CRITICAL LEGAL STUDIES

VIGNETTES AND VICISSITUDES

(Term paper towards partial fulfillment of the assessment in the subject of Jurisprudence)

Submitted By: Submitted To:

Gajendra Bhansali Mr. S.K. Kaushik
B.P.Sc. LLB.(Hons.) Faculty of Law
Semester III Legal Theory
Roll No. 1205

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION
(JULY-NOVEMBER 2015)
 ACKNOWLEDGEMENTS

On the completion of this project I find that there are many persons to whom I
would like to express my gratitude, since without their help and co-operation the
success of this educative endeavour would not have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and

guide, Mr. S.K. Kaushik, Faculty of Legal Theory, who has been a constant source
of encouragement and guidance throughout the course of this work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out
this work. Thanks are also due to all members of the Library staff for their help
and assistance at all times.

I am also grateful to all my friends and colleagues for being helpful in their
differences and for their constant support.

I express my deepest gratitude to my parents Mrs. Seema Jain and Mr. Rakesh
Bhansali, who have been the real driving force for this work.

Gajendra Bhansali.

2
 PREFACE TO THE PROJECT

CLS is associated with the Conference on Critical Legal Studies, an organization inaugurated by

the small conference at the University of Wisconsin in 1977. The invitation to attend the

conference mentioned a very vague idea: a gathering of people pursuing critical approaches to

the study of law and society. Fundamentally convinced that law and politics could not be

separated, CLS draws on the radical political culture of the 1960s generation. CLS seemed to be

forever trying out its own ideas on itself to fuse theory and practice. They were not always

successful in this attempt. The works of MacCormick, Roberto Unger, Duncan Kennedy etc.

opens up a more sophisticated picture of liberal legalism than the over-rigid dichotomy and their

supposedly ethical associations. Formalists circumvent this problem by insisting that the judge is

not imposing his values but merely interpreting the words of law. Hart by separating core and

penumbra could be taken to admit the problem by his concession that the judge had to have

recourse to discretion in interpreting the penumbra of legal rules. Fullers response- that judges

were to seek out the purpose behind the rule doesnt satisfy Crits any more because that

purpose is equally indeterminate.

3
 CONTENTS
Cover Page ...................................................................................................................................... 1

Acknowledgements ......................................................................................................................... 2

Preface To The Project.................................................................................................................... 3

Contents .......................................................................................................................................... 4

C.L.S. As An Academic Movement ............................................................................................ 5

Intellectual Origins and Contributions ....................................................................................... 6

Mark Kelmans Three Central Contradictions ............................................................................ 8

C.L.S. and Liberalisms Contradictions ..................................................................................... 9

What Degree of Formal Realizability should Legal Norms Have?......................................... 9

Kennedys Individualism v/s Altruism ..................................................................................... 10

Neil MacCormick Are Rules and Standards Really in Polar Opposition? ......................... 11

Rules and Reasoning ................................................................................................................... 12

How Can A Legal System Give The Kinds Of Neutral Decisions Expected Of It? ................ 12

Indeterminacy , Anti-Formalism and Marginalism .................................................................. 12

Legal Theory and Social Theory ............................................................................................... 13

A Critique of Critical Legal Studies .......................................................................................... 15

Bibliography ................................................................................................................................. 16

4
 C.L.S. AS AN ACADEMIC MOVEMENT
Critical Legal Studies (hereinafter referred to as CLS) emerged in the 1970s in the United

States as a broadly leftist critique of orthodox legal doctrines. 1 As a movement in legal

scholarship CLS is associated with the Conference on Critical Legal Studies, an organization

inaugurated by the small conference at the University of Wisconsin in 1977.2 The invitation to

attend the conference mentioned a very vague idea: a gathering of people pursuing critical

approaches to the study of law and society.3 The vast majority of work done under this label had

been by American scholars, but there have been followers in other countries, although British

CLS has varied from the American version.4 As an intellectual movement, CLS combined the

concerns of legal realism, critical Marxism and structuralist or poststructuralist literary theory. 5

Fundamentally convinced that law and politics could not be separated, CLS draws on the radical

political culture of the 1960s generation.6 While outsiders often perceived CLS thinkers (known

as crits) as a monolithic group committed to litmus test slogans such as law as politics,7 the

picture from the inside was much more complicated. It asserts the inescapability of commitment

and rejects the aspirations of the preceding intellectual climates search for value neutrality.8

But the fundamental doubt raised in our minds is that can disputes be resolved by the neutral

application of objective rules?

