the end of the boom. The difference is that the early boomers come into a booming –haha– a booming market for education created by the boomers. [00:27:09]So in my generation, anybody can have a job in education. You have a college degree, you can get a tenured job in the public educational system, unionized, with good benefits for life. Jobs in the sixties for people who graduated between 1960 and 1968. The question is not can you get a job. That just never enters your mind. Of course you can get a job. You can get a million. Any college degree will get you many different kinds of jobs, even if you’re a total incompetent schmuck and basically spend your day getting stoned. It’s really, really different for the shanty boomers. The shanty boomers come along. We’ve filled up a giant number of the service jobs that were generated by the postwar boom, and they are up shit creek without a paddle. They really have a problem. They have a just a serious problem. And that’s been true in waves ever since. [56.9s] So you guys are just the last you’re the shanty boomers of the shanty boomers of the shanty boomers of this unbelievable effect of the generational way. So people in we were incredibly privileged from the point of view of the job function, still totally competitive with each other, angst ridden, people were constantly getting fired and laid off.
Duncan Kennedy [00:28:29] The ways in which it’s different being a pre boomer or an early boomer from being a late boomer, that’s the first one. The second one is you really are on the cusp between cultures. [00:28:40]So the people in this are trying to combine the cultural values that they like from the fifties, with the cultural values that they like, from what’s exploding all around them. So the most basic characteristic of the transitional cohort, which is all the people who created critical legal studies, is they love on some level, they love the sixties. They just love it. All around them are people of our generation who hated it. [28.0s] Most people of this very generation that range is born 39 to born 47. They’re the World War Two generation. Then they go off and fight in Korea, a lot of them not sorry. They don’t go off and fight Korea there at all. Their post Korea. Their parents fought in Korea. Their parents fought in World War Two. [00:29:29]They are really hostile. They’re totally integrated into the postwar system. And they hit the sixties, which only started in 1967, remember? So starting in 1967, there is horrified as their parents, they’re just disgusted. But these people are distinct. [15.8s] The crit pre-boomers are those three boomers for in some way it was the realization of their dreams of the fifties. They don’t have to do it. Many aspects of the fifties that we, now we, detested, suddenly they were totally hegemonic in 1957. They were totally hegemonic in 1958. They were totally hegemonic in 1962. And 1968: I can’t believe it. They’re being trashed right and left there and these kids are doing. [00:30:18]So our goal, first of all, we’d like to be like them in various ways. In many ways, we admire their activism, their daring, their bravery, their countercultural pizazz in every way. The fact that they’re opening all these intellectual pathways that were rigidly shut down in the fifties and early sixties, these kids rock. Now they have a problem, which is they’re crazy. This is a really serious problem. And they get crazier. They split the spin in all directions. They’re very self-destructive. [28.7s] There are younger brothers and sisters and our nephews and nieces and stuff like that. They’re not our children, so our children are. We have no boomer children. My children are 44 and 40 are 43 and 45. So my children are the age of your parents? Not quite. Probably because you’re probably late twenties guy, you know. But, you know, within that ballpark. So it’s not our children. The people who are ten years older are five years even older than Trubek are desperately worried that their children are going to be destroyed by the sixties and all around us, those of us who get sucked into the sixties, large numbers of them go crazy. They die. Really bad stuff happens to them, really bad stuff, but from our point of view. So just as an anecdote. [00:31:44]When I started at Harvard in 1971, I was in college, as you know, graduate in 64. In 64, there was a system of final clubs at Harvard, which is the equivalent of very, very elite fraternities. When I got here in 1971, two of the final clubs had had to sell their incredibly lush Harvard Square buildings that had been donated by alumni, and they were virtually extinct. Now, I am a bad person. I am not really very Christian in my underlying, basic psychological structure. I walk down Mount Auburn street, and I looked at this building. And I thought, yes! yes!. Oh, my God, I can’t believe it! These assholes! They’ve gone down. They have gone there, and they’re never coming back. Wrong. In 1981, Reagan was elected. The major fashion is the preppy look, and all of the final clubs at Harvard have reconstituted themselves as democratic, meritocratic, elite institutions. They’ve become diverse, and they understand themselves to be upholding exactly the ethos of the quasi meritocratic elite. So you have to understand that there’s a period. The period only lasts 15 years between 67 said any two or three with real cultural. And we loved that. So if you look at these, people were all say, “yes!”, the young people, they’re trashing these things that we loathed. [95.6s]
Duncan Kennedy [00:33:20] So now, two more things. So the first thing is the revenge of the Nerds.
Rio Pierce [00:33:26] Yeah.
Duncan Kennedy [00:33:26] So critical studies could be conceptualized as the revenge of the nerds. In pycho-social CLS, which you may also have read. Or maybe not.
Rio Pierce [00:33:34] No I haven’t.
Duncan Kennedy [00:33:34] Oh, Psycho-Social CLs, well you should read it.
Rio Pierce [00:33:36] Yeah.
