Here is a weird alignment of the stars that – I swear – was completely unplanned. Responding to the call for a post on our most influential law professors, Professor Papke, who I think would proudly acknowledge his place on the left side of the playground, offered an obviously heartfelt homage to the conservative Robert Bork who he was lucky enough (I’m jealous) to have had for Constitutional Law.
I had Larry Tribe for Con Law, but, although I have great respect for him, he’s not the one that I want to remember here. No, even though I am hanging off the jungle gym on the right side of the lot (and we are quite happy to have concrete beneath us), I want to turn port way past Larry to the guy who, after reflection (and I came to this conclusion before David’s post), was the law professor who influenced me the most.
It was Duncan Kennedy, one of the founding (they would never want to say “fathers”) persons of the Critical Legal Studies movement. Duncan (and that’s what he wanted us to call him) was memorialized as “Nicky Morris” in Scott Turow’s “One L.” In the book, he taught Civil Procedure, but, in real life, he taught Torts. Turow nailed his mannerisms (some of which, I know, I have come to mimic). He did, however, give Duncan a sinister element that was never there. Duncan never bought into the notion that grades were meaningless or that we were all the same, but, at least in my experience, he treated us with decency and respect.
I checked out Duncan’s picture on my law school’s website and he looked different back then. He’s rather intimidating today (kind looks a bit like Judge Bork which would trouble him to no end), but, in 1978, he was more like George Carlin’s “hippie dippie weatherman.” Shoulder length hair and the same sweater – day after day. We gave him a new one at the end of the semester.
But he also offered a rigorous dissection of the law. Nothing could be taken for granted. No platitudes could be honored. Everything must be relentlessly deconstructed into what it is.
Part of the value of this was philosophical. Duncan is a postmodern leftist. I like to think that I am a postmodern conservative. I learned from Duncan that neutrality is elusive and that one ought to push to get at the underlying presuppositions. I came to differ on what those presuppositions ought to be and whether or not they could claim moral or democratic legitimacy. But it is the habit of critical thought that was his charge to teach. He did it.
But, most lawyers do not spend their careers absorbed in questions of this type (for most, they come occasionally, if at all). Still, Duncan offered a taxonomy of argument. He taught us about the way lawyers argue.
David Papke offers, as one of his influences, a man who was too conservative to be confirmed as a nominee to the Supreme Court. I offer a man who could have been nominated only if Hugo Chavez had somehow assumed the Presidency.
I think there’s some kind of lesson there.