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straightforward, fact-¬nding can be controverted, even where the facts are clear,
procedural hurdles can be erected. All other things being equal, the most power-
ful groups and individuals tend to enjoy greater success in shaping the content,
force, and application of law because they often enjoy greater access to lawmakers,
courts, and quality legal counsel, because they can devote more resources to legal
representation and lobbying, or because they can afford to make systematic and
strategic use of the legal system over extended periods of time.
Because lawyers™ and judges™ rhetorical efforts can take advantage of law™s many
opportunities for innovation and contestation, the practical effect of legal rules
and their application tends toward the vector sum of the different modes of power
in society. The most powerful forces generally make the greatest use of law; they
will tilt the substantive content of law to their interests or, failing that, the way that
the law is applied and enforced in practice. Conversely, the substantive content of
law often proves least helpful to the least powerful groups and often will be applied
and enforced in practice to their relative detriment. Oliver Wendell Holmes Jr.,
speaking of his career as lawyer and judge, once said that his epitaph should read,
“Here lies a supple tool of power.” Critical scholars might argue that Holmes™s
epitaph describes not only his career but also the entire legal system. Law “ even a
relatively autonomous law “ is a supple tool of power.
Critical Legal Theory Today 67

Critical theory™s concern with law™s underdetermination and plasticity captures
only half the story. Indeed, there is no necessary correlation between indetermi-
nacy and illegitimacy. Law™s plasticity and indeterminacy might help disguise and
mystify injustices, but they might also promote adaptability and facilitate progress.
A determinate law might avoid manipulation by powerful interests. But determi-
nate legal norms “ even when applied impartially “ can be substantively unfair or
tilted toward the interests of the powerful. Determinacy foments injustice as much
as indeterminacy ever did if the rules are unjust rules, or if they tilt inequitably
toward some groups over others.
Perhaps even more important, implicit in the idea of law™s relative autonomy is
a contrary point. Even if law is a supple tool of power, law also serves as a discourse
of ideas and ideals that can limit, channel, and transform the interests of the pow-
erful, sometimes in unexpected ways that the powerful cannot fully control. Law
is a tool of power that can become important and even indispensable to power.
People have to justify what they want to do through it. Perhaps the tools of law
cannot fully dismantle the forces of injustice. But the proliferation of law and legal
institutions also shapes and constrains how people can justify their actions and
what they can do, both for good and for ill. In this way law and legal culture “ as
technologies and methods of justifying and shaping power “ also become politi-
cal resources for limiting and channeling what powerful people and institutions
can do.
The relative autonomy of law from politics “ rather than its complete autonomy “
simultaneously poses a threat and a promise. The threat is that law will fail to do
much more than ratify and legitimate the interests of the powerful; the promise is
that it might hold off the worst excesses of power by giving people discursive and
institutional tools to talk back to power; to restrain its sel¬shness and inhumanity;
and to imagine ¬ner, better visions of human association.
The threat and the promise of law are joined together inseparably. What gives
law its power to legitimate is its ability to redescribe unjust and unfair events,
social practices and institutions in terms of valued ideals of human association
like consent, freedom, dignity, equality, and fairness. In the hands of lawyers and
politicians, law can disguise, mystify, and legitimate great injustices using the very
ideas and ideals we admire. But law can do this only because it appeals to these
values and claims that it is trying to realize them through law. Recourse to law
forces the powerful to talk in terms in which the powerless can also participate and
can also make claims.
From this standpoint, law is not simply an ef¬cient tool of power that powerful
people and powerful groups can wield any way they like. They do not merely shape
the world with it; rather, it shapes them and their world, because they have bought
into law as a means of achieving and wielding power. Law shapes their beliefs and
desires, their sense of the appropriate and the inappropriate, their conceptions of
the possible and the impossible. Law generates its own institutions and its own
demands; it creates its own culture; it is its own form of life; it struggles with other
forms of knowledge and power for dominance. That struggle might lead to yet
another form of professional power displacing older forms. But it might also offer
a space for something far more bene¬cial and noble.
