The Empire Strikes Back: Outsiders and the Struggle over Legal Education

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

The Greening of Faculty, Students, and Law Review “The Chic Conversation Piece of the Fall Cocktail Season” “That’s what you get fromYale; it’s no accident that that’s where legal realism came from and it was Kingman Brewster, a former law school dean, who capitulated to the radical invasion of theYale campus.” It was May of 1971 and two of my colleagues were in well-behaved debate over Charles Reich’s book The Greening of America. While both were Harvard graduates, they were separated by more than just political generations. Paul Houseman got his LL.B in 1951; Fino finished in 1966.They were good students and after graduation spent obligatory time with white-shoe Wall Street firms. For two months Houseman had been admonishing Fino for tolerating Greening, even praising its depth and its “sense of the future.” “What really disturbs me,Fino,is that you are serious,and,frankly,that is bad for Harvard Law School.That book is a law professor’s version of Erich Segal’s Love Story. Didn’t that piece of crap get Segal tenure inYale’s English Department?They are both Grub Street trash writers!That’s what you get fromYale.Realism breeds slippery slopes.” “Don’t be provincial, old man, you are trapped in what Reich calls the Corporate State.”Then,with acquired disdain:“Segal ruined his career atYale with Love Story but you should be happy, he made a bundle of money in Hollywood.” They were at it now, and all appearances of civility disappeared. It was better than a Saturday night brawl at Reggie’s Chickenhouse.“Don’t preach the Wasteland to me,”Houseman said,“I was at Boston Latin while you were dirtying your diapers in some hick town in Idaho.But to the point,I’ve got some reviews for you.This is what the Atlantic Monthly said:‘His book is such a tissue of impressions, contradictions and generalizations, not to mention unsubstantiated predictions and prophecies of the most apocalyptic kind,that it is difficult indeed to associate it with an outstanding legal mind.’” 63 4 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 firmArnold,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 individual autonomy. Hidden in government largess is the tyranny of granting —or withholding—benefits. Reich recommended the creation of a property right in the government, a type of individual status.Today we call this entitlement. Reich was a star, expected to track Bill Douglas’s route to the Supreme Court.“The New Property”later became the most cited Yale Law Journal article . A follow-up article published in 1965 was number ten on the mostcited list. In 1967, Reich spent the summer in Berkeley, walking barefooted on the beach, smoking grass, and listening to rock, while discovering the consciousness of self. He returned to New Haven and started work on The Greening of America. Although it was the chic conversation piece of the year, Greening had its critics.“The book is all mush and nuts: sloppy, gooey kiddyspeak euphoria for the broth. . . .” It is packed with infantile comments:“Bell bottoms have to be worn to be understood.”“[The] new music has achieved a height of knowledge, understanding, insight, and truth concerning the world, and people’s feelings, that is incredibly greater than what other media have been able to express.” Reich predicts the coming of Consciousness III:The New Generation, a“way of life:energy.It is the energy of enthusiasm,of happiness, of hope.” Now teaching at the University of San Francisco, Reich lives at a lower level than he did during the glory days of a best-seller. He is entitled to recognition for using The Greening to stake out what would later become the Outsider’s code of principles. The Greening identified the enemy as Establishment Liberals. They, with their reactionary friends, cultivated and imposed the Corporate State:“It is the worst of all possible worlds:uncontrolled technology and uncontrolled profiteering,combined into a force that is both immensely powerful and utterly irresponsible.” Like the Outsiders,Reich saw repression in rational reasoning,something Consciousness III rejects with “a...