DEMYSTIFYING CRITICAL LEGAL STUDIES James gilchrist stewart a thesis submitted for the degree of doctor of philosophy adelaide law school the university of adelaide february 2019 DECLARATION I certify that this work contains no material which has been accepted for the award of any other degree or diploma in my name, in any university or other tertiary institution and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. In addition, I certify that no part of this work will, in the future, be used in a submission in my name, for any other degree or diploma in any university or other tertiary institution without the prior approval of the University of Adelaide and where applicable, any partner institution responsible for the joint-award of this degree. I give permission for the digital version of my thesis to be made available on the web, via the University’s digital research repository, the Library Search and also through web search engines, unless permission has been granted by the University to restrict access for a period of time. I acknowledge the support I have received for my research through the provision of an Australian Government Research Training Program Scholarship. Signed: Date: 15/7/2019 2 TABLE OF CONTENTS INTRODUCTION DEMYSTIFYING CRITICAL LEGAL STUDIES 13 CHAPTER ONE INTRODUCING THE CRITICAL LEGAL STUDIES FAMILY TREE 50 CHAPTER TWO WHO REMEMBERS THE DEATH OF CLS1? 86 CHAPTER THREE THE HAUNTING OF CRITICAL LEGAL STUDIES 121 CHAPTER 4 ROLL OVER BEETHOVEN AND LAW SCHOOL ENTERS THE MATRIX: A COMPARISON OF CLS1 AND CLS3 148 CHAPTER 5 NAVIGATING CLS1 197 CONCLUSION DEMYSTIFYING CRITICAL LEGAL STUDIES 233 BIBLIOGRAPHY 242 3 THESIS ABSTRACT This thesis maKes the claim that Critical Legal Studies provides a way to demystify law but that Critical Legal Studies is itself mystified. In response to the duality of this claim, this thesis presents a series of demystifications for the (re)use of Critical Legal Studies. The approach taKen in this thesis follows the work of Duncan Kennedy and is focused on the US-based Critical Legal Studies. Starting broadly, the introductory chapter presents Critical Legal Studies as a legal-subculture. This framework contextualises the position of the Crits within law schools and the reactions they received from those in the dominant legal culture. This position is analysed through the lens of a moral panic. To categorise the various “Critical Legal Studies”, Chapter One presents a Critical Legal Studies Family Tree. Drawing from the foundational work of Margaret Davies, Costas Douzinas and Adam Gearey. The creation of this structure highlights the decline and death of Critical Legal Studies in the mid-1990s. However, the death does not end Critical Legal Studies, and this thesis argues instead that it creates two US-based Critical Legal Studies: cls1 and cls3. The second chapter analyses where the death of cls1 is discussed with a focus on generalist texts. These accounts of Critical Legal Studies are critically read and it is determined that the death of cls1 is usually ignored or overlooked. In Chapters Three and Four, the death of cls1 and what this means for cls3 is investigated. First via a framework that presents cls1 as haunting cls3. Drawing a literary analogy to Charles DicKens A Christmas Carol, it is argued that cls1 passively haunts cls3, resulting in a constricted and regressive Critical Legal Studies. This haunting is then demonstrated through a comparative reading of a cls1 and cls3 text, addressing the similarities in theme, but the vast differences in application. Having outlined the issues with cls3, this thesis presents a series of critiques on cls1 to see what can be learnt about the original Critical Legal Studies. It is concluded that the pre-Critical Race Theorists provided the most useful critiques. Repurposing the work of Patricia J Williams, the final act of demystification presents a scale to relate cls1 works via their interaction with law or non-law. This thesis argues that the demystification of Critical Legal Studies is a necessary step in reapplying and reusing its tools and approaches to critique contemporary law. The series of demystifications within this thesis provide a foundation for (re)using Critical Legal Studies as an effective mode of critique. 4 ACKNOWLEDGEMENTS An engagement, several deaths, and the purchase of a miniature four-wheel-drive ensure that the period spent researching and writing this dissertation was filled with equally up, down, and banal memories from other facets of life. My deepest gratitude and thanks to my family who have been a tremendous support during this process. To my father for his inspiration; my younger brother Angus and his partner Carly, who would ask “how’s CLS?” whilst providing me with pastries; and especially my youngest brother, Rupert, who possesses an uncanny ability to make straight lines in word-processing software, truly the MVP. To my darling fiancée, Elizabeth, who endured and continues to endure my rants on hierarchies and demystification. Your viticultural knowledge