Ted Cruz's office says "in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of 'critical legal studies'..."

"... a school of thought explicitly derived from Marxism – and they far outnumbered Republicans."

That's in response to a New Yorker article quoting something Cruz said in a speech 3 years ago. (What Cruz said back then, at an Americans for Prosperity conference, was that when he was at Harvard Law School "There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.")

The Cruz spokesperson called it "curious that the New Yorker would dredge up a three-year-old speech and call it 'news.'"

Curious... there's a noncommittal word. I don't see anything wrong with digging stuff out of old Cruz speeches. He's a new character on the national stage, so it's not like old territory is being reworked. It was an inflammatory statement, and he needs to stand by it (and back it up), defend it as hyperbole, or concede he was wrong.
The New Yorker writer, Jane Mayer, was following up after Barbara Boxer had compared Cruz to Joseph McCarthy. That was pretty inflammatory too (as I said at the time). What Boxer said made it a valid line of inquiry for Mayer and not odd at all. What you say to your base will be heard by the outsiders too, and any politician needs to be prepared for that. Republicans hoping for a new star better not forget how badly Mitt Romney faltered when he had to deal with the 47% remark he'd used on the insider group. This Cruz quote is the same kind of thing. Don't minimize it.

Mayer talked to Charles Fried, the Harvard lawprof who was probably the one Republican referred to by Cruz. Fried says:

"I have not taken a poll, but I would be surprised if there were any members of the faculty who ‘believed in the Communists overthrowing the U.S. government".... Fried acknowledged that "there were a certain number (twelve seems to me too high) who were quite radical, but I doubt if any had allegiance or sympathy with anything called ‘the Communists,’ who at that time (unlike the thirties and forties) were in quite bad odor among radical intellectuals.” He pointed out that by the nineteen-nineties, Communist states were widely regarded as tyrannical. From Fried’s perspective, the radicals on the faculty were "a pain in the neck." But he says that Cruz’s assertion that they were Communists “misunderstands what they were about."

Clearly, it was rhetoric to call the Critical Legal Studies professors "Marxists" who believed in "Communist" revolution, and Cruz chose to do that at a particular place and time. Cruz is accountable for that. It's a shibboleth of the right to rely on the words "Marxist" and "Communist." It wasn't the way the lefty lawprofs of the time talked about themselves. I have a vivid memory of saying to a CLS lawprof — a very good friend, during a casual conversation — "I'd like to know about the connection between CLS and Marxism." She snapped: "There's none." I got the message: You sound right wing. It was understood that to sound right wing was to become toxic.

Here's a useful passage from the classic 1983 CLS book by Harvard lawprof Duncan Kennedy, "Legal Education and the Reproduction of Hierarchy: A Polemic Against the System":

Left-liberal rights analysis submerges the student in legal rhetoric, but, because of its inherent vacuousness, can provide no more than an emotional stance against the legal order. The instrumental Marxist approach is highly critical of law, but also dismissive. It is no help in coming to grips with the particularity of rules and rhetoric, because it treats them, a priori, as mere window dressing. In each case, left theory fails left students because it offers no base for the mastery of ambivalence. What is needed is to think about law in a way that will allow one to enter into it, to criticize without utterly rejecting it, and to manipulate it without self-abandonment to their system of thinking and doing.

"Podium teaching."

Have you seen this term? I'm not finding it on Google, but I'm hearing it used as if it's a standard term. It's a retronym, like "acoustic guitar," invented to distinguish traditional classroom teaching (in law school) from the clinics.

I'm trying to examine why I find the term so annoying. It's not just that I don't want the thing I do to be the retronym. It's that I hear something insulting in the word, as if we who are planted in the classroom are pod people, to be distinguished from the real people out in the real world doing real things.

And then it's the fact that we do not have podia at the law school. (Don't confuse "podium" with "lectern.") Every elevated platform for a teacher to stand on was ripped out long ago because it was seen as noncompliant with the Americans for Disabilities Act. So every classroom that had seats configured with sightlines designed for a professor on a podium got a flattened front end in case there might be a teacher in a wheelchair. That means there are some rooms that are utterly surrealistic from the teacher's point of view. You feel like you are down in a well with the students banked up to the ceiling. You have to keep reminding yourself to crank your head up now and then to make eye contact with the students in the back couple of rows.

To call me a podium teacher and deny me a podium....

Ah, well, all in the name of leveling.



You've got to worry about "the ways in which legal education contributes to the reproduction of illegitimate hierarchy in the bar and in society," don't you? That quote is from Duncan Kennedy's "Legal Education and the Reproduction of Hierarchy: A Polemic Against the System." An absolute must-read from the 1980s. Here's more:

[E]verything taught [in law school], except the formal rules themselves and the argumentative techniques for manipulating them, is policy and nothing more. It follows that the classroom distinction between the unproblematic legal case and the policy oriented case is a mere artifact: each could as well be taught in the opposite way. And the curricular distinction between the “nature” of contract law as highly legal and technical by contrast, say, with environmental law, is equally a mystification.

These errors have a bias in favor of the center-liberal program of limited reform of the market economy and pro forma gestures toward racial and sexual equality. The bias arises because law school teaching makes the choice of hierarchy and domination, which is implicit in the adoption of the rules of property, contract and tort, look as though it flows from legal reasoning, rather than from politics and economics. The bias is reenforced when the center-liberal reformist program of regulation is presented as equally authoritative, but somehow more policy oriented, and therefore less fundamental.

The message is that the system is basically OK, since we have patched up the few areas open to abuse, and that it has a limited but important place for value-oriented debate about further change and improvement. If there is to be more fundamental questioning, it is relegated to the periphery of history or philosophy. The real world is kept at bay by treating clinical legal education, which might bring in a lot of information threatening to the cosy [sic] liberal consensus, as free legal drudge work for the local bar or as mere skills training.