Duncan Kennedy

Carter Professor of General Jurisprudence, Emeritus

Langdell 333

617-495-4619

Assistant: Maura Kelley / 617-495-4642

Biography

Duncan Kennedy is the Carter Professor of General Jurisprudence at Harvard Law School. He was a founding member of the Critical Legal Studies movement. Kennedy received an A.B. in Economics from Harvard College in 1964 and in 1970 earned an LL.B. from Yale Law School. After completing a clerkship with U.S. Supreme Court Justice Potter Stewart, Kennedy joined the Harvard Law School faculty in 1971 as an Assistant Professor, becoming a full Professor in 1976. He has taught contracts, torts, property, trusts, the history of legal thought, low income housing law and policy, Israel/Palestine legal issues, the globalization of law and legal thought, and the politics of private law.

His publications have contributed to legal and social theory, the history of legal thought, legal semiotics, law and economics, contract law, and legal education. His five books are: Legal Reasoning: Collected Essays (Davies Group Publishers 2008); The Rise and Fall of Classical Legal Thought (Beard Books, 1998 [1975]); A Critique of Adjudication [fin de siècle] (Harvard University Press, Cambridge, 1997); Sexy Dressing, etc. (Harvard University Press, Cambridge, 1993); Legal Education and the Reproduction of Hierarchy (AFAR, Cambridge, 1983). He has written dozens of articles including: "Freedom and Constraint in Adjudication: A Critical Phenomenology," 36 Journal of Legal Education 518 (1986); "Form and Substance in Private Law Adjudication," 89 Harvard Law Review 1685 (1976); “A Semiotics of Critique," 22 Cardozo Law Review 1147 (2001); "Three Globalizations of Law and Legal Thought: 1850-2000" in The New Law and Economic Development 19 (Cambridge University Press, 2006); "The Stakes of Law, or Hale and Foucault!," 15 Legal Studies Forum 327 (1991); and "The Structure of Blackstone's Commentaries," 28 Buffalo Law Review 205 (1979). He has contributed to public debates in journalistic writings, inter alia, on the war on Iraq and Israel/Palestine. He has received an Honorary Doctorate of Private Law, University of Amsterdam, 2005; Honorary Doctorate of Law, Universidad de Los Andes, Bogotá, Colombia, 2010; Honorary Doctorate of Law, Université de Québec à Montréal, 2011; and an Honorary Doctorate of Law, Institut d'Etudes Politiques de Paris, 2012.

