Duncan Kennedy and His Ideas
Duncan Kennedy is the most well-known and pivotal member of CLS, he is an outspoken critic of hierarchies of power in law and in legal education. Kennedy is the Guy Family Professor of Law at Harvard Law School, and one of the first legal scholars to write about legal education itself. In his influential 1970 piece on the study of law, "The Public Order and the Social Structure: An Essay on the Study of Law," Kennedy describes what a legal education should (and shouldn’t) be. His article was an early attempt at a critique of legal education, pre-dating the influential "The Scholar in Court," by Gerald Frug. In this early essay, Kennedy believes legal education creates a "type of person" that brings with it a specific mind set, one that allows them to maintain the hierarchies of power in the law. He maintains this viewpoint throughout his entire body of work, even today.
Kennedy’s 1997 article, "Legal Education as an Educational System," further develops his ideas on the topic . In it, he discusses the three class hierarchy of students that typifies top law schools. The highest tier of students are given the strongest emphasis by the faculty, then second tier, etc with the bottom tier of students having the least attention and care given to them. Yet, in his view, this hierarchy remains despite repeated attempts to change it. He goes on to argue this system was reinforced with the Socratic method of teaching. His argument would have been given more credence now, nearly 20 years later, with the increase usage of adjunct and contingent/contract faculty, who give less attention to students than tenured faculties. Kennedy’s most recent published work is "The Intellectual Efficacy of Legal Doctrine," from 2014. In it, he makes the argument that the best way to teach lawyers to understand the law is to teach them about how and why it came into being. It is a solid read.
Hierarchical Reproduction in Legal Education
Hierarchy is the name for the phenomenon by which elite schools reproduce their elite position across generations. This is done more or less successfully, and it’s done in part by pushing students away to flounder in less elite positions. Thus the single most important decision in the life of a law student-whether to come from wealth and privilege, or to enter the profession with academic, racial, or with serious cultural disabilities-is quite extraneous to the fundamental structure of the educational and status system, and so is not very interesting. We don’t pay much attention to the total social system that provides the resources for elite education because it is assumed to be given. We then focus on the idea that you need the right stamp to get into the elite. The elites control the right stamps. Since I’m part of the elite, I’m stamping away.
Duncan Kennedy, a best-selling law professor at Harvard Law School, theorizes that elite education helps maintain elite social structure. Kennedy argues that elite legal education perpetuates and advances hierarchy, and that law schools (with the help of the American Bar Association) are highly complicit in this process. The creation of highly stratified academic hierarchies goes hand in hand with the advancement of an elite hegemony which, in turn, creates the same educational stratification across class, racial, and cultural lines.
Kennedy’s theory on the phenomenon of hierarchical reproduction is aptly named The Stupidest Thing About Elite Legal Education, which draws on what he sees as the ‘offerings’ of elite education as a means of advancing one’s position in an already stratified educational hierarchy. Kennedy’s most prominent contention is that elite legal institutions dictate the acceptability of particular student, especially dissatisfied students who are hesitant to further advance the elite hierarchy, as well as the visibility and accessibility of such ‘offerings.’ In doing so, they effectively limit participation in the elite educational hierarchy to those with ‘better potential.’
Kennedy also promulgates an idea of the selective nature of legal reproduction which posits that elite educational hierarchies are maintained, and even advanced, by both the content and timing of elite legal education. By directing efforts towards maturing the ‘potential’ of the academic elites, less attention is given to marginalized students. The decline of legal aid services, for example, has disproportionately disenfranchised the needy and disillusioned. This selective reproduction, in tandem with a media frenzy regarding the illegitimacy of the legal profession and irrelevance of legal education, continues to hinder the effectiveness of elite legal education. Above all else, Kennedy says, methods of elite legal reproduction are administered through a contextual-based directive, such as density of competition or personal hardship.
Lawyers, as a result, have "an agrarian conception of their world, their role in society, and in particular their role in relation to clients." This indifference frames and influences the way lawyers participate in the marketplace, and perpetuates a concept of elitism as a justification of inaction.
Kennedy’s Critique of Legal Education
Kennedy argues that the methods used in traditional legal education are informed by and reinforce existing power structures. Furthermore, these methods are hostile to foreign students and students from marginalized backgrounds. By favoring rote methods and approaches to legal education, legal education overlooks a number of valuable perspectives, requiring students to assimilate into a structure that they view as foreign and exclusive to their experiences.
