Episode 4: Duncan Kennedy on the Emergence of the Critical Legal Studies movement (Part One)

Duncan Kennedy is the Carter Professor of General Jurisprudence, Emeritus at Harvard Law School. He is well known as one of the founders of the Critical Legal Studies movement.

This episode is the first part of Abbey Marr’s interview of Professor Duncan Kennedy. In it, Abbey and Duncan discuss the emergence of the Critical Legal Studies movement and the role of personality in shaping the movement. Kennedy inventories the variety of skills needed for movement-building– including organizers, recruiters, inspiring orators, and relationship-builders–and explains how different types of people played different roles as the movement grew and evolved. He also sketches the social and political context that shaped CLS in the late 70s and early 80s.

Later in the interview, Kennedy discusses what he has more recently described as CLS’s “syndicalist principle”-- that “democratizing the internal life of the law school was a completely valid form of left activity even if it contributed nothing directly or immediately to changing society beyond the workplace.” 

He also highlights  the struggle of movement participants to embed themselves–and their ideas–in the faculties of American law schools resistant to those ideas.. 

Throughout this episode, you’ll hear Duncan refer to people, events, and scholarly works that impacted or interacted with CLS. You can find links to most of those among the "Referenced Scholars and Works" as well as a rough transcript of the entire episode on our website page: https://systemicjustice.org/2022/08/episode-4-duncan-kennedy-on-the-emergence-of-the-critical-legal-studies-movement-part-one-2/. 

Visit the Systemic Justice Project website at systemicjustice.org

Transcript

Ep 4 - Duncan Kennedy - Interviewed by Abbey Marr, Part One

Rough Transcript

Duncan Kennedy [00:00:08] A seed at Yale that blossomed at Harvard really doesn't describe the critical legal studies movement, which comes into existence already as a national thing involving people of three different generations. It's all academic, and it comes into existence nationally right away.

Jon Hanson [00:00:29] Welcome to 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 law. I'm Jon Hanson, the Alan A. Stone professor of law and director of the Systemic Justice Project at Harvard Law School. This episode is the first part of Abbey Marr's interview with Professor Duncan Kennedy. In it, Abbey and Professor Kennedy discuss the emergence of the critical legal studies movement and the role of personality in shaping the movement. Kennedy inventories the variety of personalities needed for movement building, including organizers, recruiters, inspiring orators and relationship builders. And he explains how different types of people played different roles as the movement grew and evolved. He also sketches the social and political context that shaped CLS in the late seventies and early eighties. Later in the interview, Kennedy discusses what he has more recently described as CLS's syndicalist principle: that, "democratizing the internal life of the law school was a completely valid form of left activity, even if it contributed nothing directly or immediately to changing society beyond the workplace." He also highlights the struggle of movement participants to embed themselves and their ideas in the faculties of American law schools resistant to those ideas. 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. Now here's the interview.

Abbey Marr [00:02:24] This is Abbey Marr. I’m from Maplewood New Jersey. I went to George Washington University, and my studies in law school are mainly focused on feminist legal theory and reproductive justice activism. I'm here today with Professor Duncan Kennedy, who has graciously agreed to join me to talk about critical legal studies as a movement and lessons we can learn from it.

Duncan Kennedy [00:02:44] Hi, Abbey.

Abbey Marr [00:02:45] Professor, I want to just start with your time at Yale. Do you see the seeds of critical legal studies as starting during your time as a student at Yale or once everyone came together at Harvard? If you do think that Yale planted the seeds or that there were seeds at Yale, what about it did that? And what about Harvard made those seeds blossom?

