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					## Critical Legal Studies Critique
Introduction to CLS

Critical legal studies scholars critique the dominant liberal paradigm of trying to protect
the interests of individuals who are arguably in need of assistance through a rights-based
approach. These critics make a number of objections to rights, including that rights
alienate, undermine an ethic of care, are indeterminate and hence difficult to enforce, and
are really designed to protect the interests of the dominant class.

Many affirmatives this year will use rights the legal system to protect the rights of
individuals. This is the focus of all of the topic literature.

The argument is blocked in two different ways (and the cards are different in each). The
first way that it is blocked is as a traditional kritik and the second way that it is blocked is
as a frontline that you can read against harms or solvency.
Critical Legal Studies Kritik Shell

A. LINKS

1. THE PROVISION OF RIGHTS JUST REINFORCES THE STATUS QUO

Anthony Paul Farley, Associate Professor, Boston College Law School, 2001
(CARDOZO LAW REVIEW, March, p. 11)

Kennedy responds that legal correctness and rights discourse are powerful stabilizers of
the status quo. Legal correctness and rights discourse are powerful stabilizers of the status
quo, as is the idea that every slave really wants freedom. Those who fought for "rights"
rather than to eliminate the very possibility of master/slave relations, succeeded only in
binding their chains more tightly.

2. JUDICIAL DECISIONS LEGITIMATE THE EXISTING LEGAL ORDER BY
REIFYING OUR ALIENATED SOCIAL ROLES

Henry Schegel, Professor of Law, State University of New York at Buffalo, 2001
(CARDOZO LAW REVIEW, March, pp. 1067-8)

From the judge's perspective, any legal dispute is a "disequilibriation" or a breakdown in
the system of normal social relations that must be set right. The judge sets things right by
generating a conceptual analysis that embodies the presupposed norm that inheres in the
reified system of social relations. To accomplish this task, the judge reifies "legitimating
concepts" drawn from the presupposed norm so that "it will appear that the functioning of
the system is simply the factual activity of the legitimating concepts, thereby representing
the system itself as legitimate a priori." This method affirms the status quo. Then, the
judge reverses the movement of thought so as to generate "a process of re-experiencing
the event itself as that event is signified through legitimating concepts." The point of this
process is that it is a way of continuing the denial of the illegitimacy and
disconnectedness of social relations as they are experienced under capitalism by
depicting the unalienated group in its imaginary form as a part of political theory.
B. IMPACTS/IMPLICATIONS

1. THE LAW CONSTRUCTS REALITY

Frank Pommersheim, law professor, South Dakota, 1997 (THOMAS M. COOLEY LAW
REVIEW. v. 14, p. 435)

Law may be thought about in yet a third way -- a way that is particularly resonant with
issues and concerns in Native American communities where law has played and
continues to play a dominant, if not dominating, role in tribal life. This third view sees
law as a "culture which constitutes a world of meaning and action. It is a culture that
establishes and maintains community through its practice of language. In this sense the
law is an ethical and political activity and should be understood and judged as such."

Peter Gabel, Professor of Law, New College of California School of Law, 1984 (TEXAS
LAW REVIEW, May, pp. 1573-4)

For those of us gathered within the geographical borders of the United States, the verbal
concepts that purport to constitute our group in this fashion are contained in "the
Constitution," which signifies both an original moment in which we supposedly came
together to form "a union," and the schema by which we are to reproduce our group
connection through the reproduction of "the State," and through "the following of laws"
created and interpreted by this "State." These laws define how we are "allowed to act" in
the form of "rights." If we now examine the relationship of this schema to the inner
experience of the alienated individual that I have just summarized, we can discover how
the schema is intended to "legalize" this experience and in so doing make the
reproduction of alienation a condition of group membership.

3. THE PLAN WON'T SOLVE: CIVIL RIGHTS CLAIMS WON'T WIN IN COURT

Hugh M. Davis, Jr, Co-founder, Constitutional Litigation Associates, 1998 (DETROIT
COLLEGE OF LAW AT MSU LAW REVIEW, Summer, p. 599)

What cases are considered "civil rights" cases? They are generally divided between suits
over the limits beyond which public officials are liable for damages to a person subjected
to the criminal justice process and the tolerable limits on the unfairness which the
economic system may treat otherwise law-abiding citizens. In both categories, the Sixth
Circuit generally favored the disposal of civil rights cases on summary judgment,
narrowing rights and eliminating trials. Most of the reported trial court winners were at
least partially reversed on appeal.
C. THE ALTERNATIVE IS TRANSGRESSIVE PEROFRMANCES

Daria Roithmayr, Assistant Professor of Law, University of Illinois, 2001 (CARDOZO
LAW REVIEW, March, pp. 1121)

Rather, Kennedy proposes that the Left pursue a series of small-scale, ad hoc
transgressive performances, in order to destabilize from within particular oppressive
social, legal, and political structures and institutions. How can one destabilize institutions
from within while still being transgressive? Kennedy explains that certain legal and social
structures appear cohesive and stable only by ignoring or marginalizing their own internal
instability. A legal rule, for example, appears determinate and legitimate only by ignoring
those instances in which the rule produces contradictory results using the same set of
facts, or marginalizing them by describing them as exceptions. If these contradictory
outcomes were to be exposed, in a way that could not be explained as a minor exception
or anomaly, then perhaps the legal structure would collapse. Kennedy argues that
transgressive performances may be one way to uncover such contradictions and
deviations.
Link: Rights

1. THE PROVISION OF RIGHTS JUST REINFORCES THE STATUS QUO

Anthony Paul Farley, Associate Professor, Boston College Law School, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL HISTORIES: LILIES OF
THE FIELD: A CRITIQUE OF ADJUDICATION, p. fn21)

Kennedy responds that legal correctness and rights discourse are powerful stabilizers of
the status quo. Legal correctness and rights discourse are powerful stabilizers of the status
quo, as is the idea that every slave really wants freedom. Those who fought for "rights"
rather than to eliminate the very possibility of master/slave relations, succeeded only in
binding their chains more tightly.
Links: Judicial Decisions

1. JUDICIAL DECISIONS LEGITIMATE THE EXISTING LEGAL ORDER BY
REIFYING OUR ALIENATED SOCIAL ROLES

Henry Schegel, Professor of Law, State University of New York at Buffalo, 2001
(CARDOZO LAW REVIEW, March, SYMPOSIUM CRITICAL LEGAL
HISTORIES: OF DUNCAN, PETER, AND THOMAS KUHN p. 1067-8)

From the judge's perspective, any legal dispute is a "disequilibriation" or a breakdown in
the system of normal social relations that must be set right. The judge sets things right by
generating a conceptual analysis that embodies the presupposed norm that inheres in the
reified system of social relations. To accomplish this task, the judge reifies "legitimating
concepts" drawn from the presupposed norm so that "it will appear that the functioning of
the system is simply the factual activity of the legitimating concepts, thereby representing
the system itself as legitimate a priori." This method affirms the status quo. Then, the
judge reverses the movement of thought so as to generate "a process of re-experiencing
the event itself as that event is signified through legitimating concepts." The point of this
process is that it is a way of continuing the denial of the illegitimacy and
unconnectedness of social relations as they are experienced under capitalism by depicting
the unalienated group in its imaginary form as a part of political theory.
Impacts: Judicial Power Is Bad

1. UNCHECKED JUDICIAL POWER IS AN EVIL THAT MUST BE AVOIDED

Morris Hoffman, District Judge, Second Judicial District (Denver), State of Colorado,
2002 (FORDHAM URBAL LAW JOURNAL, June, p. 2086)

