A Walk Down Memory Lane

By Foster, James C. | Judicature, January/February 2013 | Go to article overview

A Walk Down Memory Lane


Foster, James C., Judicature


A Walk Down Memory Lane Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory by James R. Hackney, Jr. New York University Press, 2012. 255 pages. $49.00

In Legal Intellectuals in Conversation, interlocutor James R. Hackney, Jr. takes readers on a walk down memory lane - at least those readers who toiled among the several legal precincts of Academia during the contentious final four decades of the Twentieth Century. Part intellectual biography, part homage, part postmortem, Professor Hackney's collection of highbrow chats makes for thought-provoking reading. The collection puts an approachable human face on some of the prominent participants in what were, on more than one occasion, internecine philosophical intramurals.

A subtext of battle fatigue runs though these discussions. Here is how Hackney summarizes the current situation among law professors, during his conversation with Morton Horwitz: "My reading of the contemporary landscape of the legal academy is that we live in a pluralistic universe, with no dominant theoretical framework . . . Today I don't think there is any way to identify a dominant movement . . . It's just separate worlds." Revealingly, Horwitz replies: "Well, I think we are on the same wavelength, but I experience it very differently. For me it's the fifties all over again" (pp.83-85). It's the fifties all over again. Before "the problem that has no name," before Selma, before Stonewall, before Tet . . . before the so-called Crit purges. Before politics seemingly pervaded academic discourse, academic scholarship, and academic life. Horwitz, again: "I feel the simple point is that professionalism cushions, protects, and conceals one from politics. You develop all these intermediate methodologies, and you can spend your lifetime floundering around in those arguments - never having to connect them to the political issues that gave birth to them in the first place . . . avoiding the political perspective" (p.84).

Hackney's book might well have been subtitled Voices of Veteran Warriors in A Post-post Legal Realist World.

Ten troupers' voices are heard. Hackney frames his discussions with them by briefly summarizing five pivotal developments, plus offering a snapshot. The headings of his five summary sections convey their contents: 'We Are All Legal Realists Now'; Limiting Politics through Legal Process; The Law and Neoclassical Economics Movement; The Birth of Critical Studies and Diversity in the Legal Academy; The Law and Economics/Crit Divide, and the Construction of Contemporary American Legal Theory. Ironically, Hackney's take on these five developments is that each episode essentially involved a variation on contesting "the law/politics dichotomy" (pp.5-6). "The argument," observes Hackney, was "over how broadly to draw the lines of demarcation" between law and politics (p.ll). The irony is that the current state of play among legal academics is a sort of balkanized apolitical politics. Over a century and a quarter after Oliver Wendell Holmes, Jr.'s seminal The Common Law and The Path of the Law, the portrait of post-post Legal Realist scholarship Hackney paints can be read as representing a teche d up mode of intellectual avoidance. He writes of contemporary legal scholars' "tendency to soften the hard edges of theoretical conflict . . . [to] move forward, within their particular subspecialty, doing . . . 'normal science' . . . increasingly siloed" (p.16). Hackney dubs "this moment in legal academe the era of neopragmatism" (p.16). He could just as well have characterized his snapshot the era of disavowing politics.

Duncan Kennedy is the first legal expert interviewed in Hackney's book. In the same vein as Horwitz, Kennedy elaborates on the generational theme that bulks large in Hackney's conversations. "I saw myself," Kennedy observes, "as part of a collective generational movement - not an organized movement, but collective. …

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