1
RAYMOND WACKS, PHILOSOPHY OF LAW 93 (2006).
2
NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 428-429 (1990).
3
Alan Hunt, The Theory of Critical Legal Studies, 6 OXFORD JOURNAL OF LEGAL STUDIES 1, 5 (1986).
<http://www.cisr.ru/files/publ/lib_pravo/Hunt%201986%20Theory%20of%20Critical%20Legal%20Studies.pdf>
4
PETER FITZPATRICK & ALAN HUNT, CRITICAL LEGAL STUDIES 47 (1987).
5
Neil Duxbury, Supra note 2.
6
Pierre Schlag, Critical Legal Studies (June 30, 2010), THE OXFORD INTERNATIONAL ENCYCLOPEDIA OF LEGAL
HISTORY, Vol. 295, Stanley N. Katz, ed. 2009.
7
Id. at 296.
8
Per J. Boyle, Critical Legal Studies, 133 UNIV. OF PENN. L REV. 685 (1985).

5
In one sense, CLS is the continuation of Realists project,9 but its objectives are much wider

the movement is more radical an attempt to escape the crippling choice between Liberalism

and Marxism. CLS rejects formalism and the enterprise of presenting a value-free model of law.

Critical legal thought doesnt countenance the distinction between legal reasoning and political

debate.10 They believe that there is no distinctive mode of legal reasoning and law doesnt have

an existence outside of the ideological battles within society.

CLS seemed to be forever trying out its own ideas on itself to fuse theory and practice.11 They

were not always successful in this attempt.12 In addition CLS leaders were constantly attempting

to promote and yet undermine any set institutional identity. 13 The loose, indeed elusive character

of CLS was a key aspect of its originality, its intellectual legacy, and the effects it produced on

legal thought. To a significant degree, CLS was an intensification of the contradictions and

dissonance it claimed to diagnose in Law and legal thought generally.14 For instance they wanted

to establish themselves as a permanent social and intellectual presence in legal academy, which

itself entailed institutionalization, yet they also wanted to maintain a certain free play of ideas.15

INTELLECTUAL ORIGINS AND CONTRIBUTIONS

As a form of thought, CLS drew upon an eclectic collection 16 of intellectual approaches. The

structuralism of Levi Strauss inspired the description of legal doctrine as stereotyped patterns of

contradictory imperatives. Marxism was deployed to argue that the politically and intellectually

9
Alan Hunt, Supra note 3 at 7.
10
DENNIS LLOYD, INTRODUCTION TO JURISPRUDENCE 936 (M.D.A. Freeman (ed.), 6th ed. 1996).
11
Pierre Schlag, Supra note 6.
12
Id. at 297.
13
Id.
14
D. KAIRYS, THE POLITICS OF LAW 72 (1990).
15
M. Tushnet, Critical Legal Studies, 90 YALE L. J. 1205 (1981).
16
Guyora Binder, On Critical Legal Studies as Guerilla Warfare, GEORGETOWN L. J. 76 (1983).

6
arrested state of legal thought could be understood in terms of reification.17 The existentialism

led to the affirmation of the irreducible personal freedom and personal responsibility of the judge

at the site of legal decision. The social theory of Weber led to the analysis of legal thought as a

form of legitimation. Gramsci supplied the concept of hegemony. Foucaults work inspired

analysis of law in terms of power/knowledge.18 Thus, CLS applied to legal studies a panoply of

ideas borrowed or modified from a wide range of sources, including American legal realism,

neo-Marxist theory, phenomenology, and postmodernism.19

From Hale, crits revived the notion that the grant of every private right has to be seen as a form

of public regulation & also as a deprivation. From Cohen, they borrowed the notion that legal

doctrine was a reified form of legal reasoning, circular in character, and thus an obfuscation of

the political and policy choices made by judges or other decision makers.20

The main CLS contributions were infrastructural and anti-systematic21 in character. Virtually,

CLS thought at its best was a kind of antitheory, a kind of antidisciplinarity avant la lettre.22 The

more stereotyped aspects of this antitheory included arguments of contradiction, indeterminacy,

legitimation and false necessity as well as the slogan laws is politics.

One significant CLS claim advanced by Roberto Unger23 and Duncan Kennedy24 was the

pervasively contradictory character of law.