One might ask why the founders were so keen on such a comprehensive institutional
clipping of the judiciary's powers. The answer is that they appreciated, from their own
English history, that unchecked judicial power is an evil to avoid at almost any cost. Both
the Federalists and the anti-Federalists were acutely aware of the failings of the English
system, in which all judges were appointed by the Crown and served at the Crown's
pleasure, and in which Parliament was invested with supreme appellate jurisdiction in all
cases.
Impacts: Capitalism Bad Scenario

1. THE LAW LEGITIMATES THE CAPITALIST SYSTEM BY REIFING OUR ALIENATION WITH
ONE ANOTHER THROUGH RIGHTS PROTECTIONS

Henry Schegel, Professor of Law, State University of New York at Buffalo, 2001 (CARDOZO LAW
REVIEW, March, SYMPOSIUM CRITICAL LEGAL HISTORIES: OF DUNCAN, PETER, AND
THOMAS KUHN, p. 1066-67)

Peter begins his argument with the assertion that "human relationships within contemporary capitalism are
characterized by a traumatic absence of connectedness that does not wish to become conscious of itself."
Humans deny their lack of connectedness to each other because doing so is a condition for maintaining
what little connectedness actually exists with others. Such connectedness comes from perceiving oneself in
a social role constituted by capitalism, a perception that is shared by others. Each of these experiences of
being in a role is also a perception of oneself as "thing-like" - the essence of alienation - each of these roles
is thus properly seen as reified, that is, taken to be concrete when it is in fact contingent. At the same time
the thing-like quality of each of these reified roles is felt by humans to be illegitimate, though denied to be
such, and so there is always the possibility that the collectivity may "explode the whole thing." In this
circumstance: "The function of "the law' is to give each of us the impression that the system operates
according to normative law." Therefore, "the law is a denial ... of our collective experience of
illegitimacy." Thus, the function of law is legitimation.

2. RIGHTS HAVE BEEN A COLLOSAL FAILURE THAT SERVE TO PROTECT THE MARKET

Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM LAW REVIEW,
April, SYMPOSIUM THE CONSTITUTION AND THE OBLIGATIONS OF GOVERNMENT TO
SECURE THE MATERIAL PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES,
AND THE GOOD SOCIETY, p. 1915)

This is not a groundless worry. There is plenty in our recent and not so recent history that explains the
rights critics' most extreme forms of rights skepticism. The rhetoric from the last great American rights
revolution - the civil rights movements of the fifties and sixties - has indeed become the shell of the
reactionary anti-affirmative action movement of the eighties, nineties and aughts. The reproductive rights
movement of the mid and late twentieth century has similarly become nothing but a bare
commodificationist right to purchase an abortion, rather than a positive entitlement to exercise meaningful
autonomy or choice in one's reproductive life. Negative rights of free speech - fervently sought after by
dissenters as a way to protect the interests and liberties of persecuted pacifists, anarchists, and communists
at mid-century - have become, at the turn of the century, the vehicle by which advertisers manipulate public
desire with impunity, and corporate wealth maintains its headlock on the levers of political decision-
making. The peculiarly American so-called "right to bear arms," intended to protect the rights of colonial
citizens against a centralized, distant military force, has become instead the means by which citizens
terrorize each other, reducing the state to such cartoonish sub-minimalism that the right threatens to return
us all to the very Hobbesian state of nature from which the Leviathan promised deliverance.
Impacts: Capitalism Bad Scenario

3. JUDGES APPLY OUR REIFIED CAPITALISTIC ROLES

Henry Schegel, Professor of Law, State University of New York at Buffalo, 2001
(CARDOZO LAW REVIEW, March, SYMPOSIUM CRITICAL LEGAL
HISTORIES: OF DUNCAN, PETER, AND THOMAS KUHN, p. 1067)

A judge like all other humans in the capitalist system, is "passivised within a role,
fulfilling ... "the judicial function.'" In acting out this function, the judge begins with "a
sense of the whole culture ... that he passivizes into the movement of a quasi-object, such
that each discrete situation of facts reveals itself to his mind against the background of
the total "factual' context from which the law has emerged." In other words, the judge
apprehends the completely reified social structure characteristic of capitalism, denying
the made, changeable contingency of social relations. This reified structure is understood
as the normal movement of the social field, both in the sense of "normal" as "regular,"
and in the sense of "normatively compelling." In this latter sense, the reified structure
embodies the "presupposed norm" that the judge thereafter will be called on to "apply."

4. THE LEGAL SYSTEM RELIES ON COST-BENEFIT ANALYSIS THAT
PROTECTS THE MARKET

Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM
LAW REVIEW, April, SYMPOSIUM THE CONSTITUTION AND THE
OBLIGATIONS OF GOVERNMENT TO SECURE THE MATERIAL
PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES, AND THE
GOOD SOCIETY, p. 1919)

The cost of health is balanced against lost profits, the value of future life is measured
against present dollars, the cost of suffering against the cost of prevention, the monetary
benefits of speech against the cost of permitting it, the cost of sexual harassment against
the benefits of non-intervention. This cost-benefit analysis has widely recognized and
well-known pitfalls: it relies on real or shadow market values that are themselves
reflective of little but the forces of profit; it ferociously solidifies and legitimates the
status quo by ignoring the effects of given distributions on felt entitlements; it
discriminates between us by valuing our lives differently on the basis of our projected or
actual incomes; it creates a wealth-based mentality that measures all, including goodness,
truth and justice, by reference to profit. But for all of its problems - for all of its well-
known absurdities - cost-benefit analysis now dominates legal analysis.
Impacts: Capitalism Bad Scenario

5. LEGAL TRAINING SUPPORTS GLOBALIZATION

Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC
LAW REVIEW, Is the Rule of Law Cosmopolitan?, p. 22)

Second, and more importantly, a large number of working lawyers - in fact, the vast
majority of the elite of the profession - already think and act as cosmopolitan citizens of
the world, in either the economic or ethical sense, and already view that worldly identity
as fully integrated with their legal identity. Private international lawyers employed by
transnational corporations or trade organizations, as well as public human rights lawyers
employed by human rights organizations, nations, governments, or individuals, circle the
globe, dressed in their American Express cards, as they quite explicitly seek to create a
world without borders, united by legal ties of either commerce or of a universal regard for
human rights.

6. PROMOTING UNIVERSALLY SHARED HUMAN RIGHTS PROMOTES
CAPITALISM

Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC
LAW REVIEW, : Is the Rule of Law Cosmopolitan? , p. 259)

This traditional account of the rule of precedent, of legal justice and the rule of law, is not
simply non-cosmopolitan; it is anti-cosmopolitan. The very point of precedent, and of
law, so understood, is to forge a cultural or national identity separate and distinct from
undifferentiated humanity; it is to create and maintain bonds of civic obligation
distinctively grounded in particularistic tradition rather than in universal essence. We
treat likes alike - masters like masters, servants like servants, one promise backed by
consideration like another promise backed by consideration - because by doing so we
create, affirm and differentiate particular and shared identities, and by doing so, we
create, affirm and differentiate our culture from all others. We do all of this, in part,
through law. Law should be valued, then, not only and not primarily because it handily
insures order, safety, a less brutal, longer, and possibly freer life for all, but precisely
because it wards off the danger of a creeping cosmopolitan universalism - a universalism
that threatens our national identity, and hence our human and cultural identity,
profoundly. To generalize the point: if the virtue expressed by the rule of law is our
respect for universally shared human traits, which is then identified exclusively with our
capacity for willful choice, then the cosmopolitanism that the rule of law so understood
implies, will be one which runs rough shod not only over particular cultural traditions,
but also over legal regimes, either domestic or international, responsive to and protective
of other needs or traits or aspirations of the species. In short order, it will be a
cosmopolitanism that respects and serves the interests of commerce, capital and markets,
and one that is neglectful of or hostile to not only particular cultural traditions, but non-
commercial universal needs and aspirations as well.
Impacts: Capitalism Bad Scenario