68 Jack M. Balkin

The critical approach to law “ or at any rate, my version of it “ has always been
doubled, has always re¬‚ected the Janus word legitimate. On the one hand, powerful
people have used law to subordinate others and to secure their own interests under
the guise of promoting laudable goals like freedom, equality, liberty, consent,
community, and human dignity. On the other hand, by choosing to speak in the
language of law, powerful people and interests can sometimes be called to account
because they try to legitimate what they are doing in those terms. The people they
take advantage of can argue that this is a misuse of law, an illegitimate attempt
at mystifying rhetoric. They can appeal to the values that law seeks to protect
to promote better, more just, and more humane practices and forms of human
association.
Important theoretical debates among critical scholars in the 1970s and 1980s
revolved around which conception of law was the best one. Some critical scholars
adopted a largely pejorative conception, focusing primarily on law™s defects. They
argued that the rule of law was enmeshed in irreconcilable contradictions; they
denounced rights talk as sterile, useless, and counterproductive. Others, especially
feminist and critical race theory scholars, pointed out that rights discourse and
rule-of-law values were among the few resources that disempowered people had.
Rule of law and rights talk were potentially emancipatory discourses. They held a
limited but important potential for liberation and for contesting the arbitrary and
unjust use of power.
These feminist and critical race theorists understood the deemphasized ele-
ments “ the other side “ of critical claims about the relative autonomy of law. They
well recognized that rule-of-law values and rights discourse were hardly perfect “
after all, they had been used repeatedly to justify slavery and the subordination
of women “ but that they had also allowed people to speak out against and to
restrain the worst excesses of power. Even in a period of deep skepticism and
disillusionment about what law could do, these critical scholars retained a sense
of the political importance of rule-of-law values and rights discourse. That is not
because they believed in a strict autonomy of law from politics, but because they
understood the political values that legal culture and rights discourse might serve.
The best version of critical theory, I think, employs an ambivalent conception
of law rather than a pejorative conception: it recognizes law™s relative autonomy
from other forms of power in social life, and it understands the dual or Janus-faced
nature of that relative autonomy. It sees both law™s limitations in the face of power
and its possibilities as a means of channeling power and preventing its most serious
injustices.
Moreover, I think that a critical approach must always be self-critical “ it must
recognize that how we make and apply legal theory arises out of the circumstances
in which we recognize problems and articulate solutions. Theory may purport to
be timeless, but what theory means in practice, how we should apply it, and which
of its elements gain particular relevance will change with changing times. A critical
theory of law must recognize how different aspects of law “ and of a critical theory
of law itself “ become newly salient or re¬gured in different circumstances, and
how the seemingly timeless verities of one historical period are conditioned by the
assumptions and expectations of that time. Critical legal theory is no exception. If
Critical Legal Theory Today 69

a critical theory of law looks different today than it appeared thirty years ago, that
is because the world itself looks different.
The critical project in American law arose in a unique period in American legal
history. During the 1960s American law had made enormous gains in promot-
ing equality for the poor, for racial minorities, and for women, and had greatly
expanded the scope of civil liberties. In a few short decades the country had become
far freer and more equal, and law “ and the discourse of rights “ had seemed to
play an important part in the transformation. When the Nixon administration
tried to subvert American democracy in the early 1970s, the Constitution and the
rule of law seemed to provide key elements in the resolution of the crisis. Both
the Watergate scandal and the civil rights revolution seemed to demonstrate that
law and rights discourse played an important role in promoting a just society.
The law could not have succeeded without political mobilization and political will
behind it. But law was a key institutional medium “ and the language of rights a
key discourse “ through which progress was achieved.
