Faculty Bibliography

On January 20, 2020, I testified before the Massachusetts legislature’s Joint Committee on Housing in favor of two bills then being considered that would have revived rent control in the Commonwealth. My testimony was a head-on attack on the industry arguments against the bills. Their arguments are of course rationalizations of their economic interest. But they make serious wrong and misleading claims about consequences of rent control for the public interest and for its intended beneficiaries. Elected legislators, alas, are responsive both to the massive money spent lobbying against rent control and to some extent in good faith to the industry arguments. My goal, as laid out in the edited testimony published on the LPE Project Blog was to supplement not to displace the narration of blatant injustice and the invocation of a human right to decent housing with arguments in the policy language of the policy makers. The post also includes brief preliminary and concluding comments on the law and political economy approach as I understand it and as it relates to the testimony.

This paper works out the scheme of “institutional competences” that underlies the famous Hart and Sacks Legal Process Materials first distributed in final mimeographed form in1958. The Materials were not published during the life times of their authors but were nonetheless a major influence on American legal thought from their first distribution as course materials at Harvard Law School until their abrupt fall from prominence in the early 1970s. The Materials offer the scheme as a solution to the apparent anomaly in a democracy of the law making power in both public and private law of unelected judges serving long terms. The paper critiques the Hart and Sacks solution, called law making through “reasoned elaboration,” which they claimed was sharply distinct from legislative law making or administrative fiat. The paper argues that in both public and private law the materials the judge is to elaborate are characterized by contradictory internal logics. The judge has to choose between them without a meta-criterion. In cases with high stakes, extra-juristic normative orientations, whether moral theories or political ideologies, will come into play, regardless of the judge’s commitment to excluding them. The second part of the paper places Hart and Sacks in a larger historical and comparative context of efforts to solve the problem of social order by way of legal rationality. These two parts were preceded in the original paper by a long discussion, now lost but never very satisfying to me, of the Hart and Sacks theory of “private ordering” in relation to state regulatory power. I wrote the paper for extra credit in the spring of 1970 as a third year student at the Yale Law School. I’ve corrected a few typos but haven’t changed it in any other way. I never published it but it was circulated to a limited extent among Legal Process devotees. Eskridge and Frickey, editors of the Materials as published finally in 1994, credit it, along with another unpublished student paper by Roberto Unger, with hastening the demise of the Materials as a master text. The first part of this version of the paper was recently published in Droit et Philosophie, no. 13, p. 97-117 (2021).

In his paper for this collection on the history of the Law and Modernization program at the Yale Law School and in several other papers, David Trubek "affectionately" attributes a role to me, as a sort of angel of destruction or a fox in the chicken coop, a "nightmare." This is exaggerated! I did, however, play a part in supporting the emergence from the program of legal academic projects–the Law and Society Association, the field of law and development and critical legal studies–that rejected some of the meliorist liberal Cold War assumptions of the program’s initial formulation. This paper describes the personal, political and intellectual trajectory that brought me, like many others of my generation of children of the 1950s liberal establishment, to redefine myself as a “radical."

DOI:10.1590/2179-8966/2020/59769. Ensino Jurídico e Reprodução da HierarquiaDuncan Kennedy Versão original: KENNEDY, Duncan. Legal Education and the Reproduction of Hierarchy. Journal of Legal Education, v. 32, n. 4, 591-615, dez. 1982.  TraduçãoSophia Vigário, bacharel em Direito e mestranda em Direito pela Universidade Federal do Pará. ORCID: https://orcid.org/0000-0001-8038-366X. E-mail: sophiavigario@gmail.com Vitória Sinimbu, bacharel em Direito pelo Centro Universitário do Pará e mestranda em Filosofia pela Universidade Federal de Santa Catarina. ORCID: https://orcid.org/0000-0001-7822-8433. E-mail: vitoriasinimbu@gmail.com

This article appropriates Ricardo and Marx as progenitors of one of the contemporary CLS approaches to law and political economy. In the first part I look at Ricardo and Marx through a presentist lens. I ignore their allegiance to the labor theory of value and restate what I think is important for “us” in neo-classical terms. What is left is a model in which a legal regime distributes a surplus helping some at the expense of others, setting in motion a chain of further distributional changes in a particular direction (e.g. stagnation or growth). Then I describe Ricardo’s legal presuppositions and Marx’s explicit understanding of law as seriously mistaken and restate their ideas in the “postrealist” mainstream language of contemporary American legal thought. The great question they help answer, restated, is how to decide when redistributive interventions will or will not, have or have not “hurt the people they are trying to help.” The last part introduces this approach, contrasting it with familiar liberal approaches. The normative orientation is to distribution in favor of subordinated groups rather than to efficiency and to work on transformable background rules of public and private law rather than to politically unattainable reform by tax and spend, large scale re-regulation or decommodification. A companion article applies the “neo-Ricardian” analytic to the dynamics of housing and credit markets in poor black neighborhoods.