17
Pierre Schlag, Supra note 6.
18
Brian Bix, Legal Philosophy in America, THE OXFORD HANDBOOK OF AMERICAN PHILOSOPHY, Cheryl Misak, ed.,
Minnesota Legal Studies Research Paper No. 08-14.
<http://ssrn.com/abstract=1096207>
19
Id at 563.
20
Pierre Schlag, Supra note 6 at 298.
21
Fischl, Richard Michael, The Question that Killed Critical Legal Studies, 17 LAW AND SOCIAL ENQUIRY 779
(1992).
22
Pierre Schlag, Supra note 6 at 296.
23
ROBERTO UNGER, KNOWLEDGE AND POLITICS 91 (1984).

7
Contradiction here did not mean logical contradiction, rather it denoted opposition or

conflict.25

MARK KELMANS THREE CENTRAL CONTRADICTIONS

According to Kelman,26 liberalism in the eyes of Crits is a system of thought that is

simultaneously beset by internal contradiction and a systematic repression of the presence of

these contradictions.27 He claims there are three central contradictions:-

i. The contradiction between a commitment to mechanically applicable rules as the

appropriate form of resolving disputes and a commitment to situation-sensitive, ad-hoc

standards.28

ii. The contradiction between a commitment to the traditional liberal notion that values or

desires are arbitrary, subjective, individual and individuating while facts or reason are

objective and universal; and a commitment to the ideal that we can know the social and

ethical truths objectively, or the hope that one can transcend the usual distinction between

subjective and objective in seeking moral truth.29

iii. The contradiction between the commitment to an intentionalistic discourse, in which all

human action is seen as the product of self-determining individual will, and determinist
30
discourse, in which the activity of nominal subjects merits neither respect nor

condemnation because it is simply deemed the expected outcome of existing structures. 31

24
DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION FIN DE SIECLE, 32 (1997).
25
Pierre Schlag, Supra note 6 at 296.
26
MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 17 (1987).
27
Id. at 3.
28
Id. Chap. 1.
29
Id. Chap. 2.
30
Id. Chap. 3.
31
David Andrew Price, Taking Rights Cynically: A Review of Critical Legal Studies, 48 CAMBRIDGE L. J. 277
(1998).

8
 C.L.S. AND LIBERALISMS CONTRADICTIONS
Thinker Duncan Kennedy, in his seminal piece of CLS literature,32 raises the central question-

WHAT DEGREE OF FORMAL REALIZABILITY SHOULD LEGAL NORMS HAVE?33

The problem of form34 derives from the belief that there are good reasons for thinking that it is

better for thinking that it is better for legal norms to have a higher degree of formal realizability

i.e. to be cast as rules.35 However, there are good counter-reasons for believing that they are

better cast as standards. The virtues of the rule form are that it confines official discretion 36 and

that it provides citizens with a clear advance warning of the circumstances in which power may

be deployed, thus giving them both choice and security.37

But the rule form also has its own vices.38 If the age example is used, then that protecting minors

from improvident contracts can be seen to protect those who are as mature as adults and

therefore do not need protection and to fail to protect those chronologically of age who lack the

maturity to make rational decisions.39

The choice could therefore be said to come down to a question of which form most effectively

carries out the substantive purpose, but it doesnt always succeed. 40 This would ask an empirical

question, which Kennedy calls a positivist investigation of reality.41

32
Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARVARD L.REV. 1685 (1976).
33
Dennis Lloyd, Supra note 10 at 937.
34
ALAN NORRIE, CLOSURE OR CRITIQUE: NEW DIRECTIONS IN LEGAL THEORY 15 (1993).
35
David Andrew Price, Supra note 31 at 301.
36
K.C. DAVIS, DISCRETIONARY JUSTICE 41 (1969).
37
H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 32 (1968).
38
Dennis Lloyd, Supra note 10.
39
Id.
40
Alan Hunt, Supra note 3 at 11.
41
Duncan Kennedy, Supra note 3 at 1712.