7. SUPPORTING LIBERTARIANISM SUPPORTS GLOBALIZATION

Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC
LAW REVIEW, Is the Rule of Law Cosmopolitan? pp. 284-5)

The second objection to an egalitarian conception of legal justice is that it inevitably
dissolves into a libertarian one, and that coupling that conception with cosmopolitanism
will accordingly do little but pave the way for global capitalism. If we identify the heart
of legal justice as an ethical mandate to accord an equal moral regard to all, and then
identify the grounds of that mandate as the nature we all share, but then cling to the belief
that what we share, essentially, is nothing but our capacity for creating value through
choice - a belief seemingly held by both the libertarian right and the relativistic
postmodern left - and we then urge a cosmopolitan ethic that respects that universalism,
we will have done little but fuel an economic globalism that runs roughshod over both
particularistic tradition and universal human need.
Internal Links: Rights Destroy Social Movements

1. RIGHTS RHETORIC MASKS OPPRESSION AND DEMOBILIZES SOCIAL
MOVEMENTS

Daria Roithmayr, Assistant Professor of Law, University of Illinois, 2001 (CARDOZO
LAW REVIEW, CRITICAL LEGAL POLITICS: LEFT VS. MPM: LEFT OVER
RIGHTS, March, p. 114-5)

In addition, cls theorists like Gabel argued that rights legitimized the exercise of power.
Rights rhetoric made the government appear as if it were resolving disputes fairly and
objectively under the rule of law, when in fact the government was exercising
conservative political power in ways that oppressed the disempowered. Moreover, rights
discourse made mass political resistance unlikely because rights discourse disguised the
role of coercive state power in creating material inequalities in wealth, opportunities, and
resources.

2. RIGHTS CLAIMS FAIL WITHOUT MOVEMENTS – RIGHTS CLAIMS DEPEND
ON POLITICAL SUPPORT

Daria Roithmayr, Assistant Professor of Law, University of Illinois, 2001 (CARDOZO
LAW REVIEW, CRITICAL LEGAL POLITICS: LEFT VS. MPM: LEFT OVER
RIGHTS, March, p. 1119)

But in neither case has the discourse succeeded or failed because rights categorically
trump other competing claims. Rather, Kennedy argues that the success or failure of a
rights claim depends on a range of political forces that cannot be predicted in advance.
That is, a successful rights argument depends not on the "scope" of the right or its
application to a set of facts, but on a less-than-formulaic interpretive relationship between
the rights claim, the identity and diligence of the rights claimer, the political viability of
supporting arguments, timing, and luck, among other factors.
2NC: The Kritik Proves There Is No Solvency

1. THE STATE SUSTAINS SOCIAL HIERARCHIES

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, p.
fn96)

Frank Levy, Rhetoric and Reality: Making Sense of the Income Gap Debate, Harvard
Bus. Rev. (Sept.-Oct. 1999) at 169. ("The Federal Reserve Board reports that in 1995 ...
the richest 1% of households ... owned about a third of all net worth; the next richest 10%
of households ... owned approximately another third; and the remaining [89% of]
households owned the rest."); David Cay Johnston, Gap Between Rich and Poor Found
Substantially Wider, N.Y. Times, Sept. 5, 1999, at 16 (noting that the gap between the
rich 1% and the bottom 50% has increased).

2. RIGHTS ONLY PROTECTED MINORITIES BECAUSE OF HISTORICAL
HAPPENSTANCE

Daria Roithmayr, Assistant Professor of Law, University of Illinois, 2001 (CARDOZO
LAW REVIEW, CRITICAL LEGAL POLITICS: LEFT VS. MPM: LEFT OVER
RIGHTS, March, p. 119-20)

Kennedy agrees with CRT argument that rights has produced value in the context of the
civil rights movement, and is quick to note that his newly minimalist rights critique did
not constitute an indictment of the civil rights era. He does not intend to suggest that
communities of color had been wrong or misguided to use rights as part of a demand for
inclusion. Rather, he seeks to remind them that their success has been a matter of hard
work, chance, and historical circumstance - they have succeeded not because rights are
somehow categorically distinct from nonrights political interests, but because their timing
during the civil rights era had been great, rights discourse had taken on a particularly
liberatory meaning at a particular time, and they had worked extraordinarily hard to
organize politically.
AFF: General Rights Critique Answers

1. TURN: THE CRITIQUE OF RIGHTS DIVERTS ENERGY AWAY FROM
EFFORTS TO STOP THE GENOCIDE OF NATIVE AMERICANS

Professor of Law, University of California at Los Angeles, 2001 (CARDOZO LAW
REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS. MPM: POLITICS
WITHOUT A MOVEMENT, March, p. 1107)

Even if cls's critique of rights is correct, it is a poor use of time and energy. Cls should
rather have devoted its resources to a project of critiquing or deconstructing other aspects
of the bourgeois cultural grid, such as exploitation, racism, or the genocide of the Native
American population.

2. THE CRITIQUE OF RIGHTS WILL BE REIFIED AND NO CHANGE WILL
RESULT

Nathaniel Berman, Professor of Law, Northwestern, 2001 (CARDOZO LAW REVIEW,
March, CRITICAL LEGAL HISTORIES: AGAINST THE WRONG AND THE DEAD:
A GENEALOGY OF "LEFT/MPM, p. 1010)

By analogy, the intention behind a critique of rights in a particular moment ... is a
particular kind of disruption. The critique might succeed as disruption in its context and
then get reproduced as a theoretical routine, as a piece of normal science, performed over
and over again without either disruptive effect or disruptive intention.

3. AFFIRMATATIONS OF INDETERMINANCY ONLY LEAD TO IDELOGY AND
RECONSTRUCTION

Nathaniel Berman, Professor of Law, Northwestern, 2001 (CARDOZO LAW REVIEW,
March, CRITICAL LEGAL HISTORIES: AGAINST THE WRONG AND THE DEAD:
A GENEALOGY OF "LEFT/MPM, p. 1011)

Only the expectation of determinacy can critique its disruptive effect. And, above all, it is
only such targeted disruptions that release the "primal underforces" - emotional, sexual,
social - that produce cultural and political revolt. Global affirmations of indeterminacy
are almost always the prelude to apologetic reconstruction or authenticity ideology.
AFF: General Rights Critique Answers

4. MAINSTREAM CIVIL LIBERTY THEORY IS THE BEST MEANS TO
ORGANIZE A MOVEMENT

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, p. 1111)

Throughout most of the 1990s, most students in classes taught by cls professors did not
come to law school out of political commitment. n21 They did not enter academia with a
leftist (or feminist) orientation. For the most part, students did not enroll in our classes
because of their or our politics. Instead, they developed an interest in radical politics - if
at all during law school - often as a result of our classes. For example, in many instances,
studying feminist legal theory was the first occasion on which women in my classes
began to engage feminism. Not truly radical politics, but bland, left liberalism appeared
to provide about the most fertile ground for political organizing among students.
"Diversity" issues were energizing, but usually from an initial position of general, liberal
yearnings for an integrated law school as part of a fully integrated country, not from any
deep leftist impulse.