In 1969, the Yale Law School received a $1,000,000 grant from the United States Agency for International Development for a Program in Law and Modernization. Yale promised to study legal impediments to modernization, assess legal needs of modernization projects, train lawyers for research and development work, and disseminate knowledge. The Program was conceived by David Trubek and William Felstiner, former USAID lawyer-administrators, who, along with Richard Abel, ran it. Launched in the shadow of the Cold War, it started with the implicit promise of diffusing US liberal ideas about law and transplanting US legal institutions and culture, and was seemingly aligned with US foreign policy. Flush with USAID resources, the Program mounted innovative courses, brought Visiting Professors and Fellows with Third World expertise to Yale, supported scholars from the Third World and elsewhere seeking advanced degrees, funded research by Yale faculty, students, and Fellows, held workshops and conferences, and published Working Papers and articles. Linked with the nascent Law and Society Association, it sought to create a Comparative Sociology of Law. There were vigorous debates ranging from the nature of law and social science to the role of the US in the Third World, all on a campus roiled by student protests over the War in Vietnam and racism in the US. Gradually, the Program became a locus for critique of liberal ideas about law and social science, a source of doubts about US foreign policy, and an incubator for critical studies in law and legal sociology. By 1976, the founding directors were gone and the Program was soon closed. In 1977, nine law professors convened the first Critical Legal Studies conference: six had been involved with the Program while at Yale and the others had interacted with it.

"The chapter starts with an observation: contemporary elite jurists pursue, vis-à-vis one another, a ‘hermeneutic of suspicion’, meaning that they work to uncover hidden ideological motives behind the ‘wrong’ legal arguments of their opponents, while affirming their own right answers allegedly innocent of ideology. The rise of the hermeneutic of suspicion is a striking manifestations of the contemporary transformation of the relationship between legal elites and political/economic elites. This transformation accompanies and corresponds to the progressive juridification, judicialization and finally constitionalization of the contemporary social order."

This is a complete but unfinished draft of an article on the history of American family law. The first part describes four stages in the legal conceptualization of the family in the U.S. over the period from the late 18th century to ca. 1960. It is part of a larger intellectual history project depicting the stages of American legal consciousness as a whole. In this part, I treat the socio-economic background and the political struggles that shape and are shaped by consciousness as context for the story of conceptual change. In the second longer part of the piece, I present the interaction of political forces with legal consciousness (as evolved in Part One), along with social, economic and cultural change, in a single narrative of the historic transformation of American family law doctrine, ca. 1950-2015. This part defines family law broadly to include rules about marriage and parenthood along with social welfare law and the law of sex and reproduction, and includes their constitutionalization. It is in the tradition of political economy, starting with conflicting groups led by elites, understood not just as collections of individuals but as loose collectives with goals and strategies that are based on shared material and ideological interests. An important theme is the influence on legal change of tacit pro-sex and neo-puritan attitudes within the law making elites.

This chapter treats the form of authoritarian constitutionalism prevalent in Europe and the Western Hemisphere as an ideology, in the weak sense, an amalgam of tropes and rhetorics that allude to or evoke in an incoherent way two authoritarian traditions: a reactionary Catholic one and a fascist one. The ideology is one of the factors guiding legal interventions in liberal democratic constitutional orders that are also internally incoherent. Incoherence, along with the existence of conservative and progressive factions within the liberal democratic camp, creates multiple occasions for a hermeneutic of suspicion with respect to contemporary constitutional argument. In this situation, decision among legal alternatives requires a politics. As an example, even “court packing,” which is usually treated as a priori authoritarian, may in some circumstances be legally and politically justified in a liberal democratic framework. This approach contrasts with one that treats authoritarianism either as a coherent ideology or as signifying merely violation of liberal democratic norms.