Duncan Kennedy [00:03:03] So Yale in the critical legal studies movement... Well, I guess the first thing to say is that when the critical legal studies as a movement, as an anti-hierarchy, anti-illegitimate hierarchy--not all hierarchy, but anti-illegitimate hierarchy--movement in legal academia. So that's what it is. It's not about the bar. It's not about the poor black neighborhoods where the clinical people were working or participants. It's about legal academia. It's like any other social movement. If we're willing to see it that way, it's on behalf of the people who are doing it. It's not for other people. It's not representing another constituency. The people forming it are doing it for themselves. Their own issue is hierarchy. So these things I think, typically get put together as coalitions and then they recruit. So the first thing is to get a first meeting going. I think this is very characteristic. It's equally true today you need some groups to put together. So the role of the Yale Law School isn't quite the way many people represent it. So you in your question say "a seed." That's not really the way to describe it. I think that, of the people who were involved in the first meeting--and the list of those people is available in the Lizard on the back next to last back page--one of the very important groups of people are people who got to know each other at the Yale Law School. So of the maybe 25 people who were at the first meeting, probably five of them or six of them were people who got to know each other and did have an experience of forming a common radical left generational perspective as law students. But they'd all become law professors by then. So nobody who was just part of the student universe of the Yale Law School was part of this group because it was about law professors. And then, as you obviously realize, there's a second group which consists of Roberto Unger, Morton Horowitz and me, which is a Harvard Law School group, which didn't come into existence until till we all arrived at Harvard Law School at exactly the same time in 1971. So actually Morty got here at '70, I guess. So that's a second group. But when you look at the list, the list has other components. So the idea is you put the thing together from groups that the organizers know. So the organizers know the different groups and they exchange notes. So a second group were my, the students who were with me, the students and Gary Bellow, who formed the Marx Study Group in the mid seventies. So that's another that's Karl Klare, who was a student of mine, Kathy Stone, who was a student of mine, Gary Bellow, who was then the head of the clinical program, Jeanne Kelson, who then became his wife and is now Jean Charn, who they were the organizers of the clinical program organizing in Jamaica Plain. So their goal was to create an activist movement. And then also. sorry, and Nancy Gertner. Nancy Gertner, who was also a Yale person, was now a discrimination--basically gender discrimination--lawyer in Boston, became a judge and is now a professor. So that's that nancy Gertner. Those are the people who are the generational core insiders, but they now include students. They now include four or five people. Mark Kelman is another one of these people who were students. But that's only half of the original idea. The other idea was the sociologists. So David Trubek and Rick Abel are faculty members from Yale who got fired in the early seventies, who are who were associated with us at Yale already. But now, you know, they're now David Trubek is in Wisconsin. He, just as I had my Harvard group, Trubek had a Wisconsin group. Wisconsin was the center of the sociology of law. And there is people who are his age and older who were invited to the first meeting, which was Lawrence Friedman, Stuart Macaulay. They're like four of them. They're ... the idea was to form an alliance between us 1960s, graduating around 70, 71, already a student component who are younger than us, who we have recruited as professors. Then a whole other thing to form an alliance. The alliance was with the law and society movement, the more social-theory oriented and more left members of the law and society movement who were also senior professors older than us. The call says an alliance of people influenced by Marx and people influenced by Weber. The Weberians are the sociologists of law. So to understand it, a seed at Yale blossomed at Harvard, really doesn't describe the critical legal studies movement, which comes into existence already as a national thing involving people of three different generations. Trubek and Abel, an older generation, our generation, and the generation of our students. It's all academic and it comes into existence nationally right away. There was no CLS movement at Harvard before this. The phrase CLS less comes into existence as the name for the national event. And it was the two original people setting it up were David Trubek and me. David Trubek had been fired from Yale professor at Wisconsin. And I was just I was just getting tenure. I got tenure just as it was happening. So that would be a way to understand it. It's a gathering of groups. Now, as soon as that happens, the issue of how people are recruited arises. And that has nothing to do with this. So the formation of the group and this would be true anything the formation of the group is one thing. The dynamic is I know people, Trubek knows people, Tushnet knows people, Morty knows people who, by the way, then there are like three or four Marxists, serious non-legal, academic Marxists, sociologists interested in law. Another group. And just to tell you what happened at the first meeting: the sociologists basically left. They were horrified. So the four leading, critically oriented sociologists of law in the U.S. who were all there, just basically . . . they didn't actually walk out. They just indicated, as the meeting drew to an end, that they were very happy to have been here, but that we shouldn't really expect to see them ever again in our lives. And certainly we shouldn't expect them to write tenure letters for us. So that's the . . . okay, go ahead.

Abbey Marr [00:10:13] And things that's really interesting. I sort of want to pick up on the formation and then and then the recruitment and talk about the role of personality and each so their own personality and forming the original group first and then....