5. KENNEDY IGNORES THE VALUE OF RIGHTS DISCOURSE

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, pp. 1124-5)
p. 1125)

Most troubling perhaps, Kennedy's "post-rights" rhetoric abandons rights talk even more
definitively (or at least more dismissively) than the earlier cls critique. Kennedy largely
ignores Crenshaw and Williams's argument that rights discourse played a central
pragmatic and rhetorical role in the "transgressive performance" that was the civil rights
movement. In Kennedy's post-rights world, he does not address the pragmatic use of
rights discourse to advance particular political commitments, and at times appears to
argue against it. Indeed, in one of Kennedy's more critical passages, he argues that
communities of color who assimilate to, and thus reinforce, the dominant rights discourse
are doing harm, whether they do it out of strategic maneuvering or bad faith.
AFF: General Rights Critique Answers

6. PERMUTE: DO BOTH. THIS IS BEST FOR A FEW REASONS:

A. RIGHTS ARE A USEFUL PROP FOR TRANSGRESSIVE PERFORMANCES

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, pp. 1131)

Levi-Strauss's writing contrasts the image of the engineer, who attempts to choose the
right tool to achieve a particular outcome, to the bricoleur who "addresses himself to a
collection of oddments left over from human endeavors." Rights discourse might yet be
useful in the mode of bricolage, as props in a strategic action or transgressive
performance, in a movement for social change.

B. RIGHTS ARE USEFUL IN SOME CIRCUMSTANCES

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, p. 1131)

Indeed, to the extent that a rights claim is deeply sedimented with restrictive historical
meanings, it may prove difficult even to frame a political commitment as a rights claim.
If so, communities of color may do well on those occasions to move away from rights
claims toward another way of articulating their political commitments. Nevertheless, in
other circumstances, in particular historical moments that may yet be unimagined, rights
talk may be an effective way of articulating political commitments for certain
communities of color.

C. RIGHTS ARE IMPORTANT TO TRANSGRESSIVE POLTICS

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, p. 1131)

 Beyond serving as a tool for strategic action, rights discourse might also play an
important role in the pursuit of Kennedy's transgressive performances. Deployed as a tool
of strategic action, rights claims work to advance particular political commitments within
the accepted framework of existing legal and social structures. Deployed as a stage prop
in a transgressive performance, rights claims might help to dismantle existing social and
legal structures, like the social structure of racism and racist ideology.
AFF: General Rights Critique Answers

D. THE PERM IS NET-BENEFICIAL BECAUSE RIGHTS CLAIMS ARE
IMPORTANT IN A POST-RIGHTS WORLD

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, pp. 1127-8)

However, communities of color might still rhetorically invoke the "trump" aspect of
rights discourse - capturing a sort of historical residue of rhetorical meaning - without
having to rely on Dworkin's categorical distinction between principle and policy. Rios v.
Regents of the University of California provides a specific example of strategic rights in
action. In this case, five civil rights groups have brought a class-action rights claim under
Title VI, challenging the admissions procedures of the University of California at
Berkeley as unfairly discriminatory. In their complaint, the plaintiffs target several
aspects of an ostensibly color-blind admissions process as unfairly and disproportionately
excluding applicants of color. The plaintiffs claim in both their complaint and
accompanying press release that the admissions process unjustifiably denies Blacks and
Latinos/as their rights under both Title VI and the Fourteenth Amendment. Even in
Kennedy's post-rights world, the plaintiffs might still articulate this kind of rights claim
without having to adopt Dworkin's categorical distinction between principle and policy,
or any other claim that rights are metaphysically different in some way from political
claims. Plaintiffs might have used rights discourse, not to argue that a Black applicant's
interest in being admitted to a prestigious law school is different in principle, but to argue
that there are good moral and political reasons to prioritize the interests of currently
excluded applicants of color over the interests of Whites in retaining the benefits of
White privilege.
Affirmative Answers To: “No Solvency”

1. INDETERMINACY DOESN’T MEAN ZERO SOLVENCY

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, p. 1129)

Rights talk is not always and inevitably depoliticizing (take, for example, the civil rights
movement), just as it is not always and inevitably indeterminate; rather, its meaning and
role are contingent on historical context and circumstance.

2. EVEN THOUGH THE LAW IS OFTEN CO-OPTED BY THE POWERFUL, IT IS
ON-BALANCE DESIRABLE

Robin West, Professor of Law, Georgetown University Law Center, 2001
(GEORGETOWN LAW JOURNAL, November, JUSTICE, DEMOCRACY, AND
HUMANITY: A CELEBRATION OF THE WORK OF MARK TUSHNET:
Reconstructing the Rule of Law, p. 218)

Law in practice doesn't always work this way; in fact, law in practice is easily co-opted
by the strong toward their interest. When this co-opting occurs, law becomes a mask of
power rather than a check upon it. But that law can be perverted in this way, even on a
massive and global scale, underscores rather than undercuts its essence: Law is a more or
less good thing, when and because it tempers the aggressions of the strong; it betters the
condition of the weak; it makes life less brutal, less nasty, and a little longer, for all.

3. THEY’LL NEVER WIN ZERO SOLVENCY

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, p. 1129)

Strategic action, as a result, is not strategic manipulation - it cannot be controlled or
wielded with certainty as some sort of tool. Rather, rights talk might be used more as a
brush stroke on an artist's canvas - if the artist is lucky and talented and her timing is
right, the brush strokes will produce something of value in her painting.
4. RIGHTS DO NOT ALWAYS FAIL

Daria Roithmayr, Assistant Professor of Law, University of Illinois, 2001 (CARDOZO
LAW REVIEW, CRITICAL LEGAL POLITICS: LEFT VS. MPM: LEFT OVER
RIGHTS, March, p. 1118)

It is not that rights discourse is always indeterminate and can never produce closure.
Although rights discourse does frequently fail to reach closure, at other times and in other
(rare) circumstances, rights actually have appeared to produce some sort of useful result
or determinate outcome.
Affirmative Rights Are Good

1. RIGHTS ARE IMPORTANT FOR POLITICAL MOBILIZATION FOR
MINORITIES

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, pp. 1127-8)

Second, communities of color might rhetorically use rights talk to mobilize groups
politically to advance particular commitments. Critical Race Theorists like Crenshaw
have pointed out that Blacks used rights talk to articulate a historically specific political
commitment to integrating public accommodations in the 1960s. Latinos/as, blacks,
women, gay men and lesbians, and the disabled have all used rights talk as one of several
rhetorical focal points around which to organize resistance to exclusion. In fact, the
popular lay meaning of rights talk - as grounding mass movements and inspiring strong
emotional commitment - derives in part from the historical role that rights have played in
mass mobilizing. Apart from the use of rights as legal "trumps," rights talk may still
evoke meaning as a historically meaningful language that draws upon the memory of
solidarity (even if a romanticized memory) and inspires people to work toward social
change.