This comment, written as a contribution to an as yet unpublished book collection on Kim Crenshaw’s intersectionality writings, develops Crenshaw’s notion of critical legal studies as a “condition of possibility” for critical race theory. In terms of genealogy CRT is “descended” from CLS. I’ll give my own brief version of CLS as the “incubator” of CRT, and then shift to two other aspects of the mid-1980’s context, unrelated to CLS, that seem to me just as important in the genealogy. Then I ‘ll try to show that the incubator image understates the extent to which, as Kim I think rightly argued in her “Preface,” intersectionality, a major tendency within CRT, is an extension and development of substantive crit ideas about the role of law in social injustice. In the last section I remember with somewhat perverse old white male heavy satisfaction some of the ways in which CRT intersectionality disrupted the standard rhetorical moves of black men and white women, all the while forwarding a cross-category left coalition agenda.

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.

This chapter proposes that proportionality as a mode of legal reasoning is implicated in no fewer than three phases of the decision of ‘hard cases’ of judicial review of statutes. First, at the level of legal ‘substance,’ the jurist faces the situation of contemporary legal thought characterized by the rise of proportionality, institutional competence arguments, and the ‘hermeneutic of suspicion’ that ideology corrupts legal judgment. Second, it is arguably appropriate for the judge to decide whether or not to uphold a statute, in spite of his good faith opinion against it, on the basis of a proportional weighing of the counter-majoritarian difficulty against the bad consequences of deference. Third, the judge may have to decide proportionally whether to present his reasons for striking a statute in their true proportional form or rather to violate his duty of candor by presenting himself as a legal formalist. The judge, inescapably a political actor, is subject to the decisionist ethical calculus of Max Weber’s Politics as a Vocation.

The hermeneutic of suspicion is a disposition of participants in legal discourse to interrogate skeptically claims of legal necessity made to justify decision of a legal issue involving significant ideological stakes. The hermeneutic critiques a particular claim of legal necessity and alleges an ideologically motivated error. This article proposes a social psychological explanation of the hermeneutic as the projection of the actor onto his opponent of his own denied ideological motives. The projection lessens the pain of role conflict. Legal technique is supposed to purge ideological motives from legal judgment, but regularly puts the jurist in the position of choosing rather than following law, and requiring that he deny what he is doing. Cause lawyers, whether believers or realists, and legal neutrals, respond differently to the dilemma. Because they are bound to pursue substantive justice as well as legality in an unstable legal field, and substantive justice claims are today not distinguishable from ideological claims, all lawyers have to (should) doubt their own motives. Projection of the denied forbidden motive onto the opponent is solace. But ideology forms law through substance far more than through ideologically motivated error, and this too is elided by the projection.

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.

En esta obra, Duncan Kennedy ofrece marcos históricos que reconstruyen las diferentes formas como las élites de juristas alrededor del mundo han entendido el papel del derecho en la solución de sus problemas sociales, económicos y políticos. El autor afirma que entre el año 1850 y el 2000 ha habido tres modos de pensar el derecho -el pensamiento jurídico clásico, lo social y el pensamiento contemporáneo-, que se han difundido alrededor del mundo desde centros prestigiosos de producción jurídica del norte global hacia la periferia.

This article explores the ‘hermeneutic of suspicion’ that seems to drive contemporary American jurists to interpret their opponents’ arguments to be ideologically motivated wrong answers to legal questions. The first part situates the hermeneutic in the history of the critique of legal reasoning, in public and private law, particularly the critique that claims that ‘no right answer is possible’ to many high-stakes questions of legal interpretation. The second part locates the hermeneutic in the long running processes of juridification, judicialization and constitutionalization that characterize law in modern society. The last part interprets the hermeneutic as ‘projective identification’, in the sense of Freud’s analysis of jealousy, with the jurist solving the problem of role conflict by firmly externalizing the inevitable ideological element in doing justice onto his opponent while preserving the legalist element in doing justice for himself.

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).

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.

La importancia política de la estructura del plan de estudios de la facultad de Derecho. La enseñanza del Derecho en el primer año como ...

L’enseignement du droit et la reproduction des hiérarchies est une critique mordante, pamphlétaire et nécessaire de l’enseignement du droit aux

Desde otra mirada Textos de Teoría. Critica del Derecho. Autor Christian Courtis Editorial: EUDEBA Páginas: 422 Edición: 2010 Idioma: Español Peso: 800 ISBN ...

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.

Este artículo ofrece una crítica de los derechos, desarrollada por una facción del grupo que se auto-denominó critical legal studies (N.de la T.: estudios criticos del derecho en inglés, CLS), tal como figuran en el discurso jurídico y político general. Esta crítica de los derechos como los estudios críticos del derecho general, opera en una incómoda intersección entre dos empresas distintas, con frecuencia complementarias pero a veces en conflicto, a las que denominaré el proyecto de la izquierda y el proyecto modernista-postmodernista.