Duncan Kennedy [00:10:27] So, well I think it's characteristic of social movements of this type. I mean, I don't think there's anything unusual about it that obviously everyone realizes that personality types are incredibly important. And there the...A very basic distinction among the people who, from a sort of personality point of view, is between the people who have an organizer and a participant idea. So there is a kind of type who turns out to really enjoy the activity of putting the thing together and making it happen, making sure that and expanding it. And the first thing is people are not stamped at birth that way. So I was a big organizer. I've always been interested in power ever since I was very small. But I was a terrible organizer and was totally unable to get and influence the social universe of my peers in many situations where I really would have dearly loved to be elected as the secretary of the class. I don't demand to be the class president. You know, I would have liked to have been the the the president of the Debating Society at Andover. That would have been really a kick. I would have loved to have been elected to be the editor in chief of the Yale Law Journal. I totally failed, you know, basically over and over again, I had the experience through much of my life that although I understood that there was something to be gained here, I just couldn't do it. I misplayed. I was too arrogant or not willing enough to work hard, or I wasn't sensitive enough to the dynamics in various ways, and I would piss off my peers and be rejected. This was awful. At some weird point in the mid seventies I got my groove, so I actually acquired, puzzlingly enough to me, a capacity to get groups together, get students together first, and then get peers and colleagues together. I don't know. So it's very important that this is not genetic. It's not something that's there. And I would say that at some point in my sixties, I lost all effort for it. That is the actual depth of the kick of doing it the way I used to do it. So now I'd like a little a little mini event. I like to feel that I've crafted a small thing which evokes all the skills of organization to show that I can still do it, to give pleasure to people. But the idea of organizing as a daily continuous aspect of life was characteristic of a whole bunch of people in critical studies. And still is characteristic. Those people can easily be named. So Mark is an important one. Mark like me. Morty Horwitz, in his life between the beginning of class and sometime in the late eighties, was totally oriented to organization, figuring it out and making it happen. Peter Gabel was completely like that. And there in the next generation, Karl Klare was very like that. So the people who were most ... and Trubek, so this group of people, Trubek, Horwitz, Kalre Gabel, me... That's a type. And some people can do it. Now, David Kennedy and Janet Halley and Jon Hanson are the only people in the current universe. Although this guy just into Justin Desautels Stein, who was a student here, who is now emerging as a person within the successor networks, not CLS, but the successor networks. So that's really important, and one of my most basic experience shared by those other six people would be "God, you know, we can recruit people, you know, organize them, but we can't train them to have that capacity themselves." A basic experience of temperament and structure is, you know "wow I've just brought in"... So Trubek could easily ... he was an insane recruiter and Morty was too so "but wait a minute! We got them to the meeting. Just organize one little meeting. Just show that you could organize one. Can you get four people together for a drink?" Well, very often they just can't. So you have to organize the four of them to get together for a drink. And then you sit them down and they sort of... "Well, what do you have to say to each other? Mm. You do seem to have a lot in common I wonder...." So this is a very basic aspect of the life of CLS, but it's everywhere in organization. Now, another dimension . . . two other personality dimensions are . . . what I've just been describing is organizing, but another one is sociability. So it's fundamental to trying to create a movement of this type. Some people are . . . they really have basic nice people skills and they ... so one of the sort of torturous moments for me, from CLS was the in the conference, which was almost every year and not every year. It always began with a big party. So people are arriving from all over the country to some place like Minneapolis or Camden, New Jersey ,or wherever. And it's in a motel and the motel has a large open space. And so we have an open bar and, you know, munchies for people who are coming. So and everybody's arriving. And then you would see this dimension of the social universe is some people are circulating from person to person and chatting people up and big hugs and it's all like that. And then are wallflowers all around the outside of the room? There are people are literally standing there holding a drink, staring at their drink, hoping that they will not be embarrassed somehow by something that happens. So the personality type: it's really important that to find these people. And so now now I'm speaking as an organizer. As an organizer, you should put those people to use because they are just essential to survival of the group. They they're the people who will actually go and take the wallflower by the hand and say, you know, "care to dance" and get them into some kind of a conversation. Then there's another function which is public speaking, which is really, really important. So the public speaking dimension in an academic universe where conferences is big, and the people who are good public speakers who can give a stem-winding speech often have none of these other qualities. They're not good organizers. They have no social skills, whatever, just zero. But they can get up there and . . . and give call and response. It all seems like, "Wow!," they come down off the podium and they have to be basically walked around. "Would you care to say hello to this person who has wanted to meet you for a long time?" "Hello." And then you . . . so it's just extreme, these these variants. These things do not correspond to each other at all, though some people can have all of them at the same time. It's possible to have them. In many ways, the single most important thing is the sociability, the ability of the person to connect with one person after another and connect people to each other. And that produces something like spirit or the love under ... dimension in the thing. Then there is a bureaucratic, technical confidence. Mark is very preoccupied. Mark Tushnet is very preoccupied with . . . He used to call himself an apparatchik. Ne calls himself a bureaucrat. "Apparatchik" was an evocation of the Russian hierarchy. So it was a joke. He was joking that he was an old Stalinist, but that was just a joke because he was not in any way. Mark did have a lot of organizational ability. He was really, really important to everything. But he had another quality, which is which was, so this is yet another thing, which is the person who's keeping track. So Mark was very good at organizing, but also he kept track. So basically we had some idea what we'd done. You know, hysteria is strong in the . . . this is the obsession, the OCD, as opposed to the hysterics of the charismatic speakers, the hysteric, the sociable persons, the hysteric. They're they're there in the moment. But this other quality is a more obsessional quality in which you really do. And there are a bunch of those people in critical legal studies. Karl Klare also has that same party.