9
For him, the two positions (pro-rules and pro-standards) are an invitation to choose between

sets of values and visions of the universe.42

KENNEDYS INDIVIDUALISM V/S ALTRUISM

The formal arguments about the use of rules or standards is related to substantive ideals about the

proper ordering of society.43

i. The jurisprudential position that favours rules is linked with one substantive ethical view

(Individualism). It is bracketed with liberalism and the belief that all values are

subjective.

ii. The jurisprudential view that favours standards with another (Altruism). It is bracketed

with Collectivism and the belief justice consists of order directed to the achievement of

shared ends.44

The modern era is an age of contradiction, though it is dominated by considerations of morality

and policy, the conflict between individualism and altruism remains. The modern jurist has

contradictory pulls.45

Kelman suggests that Kennedy be interpreted as positing an aesthetic connection between form

and substance.46 Kennedy doesnt say that individualists inevitably favour the rule form for any

legal norm and altruists the standard form.47 Secondly, he himself gives examples of rule-like

norms that have been consistently promoted by those holding altruistic principles.48 For instance,

progressive Income-Tax Laws and standards that can promote individualist values, such as the

42
Duncan Kennedy, Supra note 3 at 1712.
43
Dennis Lloyd, Supra note 10 at 938.
44
Robert Gordon, Critical Legal Histories 36 STANFORD L. REV. 57 (1984).
45
ANDREW ALTMAN, CRITICAL LEGAL STUDIES: A LIBERAL CRITIQUE 111 (1990).
46
Mark Kelman Supra note 26 at 59-61.
47
Dennis Lloyd, Supra note 10 at 938.
48
Id.

10
negligence standard. But Altman argues that the connection may be logical: it is difficult to see

any aesthetic link. Individualism provides general but feasible reasons for choosing rules over

standards, but altruism provides general but defeasible reasons for choosing the opposite.49

NEIL MACCORMICK ARE RULES AND STANDARDS REALLY IN POLAR OPPOSITION?

The works of MacCormick50 opens up a more sophisticated picture of liberal legalism than the

over-rigid dichotomy and their supposedly ethical associations. According to him, the rule has

to be seen as a concretisation of standards presumptions and assumptions and all sorts of

values.51 It is difficult to imagine any rule requiring judicial interpretation which is so

determinate that its proper application is without regard to background standards or values.

Moreover, Kelman examines the importance to criminal law of the stage that precedes legal

analysis.52 He argue that legal argument has two phases: interpretive construction and rational

rhetoricism, and that the former which undercuts the authority of the latter, goes virtually

unexamined. But exponents of CLS contend that values are not merely matters of taste. Rather,

they can be considered as Universal maxims to govern human relationships, practices and laws. 53

The third contradiction invokes the long-standing conflict between free-will and determinism.

Liberal discourse is said to privilege intentionalistic discourse, just as it privileges the

commitment to the Rule of Law, individualism and value-subjectivity.54 Determinist discourse

49
Andrew Altman, Supra note 45 at 114.
50
NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY (1978).
Neil MacCormick, The Ethics of Legal Realisn, 2 RATIO JURIS 184 (1989).
51
Neil MacCormick Supra note 51.
52
Mark Kelman, On Critical Legal Studies 33 STANFORD L. REV. 592 (1987).
53
Id.
54
G. Schwartz, A Discourse on Critical Legal Studies 25 WISCONSIN L. REV. 804-808 (1979).

11
by contrast, pictures conduct in backward-looking amoral terms, with conduct simply a last event

in a chain of connected events so pre-determined as to merit neither respect nor condemnation.55

RULES AND REASONING

One characteristic of CLS is its rejection of formalism. When confronted with the question:-

HOW CAN A LEGAL SYSTEM GIVE THE KINDS OF NEUTRAL DECISIONS EXPECTED OF IT?

Formalists circumvent this problem by insisting that the judge is not imposing his values but

merely interpreting the words of law. Hart by separating core and penumbra56 could be taken

to admit the problem by his concession that the judge had to have recourse to discretion in

interpreting the penumbra of legal rules. Fullers response57- that judges were to seek out the

purpose behind the rule doesnt satisfy Crits any more because that purpose is equally

indeterminate. A free-market could be one in which workers had decision-making power, a

deregulated family could be one which devolved power and choices on children, but these are

not usually the models envisaged by their advocates.

INDETERMINACY , ANTI-FORMALISM AND MARGINALISM

Roberto Unger as an important source of CLS ideas contends that the representation of society is

infused with the certain beliefs.58 First, law is a system and as a body of doctrine, properly

interpreted, it supplies the answer to all questions about social behaviour. Secondly, that a

special form of legal reasoning exists by which answers may be found from doctrine. 59And,

55
G. Schwartz, Supra note 54, at 805.
56
H.L.A. HART, THE CONCEPT OF LAW 121-132 (1961).
57
L.L. Fuller, Positivism and Fidelity to Law A Reply to Professor Hart 71 HARVARD L. REV. 630 (1958).
58
ROBERTO UNGER, FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL
DEMOCRACY 44 (1987).
59
Id.