What follows is the lightly edited text of a lecture delivered at the Brooklyn Law School Symposium on War and Trade on September 22, 2005. I argued that, as of the date of the lecture, the United States had already been defeated in Iraq, predicted an exit strategy likely to be adopted by the Bush administration, and assessed the likely circumstances of the defeat for the various participants in the conflict. I ended with a statement that we should embrace our defeat as good for the world at large, however terrible for the Iraqi people. Of course, by the time the text went to the printer, much had changed, and by the time it finds its way to the reader’s hands, yet more will have changed. I am grateful to the Brooklyn Journal of International Law for its willingness to publish the lecture nonetheless., as a contribution to the debate on the war and also to the archive of anti-war speeches that may interest future historians of the domestic conflict over the conflict.

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.

Max Weber began his sociology of law with a description of the then present of Western legal thought, along with a brief summary of its previous stages. Professor Kennedy's appreciation of Weber's sociology of law begins with a summary description of the Western legal thought of Weber's time as it looks from our present one hundred years later, emphasizing the contrast between the mainstream of his time, now called Classical Legal Thought, and its critics in the "social current." He then presents Weber's sociology of law, comparing and contrasting his approach with that of the social current. According to Professor Kennedy, the most striking thing about Weber's sociology of law, from the perspective of legal theory a century after he wrote, is his ambivalent endorsement of legal formalism. This entailed rejection of the social current's critique, a critique that is close to universally accepted today. Professor Kennedy explains Weber's attitude toward legal formalism as motivated by the internal requirements of his theory of domination, in which, after the demise of all earlier modes of legitimation, the Iron Cage of modernity is held together by bureaucrats defined by their adherence to that mode of legal reasoning. He then argues that Weber's approach was inconsistent with the irrationalist and decisionist strands in his own theory of modernity, a theory that helps in understanding the current situation of legal thought, if we take the un-Weberian step of applying it to legal formalism. Finally, Professor Kennedy offers an interpretation of the contemporary mode of legal thought as an episode in the sequences of disenchantment and reenchantment suggested by Weber's philosophy of history, and uses Weberian elements to construct a distinct contemporary ideal type of legal thought. The very brief conclusion suggests the strong affiliation between Weber (read as above) and one of the sects of modern legal theory, namely critical legal studies.

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.

Lon Fuller’s "Consideration and Form" originated a scheme for the analysis of contract questions based on multiple formal and substantive considerations, with "the principle of private autonomy" first among equals. This Article places Fuller’s scheme in the context of the critique of the ninteenth-century will theory of contracts and the rise of sociological jurisprudence and legal realsim. Fuller built on European legal theory and on civilian contract law solutions that seemed more flexible than those provided by the objective theory of contract formation and consideration doctrine. Fuller’s scheme came closer to modern policy analysis than anything in prior literature. It nonetheless achieved only a partial synthesis, denying any place to what the writers of the time called the "social" dimension of the field and underplaying conflict among the factors he identified. These traits may be explained by the fact that he was breaking new ground and by the center-right ideological agenda he was pursuing within private law theory.

This interdisciplinary study examines the relationships between law and the humanities.

This unpublished draft paper posted here as written in 1998, suggests that in deciding whether to impose compulsory terms in consumer contracts the most important criterion should be whether their ex post distributive consequences are desirable from an ethical/political point of view. It then identifies a subclass of terms that operate analogously to compulsory insurance, including among many others product liability and mortgagor and consumer borrower protections. It models the results of the term for three income classes that differ both in their preferences for protection and in the cost of protecting them. The term generates cross subsidies among them and also withdrawals from the market. These are the ex post distributive stakes in the choice to make the term compulsory. The paper then demonstrates that in some circumstances imposed insurance-like terms plausibly generate significant cross subsidies from the upper and middle to the lower income group. These are stable when transaction costs prevent sellers from pricing to keep the poor separate from the rich and the middle. The focus on ex ante efficiency and on distribution between buyers and sellers has obscured cross subsidies between rich and poor buyers. One result has been the common but incorrect argument that because poor buyers likely value compulsory terms less than the rich, compulsion “hurts the people it is trying to help.” The paper shows that it is precisely because of this difference in valuation that existing compulsory terms can function to redistribute and that new ones may be justified on the same basis.