2. RIGHTS ARE AN IMPORTANT MEANS TO CHECK STATE POWER

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, p. 1128)

In conventional legal parlance, rights are considered special because they have some
significant weight, particularly when balanced against competing collective political
interests. Ronald Dworkin has famously argued that rights are political trumps held by
individuals, because collective goals or interests (like the state's interest in general
welfare) cannot outweigh an individual's interest in a fundamental right. n78 Dworkin
defends the concept of trumps by explaining that rights are based on constitutional
principle and not mere political interest, which is more subject to short-term cost-benefit
analysis. Under this view, the right to nondiscrimination trumps the state's interest in
avoiding social unrest because the individual right is based on principle, while the state's
collective interest is merely political and can be traded off for some other more important
interest.
AFF: General Rights Critique Answers

3. RIGHTS ARE USEFUL AS A RHETORICAL TOOL TO ARTICULATE A CLAIM

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENT, p. 1127)

First, consistent with the critique of rights, rights talk might still function as a rhetorical
tool to articulate the weight, importance, and priority of a particular political
commitment. Historically, to frame one's claim as a right has conveyed the notion that the
claim should enjoy priority over other claims. Communities of color can use rights talk
strategically, not to argue that a claim has some special legal or metaphysical status, but
to argue that there are good political, moral, and social reasons to give the claim priority
and the force of law's protection.

4. RIGHTS PROVIDE A MEANS TO ACHIEVE VISIBILITY, AUTONOMY, AND
VALUE

Daria Roithmayr, Assistant Professor of Law, University of Illinois, 2001 (CARDOZO
LAW REVIEW, CRITICAL LEGAL POLITICS: LEFT VS. MPM: LEFT OVER
RIGHTS, March, p. 115)

In response, scholars of color mounted a sustained defense of rights discourse. Although
scholars like Kimberle Crenshaw and Patricia Williams acknowledged that rights
theoretically were indeterminate and had been used to legitimate white racial power, they
argued that communities of color had achieved a great deal using rights discourse during
the civil rights era. By framing claims in an accepted legal vocabulary, communities of
color were able to participate in the political conversation. According to Williams,
reinterpreting rights to encompass blacks had conferred visibility, respect, and autonomy
- the fundamental aspects of personhood - to people who previously had been treated as
objects instead of subjects.
Specific Rights Are Good

1. WE HAVE A POSITIVE RIGHT TO PROTECTION AGAINST PRIVATE
VIOLENCE

Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM LAW REVIEW,
April, SYMPOSIUM THE CONSTITUTION AND THE OBLIGATIONS OF GOVERNMENT TO
SECURE THE MATERIAL PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES,
AND THE GOOD SOCIETY, pp. 1923-4)

What might be the penumbral rights implied by the recognition of a core positive right to protection against
private violence? It would depend on the rationale of the core right itself. Three possibilities come to mind.
First, if we have a positive right to protection against private violence because of our natural vulnerability
to the violent propensities of others, and the calamitous consequences of that vulnerability, then we might
also want to recognize that we have a positive right to the state's protection against other sorts of natural
"violence" with equally calamitous results. We might, for example, have a positive right to be protected
against natural disaster, misfortune, or even disfavor and bad luck, if the consequences of that disfavor are
brutal. This might sensibly be regarded as the "welfarist" interpretation of the right to security.
Alternatively, we might reason that we recognize a positive right to security, or protection against the
violence of others, not because of the calamitous potential consequences of our vulnerability to that
violence, but because of the potentially subordinating, and hence inegalitarian, consequences of that
vulnerability. Unchecked private violence leads to unchecked private political hierarchies and also leads to
domination and acquiescence in those spheres in which the violence goes unchecked by the state. A
security right against unchecked private violence, then, might imply not just a right to assistance in the
event of natural disaster, but a different set of "penumbral rights" to be protected against extreme forms of
private aggression, whether or not that aggression takes the form of physical violence. We may, for
example, have a positive right to be protected against the harmful effects of a polluted environment, or an
unregulated and dangerous product, or exploitative employers. We might think of this as the
"antisubordinationist" interpretation of the security right. And third, we might reason that we have a
positive right to security against private violence because of a yet more fundamental right to security
against extreme deprivation or impoverishment that threatens fundamental human capabilities, regardless
of whether that vulnerability can be attributed to either undue private aggression or natural disaster. If we
have a right to protection against violence not because we have egalitarian rights not to be subordinated,
and not because we have a natural right to community assistance in the event of natural disaster, but
because we have a right to a fully human life free of fear and anxiety brought on by conditions of
deprivation, then we might impliedly also have a right to be freed of these non-subordinating but no less
damaging sorts of vulnerabilities. This would be the most far-reaching penumbral interpretation of the right
to security, and might be called the "capabilities-based" interpretation. We have a right to security, in this
view, because we have a right to live the "fully human" life such security in part ensures. A liberalism
grounded in a "first right" to protection against private violence, so understood, in other words, might
support the existence of penumbral rights to protection against other sorts of vulnerabilities - and hence, at
the outer reaches, rights to whatever is minimally necessary to attain those capabilities in turn essential to a
fully human life. Obviously, such rights would entail state obligations to act, rather than simply refrain
from acting. The second core right that might be recognized in a liberal tradition unwedded to atomism can
be called a "right to provide care," or as the philosopher Eva Kittay refers to it, a right to doulia. This right
is currently undertheorized in the welfarist literature. We do not, contrary to Hobbesian myth, spring upon
this earth mushroom style as fully formed, autonomous adults. Rather, all of us enjoy or suffer an extended
period of absolute dependency upon caregivers, and most of us, as adults, enjoy or suffer (or both) an even
longer period during which we bestow care upon infants and children dependent upon us, and eventually
upon aging parents in similar need. The ability to give care to dependent others, and the ability to receive
such care as a dependent other, is at least as fundamental to a "fully human life" as is the ability to rest
secure against threats of private violence or subordination. As a species, we are not just interdependent
creatures, we are also, for substantial periods, fully dependent upon others, and others are, for substantial
periods, fully dependent upon us. Those simple facts of our human existence, to a considerable degree,
mark our species, define and constitute our moral sense, and form the basis for our social nature. As a
consequence, when we are infants and children, and likewise when we are sick or aged, we desperately
need, not the rights of autonomy and independence so central to classical liberalism, but a regime that
protects us in our dependent state, and protects those upon whom we are dependent as well. And, when we
are acting as caregivers, we need not rights that falsely presuppose our autonomy and independence, but
rights that frankly acknowledge our relational reality. When infants, children, or aging parents are
dependent upon us, we are dependent upon others for support and sustenance. n62 People who are
providing care to dependents are themselves in need of assistance from others, and caregivers will
eventually become, again, dependents in need of care themselves. That circle of mutual need, caregiving,
dependency, and assistance is as much a part of our social contract as is the individual's relinquishment of
rights to self-defense in exchange for a right to protection against violence. A rights tradition that
forthrightly acknowledged the natural reality of our inescapable dependence on each other - to say nothing
of our social nature - would give pride of place to "relational rights" that would protect the caregiver, and
hence the care bestowed in dependency relationships. Needless to say, perhaps, such relational rights are
nowhere mentioned in various constitutional documents, nor are they well-grounded in liberal theory. But
they ought to be. We have the rights we have in liberal, democratic societies, at least according to widely
shared conventional wisdom, for essentially one (or more) of three basic reasons. First, we construct or
recognize rights when, for some reason, the sphere of life, service, freedom, activity, or identity that is
protected by the right, and so necessary to flourishing, might nevertheless be systematically undervalued,
underappreciated, or underprotected by standard political or economic processes, even in a liberal
democracy. Second, at least sometimes in the United States and elsewhere, we construct rights when we
have reason to believe that a particular practice or activity, if unchecked, will have a severe and adverse
effect on a subgroup that has historically been subordinated. And lastly, here and elsewhere, at least on
occasion, we construct rights to underscore our most fundamental and most shared intergenerational values.
The panoply of rights we protect expresses our self understanding, and more specifically, it expresses a
self-understanding meant to endure even in times of the value's political neglect.

