David Fontana: The Postradical Legal Generation
[David Fontana is an associate professor at George Washington University Law School.
professor.]
When President Barack Obama nominated Elena Kagan to the U.S. Supreme Court last week, he described her appeal in much the same way he has described his own: as a postpartisan figure. Just as Obama and Kagan represent a generation of national political figures trying to be postideological, so too they represent a distinctive generation of figures in elite law schools—as does Obama's last Supreme Court nominee, Sonia Sotomayor.
All three graduated from their respective law schools (Obama and Kagan from Harvard Law School, Sotomayor from Yale Law School) at a time when most of the more-radical members of the faculty had either already disappeared or were losing their last battles. More than that generation, Sotomayor, Obama, and Kagan have avoided major ideological fights and the most polarizing legal issues. Indeed, in the cases of Obama and Kagan, they helped move their law schools beyond the more-polarizing ideological battles.
In that way, all three are part of the law-school "postradical generation." Just as that helps us better understand their careers, the dynamic also helps explain some of the difficulties Obama will have in appointing influential liberal judges.
The law and the law schools that teach it are temperamentally more conservative than the rest of the university. Anthropologists or sociologists do not teach their classes wearing suits, but law professors often do. While students in the humanities might be considered to have dressed up if they attend class in jeans, law students are often caught wearing nothing more casual than khaki pants. The professionalism of the American law school is evident.
But law schools do inhabit a place in the university, even if a conflicted one. So when the chaos of the 1960s hit college campuses, it might have hit law schools less so than the rest of the university, but it still created its share of radical intellectual movements. The students graduating from law schools at that time in many ways broke more from the conventional wisdom than their predecessors had. Some were the equivalent of the Old Left in jurisprudential terms, liberals who believed in the ability of courts and the law to further social progress. More than before, they were radical in their desire to reform existing institutions, but generally not to create too many new ones. Their causes, for example, focused on courts creating new constitutional rights to education or a minimum income, rather than questioning the very concept of constitutional rights....
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professor.]
When President Barack Obama nominated Elena Kagan to the U.S. Supreme Court last week, he described her appeal in much the same way he has described his own: as a postpartisan figure. Just as Obama and Kagan represent a generation of national political figures trying to be postideological, so too they represent a distinctive generation of figures in elite law schools—as does Obama's last Supreme Court nominee, Sonia Sotomayor.
All three graduated from their respective law schools (Obama and Kagan from Harvard Law School, Sotomayor from Yale Law School) at a time when most of the more-radical members of the faculty had either already disappeared or were losing their last battles. More than that generation, Sotomayor, Obama, and Kagan have avoided major ideological fights and the most polarizing legal issues. Indeed, in the cases of Obama and Kagan, they helped move their law schools beyond the more-polarizing ideological battles.
In that way, all three are part of the law-school "postradical generation." Just as that helps us better understand their careers, the dynamic also helps explain some of the difficulties Obama will have in appointing influential liberal judges.
The law and the law schools that teach it are temperamentally more conservative than the rest of the university. Anthropologists or sociologists do not teach their classes wearing suits, but law professors often do. While students in the humanities might be considered to have dressed up if they attend class in jeans, law students are often caught wearing nothing more casual than khaki pants. The professionalism of the American law school is evident.
But law schools do inhabit a place in the university, even if a conflicted one. So when the chaos of the 1960s hit college campuses, it might have hit law schools less so than the rest of the university, but it still created its share of radical intellectual movements. The students graduating from law schools at that time in many ways broke more from the conventional wisdom than their predecessors had. Some were the equivalent of the Old Left in jurisprudential terms, liberals who believed in the ability of courts and the law to further social progress. More than before, they were radical in their desire to reform existing institutions, but generally not to create too many new ones. Their causes, for example, focused on courts creating new constitutional rights to education or a minimum income, rather than questioning the very concept of constitutional rights....