But these gains “ and the power of law to effect them “ had stalled and slowed by
the middle of the 1970s due to a series of reactions and countermobilizations from
different segments of society. The result was continuing improvement in some
areas, retrenchment in others, and stalemate in still others. There was no promise
anytime soon of another round of truly transformative changes toward greater
liberty and equality. Instead, progress was halting and inconsistent.
The critical movements in American law arose in this period, when the liberatory
edge of law had been blunted and the tectonic plates of American politics had slowly
shifted. From this perspective, key critical claims “ that law re¬‚ected political
struggles and political power, that rights discourse was manipulable and could
easily be turned against progressive ends, and that legal argument often apologized
for continuing injustices “ made particular sense. As forces of reaction set in, the
law once again appeared as a ¬‚exible tool of the powerful, and claims of law™s
impartiality as a powerful rhetoric of mysti¬cation.
Critical scholars rebuked their liberal colleagues in the academy as apologists for
a status quo that, they believed, still had far to go. Frustrated with law™s inability
to do good and disgusted with complacent assertions of law™s impartiality, they
attacked the liberal defenders of the rights revolution and the rule of law as little
better than their conservative adversaries. Whether or not this accusation was
fair, it was surely deeply ironic. At this very moment in history the United States
had already entered a period of political retrenchment in which liberals would
lose most of their in¬‚uence and authority over the development of American law,
although at the time people had no idea how long the period of retrenchment
would last and how deeply it would run. By directing their critical focus at the
liberal legal academy, critical scholars ironically (and contrary to what their own
theories would have advised) paid far less attention to the most powerful forces in
American society, forces that would signi¬cantly change the direction of law in the
next several decades.
By the turn of the twenty-¬rst century, new conservative social movements
dominated American politics. Their agenda was very different from that of the
progressive forces of the 1960s “ indeed, it was in some sense a reaction to it.
70 Jack M. Balkin

Today the critical project of debunking legal liberalism and rights discourse to
clear space for greater justice seems beside the point. The problem today is not
that liberal theories of law mask deep injustices, but that the rule of law itself has
been cavalierly discarded in the quest for political power. The events of the early
twenty-¬rst century have made the other side of the ambivalent conception of law
particularly salient.
As the new century began, the Supreme Court of the United States settled a
disputed presidential election in Bush v. Gore by inventing a novel legal theory
that did not even justify its remedy of stopping all recounts and that, the Court
suggested, it would be unlikely to apply to any future decisions. The reasoning was
so weak and ad hoc by professional standards of legal argument that it appeared
that the majority simply wanted to end the contested election in favor of the
Republican candidate, George W. Bush.
Once in of¬ce, the Bush administration™s proclamation of a “war on terror”
following the September 11, 2001 terrorist attacks made repeated assaults, some
subtle and some not so subtle, on key rule-of-law values of transparency, account-
ability, and constraints on arbitrary power, particularly executive power. To give
only a few examples: The administration rounded up thousands of Arab and Mus-
lim immigrants shortly after the September 11 attacks and held them for months
without charging them or disclosing their identities to the public. It held two
American citizens in military prisons and claimed that they had no right to an
attorney or to a judicial hearing to contest their designation as enemy combat-
ants. Its secret “torture memos” justi¬ed torture and prisoner abuse by de¬ning
torture absurdly narrowly and by claiming presidential power to disregard statutes
and treaties banning torture and cruel, inhuman, and degrading treatment. It
maintained secret prisons overseas, where it tortured and abused detainees; it sent
others off to be tortured by different governments, and it stashed still others at
Guant´ namo Bay, Cuba, to avoid the reach of American courts. It created military
a
commissions to hold secret trials that permitted secret evidence the accused could
not examine and secret witnesses whose identity the accused could not know. It
began a series of secret and illegal domestic surveillance programs whose nature
and scope it would not divulge, asserting that any attempt to litigate their validity
would endanger national security and aid terrorists. And yet, as troubling as all
these actions have been, the erosion of legal institutions may become far worse if
Americans experience a second terrorist attack.