Social science methodology, in particular, is singled out for critique by Kennedy. He posits that the procedural methods of analysis from the social sciences overlook many important qualities of legal analysis and discourse. They posit that law is an objective abstract discipline, to be studied and understood above the individual and his or her social context. He argues for a more contextualized approach – stressing that law is a social phenomenon, and that the social context in which it arises is of high importance. Moreover, that this individual and his or her social experiences should be included in legal analysis and study. The individual’s unique experience should not be viewed as irrelevant, or relegated to simply a descriptive role. The individual, in Kennedy’s view, is as much a player in the social and legal structures he or she studies as any other actor.
The Influence of Kennedy’s Thoughts
Kennedy’s theories and insights have had a significant impact in the legal education realm. His critique of elite lawyering and teaching techniques prompted debate and a re-evaluation of the way law is taught within our nation’s law schools. For instance, following the publication of his book, "Legal Education and the Reproduction of Hierarchy," many scholars have published law review articles critiquing the conventional method of teaching law. Many of these articles, like Prof . Michael Perry’s "Legal Education and the Reproduction of Hierarchy: How Blacklaw Became Roberts Hall," refer to Kennedy’s critiques of the current system and make recommendations for paradigm shifts in legal education. In addition, many new reform movements, such as Harvard Law School’s move towards legal theory based upon the work of Prof. Janet Halley, can be traced to Duncan Kennedy’s influence. Indeed, member comments on Kennedy’s impact to the legal field have been featured by the American Sociological Association in its 2012 series on intellectual history entitled "Law from Below: Studies on Practice."
Criticism and Controversies
Kennedy’s theory of legal education and hierarchy has faced its share of controversies and criticisms. Some of his most vocal critics argue that his approach to legal education is overly critical of the legal system and its institutions. Critics have also argued that Kennedy’s cynicism toward law and legal education is unproductive, offering no practical solutions to the problems he identifies.
Some critiques focus more on his views about hierarchy. Critics contend that his critique of the legal profession and legal education ignores the realities of power and hierarchy in the real world. They argue that law is inherently hierarchical in nature and that his approach does not take into consideration the complexities of organizing a legal system or profession.
Historians of the legal profession and legal education have also criticized Kennedy’s emphasis on the role of capitalism and capitalists in shaping both. These historians argue that Kennedy’s analysis is too focused on class issues and overly simplistic. Legal historians have suggested that Kennedy’s analysis underestimates the influence of politics, ideology, and culture in shaping law, legal education, and social hierarchy.
Most recently, in 2009, a critical review was published of Kennedy’s work in the William & Mary Journal of Women and the Law. The review went through Kennedy’s theories of legal education, law and hierarchy, and critiqued them section by section. It concluded by encouraging Kennedy, and outside legal scholars generally, to be more cognizant of their levels of power and privilege.
Critics do not deny that Kennedy has made significant contributions to legal scholarship, writing over 60 articles, essays, and book chapters. The American Association of Law Schools (AALS) established the Duncan Kennedy Prize in 1984, awarded annually for a "substantial and originally scholarly law review article by a junior faculty member at a member school."
Conclusions on Kennedy
Duncan Kennedy, a pioneer of what has become known as Critical Legal Studies, has had a lasting impact on the legal scholarship. His work has been deeply influential on leading figures in legal academia, both within the CLS movement and beyond. As mentioned, abortion law scholar and CLS founder Morton J. Horwitz, nominates Kennedy as the most important law professor of the 20th century. Notably, Timothy A. Canova, an expert on political reform in the U.S. as well as economic inequality and fairness, a former nominee for the DNC Chairmanship and current Democratic House candidate for the open congressional seat in Florida, credits Kennedy with initiating his interest in law. Professor Canova told Saliterman: I took Professor Kennedy’s Contracts course at Yale Law School in 1978. I remember him lecturing one day about the theory of efficient breach – how sometimes it was wiser to ignore the law and instead assess the situation on a business basis , calculating what benefits might be obtained by breaking the law and then paying the threat of sanction that would follow. He introduced the idea more briefly in an earlier lecture, then spent a later lecture explaining it all. I was totally ver taken with his approach to law as an analytic tool, something that could be used depending on the advantage that could be gained by application in a given context, and not as a moral absolute with unchanging principles to be applied in every case in the same manner. This left me wondering about everything I thought I knew about law. After a few weeks in Kennedy’s classroom, I decided to pursue law as a graduate field of study, which eventually led me to graduate school at UCLA and the dissertation on equal protection I wrote there.