Areas of Interest

Duncan Kennedy, A Left of Liberal Interpretation of Trump’s ‘Big’ Win, Part One: Neoliberalism, 1 Nev. L.J. F. 98 (2017).
Categories:
Government & Politics
Sub-Categories:
Federalism
,
Elections & Voting
,
Politics & Political Theory
,
Executive Office
Type: Article
Abstract
The question of interpreting Donald Trump’s election, in liberal discourse, is mainly “how can he have won, given that he is racist and sexist?” The answer of many of my friends is that he won because his racism and sexism appealed to a shockingly large part of the electorate, confirming that “our whole society is sexist and racist.” According to the liberal conception, this is particularly true of the non-college part of the electorate, which had more “traditional” (racist and sexist) values and less cognitive ability to figure out that he was going to screw them. If they were not racist and sexist, they would have rejected him outright, no matter how much they didn’t like Hillary. I think class, race and sex were key to everything, but in a different way than in that account.
Justin Desautels-Stein & Duncan Kennedy, Foreword: Theorizing Contemporary Legal Thought, 78 Law & Contemp. Probs. i (2015).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Legal History
Type: Article
Abstract
This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.
Duncan Kennedy, Left Theory and Left Practice: A Memoir in the Form of a Speech, 5 Transnat'l Legal Theory 577 (2014).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Housing Law
,
Critical Legal Studies
,
International Law
,
Legal Education
Type: Article
Abstract
In this article, the author describes his experience of trying to combine modest left legal activist work with more ambitious left academic organizing work and left legal theorizing, all in the context of American Critical Legal Studies. Symposium: The Past and the Future of the Legal Left - Celebrating Duncan Kennedy’s Scholarship (conference held at the School of Oriental and African Studies, University of London on May 22, 2014).
Duncan Kennedy, African Poverty 87 Wash. L. Rev. 205 (2012).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Law & Economics
,
Developing & Emerging Nations
Type: Article
Abstract
African extreme poverty is probably a function (although not solely) of the balkanized post-colonial geopolitics of Africa. It is also probably a function (although not solely) of the income distribution generated by a typically perverse African political economy, through its effect on the allocation of resources to development. As between these two causes, the second is probably much the more important. This reinterpretation puts considerably more of the blame for African poverty on the Western great powers than does the “poverty trap” analytic that is a common contemporary way of thinking about the African economic situation.
Duncan Kennedy, A Transnational Genealogy of Proportionality in Private Law, in The Foundations of European Private Law 185 (Roger Brownsword, Hans-W Micklitz, Leone Niglia & Stephen Weatherill eds., 2011).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Legal Profession
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Legal Theory & Philosophy
,
European Law
,
Comparative Law
,
Legal History
Type: Book
Duncan Kennedy, Commentary on Anti-eviction and Development in the Global South, in Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty 41 (Lucie E. White & Jeremy Perelman eds., 2010).
Categories:
Property Law
,
Environmental Law
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Housing Law
,
Land Use
,
Developing & Emerging Nations
,
Property Rights
,
Real Estate
Type: Book
Duncan Kennedy, Legal Reasoning: Collected Essays (The Davies Grp. Pub. 2008).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Government & Politics
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Legal & Political Theory
,
Legal Education
Type: Book
Abstract
Collected Essays by Duncan Kennedy includes four essays written over a twenty-year span. They present a comprehensive and original account of legal reasoning as done by judges, lawyers, and legal academics. This author has been the first to put together in a systematic way the insights of American legal realism with Continental phenomenology and semiotics. His version of legal reasoning presents it as “work in a medium” deploying a set of “argument-bites” analogous to the words of a language. The result is simultaneous freedom and constraint. Kennedy then turns his approach to the critique of current European legal theory, with an essay on Hart and Kelsen and another on the approach of the European jurists pre-occupied with “coherence” and with the “European social model” in the current process of harmonization of European law. This book is likely to become a definitive introduction to critical legal theory, permitting the reader to compare and contrast it with other extant approaches.
Duncan Kennedy, The Rise & Fall of Classical Legal Thought: With a New Preface by the Author, "Thirty Years Later" (BeardBooks 2006).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Government & Politics
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Separation of Powers
,
Legal & Political Theory
Type: Book
Abstract
With a comment introduction, this is reprint of the exciting earlier limited edition praised by legal scholars and often cited. It deals with the development and disintegration of a form of American legal thought that emerged between 1880 and 1885 and flourished between 1885 and 1940.
Duncan Kennedy, Thoughts on Coherence, Social Values, and National Tradition in Private Law, in The Politics of a European Civil Code 9 (Martijn W. Hesselink ed., 2006).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Legal Profession
,
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
European Law
,
Comparative Law
,
Legal & Political Theory
Type: Book
Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000, in The New Law and Economic Development: A Critical Appraisal 19 (David M. Trubek & Alvaro Santos eds., 2006).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Theory & Philosophy
,
European Law
,
International Law
,
Developing & Emerging Nations
,
Legal History
,
Legal Education
Type: Book
Duncan Kennedy, Cost-Benefit Analysis of Debtor Protection Rules in Subprime Market Default Situations, in Building Assets, Building Credit 266 (Nicolas Retsinas & Eric Belsky eds., 2005).