To be sure, one might insist that recent events have merely demonstrated con-
clusively that law was politics, that the rule of law was useless in combating injustice
or constraining power, and that rights discourse was indeterminate and manip-
ulable. Bush v. Gore did make legal arguments, even if they were transparently
bad ones. Legal claims accompanied every incursion into American constitution-
alism in the years following September 11, and well-trained lawyers have been
only too happy to justify the Bush administration™s every move “ no matter how
egregious “ as fully consistent with the law. Indeed, government of¬cials working
in the vice president™s of¬ce and in the Justice Department™s Of¬ce of Legal Coun-
sel developed novel legal theories claiming that when the president acted in his
capacity as Commander-in-Chief, he could not constitutionally be bound by laws
Critical Legal Theory Today 71

Congress had passed, much less by international human rights treaties. According
to these theories, none of the president™s actions were outside the law; rather, the
law effectively gave him the powers of a king or a dictator.
Moreover, in some cases the administration did not even need to manipulate
the law. It repeatedly used the threat of terrorism “ and accusations of being
soft on terrorism “ to goad Congress into passing new laws that created military
commissions, authorized searches without judicial supervision, abolished habeas
corpus for suspected aliens, and expanded the government™s powers of electronic
surveillance.
Yet even while professional discourses and institutions of law assisted these
actions, they also provided methods for restraining the administration™s worst
excesses. Courts repeatedly rejected the president™s most outrageous claims even
if they upheld more modest powers. The professional discourse of law served
as a partial check on executive aggrandizement. Perhaps equally important from
the perspective of a critical theory, the political ideals of the rule of law “ that
legal institutions should restrain arbitrary power and impose norms of procedural
fairness and impartiality “ served as a powerful force both in American popular
thought and in American legal culture. Whether or not any particular law or
decision lived up to the ideals of the rule of law, both the American public and
American lawyers and judges believed in those ideals. They fought back when they
believed those values were threatened.
The ideals of human association embedded in the concept of the rule of law “
like the ideals of liberty and equality “ are well worth ¬ghting for and realizing
in our legal institutions, even (and especially) if we realize that all efforts to
instantiate them in law are always subject to evasion, capture, and manipulation.
In the world of the 1970s, critical theory noted how law failed when it was not
supported by a robust politics; in doing so, it deemphasized and marginalized the
positive elements of law and legal culture that were always implicit in an ambivalent
conception. But in a world of executive arrogance, authoritarian posturing, and
blatant disregard for rule-of-law values, those elements must necessarily come to
the fore in any critical account. Critical scholars have prided themselves on their
deconstructive acumen “ their ability to elucidate the hidden and marginalized
values and assumptions that bodies of legal doctrine deemphasized but on which
they secretly depended. We should apply those same deconstructive techniques to
critical legal theory itself.
The focus of a critical approach to law “ and its ambivalent conception “ will
inevitably shift as we introduce it into new contexts of judgment. Deemphasized
aspects will emerge. Sometimes a critical approach to law will focus on how rule
of law norms, legal institutions, and legal culture serve important political values;
but not because law is independent from politics or because law does not apologize
for and legitimate injustices. Rather, legal culture and institutions are valuable to
critical theories of law because they are a way of doing politics, in the sense of
shaping, restraining, and challenging power.
In like fashion, a critical approach will not view the rule of law as simply a formal
legal principle “ for example, the requirement that like cases must be treated alike.
Nor should one confuse it with a formalist hope that if we design legal doctrines
72 Jack M. Balkin

carefully enough, they can conclusively determine all important and contested
cases or prevent all injustices and abuses. Rather, the rule of law, like liberty or
equality, is a political value. It is a value one struggles for and struggles with. It
demands that legal institutions and professional culture should work to restrain
the arbitrary and unjust exercise of power, and that we should build, preserve, and
protect legal and social institutions to that end. Like most political principles, the
principle of the rule of law does not determine the scope of its own extension;
hence, it can be fought over and co-opted. But like other political principles “
such as human dignity or equality “ it is no less valuable to social life because it is
underdetermined and co-optable.
