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The Empire Strikes Back

Outsiders and the Struggle over Legal Education

Arthur Austin

Publication Year: 1998

Once dismissed as plodding and superfluous, legal scholarship is increasingly challenging the liberal white male establishment that currently dominates legal education and practice. The most significant development since the emergence of the casebook, at the turn of the century, this trend has unleashed a fierce political struggle. At stake is nothing less than the entire enterprise of law and education, and thus a powerful platform from which to shape society.

The result, here vividly recounted by Arthur Austin, has been an uncompromising, take-no-prisoners fight for dominance. The challenge comes from Outsiders, a collection of feminists, critical race theorists, and critical legal studies scholars who rely on unconventional methods such as storytelling to give voice to the underrepresented. In the other, demographically larger camp resides the monolithic Empire, consisting of traditionalists who, having developed an effective form of scholarship, now circle the wagons against the outsider heathens.

Neither partisan nor objective, Austin is both respectful and critical of each faction. The Empire, he believes, is imperious, closed-minded, and self-perpetuating; the Outsiders are too often paranoid, anti-pragmatic, and overly tolerant of fringe work. Is the new scholarship a vacuous, overpoliticized, soon-to-be-vanquished trend or the harbinger of an important new paradigm? Is reconciliation possible? Anyone with a vested interest in the answer to these questions, and in the future of law, cannot afford to miss Arthur Austin's invaluable volume.

Arthur Austin is the Edgar A. Hahn Professor of Jurisprudence at Case Western Reserve University.

Published by: NYU Press


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pp. ix-xi

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pp. xiii

I confess to reacting with considerable surprise when Richard Delgado and Jean Stefancic, editors of the Critical America series, invited me to submit a manuscript.They obviously knew that I had written articles critical of Critical Race scholarship, describing it as a manifestation of the politically correct fashion. In fact, that was exactly what appealed to them; they wanted an authentic critical...

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Note to the Reader

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pp. xv-xvii

The genesis of this book dates to the winter of 1968. Kathy Boudin, a graduate of Bryn Mawr and a student in my contracts class at Case Western Reserve University School of Law, walked into my office to announce she was withdrawing from law school. Kathy mentioned that it was time to think about going underground and added that she was in trouble...

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1: The Outsiders vs. the Empire

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pp. 1-13

The Empire is composed of academic traditionalists—the Kingsfields of legal education.The dominant theme dates to 1870 when Christopher Columbus Langdell introduced the casebook method to Harvard Law School. Since then, the study of law has been conducted according to the scientific model, which relies on rigid analysis to lead the student inevitably to neutral judgments...

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2: The Empire

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pp. 14-32

“There has not been an indulgence we have not enjoyed. Everything she could have wanted,our marriage has given her.”Yet,despite this glorious life, something was wrong. “This very morning she said to me, haltingly, ‘We must speak tonight after the guests depart.’” Sure that he had lost her to another, he agonized through the day and, when the guests were gone, faced...

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3: Empire Scholarship: What Are They Protecting?

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pp. 33-62

When Michael Jordan is in a zone, he scores at will. Every player will hit a zone at least once in his life. Snopes was in a zone when he wrote his career article. Unfortunately, zones are always followed by dry periods.A player reacts by persistent adherence to what got him in the zone, knowing that his efforts may be wasted. It is instinct.The same pattern holds for academics like...

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4: The Greening of Faculty, Students, and Law Review

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pp. 63-82

In 1964, Associate Professor Charles Reich published “The New Property” in the Yale Law Journal. Reich made the accepted journey to teaching: editor-in-chief of the Yale Law Journal, clerk for Justice Black, then a stint at the prestigious firm Arnold, Fortas and Porter.According to Fino,“The New Property” is a career article.“It’s about perceptions,” Fino often says with an envious sigh. Reich anticipated the effects of the New Deal control over...

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5: “CLS Is Dead As a Doornail”

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pp. 83-111

CLS was the most ambitious challenge to the Empire since the Realist movement.To some, CLS was a rejuvenation of Realism, perhaps a more definitive rejection of the neutrality of law and objectivity.There were other similarities; the Crits started their careers as members of the Liberal establishment and followed the accepted path of top-tier elitism.As was the case...

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6: Critical Race Scholarship

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pp. 112-133

Years ago it was de rigueur for students in London to make sure that everyone could see that they were carrying a copy of Colin Wilson’s The Outsider. All the students had to read was the first sentence to know that it captured their ethos: “At first sight, the Outsider is a social problem. He is the hole-in-corner man.” While others compromised with the cold intolerant authority...

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7: Can Voice and Truth Coexist?

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pp. 134-155

Kingsfield, Williston, and Bok do not write in the first person. It connotes subjectivity, the antithesis of the impersonal style. Resort to the first person blurs the distinction between analysis and whimsy. Kingsfield’s worst nightmare is narrative, the ultimate in first-person perversion.To Kingsfield, narrative includes the parables of Derrick Bell and the autobiographical stories...

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8: The Abyss of Legal Scholarship

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pp. 156-178

It is not service to the community, and despite the self-serving spin in the catalogues, it is surely not teaching. The name of the game is scholarship. Publish or perish is a nonnegotiable law of academe. Do it if you want a chance at tenure; otherwise, hit the road. The problem is not getting published (a cynic said:“I am not sure that we have reached the point where you...

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9: Comments and Conclusions

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pp. 179-200

Objective and analytical scholarship that contributes to knowledge is a working description of the goal of the legal scholar.The doctrinal methodology incorporates a communication apparatus that extends from law school to practice to judicial decision making.The similarity between a well-reasoned article and a quality appellate decision is no accident. Objectivity and...


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pp. 201-207


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pp. 209-213

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About the Author

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pp. 215

Arthur Austin is the Edgar A. Hahn Professor of Jurisprudence at Case Western Reserve University.

E-ISBN-13: 9780814705155
E-ISBN-10: 0814705154
Print-ISBN-13: 9780814706503
Print-ISBN-10: 0814706509

Page Count: 224
Publication Year: 1998

Research Areas


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Subject Headings

  • Sociological jurisprudence.
  • Law -- Study and teaching -- United States.
  • Critical legal studies -- United States.
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