Abbey Marr [00:19:08] So I was wondering, you described your role or what your skills as changing over time. You've found yourself as an organizer and maybe don't anymore. Did you see that with other people in the movement?

Duncan Kennedy [00:19:18] Well, I think that, again, social movement in our in this sort of thing is it's it has a birth, you know, a flourishing, and then it declines. And that's true of social movements across the board. There are very few social movements. They aren't organizations. You know, corporations never die; they have eternal life. It's just not like that, basically. And the I would say just about every single person in this original group -- so they represent Yale, Harvard, the sociology of law, the Marxist strand, the Weberian strand, like that -- and then the papers are yet another group of people. So all if you took all of these people: None of them have the same, maintained the same role. So Roberto Unger didn't come to the first meeting, and he dropped out after he delivered this amazing stem-winding oration at the Harvard Critical Legal Studies event in maybe '81, which he then published as the "Critical Legal Studies Movement," never participated in any way in anything after 1981. So just period. And that's true. There are a whole bunch of people who participated initially who dropped out. There are other people whose initial enthusiasm was chilled. You know, at a certain point they just -- so Morty I would say is a person who at a certain point in the evolution of identity politics and critical legal studies, he was just really turned off, and a bunch of people had that experience. They were just, you know, really turned off. Other people were turned on and they became organizers. They started out as people who were wallflowers sitting in the corner. And then at a certain point they said to another wallflower, "Well, let's go out and smoke a cigaret or something." And then, you know, a little bit later they were organizing a little caucus at a big meeting, and then five years later, they're organizing a conference, which actually is a lot a lot of work with a couple of hundred people in a university setting where you have to negotiate with a law faculty, then get the room blah blah blah. So many different people, many different roles over time. And also there were people who were unable to give a talk, who learned to give a talk. It was just amazing. Partly they had to to get a job. If they were students they'd go in the job market, and we helped them, that is it was part of the system, but it was also, you know, you just listen to people talking and some people went sort of crazy. Some people, many different things happened. So there's no single pattern at all.

Abbey Marr [00:21:57] It's really interesting. So that sort of touches on the role of external factors. Can you talk a little bit about how it formed the beginnings of the actual coming together as well?

