John Hinderaker of the Powerline blog recently reported on the latest craziness at Harvard Law School in a post titled “Harvard Law School Untaped: The Inmates Demand Control of the Asylum.” In it Mr. Hinderaker details the demands of a group of radical students aiming to change the character of the law school. The list emphasizes “student input,” changes in various symbols to erase the school’s “racist” patrimony, yet another layer of coddling in the form of a “diversity committee,” and the hiring of yet more leftists, this time of a specific type, called “Critical Race Theorists.” In sum, the demands are a predictably self-indulgent adolescent power grab.
Mr. Hinderaker does a fine job of pointing out the essential character of this list and its specious source. However, I think it important to address his analysis of where this will lead for the Harvard Law crybullies and for the law school itself. Because this analysis sums up what I think many right-minded people are likely to make of the situation, I quote it here at length before responding.
What the radicals desire is that Harvard abandon the teaching of law, and replace it with teaching about race. Critical Race Theory holds that the law, as it has been developed through centuries of legislation and court decisions, has no value or validity and is merely a tool of racial oppression. Why, then, should anyone study it? The radicals have no intention of studying the law; they want to participate in an orgy of racialist self-congratulation, presumably followed by lucrative employment.
If they get their way, Harvard will become a lousy law school. Its graduates will no longer be in demand by employers, including but not limited to law firms. If a client needs representation in court, or expert advice on a real estate transaction, or help in setting up a benefits plan or closing a corporate transaction, a lawyer who holds that the law is merely a tool of racial oppression, and is therefore unworthy of study or adherence, is worthless. No one will pay for his services, and law schools who turn out such useless graduates will be shunned.
The problem with this analysis, I am afraid, is that it is far too optimistic. Mr. Hinderaker assumes that there is out there in the “real world” of law sufficient concern with facts and meaningful skills and narratives that the purveyors of ideological resentment will be rejected and disemployed. Harvard Law and its graduates may suffer, on this view, but the law, the legal profession, and the country will survive and even prosper. Why? Because they will realize that law by nature entails a skill set that includes the following of rules, interpretation of given terms, and drafting of documents in accordance with “common sense” rules, customs, and purposes.
Unfortunately, there is no simple “common sense” law, even in contracts or the setting up of a benefits plan. Statutory and even contract terms are freighted with historical meaning. What is a binding promise? It depends. Lawyers study, in law school and afterwards at client expense, to find whether a specific problem is binding in a particular fact situation because formalities, intentions, and circumstances all help determine the correct answer. This does not mean that there is no correct answer—there almost always is. But law is difficult precisely because human experience is complicated. Thus, the common law especially must be “fined and refined” over time to take account of new circumstances (Internet, anyone?). Even statutes must be read in accordance with rules aimed at weighing the impact of formalities, intentions, and circumstances whenever the meaning of the text is not clear. Lawyers gain the ability to discern a term’s meaning in a given circumstance by learning its meanings in other circumstances and reasoning by analogy. If all these meanings are delegitimized as “racist,” there will be no common ground, no common understanding allowing for the conduct of business in any coherent fashion.
Not irrationally, Mr. Hinderaker assumes that lawyers and their clients will not stand for such anarchistic sabotage to our very way of life and business. But this in turn assumes that there is some group that is in charge of these meanings and applying them properly, and that this group will dismiss with contempt the ignorant and disingenuous claims of those seeking to profit from a system they have sworn to destroy. Sadly, the group so charged is the judiciary, along with various administrators and administrative law judges. And these people have shown themselves susceptible to the dogma of radical legal theories in the past, particularly when, as with critical race theory, that dogma is promoted by elite institutions and the government in the name of justice.
Critical race theory already is and increasingly will be promoted by elite institutions and the government. Already this anti-rationalist, anti-legal theory enjoys significant cache at major institutions. As to the government, the Obama administration in particular has furthered the narrative of critical race theory and aggressively championed the cause of its adherents through policies regarding racial representation and demanding a variety of race-based policies like quotas on the number of suspensions handed out to high school students in various school districts.
Critical race theory is merely the latest stage in the evolution of ideologues’ attempts to corrupt and control language for their own ends. I well remember speaking with a professor at one elite law school who teaches “critical theory,” and asking how it served him as an attorney. He gave me a smug smile and bragged that as a litigator he had never lost a court case because his “knowledge of semiotics” enabled him to turn the other side’s language on itself. I suspect what he actually did was confuse the judge and jury, allowing emotional appeals to trump law. Socrates did not attack the Sophists for nothing—their disdain for truth (and common sense) made them highly dangerous to virtue and good government. Then again, the Sophists won that fight, though in the end it lost Athens both its virtue and its liberty.
We already live in a legal culture corrupted by the ideological results of trendy legal cynicism. The so-called living constitution is the creation of people who think the Framers of the actual, written Constitution and the customs, traditions, and common law principles that once made up our unwritten constitution are intrinsically unjust. Under the guise of updating an old document, countless legal academics beginning with then-future President Woodrow Wilson worked to undermine the essential character of our constitutional republic, in particular its separation of powers and system of limited, enumerated powers. From this point legal elites moved on, in the name of correcting very real and serious abuses, to dismiss the requirements of legislation and/or constitutional amendment and to simply “assume” that the Constitution “must have meant” to institutionalize all good things, including racial and gender equality. As a result, the fight for civil rights became a fight against, rather than for, the Constitution and our legal culture.
The legal profession always has been prone to the vice of word-twisting. It is tempting, when one’s client’s interests (not to mention the cause of justice, however defined) is in the balance, to put one’s thumb figuratively on the scale by giving a tendentious meaning to a key term, or claiming an isolated precedent that seems vaguely on point is in reality part of a consistent tradition supporting one’s stated views. To believe that the critical race theory version of such self-serving reasoning will fail to sway judges and especially the already-radicalized bureaucrats who run various departments of government and the nonprofit sector is to expect common sense from people who frankly have no need for it. These officials are not dependent on customers or markets to progress in their careers, but rather on the favor of other politicized bureaucrats higher up in their organizations.
As to businesses and the law firms that service them, it may be the case for now that corporate counsels want to hire firms who will simply “do the job” of writing contracts, closing deals, and the like. But we are only at the beginning of the next transformation of our legal profession. Large businesses especially continue buying into the ideology of diversity for the simple reason that it pays off—not for America, and certainly not for America’s workers and entrepreneurs, but for large bureaucratic organizations, including corporations, that rely on governmental favor and the barriers to entry provided by regulatory schemes. When benefits and other regulatory programs are redesigned with “correcting racial injustice” in mind—as already is taking place—there will be plenty of critical race theory work for lawyers.
This is not an attempt at a conspiracy theory of diversity. What we are seeing is not some small cabal taking over our society in secret. The crybullies at Harvard Law are quite explicit in their demands for handouts and radical changes in the fundamental structures of our society. The new structure of our society will not be conducive to entrepreneurial activity. It will not be friendly toward common sense. It will be, as the Obama administration has been making increasingly clear, dead set on transforming society in all its realms, including law and business, into one that applies broad rules demanding various forms of equality, so as to increase bureaucratic oversight of day-to-day activities. Those Harvard Law graduates may not learn much about how to write contracts, but they will know a lot about how to interpret and enforce ideological requirements like those being imposed by the Education Department under Title IX (sexual assault and discrimination). There will be plenty of work for the crybullies—work that involves overseeing the rest of us in ways that will keep us from pursuing our own ends and the common good defined in any way other than that of radical, race-sex-and-sexual-orientation-based justice.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.