and ability to nod at my statements on Charles Dickens and Critical Legal Theory, means more than you will ever know. To the often-overlooked menagerie of animals who don’t (or can’t) leave and have provided (willingly or not) both a sounding board for this thesis’ arguments and a necessary reprieve from them: Bob, Lucifer, Winston, Hermione, Elfia, and Zeus – thank you. Throughout the undertaking of this PhD, I have been privileged to have the support of those within the broad field of Critical Legal Studies My sincerest thanks to Peter Goodrich, whose willingness to discuss the content of this thesis, on several occasions, in different countries, has been invaluable. My thanks also to Bob Gordon and Peter Gabel, both of whom allowed me to better understand CLS as a pedagogical technique. My sincerest thanks to the members of the Australasian Law Literature and Humanities Association and the Kent Summer School in Critical Theory who provide necessary forums and space to discuss these broad areas of law. And last, but surely not least in any way, my supervisors Paul Babie and Peter Burdon who provided economic and intellectual support within the hierarchy of the law school. I thank you both for your time, effort, and bearing-with-it-ness of my drafts and ideas. Thank you for the support I have received throughout my candidature – Peter, thank you for the coffees. Additional thanks to the Adelaide Law School more generally for the resources and support during my PhD. For Christina and Connor – both of whom should still be here to read this. 5 DETAILED TABLE OF CONTENTS INTRODUCTION I. INTRODUCTION 13 II. THE ROOTS OF MYSTIFICATION 14 III. COUNTERCULTURE, MINOR JURISPRUDENCE, AND LEGAL-SUBCULTURE 19 A. Language, Comics, and the Roots of CLS 23 B. Critical Legal Studies: a Moral Panic 30 IV. ARGUMENT OVERVIEW 40 V. CONCLUSION 46 CHAPTER ONE INTRODUCING THE CRITICAL LEGAL STUDIES FAMILY TREE I. INTRODUCTION 50 II. THE CRITICAL LEGAL STUDIES FAMILY TREE 51 III. THE CLS1 EULOGY 63 A. The cls1 Founders 64 B. The cls1 Location 69 C. The Rivals: cls1, Liberalism, and Law and Economics 73 IV. THE SLOW DEATH OF CLS1 76 V. CONCLUSION: ENDING CLS1, BEGINNING CLS3 79 CHAPTER TWO WHO REMEMBERS THE DEATH OF CLS1? I. INTRODUCTION 86 II. WHERE DEATH IS REMEMBERED 88 III. METHOD OF ANALYSIS 93 IV. CRITICALLY ENGAGING GENERALIST TEXTS 96 6 A. Legal Dictionaries 96 B. Online 101 1. Wikipedia 102 2. Wex 105 3. The Bridge 107 V. FINAL ASSESSMENT AND CONCLUDING REMARKS 116 CHAPTER THREE THE HAUNTING OF CRITICAL LEGAL STUDIES I. INTRODUCTION 121 II. GHOSTS AND THE END OF HISTORY 123 III. THE HAUNTING OF CLS3: A FRAMEWORK 132 A. Two Hauntings 136 B. The Passive Haunting 139 IV. CONCLUDING WITH A REGRESSIVE AND CONSTRICTED CLS3 142 CHAPTER FOUR ROLL OVER BEETHOVEN AND LAW SCHOOL ENTERS THE MATRIX: A COMPARISON OF CLS1 AND CLS3 I. INTRODUCTION 148 A. Choosing Law School Enters the Matrix: Teaching Critical Legal Studies 149 B. Choosing Roll Over Beethoven 152 1. Roll Over Beethoven’s Position in cls1 158 II. READING ROLL OVER BEETHOVEN: VERBATIM 161 A. Visual 161 B. Textual 167 III. READING ROLL OVER BEETHOVEN: SCRIPTED 170 A. The Title 171 B. The Music 171 7 C. The Scene 172 IV. ROLL OVER BEETHOVEN: THE PERFORMANCE 175 V. FROM INVASION OF THE BODY SNATCHERS TO THE MATRIX 183 A. Law School Enters the Matrix: its approach to Critical Legal Studies 185 B. Law School Enters the Matrix: its approach to The Matrix 187 C. Using The Matrix as an Analogy for cls1 190 VIII. CONCLUSION 193 CHAPTER FIVE NAVIGATING CLS1 I. INTRODUCTION 197 II. CRITIQUING THE CRITS 198 A. Liberal Critiques 199 B. Critical Critiques 204 1. Mari Matsuda Looking to the Bottom: Critical Legal Studies and Reparations 211 2. Patricia J Williams Alchemical Notes: Reconstructing Ideals from Deconstructed Rights 216 V. THE GEOGRAPHY OF CLS1 224 VI. CHAPTER SUMMARY 229 CONCLUSION I. ARGUMENT SUMMARY 233 II. FUTURE RESEARCH 236 III. CONCLUDING THOUGHTS 238 8 BIBLIOGRAPHY A. BOOKS 242 B. JOURNAL ARTICLES 247 C. NEWSPAPER AND ONLINE ARTICLES 254 D. FILM AND TELEVISION 255 E. OTHER SOURCES 256 9 GLOSSARY OF TERMS CCLS – The Conference on Critical Legal Studies CLC – Critical Legal Conference CLS – Critical Legal Studies (undefined) cls1 – The US-based Critical Legal Studies 1977 – 1995 cls2 – The British Critical Legal Studies 1984 – continuing cls3 – The US-based Critical Legal Studies 1995 – continuing Crit – Proponents and practitioners of the US-based Critical Legal Studies Brit-Crit – Proponents and practitioners of the British Critical Legal Studies 10 introduction demystifying critical legal studies ‘an intellectual critique is not a disembodied text but is rather always spoken or written by a living being who exerts his own presence through it and toward his listener or reader, and that it is on this meta-plane of reciprocity, of being-together and seeing the object of critique together in a new light, that a better world starts to be born each time that it happens’ Peter Gabel – The force that through the green fuse drives the flower TABLE OF CONTENTS I.