Categories:
Banking & Finance
,
Consumer Finance
,
Disciplinary Perspectives & Law
Sub-Categories:
Finance
,
Risk Regulation
,
Financial Reform
,
Consumer Protection Law
,
Law & Economics
Type: Book
Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System, A Critical Edition (New York Univ. Press 2004).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Education
Type: Book
Abstract
In 1983 Harvard law professor Duncan Kennedy self-published a biting critique of the law school system called Legal Education and the Reproduction of Hierarchy. This controversial booklet was reviewed in several major law journals—unprecedented for a self-published work—and influenced a generation of law students and teachers. In this well-known critique, Duncan Kennedy argues that legal education reinforces class, race, and gender inequality in our society. However, Kennedy proposes a radical egalitarian alternative vision of what legal education should become, and a strategy, starting from the anarchist idea of workplace organizing, for struggle in that direction. Legal Education and the Reproduction of Hierarchy is comprehensive, covering everything about law school from the first day to moot court to job placement to life after law school. Kennedy's book remains one of the most cited works on American legal education. The visually striking original text is reprinted here, making it available to a new generation. The text is buttressed by commentaries by five prominent legal scholars who consider its meaning for today, as well as by an introduction and afterword by the author that describes the context in which Kennedy wrote the book, including a brief history of critical legal studies.
Mitchel Lasser (Moderator), Duncan Kennedy, David Kennedy, Nathaniel Berman (Discussants), Norman Silber and Lawrence Kessler (Commentators), Critical Legal Theory, in Law and the Arts (Susan Tiefenbrun eds., 1999).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Arts & Entertainment Law
Type: Book
Abstract
This interdisciplinary study examines the relationships between law and the humanities.
Duncan Kennedy, A Critique of Adjudication {fin de siecle} (Harvard Univ. Press 1997).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Critical Legal Studies
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Legal & Political Theory
Type: Book
Abstract
A major statement from one of the foremost legal theorists of our day, this book offers a penetrating look into the political nature of legal, and especially judicial, decision making. It is also the first sustained attempt to integrate the American approach to law, an uneasy balance of deep commitment and intense skepticism, with the Continental tradition in social theory, philosophy, and psychology. At the center of this work is the question of how politics affects judicial activity-and how, in turn, lawmaking by judges affects American politics. Duncan Kennedy considers opposing views about whether law is political in character and, if so, how. He puts forward an original, distinctive, and remarkably lucid theory of adjudication that includes accounts of both judicial rhetoric and the experience of judging. With an eye to the current state of theory, legal or otherwise, he also includes a provocative discussion of postmodernism. Ultimately concerned with the practical consequences of ideas about the law, A Critique of Adjudication explores the aspects and implications of adjudication as few books have in this century. As a comprehensive and powerfully argued statement of a critical position in modern American legal thought, it will be essential to any balanced picture of the legal, political, and cultural life of our nation.
Duncan Kennedy, Sexy Dressing Etc.: Essays on the Power and Politics of Cultural Identity (Harvard Univ. Press 1993).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Race & Ethnicity
,
Gender & Sexuality
,
Legal Theory & Philosophy
,
Law & Behavioral Sciences
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Legal & Political Theory
Type: Book
Abstract
Duncan Kennedy argues that an American radicalism is both possible and desirable. One base for radical politics is the big institutional workplace; another is popular culture--whence his emphasis on phenomena like sexy dressing. Kennedy's aim is to wed the rebelliousness, irony, and irrationalism of cultural modernism and postmodernism to the earnestness of political correctness.
Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518 (1986).
Categories:
Government & Politics
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Critical Legal Studies
,
Judges & Jurisprudence
,
Legal Education
Type: Article
Abstract
This paper attempts to describe the process of legal reasoning as I imagine I might do it if I were a judge assigned a case that initially seemed to present a conflict between "the law" and "how-I-want-to-come-out." Such a description, if at all true to experience, may be helpful in assessing the various claims about and images of law that figure in jurisprudential, political, and social theoretical discussion. It may also be helpful in assessing what law teachers teach future lawyers about the nature of the materials they will use in their profession. But I will have little to say about these implications, aside from a polemical afterword.1 I am not sure what difference it makes to the phenomenology of adjudication whether I begin with this situation rather than another. The whole experience of law may be sufficiently the same thing through and through so that wherever you start, you end up with approximately the same picture. Or it may be that there is no experience of legality that's constant without regard to role and initial posture of the case. What I am convinced of is the need to start with some particularization. I don't find myself at all convinced when people start out claiming they can tell us about judging without some grounding in a specific imagined situation.
Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
,
Banking & Finance
,
Civil Practice & Procedure
Sub-Categories:
Contracts
,
Private Law
,
Critical Legal Studies
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Legal & Political Theory
Type: Article

Langdell 333

617-495-4619

Assistant: Maura Kelley / 617-495-4642