12
thirdly, that social action reflects norms generated by the legal system, either because people

internalize these norms or actual coercion compels them to do so.60

CLS challenges each of these assumptions.61 First, it denies that law is a system or is able to

resolve every conceivable problem. This is described as the principle of indeterminacy.

Secondly, it rejects the view that there is an autonomous and neutral mode of legal reasoning,

described as the principle of anti-formalism. Finally, it doubts that, even where there is

consensus, there is reason to regard the law as a decisive factor in social behaviour, described as

principle of marginality.

If law is indeterminate, legal scholarship defining what the law is becomes merely a form of

advocacy.62 If there is no distinct legal reasoning, such scholarship is reduced to political debate.

And if law is marginal, social life must be controlled by norms exterior to the law.

LEGAL THEORY AND SOCIAL THEORY

One of the principle advances of CLS is to demonstrate the need to integrate legal theory within

social theory. The insights and models of analysis of Social Theory, in particular the relativity of

truth to any given social or historical group were attempted to introduce into discourse about

law.63 In this view, reality is not a product of nature, but is socially constructed. Sociaal

arrangements are not unproblematic, inexorable givens: what we see as the social order is merely

where the struggle between individuals was halted and truce lines were drawn up.

60
Roberto Unger, The Critical Legal Studies Movement 96 HARVARD L. REV. 561 (1983).
61
JAMES BOYLE D.A. (ed.), CRITICAL LEGAL STUDIES 71 (1992).
62
Pierre Schlag, U.S. C.L.S. : A Brief History of the Rise and Fall of CLS 10 LAW AND CRITIQUE 199 (1999).
63
DAVID HELD, INTRODUCTION TO CRITICAL THEORY 41 (1980).

13
By identifying and overturning existing forms of legal consciousness, exponents of CLS hope to

emancipate the individual. According to them:-

By demonstrating that social life is much less structured and much more complex, much

less impartial and much more irrational, than the legal process suggests, the interests

served by legal doctrine and theory will surface.64

Roberto Unger offers, what he calls, a structure of no structure. 65 He describes his programme

as super-liberalism, the building of a social world less alien to a self that can always violate

the generative rules of its own mental or social constructs and put other rules and other

constructs in their place.66 He is concerned to protect freedom better and, in this venture, he

sees a crucial role for law and legal thought. He has specific proposals: a rotating capital fund

to finance projects and effect a decentralization of production and exchange. Unger also

accepts that some regime of rights is necessary if his blueprint is to succeed.

Unger believes that a society so organized would be better than existing structures. But he

doesnt say why. Indeed, it is difficult to see how he could do so while remaining true to CLS

claims about social contingency and historical relativity.67 His vision of the future is

inevitably based on his understanding of present society. But how is it ascertainable that the

problems that concern Unger will also not trouble the members of this projected different society

is still a quest. Thus, Ungers dilemma will equally confront any critical scholar who ventures

construct an ideal.

64
Per J. Boyle, Supra note 8 at 217.
65
Roberto Unger, The Critical Studies Movement 96 HARVARD L. REV. 561.
66
Id.
67
Id.

14
 A CRITIQUE OF CRITICAL LEGAL STUDIES
It is clear that CLS offers its own distinctive voice. It has the characteristics in common with the

Realism, and it is a ferment68 rather than a school. It it likely that in time the insights of CLS

will so permeate our thinking about law and social life that a statement like We are all Crits

now is made. Or will its style, its pretentiousness, its obscurity, its encasement within social

theory make the Crits a breed apart?

Some of the radical ideas of CLS are difficult to take seriously. The suggestion, for example, that

to counter the hierarchy endemic to Law Schools, all its employees from professors to janitors

be paid the same salary has not been enthusiastically endorsed, at least by the former group.69

There is no question, however, that CLS has played a significant role in illuminating the fissure

between rhetoric and reality. It offers an acoount of legal reasoning connected to political theory

justifying the power of the State. It throws light on the legal consciousness and the relationship

between this and political discourse and social life. It situates legal theory within social theory. It

offers the vision of a different social life, of new forms of human association.