2. LIFE IS MEANINGLESS WITHOUT A RIGHT TO CARE

Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM
LAW REVIEW, April, SYMPOSIUM THE CONSTITUTION AND THE
OBLIGATIONS OF GOVERNMENT TO SECURE THE MATERIAL
PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES, AND THE
GOOD SOCIETY, p. 1927)

Lastly, we need a right of care and a right to supported caregiving labor to better express
our self-understanding as a species for whom caregiving is a central life activity. Clearly,
our nature is such that we thrive when cared for. As a species, our period of infantile need
is extended over time, as is our period of caregiving labor. We flourish both individually
and communally when decent care is provided, and we suffer when it is not. The better
the care, the more the cared-for will thrive, and the more likely they will mature to
become liberal and equal citizens who can themselves provide care as well as fulfill
responsibilities of citizenship in a liberal society. And, the more demanding and
consuming is the care, the harder it is to provide without support.
AFF: General Rights Critique Answers

3. A RIGHT TO CARE DIRECTS US TOWARD FULFILLING SOCIAL
RESPONSIBILITIES

Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM
LAW REVIEW, April, SYMPOSIUM THE CONSTITUTION AND THE
OBLIGATIONS OF GOVERNMENT TO SECURE THE MATERIAL
PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES, AND THE
GOOD SOCIETY, pp. 1928-9)

Nevertheless, we shouldn't dismiss the upside potential out of hand. A "right to care"
would share in the rhetorical power of rights discourse. Acknowledgment or insistence
upon the existence of such a right would honor the centrality of caregiving labor to social
life. Neither would it require a herculean effort to locate such a right in our constitutional
history. The substantive due process clause, before it became, post-Eisenstadt v. Baird,
n65 the source of individual, negative rights to contraception and abortion, did
prominently include "a right to parent" - a right which, particularly if modernized and
coupled with our current recognition of the constitutional status of norms of gender
equality - could easily be viewed as "penumbral" to a more fundamental right to give
care. As a practical matter, as mentioned, such a right casts doubt on not just the wisdom
but also the constitutionality of legislation like the mid 1990s welfare reform act, and
such a right, were we to recognize it, gives needed dimensions of both universality and
moral imperative to political demands for greater support of vulnerable caregivers. Just as
important, a "right to care," if recognized, would go a long way toward aligning the idea
of rights with a conception of our nature that acknowledges our natural dependencies as
well as our social responsibilities toward others, rather than a conception of our nature
that insists falsely and dangerously on our self-sufficiency.
Rule Of Law Is Good

1. THE RULE OF LAW IS CRITICAL TO CHECK OUR TENDENCIES TO IGNORE
THE CONCERNS OF THE OTHER

Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC
LAW REVIEW, Is the Rule of Law Cosmopolitan? p. 276)

We should also be suspicious of the deadening logic to which it leads: to claims of
difference themselves traceable to the need to excommunicate and use, rather than
equally regard, the lives or services of others. To guard against this, we should assume,
and insist, and re-affirm, that those whose lives are affected by our actions are
fundamentally, essentially and in material, emotional and biological ways like us, and act
accordingly. The rule of law, and the mandate of legal justice it implies, might be best
understood today as a bulwark - institutional, to be sure, but also deeply ingrained in our
nature - against our human tendency to self-servingly do otherwise.

2. THE LAW PROMOTES HUMAN SOLIDARITY

Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC
LAW REVIEW, Is the Rule of Law Cosmopolitan? pp. 276-7)

The point of law presupposed by this egalitarian and communitarian understanding of the
rule of law, is neither to preserve tradition, nor to maximize individual freedom, but
rather, to ensure the preconditions for a community of equal individuals. Law itself exists
to ensure that we draw the circle of our civic concern broadly - not just around those
human beings we would be naturally inclined to defend in any event in a state of nature,
whether defined by reference to family, neighborhood, or nationalist ties. It exists to
ensure that we act on our capacity for recognizing the equal entitlements of all persons to
our considerate regard rather than act on our natural predisposition to discredit those
obligations. Law exists so as to ensure a civic fraternity even when, or especially when,
the obligations of such a fraternity impose burdens on our differentiated, particularized,
natural loyalties, and whether or not those differentiated and particularized natural
loyalties find expression in past traditions - cultural, legal or constitutional. It exists so as
to institutionalize our egalitarian and communitarian conviction that the
excommunication and then differential treatment of some for the exploitative use of
others is not justified, and can never be justified by the perceived or actual differences
which that excommunication and exploitation eventually create.
Rule of Law Good

3. THERE IS NO VALUE TO LIFE IN A WORLD WITHOUT THE LAW

Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC LAW REVIEW,
Is the Rule of Law Cosmopolitan? p. 278)

A human being protected by the rule of law so conceived, is neither the creature of tradition nor the stark
potential for free will presupposed and protected by traditional and libertarian accounts of the rule of law
respectively. A human being protected by a law that exists so as to ensure the conditions of a community of
equal individuals is a human being in need, specifically of that law's protection. It is the human being with
material needs, emotional ties, cultural ambitions, and intellectual aspirations that are frustrated, denied,
threatened, or annihilated by not only the natural wilderness, but also by the flow of the unchecked
antipathies and sympathies of extra-or pre-legal human nature. It is the human being whose needs for
survival are going to be denied or unmet by an unregulated market economy that presupposes only the
universalizability, and hence rationality, of will, rather than need. It is the human being whose maternalism
is denied or crushed by an unregulated social order hostile to the dependency and neediness of mothers and
children. It is the human being whose materiality and mortality are ignored by a technologically advanced
warrior society that shields the eyes and hearts of its citizens from the evidence of the bodily suffering and
death that its aggression engenders. It is the human being, with needs, capacities, ambitions, connections to
others, and aspirations, that is left outside of natural, societal, or traditional circles of concern that in turn
define that person, or that person's needs, as lesser, or as of lesser moment. The "outsider," no matter what
makes her such, simply is the human being for whom the rule of law, understood as the guarantor of those
conditions that sustain a community of equal individuals, exists. This egalitarian and communitarian
understanding of the rule of law strongly implies an ethical, rather than economic cosmopolitanism. If we
should treat likes alike because justice requires it, and if justice requires it because doing so reaffirms our
conviction that, by virtue of a shared humanity, all humans should be equally regarded, and if we sustain
that conviction and institutionalize it in law precisely because of our temptation to draw our circle of
communitarian concern more narrowly, then such a mandate obviously does not stop at our borders. The
mandate exists as an injunction to question both the coherence and motivation of borders of exclusion,
whether national or cultural. If we should "treat likes alike" in law, because by so doing we create and
affirm a community of equal persons, then we obviously should be as concerned with the justice or
injustice of a dropped bomb in the Sudan to fight international terrorism as we are concerned with the
injustice of a dropped bomb in Philadelphia to fight the domestic equivalent. These are like cases. We
should be as concerned with the lack of an economic safety net around the globe in those regions making
rocky transitions to market economies as we are concerned with the lack of a safety net in this country that
might cope with the same economic trauma experienced by American families. These are like cases. We
should be as outraged by the environmental costs and the lack of rights for laborers entailed by the
internationalization of contract law as we are by the miseries entailed by a deregulated laissez faire regime
in our own. These are like cases. In all of these cases, our relative nonchalance in the face of the evil visited
on distant others, when contrasted with the outrage we feel when the same evil strikes close to home, is an
instance of failing to treat likes alike. In all of these cases we reap the benefits of the state policy in
question by drawing a narrow circle of egalitarian concern. Furthermore, in all of these cases of injustice,
we profit. Like Sally, we celebrate as well as enjoy the profits of industry and commerce, while expressing
the admirable concern that sometimes people get hurt, and like Sally, we are secure in our knowledge that it
is other and distant and lesser lives, rather than real people, that pay the price of our comforts.
4. THE RULE OF LAW PROTECTS US AGAINST CULTURALLY DESTRUCTIVE
UNIVERSALISM

Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC
LAW REVIEW, Is the Rule of Law Cosmopolitan? , p. 259)

This traditional account of the rule of precedent, of legal justice and the rule of law, is not
simply non-cosmopolitan; it is anti-cosmopolitan. The very point of precedent, and of
law, so understood, is to forge a cultural or national identity separate and distinct from
undifferentiated humanity; it is to create and maintain bonds of civic obligation
distinctively grounded in particularistic tradition rather than in universal essence. We
treat likes alike - masters like masters, servants like servants, one promise backed by
consideration like another promise backed by consideration - because by doing so we
create, affirm and differentiate particular and shared identities, and by doing so, we
create, affirm and differentiate our culture from all others. We do all of this, in part,
through law. Law should be valued, then, not only and not primarily because it handily
insures order, safety, a less brutal, longer, and possibly freer life for all, but precisely
because it wards off the danger of a creeping cosmopolitan universalism - a universalism
that threatens our national identity, and hence our human and cultural identity,
profoundly.
Duncan Kennedy Answers

1. KENNEDY SUPPORTS PIECEMEIL REFORM

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, pp.
436-7)

n88 His theoretical model discussed below, however, treats that hierarchy gingerly and
offers a remedy, which in Kennedy's own words is "not at all revolutionary." n89 His
"take" on social hierarchy follows from his disbelief in the extinction of capitalism. n90
But, he favors a transformation of the "system of hierarchy ... done cell by cell, until we
reach the critical point at which the interconnectedness of the system makes it possible to
develop it as a whole toward a new unity."

2. KENNEDY IGNORES THE EXISTENCE OF A LOWER CLASS

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, pp.
437-8)

There are, of course, several problems with this analysis. Among the six traits Kennedy
embraces, the first and sixth are the most immediately problematic. Viewing the social
structure as a diamond, instead of as a pyramid (the first trait), Kennedy avoided the
reality that the many at the bottom of the pyramid (or even those at and below the middle
of the hypothetical diamond) have fewer rights and entitlements than those at the top. By
positing a diamond-shaped society, Kennedy avoided recognition of any meaningful
social differences within the legal discourse of rights and entitlements. He also rendered
irrelevant the construction of a coherent legal discourse about the socio-economic roots
of law. Simplistically put, if there is no significant jarringly obvious bottom to the polity,
there is no reason to question what role law plays in keeping it there.
No Alternative: The Alternative Of The “CLS Movement” Is Bad

1. CLS IS LIKE KENNY FROM SOUTHPARK – HE DIES AND NO ONE CARES

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, Pp.
415-6)

Critical Legal Studies ("CLS"), which started as a Left movement within legal academia,
n2 has undergone so many changes, that one may liken it to products of pop culture,
such as the television cartoon show, South Park. n3 South Park features a character
named Kenny, totally unlike any other cartoon hero, tragic or otherwise. Like Kenny,
who is an outsider and who speaks a language unintelligible to all except, astonishingly,
his classmates, CLS no longer seems to possess a voice comprehensible to anyone
outside its own small circle. Kenny, unlike all other cartoon figures, dies in every
episode. Significantly, often Kenny's death has been self-inflicted - though not
necessarily intentional - when, for instance, he ignores warnings of imminent danger.
Like Kenny, CLS has suffered many often self-inflicted injuries. Like South Park,
generally, CLS is certainly colorful, but often little more than that and, as in the cartoon,
except for the certainty of Kenny's death and later resurrection, there seems more flash
than substance in its existence. We are left to guess whether CLS will prove to be as
resilient after apparent death, as Kenny.

2. CLS CRITICISMS IGNORE THE OPPRESSION OF THE STATUS QUO

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, p. 420-
1)

This Article suggests first, that because CLS was so obsessed with rejecting liberalism's
claim to objective analysis, it lamentably minimized and even trivialized conservative
theories and their perpetuation of the status quo. Second, this misplaced preoccupation
caused CLS to lose its adherents, strength and legacy.
No Alternative: The Alternative Of The “CLS Movement” Is Bad

3. LIBERALISM WILL COOPT CLS

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, p. 427)

The present crisis that CLS faces may be the logical result of CLS's limited focus on
liberalism as a false ideology, instead of on conservatism, and its apparent shift of focus
toward more modest goals, such as legal education in itself. In the mid 1980s, even a
non-crit (to put it mildly), Clark Byse, was able to credit CLS with influencing legal
education. Despite its "eclectic character," Byse recognized the cohesion CLS achieved
through its disenchantment with liberal legalism. By the end of the century, however, it
seems that, as G. Edward White had predicted fifteen years earlier, "liberalism will
[have] absorbed and converted Critical theory ... [and in the end] very little will have
changed ... let alone have been transformed."

4. CLS IS SPLIT INTERNALLY AND SUFFERS FROM AN IDENTITY CRISIS

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, pp.
429-30)

Kennedy distanced himself from Marxism by stating that while he was "not saying that
capitalists don't exist, or that they don't oppress others, ... this is only one in the list of
modes of oppression, and no longer, if it ever was, the central one." He also replaced the
Marxist principles of base and superstructure, which he viewed as a simplistic
unidirectional relation, with post-modern ambiguity and eclecticism. While this was
definitely a departure and perhaps a new theme in his repertoire, whether it ever could
have a lasting impact upon the previous goals of CLS seems to have been answered in the
negative by the political as well as intellectual indolence that presently characterizes the
movement. So far, the only result is an obvious and lamentable change in the direction of
CLS, which is the regrettable subdividing of its "political place" into turf now variously
claimed by "fem-crits," critical race theorists, postmodernists, cultural radicals, and self-
styled political economists, mirroring Kennedy's own apparent identity crisis.
No Alternative: The Alternative Of The “CLS Movement” Is Bad

5. CLS CRITICISMS WILL NEVER MAKE IT OUT OF ACADEMIA

Frances Olsen, Professor of Law, University of California at Los Angeles, 2001
(CARDOZO LAW REVIEW, March, CRITICAL LEGAL POLITICS: LEFT VS.
MPM: POLITICS WITHOUT A MOVEMENTMT, p. 1110)

Equally clearly, there is a limit to how long teachers can sustain a political position
significantly to the left of the rest of the population. Cls was born out of the new left
activism of the 1960s and 1970s. The movement would not have developed without this
period of social activism. Yet, the relationship is neither simple nor straight forward. Cls
thrived during the increasing conservativism of the Reagan years and was pronounced
dead (quite possibly prematurely) by the time the Democrats reclaimed the White House
in 1992.