Duncan Kennedy [00:33:37] So it’s it’s a very itchy thing. So Psycho-Social CLS says CLS is the revenge of the nerds. I got hate mail immediately from all kinds of CLS people. “How could you say I’m not a nerd? I was never a nerd.” “Yeah, of course not. No, you weren’t at all. I noticed the letter sweater. That’s great.” Not! So a very basic aspect of fifties culture — so we are from the fifties — is this radical distinction between jocks and nerds or something like that. And that is complicated for law school, because law school itself was the revenge of the nerds. So millions of nerds distinguished themselves. Their revenge was they got into law school and became part of the meritocratic elite. Whereas the other people in Greenwich High School didn’t, and a lot of them ended up, they did well, but nothing like the nerds, because the meritocratic elite was made for the nerds. But in law school, even in colleges that were very difficult to get into where you think the nerds would have triumphed, the nerd jock culture reproduced itself. So weirdly, the nerds triumph and they take over the institution and they instantly differentiate themselves, once again. This is called nesting in my version of structuralist theory, which you’ve been exposed to in that course. So they instantly reproduce the nerd jock. How can they do this? You would think that they would say, “no, no, no, no.” And they then integrate with the jocks who made it. So they’re always some really smart, terrifyingly smart jocks, and they’re really bad guys. They make it, and then there are jock girls. It turns out that at last women have arrived. That will make everything different. “Women would never in your fantasy, women would never behave the way men behave. The jock culture is foreign to their nature, which is a bonding, web based nature. Empathetic?” No, not at all. They’re just as competitive just as mean, the jock girls, as the nerd girls bond with the nerd boys, just like always in the reproduced structure. [00:35:53]So the Revenge of the Nerds is an aspect of CLS across the board. It’s a very basic structure. [4.0s]
Duncan Kennedy [00:35:58] Now, here’s the lesson. I think that the people who became radicals in the seventies and eighties, the people who became radicals in the seventies and eighties, all the way from the older ones through the younger ones. There’s another basic characteristic of the experience, which is the characteristic experience of in the sixties. No, not in the sixties. In the fifties and sixties, there is overwhelmingly. Often. Often. There are two different things. Sorry. Again, this is another troubling one. Is there some aspect of personal history that is incredibly painful? Now you can say that’s true of everyone, and maybe it is true of everyone, but there’s some sense in which woundedness, some sense of and angst is a very and there are many ways it can happen. [00:36:45]So I would say that for me, an important part of that was being having no money in a very rich world into which I was fully integrated. So now that’s not the end. Another thing would be that my parents were both alcoholics and they got divorced in 1957. Now, that wouldn’t mean a thing to a child born in 1970 or 1980 means nothing, because in 1980, everybody was, you know, getting divorced and single parenthood for the meritocratic elite became a norm. Very, very large numbers of students at Harvard Law School compared to none in 1960, come from divorced families. [41.6s] So it’s a. But in 1950, it was actually a big deal. People were really concerned about you if your parents were divorced in a really deep way. So in my parents, alcoholism is another very basic background factor that influences these things. But if you look at the various people in the system, it’s that is everywhere. Someone’s father committed suicide. It’s a very a parent who committed suicide is not at all uncommon. Etc., etc.. [00:37:53]Another common thing is Fred Block is a very interesting sociologist, once pointed this out. He said, “I’ll bet you if you just look at your best friends in critical legal studies, who created it, you’ll find over and over again a man of lower social status, married to a woman of superior educational and social attainment, with the son identifying passionately with his mother and her sense of being in some sense, downwardly mobile and against his father, and realizing through academic and political life the vindication of his mother’s being as a cultivated person against his father. [38.3s] You weren’t nodding enthusiastically. Jon is nodding enthusiastically. I’m claiming that you will find this in amazing number of cases. Here’s another one of the ten founders of critical legal studies. Five of them have one WASP and one or one non-Jewish and one Jewish parent. Of the African-Americans involved, large number are either mixed race or they come from the elite. But falling. That is, the African-American family. So over and over again, you’ll find that there is something like that. So the radical impulse in this anti-sectarian form, this is anti-sectarian radicalism as I’ve tried to describe it. I mean, that’s a good way to define it. It’s not just nonsectarian. It’s anti-sectarian. That’s also the new left influence.