Yet the possibilities of transforming the law seem frequently too be diluted by the destructive,

even nihilistic, tendencies of some of the more dogmatic adherents of the CLS. 70 Many of its

ideas are still influential in the legal academy. Above all, it broadens the scope of Jurisprudence

beyond the perennial debates between positivism and natural law. The author believes if the goal

posts of jurisprudence have shifted in the last decades, it is to CLS in large measure that we owe

this.
68
Dennis Lloyd, Supra note 10 at 949.
69
Raymond Wacks, Supra note 1 at 96.
70
Frederic Kellogg, What Precisely is a Hard Case? Waldron, Dworkin, Critical Legal Studies, and Judicial
Recourse to Principle, April 2013.
<file:///C:/Users/hp/Downloads/SSRN-id2220839.pdf>

15
 BIBLIOGRAPHY

Treatises

ALAN NORRIE, CLOSURE OR CRITIQUE: NEW DIRECTIONS IN LEGAL THEORY 15 (1993). .............. 9

ANDREW ALTMAN, CRITICAL LEGAL STUDIES: A LIBERAL CRITIQUE 111 (1990) ........................ 10

D. KAIRYS, THE POLITICS OF LAW 72 (1990) .................................................................................. 6

DAVID HELD, INTRODUCTION TO CRITICAL THEORY 41 (1980) .................................................... 13

DENNIS LLOYD, INTRODUCTION TO JURISPRUDENCE 936 (M.D.A. Freeman (ed.), 6th ed. 1996). ... 6

DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION FIN DE SIECLE, 32 (1997). ........................... 8

H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 32 (1968).......................................................... 9

K.C. DAVIS, DISCRETIONARY JUSTICE 41 (1969) ............................................................................ 9

MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 17 (1987) ................................................ 8

NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE ........................................................ 5, 9

NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY (1978). ........................................ 11

RAYMOND WACKS, PHILOSOPHY OF LAW ................................................................................... 5, 9

ROBERTO UNGER, KNOWLEDGE AND POLITICS 91 (1984) ............................................................... 7

Journals

Brian Bix, Legal Philosophy in America, THE OXFORD HANDBOOK OF AMERICAN PHILOSOPHY,

Cheryl Misak, ed., Minnesota Legal Studies Research Paper No. 08-14 ................................... 7

David Andrew Price, Taking Rights Cynically: A Review of Critical Legal Studies, 48

CAMBRIDGE L. J. 277 .................................................................................................................. 8

Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARVARD L.REV ......... 9

16
Fischl, Richard Michael, The Question that Killed Critical Legal Studies, 17 LAW AND SOCIAL

ENQUIRY 779 (1992). .................................................................................................................. 7

Frederic Kellogg, What Precisely is a Hard Case? Waldron, Dworkin, Critical Legal Studies,

and Judicial Recourse to Principle, April 2013 ....................................................................... 15

G. Schwartz, A Discourse on Critical Legal Studies 25 WISCONSIN L. REV. 804-808 (1979) ..... 11

Guyora Binder, On Critical Legal Studies as Guerilla Warfare, GEORGETOWN L. J. 76 (1983) ... 6

JAMES BOYLE D.A. (ed.), CRITICAL LEGAL STUDIES 71 (1992 ..................................................... 13

M. Tushnet, Critical Legal Studies, 90 YALE L. J. 1205 (1981) ..................................................... 6

Mark Kelman, On Critical Legal Studies 33 STANFORD L. REV. 592 (1987). ............................. 11

Per J. Boyle, Critical Legal Studies, 133 UNIV. OF PENN. L REV. 685 ........................................... 5

Pierre Schlag, Critical Legal Studies (June 30, 2010), THE OXFORD INTERNATIONAL

ENCYCLOPEDIA OF LEGAL HISTORY, Vol. 295, Stanley N. Katz, ed. 2009. ................................ 5

Pierre Schlag, U.S. C.L.S. : A Brief History of the Rise and Fall of CLS 10 LAW AND CRITIQUE

199 (1999) ................................................................................................................................. 13

Roberto Unger, The Critical Legal Studies Movement 96 HARVARD L. REV. 561 (1983 ............ 13

Roberto Unger, The Critical Studies Movement 96 HARVARD L. REV. 561 ................................ 14

Robert Gordon, Critical Legal Histories 36 STANFORD L. REV. 57 (1984). ............................... 10

17