Duncan Kennedy [00:22:07] The social, political context is the seventies, not the sixties, and it's the late seventies and early eighties. So the sixties are over. This is many of the people involved were either involved in various ways in the sixties or tortured by not having been involved or wish they'd been old enough to be involved. So those are three things they were involved. They're still looking for some of that kick they wish they had been or they're too young. The political context was there for the end of the war in Vietnam, the end of the war in Vietnam, Watergate, Jimmy Carter, the energy crisis, malaise in America, and feminism very, very, very powerful. The civil rights movement, and black liberation, and anti-racism are stalled, just deeply, deeply stalled. And feminism is incredibly on the rise. The black bourgeoisie was is separating itself out. So there's this unbelievable complexity of the black communities. There are thousands of black middle class people are going to universities and getting graduate degrees and entering the professions at the same time that their communities are just falling apart. For women, it's the opposite. Women, it's, you know, their time. They're everywhere and they're completely going hard. But it's very important to understand about this moment. I know this is everyone has different views about this. Let me just speak as, you know, white male, middle class, straight guy. Here's a really striking aspect of it. At the very moment when they're exploding in their career access and power, it's also a moment of profound gender dysphoria and paranoia. So the experience of sexism every day, everywhere, an unbelievably pervasive force is phenomenologically real to a very important segment of this mass of women whose careers are just taking off. And everybody in the United States is getting divorced. So not everybody that's wrong, only people, educated people with incomes are getting divorced. So that's the social, political context. It's crucial to understand CLS in a sense. I mean, basically it's both disastrous, but there's all kinds of radical potential everywhere. So there's a feeling of radical potential radicalism exists. There are radicals. The number of radicals it seems, is growing. Seems like it's growing. And so we are not the only ones. There's URPE, the Union of Radical Political Economists, there's radical sociology, there's radical criminology. There's all kinds of Marxist historians of historiography. So all over the intelligentsia, the sixties, people are getting tenure. So that's what's happening. It's people who went to graduate school. There are enormous number of jobs. Jobs are everywhere. The job crash is about to occur. So the jobs are about to disappear, but not in law school. They'll disappear forever. So an important part of the CLS context is graduate students are really screwed in the social sciences and humanities beginning in the late seventies, and law schools are expanding. The number of law school jobs is doubling and the possibility, therefore, for graduate students to become . . . . So. That's the social political context in . . . .

Abbey Marr [00:25:29] Yeah, I was also interested in the specific context of legal academia and how that sort of framed the shaping of of who got involved and how people got involved. The Lizard talks a little bit about trying to get tenure and and being affiliated with CLS and sort of how that got the movement going or didn't or limited its growth.