Duncan Kennedy [00:39:23] Last thing. Betrayal, self betrayal. So the question is not what did you do in the war? The question is, what did you do in the sixties? So, you know, half the people are draft. Oh, everyone’s a draft dodger, practically. [00:39:37]Very, very, very few people served in Vietnam. Almost none. The number of people in critical studies who actually went to Vietnam is actually close to zero, if not zero. Could be not a single person. In a world in which everybody was being drafted and the draft was really, really, really serious. So this is a big, big deal not to have done that, but none of them went to Mississippi Summer in 1964 either, and quite a few of them did things like working for the CIA. [32.6s] So but not that I mean, that might be the single most shocking of all the things. But David Trubeck was working for USAID at the time of the coup in Brazil, in which the United States we replaced the democratic populist government with the Castelo Branco right-wing dictatorship. But there are many different forms of that. So that’s one thing. And that is the feeling for many of these people that we missed the sixties. Partly we were a little too early for it. We were committed to other things. It came along and these people did it and it was fantastic. But we didn’t do it, and maybe we did quite a few things that were pretty plainly inconsistent with it and had been doing them for a while. So that’s another very. So the feeling of having of not having this is not a pure record world. No, I’ve just given the liberal version of Betrayal. But the other version is having been a marxist in the sixties and early seventies. Remember, this is all happening in the late seventies. So there are a lot of people who felt that they took ridiculous, ludicrous. They got sucked into a kind of sectarian version of Marxism that didn’t pan out. Moreover, they didn’t take up the gun. They didn’t join the Weather Underground. And a damn good thing too. But their basic experience was the group of which they’d seen themselves members, say SDS in 1965, was great and the really radical Marxism impulse. It went to shit. By 1971 or two, it had completely lost its legitimacy. It either fragmented or descended into, you know, the Weather Underground, Maoism, like that. The RCP, the Revolutionary Communist Party, the Spartacist Youth League. Blah, blah, blah, blah, blah. It still had some real appeal to me, although that was not my side in 1969 and 1970. It’s just amazing how fast it just, it ran into the sand and it was gone. So liberalism, which was the war in Vietnam. The failure of the Great Society to respond to the crisis of the ghetto, the unbelievable sexism that was built into the liberal elites. That was what one half of us were identified with and compromised by our relationship to, and radicalism of the Marxist type was what the other half of us were involved with compromised with. So it’s an anti-60s thing in many different ways. So the enemy is both liberalism, but we’re not in a self-righteous posture vis a vis it, and we don’t experience what we’re doing as going to the countryside. A mocking, wonderful phrase that we often used with the long march through the institutions. So the long march was the Chinese Communist Party defeated by Chiang Kai-shek in Shanghai. They go to the west and establish Hunan Province. The long march, the institutions which are mocking reference to the fact that we’d given up on … and born of this, is hatred of state power. This is just a very basic aspect. [00:43:25]It’s not hatred of state power as a result of a preexisting theoretical critique of state power. We were all interested in state power in one way or the other. But the late seventies is a moment of profound disillusionment with the possibility of achieving state power, but not just the possibility between state power, the desirability of it. State power sucks. [19.3s] So then there is a slogan of [00:43:48]Jacques Ellul [0.3s] E-L-L-U-L, the anarchist thinker, which is “we study power not to seize it, but to resist it.” Now that expresses the ambivalence. So I’m really interested in studying power. I know. I mean, it’s great stuff. In principle, I’m interested in studying in order to resist it. Gotta study it to be able to resist it. So that’s a that’s a frame. Those are some frames.
Duncan Kennedy [00:44:14] Now, just last word. The word institutional. The practice is institutional. I’ve already said it’s not about state power. It’s institutional. It’s at the institution of legal academia in all its various things. It’s faculty politics. It’s we participated in student politics. We rejected the faculty-student division just the way Jon does. I mean, his way of doing it is very similar to ours, although this long gap between us and his arrival on the scene when nobody did that, but we did it very intensely from maybe 1975 to 1990. [00:44:49]It’s administrative politics. It’s the disciplinary system. It’s the placement system. It’s the law school hiring system. It’s the grading system. It’s the structure of the curriculum, the organization of the curriculum. It’s the national system of hierarchy. So it’s the hierarchy of schools, the relationship between the New England School of Law or Suffolk and Harvard. It’s the the AALS as a target we did lots of AALS activism of various different kinds, and it’s the networks of schools. So it’s law and economics, it’s liberal constitutionalism. It’s the way the law and society movement, those are national networks and organizations. All of this is the terrain of the left project. It’s not about any one thing. It’s [46.3s] not about the law school classroom to the exclusion of the way the way the Law and Society movement chooses the place to have its annual convention. And it’s absolutely the case that there is a direct, problematic, complex analogy between this and family life. The people who have family life understand that the project is actually — the personal is political, is the feminist slogan which says “family life is intensely political, omnipresent.” This is derived from that was the slogan “The professional is political.” So the professional is not professional. The professional is political with a basic CLS slogan derived directly from “the personal is political” feminist slogan, which is not just about family life. It was about sex in general, but family life was the first locus of it. And we all lived through in our generation the question of second wave feminism and the organization of family life. Totally not overt. So that’s in the background. Not theorized, not discussed. It’s still a world in which the professional may be political and the personal may be political. But there’s a very sharp divide between them. Very sharp divide. But it’s totally the case that everybody is aware that women are in revolt against the distribution of household chores, for example. There’s nobody was not involved. The question of childcare, how involved are husbands with their children, wives, you know, and the women in CLS are a very complicated array of different positions with respect to all of those issues. There’s no one single thing.
Jon Hanson [00:47:17] Thank you for listening to this episode of the Critical Legal Theory podcast. In the next episode, we’ll hear the second part of Rio Pierce’s interview with Duncan Kennedy, where they discuss Duncan’s personal and family history, his schooling, his introduction to democratic socialism, dodging the draft, working for the CIA and more. If you’re enjoying this podcast, please subscribe to us wherever you listen. And please rate us and leave us a nice review to help us extend our audience.