History deconstructs; it shows how the conceptions of the past appear ever
different in ever new contexts, how things we once thought naturally opposed are
now joined together, and how things we thought were indelibly joined together now
come apart. So it is with critical theories of law: in one era a critical approach lets us
understand law™s threat; in another, it reveals law™s promise. The British historian
E. P. Thompson famously argued that the rule of law was an unquali¬ed human
good. An unquali¬ed good it will not be, at least to the ambivalent conception,
for there always lurks the danger that law will become a form of idolatry and a
technology of oppression. Yet there is no doubt that law and the rule of law are
genuine human goods and indispensable elements in a humane civilization. It does
not take a critical theory of law to recognize that fact. But without recognizing it,
no theory of law can truly be critical.
9 Reviving the Subject of Law
penelope pether




Legal realism seems to appear much in the recent (U.S.) news. The constitutional
law scholar Carl Tobias (quoted in Doyle 2007) recently opined that the high
level of 5“4 decisions by the Roberts Court signals that we “ or at least they “
are all (naive) realists now. Appropriating the realist thesis that judicial decisions
are the product of judicial ideology, which in turn informed the critical legal
studies perception that “law is politics,” to characterize the emergent jurisprudence
of the current iteration of the nation™s Constitutional Court, he suggested that
the following conclusion is unexceptionable: the Justices do not behave as if law
exists; rather, they vote their guts or their prejudices, their political or ideological
commitments.
If he is right, the nation™s Constitutional Court of ¬nal jurisdiction presently
manifests an attitude toward making law that has come to characterize the decision
making of the federal courts in the half century from Brown v. Board of Education
to the post“September 11 constitutional jurisprudence of emergency. Confronted
in the early 1960s by burgeoning appeals from prisoners and civil rights plaintiffs,
the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, Virginia, the
heart of “massive resistance” to desegregation, developed a response to appeals it
considered peculiarly burdensome. I have called this practice, now institutionalized
nationally in federal and state appellate courts and in federal trial courts, the
institutionalized unpublication of judicial opinions.
Institutionalized unpublication enables judges or court staff to identify a small
group of opinions as “published” and precedential, and the vast majority as
“unpublished” and nonprecedential, and thus not required to be followed in
factually analogous cases. This categorization is made in advance and by ¬at, fre-
quently in breach of courts™ own guidelines as to what kinds of cases should fall into
each category. Next, institutionalized unpublication diverts the processing of and
thus usually the deciding of appeals from the outset to the nonprecedential track,
where they are processed, in the absence of oral argument, by court staff. Third,
on many courts, this delegated exercise of what, at the federal level, is Article III
judicial power is performed without meaningful judicial oversight, and far too
frequently without recourse to practices that would tend to provide safe results:
for example, decision makers may not read either briefs or transcripts of evidence
before passing judgment.
| 73 |
74 Penelope Pether

Unsurprisingly, there is substantial evidence that institutionalized unpublication
produces inequality effects: powerful litigants manipulate it to stack the preceden-
tial deck in their favor; it confers predictive advantages on the information rich
by making records of what the courts do differentially available to them; the com-
paratively powerless are much more likely to have their de jure appeals processed
this way than are the comparatively powerful; and judges are on record both con-
demning the quality of staff work on their cases and claiming, against the weight
of evidence, that they carefully decide these cases themselves.
Perhaps most troubling, there is evidence that when staff decide cases brought
by the comparatively powerless, they characteristically ¬nd against them at rates
much higher than even the conservative end of the bench, rates not justi¬ed
by differential merit. That is, institutionalized unpublication is the product of a
culture that adjudges normative “ and thus normalizes “ a profoundly hierarchical
status quo with an ingrained tolerance of second class “justice” for the powerless,
a profound lack of concern about the values expressed in the material practices of
law work, and an evident comfort with legal decision making that does not re¬‚ect
commitment to any recognizably legal method.
