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  • Using and Misusing History
  • Suzanna Sherry (bio)
Laura Kalman. The Strange Career of Legal Liberalism. New Haven: Yale University Press, 1996. viii + 375 pp. Notes and index. $40.00.

Since Alfred Kelly coined the term “law-office history” in 1965, not much has been added—except ever-multiplying examples—to the perennial complaints about how lawyers and legal academics use history. Laura Kalman’s engaging new book about legal scholarship is thus a welcome contribution to the field.

Kalman begins by tracing the history of legal scholarship since the realists. The central conundrum the realists and their successors bequeathed to “legal liberals”—those who trust the courts to implement large-scale social reform—was how to keep their faith after the death of Earl Warren and subsequent attacks from both the Left and the Right. The first four chapters of the book are an accessible and enjoyable romp through legal realism, the legal process school, the “law and” movement, hermeneutics, and the various other scholarly fads that have entranced law professors over the years. Kalman provides nice insights into the relationships between law and other disciplines and tries, although not always successfully, to relate the various movements to legal liberalism and its travails. She is occasionally too glib, especially when attributing malevolent motives to legal liberals: she claims, for example, that the crisis of legal liberalism in the 1980s might have been triggered partly by the fear of “male academic lawyers . . . that the entrance of women and people of color into their ranks challenged their control of the law schools” (p. 94).

This part of the book accomplishes several important goals. It provides an interesting and substantial history of modern legal scholarship. (I am perhaps not in the best position to assess this particular contribution, as it left me feeling a bit voyeuristic: I should disclose that my own work is mentioned quite prominently, to somewhat mixed reviews from Kalman.) Kalman is very good at this sort of history, and readers will come away with a deep understanding of the content and derivation of, and interrelationships between, the most important modern legal theories.

Even more important, however, is that Kalman’s discussion of the ebb and [End Page 337] flow of legal liberalism provides a new and persuasive way to explain why lawyers do history the way they do (that is, according to most historians, badly). Kalman shows how legal liberalism—buffeted from both sides of the political spectrum and riven by internal division—was, by the mid-1980s, “dead, a historical relic” (p. 131). And so legal liberals turned to history for their salvation.

What they found there was civic republicanism. Kalman does a wonderful job of explaining how civic republicanism satisfied all the needs of legal liberals. It enabled them to fend off attacks from originalists on the right by providing “alternative interpretations of the Founding” (p. 139). It complemented the growing interest in communitarianism that legal liberals were borrowing from political theorists. It promised to reduce the increasing polarization of the legal academy by allowing a synthesis between individual rights and community bonds, especially once republicanism was purged of its less desirable attributes such as sexism, authoritarianism, and racism. Kalman charmingly describes this purging as an attempt “to create a kinder, gentler republicanism” (p. 160). The synthesis between individuals and community in turn offered a way out of the countermajoritarian dilemma that had haunted legal liberals since the Warren Court. It is no wonder the neorepublicans “possessed a missionary spirit” (p. 155).

But a religious mission is not the same as a historical one, and therein lies the key to the sometimes strained relationships between lawyers and historians. As Kalman puts it, “historians . . . favor context, change, and explanation,” and lawyers “value text, continuity, and prescription” (p. 180). Historians “delight in recreating the past in all its strangeness” (p. 186). For lawyers, however—especially neorepublicans on a mission—history is to be mined for its usefulness, not explored for its own sake. Legal liberals needed republicanism as a tool in their war against conservative originalists, and could not afford the ambiguities, contradictions, and occasional distasteful results inherent in a truly historical approach to the Founders’ thought. So, Kalman...

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