6. CLS HAS NO VOICE IN THE LEGAL WORLD

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, p. 430)

Kennedy distanced himself from Marxism by stating that while he was "not saying that
capitalists don't exist, or that they don't oppress others, ... this is only one in the list of
modes of oppression, and no longer, if it ever was, the central one." He also replaced the
Marxist principles of base and superstructure, which he viewed as a simplistic
unidirectional relation, with post-modern ambiguity and eclecticism. While this was
definitely a departure and perhaps a new theme in his repertoire, whether it ever could
have a lasting impact upon the previous goals of CLS seems to have been answered in the
negative by the political as well as intellectual indolence that presently characterizes the
movement. So far, the only result is an obvious and lamentable change in the direction of
CLS, which is the regrettable subdividing of its "political place" into turf now variously
claimed by "fem-crits," critical race theorists, postmodernists, cultural radicals, and self-
styled political economists, mirroring Kennedy's own apparent identity crisis.
No Alternative: The Alternative Of The “CLS Movement” Is Bad

7. THE CLS MOVEMENT IS DISUNIFIED

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, p. 433)

As a result of this array of dissenting and conflicting interests, CLS has been left with no
cohesive voice, and it appears now as a mere witness to the powerless atomization of an
emasculated radical Left discourse. This atomization may have promoted certain group
solidarities, and possibly offered short term relief. But, despite CLS's influence on legal
discourse, it never seemed able to attain even a partially-unified leftist discourse. This
failure might be the cause of mutual estrangement among all of its "members" - or at least
a failure to offer a common core - that eventually risks oblivion for the movement as a
whole. In response, CLS now must rediscover its voice in the legal community, even
though the old leftist habits and texts have far less luster and glitter than fashionable
literary theories.

8. CLS IS A CARTOON-CHARACTER MOVEMENT

E. Dana Neacsu, Attorney, New York City; former Assistant Corporate Counsel, New
York City Law Department; Judge, 2000 (JOURNAL OF LAW & POLICY, v. 8, p. 434)

Additionally, by ignoring the role of the state as an important device in perpetuating the
social hierarchy, Kennedy also missed the opportunity to expose the unique features of
the state as a tool of oppression. As shown by the Polemic, CLS lost - or abandoned - the
opportunity to elaborate the Marxist concepts of base and superstructure, and because of
that, CLS may well have missed the opportunity to become a strong leftist movement -
instead of an almost cartoon-like caricature of one - with an enduring legacy.
No Alternative: The Alternative Of “Reject Rights” Is Bad

1. TURN: ABANDONING RIGHTS RHETORIC MEANS THAT THE MARKET
DOMINATES STATE DECISION-MAKING

Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM
LAW REVIEW, April, SYMPOSIUM THE CONSTITUTION AND THE
OBLIGATIONS OF GOVERNMENT TO SECURE THE MATERIAL
PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES, AND THE
GOOD SOCIETY, p. 1921)

Our legal system, as well as our discourse, has been thoroughly transformed by cost-
benefit econometrics, and without a rights discourse to offset, trump, or challenge it,
there is little relief in sight. By eschewing rights and rights talk, we have arguably
engendered a more efficient state. But we have not noticeably moved any closer to
achieving, or conceiving, the good society.
2. ABANDONING RIGHTS RHETORIC UNDERMINES THEIR ABILITY TO
PROTECT CLAIMS AND HEAL SOCIETAL CONFLICT

Robin West, Professor of Law, Georgetown University Law Center, 2001 (FORDHAM
LAW REVIEW, April, SYMPOSIUM THE CONSTITUTION AND THE
OBLIGATIONS OF GOVERNMENT TO SECURE THE MATERIAL
PRECONDITIONS FOR A GOOD SOCIETY: RIGHTS, CAPABILITIES, AND THE
GOOD SOCIETY, pp. 1917-8)

There are, however, costs in abandoning rights, rather than joining the debate regarding
their substance. The first is rhetorical. It concerns the nature of moral, aspirational
discourse, and the relative power or impoverishment of the rhetoric with which such
discourse is articulated. When architects of the good society disown rights, they distance
themselves from a tradition that has been unduly attentive to individualistic needs for
property, contract, and privacy, and insufficiently attentive to human and social needs for
safe intimacy, civic participation, meaningful work, or basic welfare goods. But they also
distance themselves from a discourse that whatever its historic shortcomings is also
explicitly utopian, moralistic, and imperativist. The rights tradition directs states and state
actors to attend to what we might universally share, and to focus on the utopian
aspirations we might universally hold, and then to bring that vision to earth. Rights are
morally grounded imperatives, not a list of suggestions for good governance. It is a
language that requires lawmakers to think in terms of what we morally ought to do and
be. Good society advocates should not loosely turn their backs on a discourse which has
historically been the means by which we marry our moral beliefs about governance to
ethical imperativism. There aren't all that many ways by which critics, citizens, or even
legislators can make the point that moral judgment rather than realpolitik ought to - and
must - guide the business of politics. It is not so clear that the abandonment, rather than
reform, of one such language - whatever may be its flaws - is a wise strategy for good
society advocates, or will prove to be a benefit for the party of humanity. The second
cost of abandoning rights is borne by the state of normative legal scholarship. When good
society theorists who are also lawyers heed the critics' call to abandon rights talk, the
development, through scholarship, of alternative directions legal doctrine could take
toward the realization of that good society, bears the mark of that abandonment. To a
considerable degree we can already trace the effects of that retreat. We still lack a
credible, broad-based, coherent jurisprudence of welfare rights, Frank Michelman's
herculean efforts of twenty-five years ago notwithstanding. n54 We might lack this
jurisprudence, in part, because those who might otherwise have been inclined to
contribute to that jurisprudence have been convinced not only of the futility of the
project, but also of its counterproductivity. We lack a credible jurisprudence of education
rights, and it is at least possible that we lack it, in part, due to that same skepticism. We
lack a jurisprudence of dignitary rights, labor rights, and environmental rights - and, as I
will discuss in a little more detail, doulia rights, or rights to provide care. We lack them in
part because those who might produce the scholarship have become convinced that rights
and rights talk cannot be productively turned to the work of achieving or even conceiving
a good society, and might even undercut it. Obviously, other factors as well have played a
role - a hostile Supreme Court is only the most obvious. Additionally, the turn among
some leftist scholars to an explicitly antinormative, skeptical postmodernism has also
fueled a late-century retreat from visionary, utopian scholarship, including rights
scholarship that might aim to carve out a constitutional argument for a state obligation to
secure the minimal preconditions of a good society. Nevertheless, the explicit disavowal
of rights by both rights critics and good society advocates is a part of that story, as well as
reflective of it. Third, there is a doctrinal cost paid when lawyers, and not just social
theorists, abandon rather than seek to reform rights and rights talk. The abandonment of
rights discourse by those committed to constructing a good society through law, goes
some way toward rendering the rights critique a self-fulfilling prophecy. When lawyers
forgo the task of creating a positive rights jurisprudence, they also forgo the opportunity
to assert a credible counterweight, within doctrine and within rights-structured doctrinal
discourse, to the assertion of negative rights which do indeed undercut the good society,
and in precisely the ways urged by the critics. With no credible counterweight, when a
negative right of the sort the rights critics lament is asserted, it is typically met not with a
positive right that might counter it, but instead with a claimed "policy" to be weighed
against it. But rights, as both their proponents and critics know, trump policy; that is their
function. If we had what we currently do not have - a developed jurisprudence of positive
and relational rights, constructed around the ideal of the good society - then a negative,
individualist right might alternatively, or additionally, be met in the courts of law and in
the courts of public opinion, with the claim that it conflicts with a positive one.
Conflicting rights, as Dworkin reminds us, do not "trump" each other; rather, conflicting
rights must be read in such a way as to reduce the conflict. Proponents of the good
society have been dissuaded, in part by the rights critique itself, from developing the
jurisprudence that might counter the rights decried by that critique

				
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