Duncan Kennedy [00:25:48] So the first thing is to distinguish the generations. So the people on these lists have tenure or are about to get tenure except for the students. So these people are in 1977, they've just gotten tenure or are just about to get tenure. It's happening. So they're they're not senior -- the sociologists or senior academics, but they're going to withdraw, leaving recently tenured.... I got  tenure in 1976, so I got tenure the very I got tenure . . . In fact, it may they may not even voted it until January 1977 at the very time that we were doing this. So the sort . . . . So that layer of people we aren't recruiting yet. We're organizing preexisting groups. The preexisting groups either have tenure or are about to get it. And CLS doesn't figure in that. It's what they're doing with their newly acquired intellectual and financial autonomy and security. They're doing CLS. It's something to do with their new position. But when we start recruiting, some recruiting is horizontal. None of it is up. We never recruit anybody older than us ever, ever, ever, ever. It's horizontal, so we recruit other people like ourselves who are now tenured and they for them it's the same thing. But the crucial thing that will produce the dynamics of CLS is that we are also now going to start recruiting, and remember it's a law professor, so we're going to recruit students who want to become law professors or who decide to become law professors because they like what they've experienced in our network in law school and right after. And this is a moment of opening to Blacks and women. So law schools are expanding lots and lots of jobs for white boys, but also for Blacks and women and Black women and white women. But Black women and white women emerges very quickly as an important distinction in the early eighties or the mid eighties. So the context for them is completely different than the context was for us. So because we are getting tenure as we're creating it as our thing. They are recruited into it as part of their own process of becoming law professors. And it's a pharmakon. It's a it's poison and cure. So the basic thing about it is many of the people who formed critical legal studies who were students of ours would not have gone into legal academia, they wouldn't have gotten jobs and they wouldn't have written the pieces they wrote that got them tenure had it not been for their association with CLS. So CLS was a formative context that helped people come professors and but it was also really dangerous. It wasn't that dangerous until maybe three or 84, but starting around the time of The Lizard, it begins to become dangerous. So it's both what got you there. You don't have tenure. It's the early eighties or the mid eighties. It's all happening very fast and it's both the thing that is going to get you tenure and the thing that could prevent you from getting tenure at the same time, it's the thing that's going to integrate you with your faculty colleagues because you too are an intellectual and they know what it is. And Harvard has prestige in the background, but also and then there's an unbelievable description of the faculty lounge written by Gary Peller in number one or number, maybe it's number one. But anyway, so it's a description of what it's like to be an untenured professor, in this case at the University of Virginia, with some crit identity, dealing with the senior intellectual members of the law faculty who are looking at him and saying, "Am I going to wipe you off my shoe, or am I just going to leave, you know?" It's really it's very, very well done. So that's the sequence of career. But then you have to add to that . . . . so that's the career sequence, the generational thing, people at different stages of the career. But you have to add to that the hierarchy dimension of law schools. So we are recruiting people like mad among our students who are students at Harvard, but also a few and only a few students at other places like Stanford and UCLA. But that's all, because you you don't become a law professor unless you go to one of the leading schools. There aren't. . .  We have been excluded from Yale -- that is, an absolute prohibition.They don't hire until the late eighties and then they acquire only crits who have very clearly renounced the organizing ambition, they're intellectual crits, very ambitious, but no organizing. And they've clearly indicated that before they're hired by Yale. So no Yale, no Columbia, no,Chicago, Penn a couple. But the only people who become law professors are people who go through the hierarchical system. So, you know, 4/5ths of all the law professors in the United States went to the schools, the low status schools that used to be night schools hire their own. So they have a different process. And that was a part of the story was The New Englad School of Law, which was an actual which was the least prestigious is the least prestigious law school in Boston where there was a massive Crit presence. And in 1986 four Crits were fired, leaving three, but four of the assistant untenured Crits were just fired. An AALS complaint was filed. But then, you know, they weren't an AALS member. This means they weren't a member . . .  they were ABA accredited, not AALS accredited. So we are recruiting people who are going to be . . . . They're not going to get jobs in general. They're not going to get jobs at the top ten law schools, almost none of them. They're going to get jobs at lower ranked law schools. So they're our students recruited into this very tight scene whose professional careers are based on going on the job market, using the stuff they've learned in their Crit universe, as well as their other assets of various types. And they're going to be there arrayed all the way along the hierarchy from the middle, all the way to the very bottom. One of the ideas is that a job at the very botto is a great job, just a fantastically good job in terms of the America that we're talking about, where, among other things, leftists and graduate students have no opportunities in life. So, wow! And the pay is great and the locations are fantastic. I mean, really, it's an amazing scene. But, you know, there's a little ambivalence about . . . so hierarchy in this sense, job hierarchy, replicates the generational hierarchy. So the older people went to Yale or Harvard, the younger people went to Yale ... or went to Harvard in general. Most of them went to Harvard, not all of them, but most of them went to Harvard. And then when we recruit horizontally, first we're in our own generation, but then the younger people are recruited horizontally, too. So they're recruiting people who didn't weren't their classmates at Yale, at Harvard. They maybe went to Michigan or they went to, you know, Franklin Pierce. And they are being drawn in by another generational suction mechanism. And they neither have Harvard credentials and nor are they teaching at Harvard. And that's Gary Minda in the description he's describing a person who is not, didn't go to Harvard himself. He's been recruited by David Kennedy, a recruit of mine at Harvard. And so he's not at Harvard. He's never going to be at Harvard. He's teaching at Brooklyn. His chances of moving beyond Brooklyn