In “On Philosophy and American Law” Llewellyn focused some of his sweeping
and yet cluttered survey of American law on precedent. Signi¬cantly for my pur-
poses here, that survey was taken a year into the burgeoning “state of exception”
that did away with a meaningful “ that is, not merely positivistic or authoritar-
ian “ rule of law in Germany in the period from 1933 to 1945. To the extent that
Llewellyn™s account of precedent reaches a conclusion, it characterizes it as both
positivist and available for unprincipled manipulation by those with economic
and thus political power. Thus far, then, Llewellyn and I see the (judge-made)
American law of our respective eras in similar ways.
There is a difference, however, in our conclusions about what might or ought to
be done in response. For Llewellyn, legal realism provided a totalizing philosophy of
law that could account for interpretive practices lacking coherent or conventionally
principled grounds. Social science in the hands of those who have come to be
euphemized as progressive skeptics provided a method of predicting and providing
reasons for judgment superior to any distinctively legal method. As Tobias suggests
of the Roberts Court, for Llewellyn there was no law there, and this troubled the
philosopher as little as it apparently does the justices.
As Llewellyn signally fails to register, yet as is implicit in Tobias™s account of the
workings of the Roberts Court and my own account of the law-making practices
that have come to characterize the nation™s courts more generally, legal realism
might be complicit with ends that do not advance the liberal or progressive “social
needs” (Llewellyn 1934: 212) political agenda that the realists laid claim to. This
should not surprise us: the sociologist of the professions Pierre Bourdieu has
identi¬ed the juridical ¬eld as a site of permanent interpretive struggle for control
of the meaning of law™s texts.
On the other hand, the implications of Tobias™s insight, contextualized, might
provide at once a shock of recognition and an estrangement of the normal. In
“American Constitutionalism as Civil Religion: Notes of an Atheist,” Duncan
Kennedy (1994“5) suggests that legal realism took root as powerfully and ¬‚ourished
Reviving the Subject of Law 75

as vigorously as it did in America because the high stakes created by both
U.S. constitutionalist “civil religion” and the conservative Supreme Court doc-
trine on property rights of the late nineteenth century “created a vested interest
for . . . progressives in demystifying legal reason.” He concludes with an allusive
and perceptive insight about legal realist thought™s comparative lack of in¬‚uence
during the decade after Llewellyn™s essay in Europe, from whence, sourcing itself in
the German free law movement, it had been borrowed. “[F]ascism and Stalinism,”
he writes, made “the realist impulse look positively obscene in Europe” (Kennedy
1994“5: 921).
My reprise of Llewellyn™s essay does not rest with diagnosis, and in its project of
restoring the subject of American law to the “possibility of Justice,” it departs not
only from his conclusions but also from his method in three critical ways. First, it
focuses on theory, speci¬cally critical theory, rather than a totalizing philosophy of
law, and it interests itself in what David Kairys called the politics of law rather than
in law reduced to politics. Second, it is substantially more suspicious than Llewellyn
about the uses of social science for law. Third, its candidates for interdisciplinary
knowledge that might unsettle or supplement, rather than substitute for legal
knowledge and thus enable a thick understanding “ a philosophy, if you like “ of
what law is and how it does its work, lie largely in the humanities rather than in
the social sciences, speci¬cally in the disciplines of history and of literature and
other linguistic humanities: rhetoric, cultural studies, critical linguistics, and so
on. So much for the subject of law as discipline. Redressing the impoverishment of
the philosophy of the nation™s law depends not merely on reimagining the law as
discipline, discourse, epistemology, and hermeneutics, however; it depends equally
on enabling the formation of different kinds of legal subjects.
How would I reimagine Llewellyn™s account of philosophy, and of philosophy™s

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