The Pure Theory of Law is a Hole in the Ozone Layer

Star date 2‌/7‌/2020. Author’s log. I received an email from our Co-Editor, the double barrels of Desautels-Stein, relating to the now-virtual symposium, What Should Critical Legal Theory Become?[1] The electronic epistle, which lists the team of intrepid intellectuals contributing to the project begins: Friends and Colleagues, We are writing with regard to our upcoming symposium with the Colorado Law Review, What Should Legal Theory Become? PDF: Goodrich,* Hole in the Ozone Layer. Sans critique. The word “critical” omitted. Where better to start than with a slip? Undoubtedly a Continue reading →

Critique, Ideology, and Aesthetics

Perhaps it is appropriate that critical legal theory—a genre of thought fascinated with contradictions and dedicated to unsettling orthodoxies—is itself in a contradictory and unsettled state today. Some of the most radical and challenging ideas advanced by critical legal theorists have become mainstream, almost mundane. For instance, the claim that legal reasoning is unavoidably ideological, that to a great extent law is politics by other means, was once a heresy so reviled it ended careers.[1] Now, in the wake of Amy Coney Barrett’s confirmation to Continue reading →

From Promise to Threat in Language and Law

An art of speaking which does not seize hold of truth, does not exist and never will. –Phaedrus (260e) I feel I have slipped into this Symposium Issue to address its original question, “What should critical legal theory become?” under false pretenses, because I have no idea what critical legal theory should become, nor would I presume to tell those who write in its name what to do. I am grateful for the invitation from the University of Colorado’s new Center for Critical Thought to Continue reading →

Critical Legal Thought: The Case for a Jurisprudence of Distribution

Critique is the standard model of legal scholarship. The typical article or book circumscribes an aspect of the legal order, redescribes it as policy, criticizes the policy according to efficiency or axiological criteria, and proposes some minor or moderate improvement to it.[1] This critical ethos is not surprising—the modern mind is restive. PDF: Barrozo,* Jurisprudence of Distribution. Attaining Critical Legal Thought This standard model of legal critique and improvement is politically stabilizing, practically effective, and intelligible only because it is set within a powerful paradigm of law Continue reading →

L x A=W: On the Weight of Legal Norms

The Critical Legal Studies movement and the emerging Law and Political Economy Project both emphasize the way that legal rules and doctrines help both to constitute and to legitimize an unjust social and political order. Critical Legal Studies (CLS), which I have been closest to for over forty years, started out with many tendencies—Marxist and neo-Marxist, legal realist with a more leftist political bite, antiformalist with both progressive policy-oriented and deconstruction-based wings, and also with a critique of social alienation that emphasized the distortions in Continue reading →

From the Crisis of Critique to the Critique of Crisis

As I write these words, the East Coast of New South Wales (the most populous State in Australia) is being assailed with torrential rain that is likely to last for another week. From the South Coast, through Sydney (many parts of which now lie submerged), to the far North Coast of the State, sheets of long overdue rain are dousing the fire-ravaged coast, replenishing drought-affected water catchments, splaying trees, roofs, and fences throughout urban and suburban areas, and generally sowing disorder. Albeit not in this Continue reading →

Making the Critical Moves: A Top Ten in Progressive Legal Scholarship

Good people say that we must not flee, that to escape is not good, that it isn’t effective, and that one must work for reforms. But the revolutionary knows that escape is revolutionary—withdrawal, freaks—provided one sweeps away the social cover on leaving, or causes a piece of the system to get lost in the shuffle. – Gilles Deleuze & Felix Guattari (1977)[1] PDF: Esquirol,* Making the Critical Moves.  Introduction If comparative law has any one thing to say to legal theory, it is that legal constructs are Continue reading →

Past Prescient

Capital is dead labour which, vampire-like, lives only by sucking living labour, and lives the more, the more labour it sucks.[1] Truth may not convince, knowledge passes in the act.[2] Introduction Our times are times of crisis, states the circular announcing this Symposium. They are times “of malaise, of exhaustion and immobilization, of impotence.” In such times, it asks, what should critical legal theory become? The circular emphasizes becoming, a refusal of what it terms nostalgia for something “vastly more capacious,” a yearning for new Continue reading →

The Future of Facts: The Politics of Public Health and Medicine in Abortion Law

While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries Continue reading →

Migrant Justice Now

I began drafting this Essay on the eve of the 2020 U.S. presidential election, not knowing its outcome. Some might argue that this is no time for critique, given the threat of fascism posed by the Trump Administration and the civil unrest the nation faced (and is still facing as of this writing). But even with the advent of a new administration in January 2021, we cannot relax into quiescence. To that end, I engage here with critique as articulated in a document called the Continue reading →