are, now we have this dimension: in every young person coming up for tenure or just gotten tenure below the top ten, a basic question is career advancement. So in organizing a movement of this type, a fundamental dynamic in the mind of everyone in the system is what are the consequences for lateral movement after tenure of association with critical legal studies. A small number of incredibly striking stories of people moving up the career ladder are in the minds of every single person in the system. As according to many sort of fundamental behavioral, psychological things, those stories are very salient, and the people who are conscious of them tend to be have no realistic sense of the proportion of all American law professors who in any given year, move up in the career ladder. It's very, very small, much smaller than it's experienced as being. Everybody . . . Then the second, this is the Tom Wolfe the right stuff illusion, as law professors look out at who succeeds and who fails, there's a tendency to attribute success if the person is close to you to merit, and if the person is far from you to cheating or luck or opportunism or some or other . . . . So they look at this thing and they think, I'm going to make it. And when other people like them don't make it, they think they didn't deserve it. And I did so in organizing an anti-hierarchical movement, we're deeply embedded in a hierarchical system. And this is going to be an enormous source of inner tension within the movement because it can't be acknowledged. So what I've just said can't be admitted. If everyone is saying "hierarchy and me, we have nothing to do to each other. I'm just in it for the good times. Let's get stoned." I mean, you know, you just can't at the same time say "I'm looking over my shoulder, worrying and wondering both about what will happen to me, but also about what will happen to everybody else." This is just human nature. Everyone is looking at saying, "how do why is he at Harvard?" No good reason. The guy at Harvard is saying, "I'll tell you why I'm at Harvard. I published a brilliant fucking article. What have you published lately?" So it's very so these things are this is hierarchy inside an organization. It's no different from any other organization except for two factors denial and actual conscious attempt to deal with it. So being relatively conscious of it. Denial. Everyone has to deny it, but some people can talk about it. So Gary Minda's article . . .  The Lizard is full of it. The Lizard is just describes these dynamics in an attempt to process them ourselves overtly so they won't destroy the movement. And that's going to be true of gender and race as well. So the basic thing is the gender-race picture has all the same complexities, partly that all the the Blacks and the Black men and women and white women are all younger generationally because they're only arriving in the system long after us, with a few exceptions. So Nancy is an exception Nancy Gertner was year behind me at Yale Law School. Mark's class at the Yale Law School. But Kathy Stone and Fred Olsen were my students and Roberto's students and Morty's students. So they're students of all of us. And then there's a whole arrival of feminist legal theory at this moment, which I tried to characterize from my white male, middle class, straight point of view as one which combines fantastic success, power growth, and a deep, deep feeling of being assaulted and danger at every moment. They split. So they're the problem is just not just the hierarchy problem of the white boys on the ladder. It's the problem of gender differential. We're very ... the whole thing is deeply, deeply conscious of a critique of male-female relations as illegitimate hierarchy. So illegitimate hierarchy, gender hierarchy, central to the way everybody in CL thinks about it. But this is a moment when the consequences of recognizing and trying to deal with illegitimate gender hierarchy in personal life, everything from within the household, who does the dishes and who has sex, when, all these things, to office life, to national political life, office life, meaning, you know, professional life. Neither men or women, progressive men and women are completely all over the map in a giant spread of different attitudes that it's conventional to say there's socialist feminism, liberal feminism, cultural feminism, radical feminism. But that doesn't even describe it because there's another basic, very crucial dimension, which is pro sex versus sex is dangerous. So there's this famous reader called Pleasure and Danger, which is the ultimate sort of manifesto of the pro sex side, which is really, really an amazing document. It's even got a good cover. So it's that is the moment of deep split between cultural feminism and the common cultural and radical feminism identified significantly against liberal and socialist feminism, not around liberalism and socialism, but around sex, how to understand it, how to process and think about it. All these things are immediately relevant to critical legal studies, and the guys in critical legal studies are arrayed, the white guys are arrayed, on a spectrum of attitudes towards it to really grumpy to incredibly . . . so the the sort of mocking description was role reversed guys. So roll reversed guys deal with the feminine aggression of this amazing theoretical thing with its paranoid thing by, so to speak, what used to be called in the sixties tailism, which is "you're just the tail on the dog." So tailism is role-reversed white guy attitude, which is "yes, mistress. Anything you say, mistress." So that was a very, very basic trend along with grumpiness was "Women oh, what do they want?" I'm sorry, that's a "Women: What do they want?" So and everything in between. So that's heavily conditioned by the fact that the women, first of all, many of the women are doing better than the men professionally. Why is that? Why should women? We have two people. We have Joe and we have Jill. And they're both on the job market. And Jilll gets a job at NYU and Joe gets in at Hofstra. Huh, what's going on? They're both in the New York area, after all. What's the complaint about? So Jill believes, A, she deserves it and B, it's reparations. And Joe believes he deserved it and she has his job. Okay. So everywhere there's no way to escape this. So what's to be said about it? Well, bad denial. Good. It can be talked about. So Psycho-Social CLS, which you've read, is an attempt to actually put these things on the table so they don't destroy the movement. And the lesson of it, from my point of view, is we kept it going as a result of trying to process it significantly longer than it could conceivably have lasted if we didn't.

Jon Hanson [00:41:16] Throughout the next two episodes. Abbey Marr continues her interview with Duncan Kennedy. In Part Two, Kennedy describes his efforts to crack the structure of the hierarchical law school classroom. He then discusses the various theoretical, generational and identity-based divides that led to a fracturing within the CLS movement. If you're enjoying the Critical Legal Theory Podcast, please subscribe to us wherever you get your podcasts and please rate us and leave us a nice review to help us extend our audience.