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Thinking with Wolves: Left Legal Theory After the Right's Rise (Review Essay)

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Thinking with Wolves: Left Legal Theory After the Right's Rise (Review Essay) University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Book Reviews Faculty Scholarship 2007 Thinking With Wolves: Left legal Theory After the Right's Rise (review essay) Martha T. McCluskey University at Buffalo School of Law, [email protected] Follow this and additional works at: https://digitalcommons.law.buffalo.edu/book_reviews Part of the Jurisprudence Commons, and the Legal Theory Commons Recommended Citation Martha T. McCluskey, Thinking With Wolves: Left legal Theory After the Right's Rise (review essay), 54 Buff. L. Rev. 1191 (2007). Available at: https://digitalcommons.law.buffalo.edu/book_reviews/41 This Book Review is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Book Reviews by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. BOOK REVIEW Thinking with Wolves: Left Legal Theory After the Right's Rise MARTHA T. MCCLUSKEYt LEFT LEGALISM/LEFT CRITIQUE. Edited by Wendy Brown' & Janet Halley. 2 Durham: Duke University Press, 2002. Pp. viii, 447. $22.95 (paper). TABLE OF CONTENTS Introduction .................................................................... 1193 I. M ore (Left) Theory ...................................................... 1197 A. Theory for Left Politics ....................................... 1197 1. Affirming Theory in Politics ....................... 1197 2. Affirming Politics in Theory ....................... 1199 t William J. Magavern Faculty Scholar and Professor, State University of New York at Buffalo. Thanks to Martha A. Fineman and participants at the Feminism and Legal Theory Project 20th Anniversary Workshop for the opportunity to present and discuss an early version of this paper. Thanks also to Carl Nightingale, Laura Kessler, Rebecca French, Jack Schlegel, and other participants in a Buffalo Law School faculty workshop for comments on drafts, and to Dalia Tsuk for helpful conversations on legal theory that sparked my interest in this project. 1. Professor of Political Science and Women's Studies at the University of California, Berkeley. 2. Royall Professor of Law at Harvard Law School. 1191 1192 BUFFALO LAWRE VIEW [Vol. 54 3. Affirming Theory for Tough Politics .......... 1200 B. Theory for Left Law ............................................ 1205 1. Disciplining Theory for Non- Conservatives .................................... 1206 2. Affirming Theory for Left Critics ............... 1208 C. Theory for Right-Wing Politics .......................... 1212 1. Affirming Theory in Right Politics ............. 1212 2. Affirming Radical Politics in Right T heory .......................................................... 1215 3. Affirming Right-Wing Theory for Tough Politics ............................ 1220 D. Critique of Theory's Politics ............................. 1226 1. Castigating Left Character ........................ 1227 2. Avoiding Theory's Political Economy .......... 1228 II. Less (Left) Politics ...................................................... 1234 A. Theory Versus Left Politics ............................... 1235 B. Theory Versus Egalitarian Politics ................... 1238 1. Theory Versus Racial Justice Politics ...... 1239 2. Reason Versus Disability Rights Politics.. 1245 3. Theory Versus Feminist Anti-Harassment Politics ........................................................ 1251 4. Theory Engaging the Politics of Marriage E quality ..................................................... 1257 III. Less (Left) Law ......................................................... 1260 A. Left's Critique of Law's Weakness .................... 1261 B. Left Critique of Law's Power ............................ 1263 C. Right-Wing Critique of Law's Power and Pow erlessness .................................................... 1265 1. Neoliberal Anti-Statism ............................. 1266 2. Neoconservative Anti-Statism .................. 1268 D. Left Critique of Law's Outside .......................... 1270 1. Adding a Left Critique of Extra-Legal Pow er ......................................................... 1272 2. Adding a Left Critique of Extra-Legal 2007] THINKING WITH WOLVES 1193 Innocence .................................................... 1277 IV . Less (Left) Identity ................................................... 1280 A. The Identity Politics of Critical Theory ............. 1282 1. Whose Power Counts as Rational? ........... 1283 2. Which Identity Theories Count as Successful P olitics? .......................... ............................ 1287 B. The Identity Politics of Economic Class ........... 1290 C onclu sion ....................................................................... 1296 INTRODUCTION In Left Legalism/Left Critique, Wendy Brown and Janet Halley gather essays that present "a yearning for justice that exceeds the imagination of liberal legalism, a critical and self-critical intellectual orientation, and a certain courage to open the door of political and legal thought as if the wolves were not there. '3 Left Legalism/Left Critique shines new light on the problem of how to invigorate progressive legal theory in the U.S. at the start of 21st century. The book directly confronts what many have noted more casually: left-leaning intellectual analysis has lost ground in politics and law. 4 In the aftermath of the 2004 Presidential election, opponents of right-wing politics continue to lament the lack of visionary ideas capable of animating and illuminating centrist, 5 liberal, or left law reform projects. 3. WENDY BROWN & JANET HALLEY, Introduction to LEFT LEGALISM/LEFT CRITIQUE 36 (Wendy Brown & Janet Halley eds., 2002). 4. See NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 501-02 (1995) (explaining that the problems of the critical legal studies movement raised the question of "whether, in the United States, radical leftist jurisprudential initiatives could ever be genuinely sustained"); William H. Simon, Fear and Loathing of Politics in the Legal Academy, 51 J. LEGAL EDUC. 175 (2001) (describing and criticizing the persistent and pervasive recent resistance to left legal theory and politics in legal scholarship). 5. See, e.g., E. J. DIONNE, JR., STAND UP FIGHT BACK: REPUBLICAN TOUGHS, DEMOCRATIC WIMPS, AND THE POLITICS OF REVENGE (2004) (arguing that Democrats have been hurt by their failure to articulate clear progressive ideas); MICHAEL J. GRAETZ & IAN SHAPIRO, DEATH BY A THOUSAND CUTS: THE FIGHT OVER TAXING INHERITED WEALTH (2005) (comparing the passionate, compelling 1194 BUFFALO LAW REVIEW [Vol. 54 In contrast, since the late 1970s, right-wing politics has been highly successful in rethinking the ideas that grounded the 20th century U.S. regulatory and welfare state.6 An explosion of visionary legal theory challenging a century of non-conservative law reforms has helped drive the right-wing's political success. 7 Though the left-leaning critical legal studies ("CLS") movement offered a dramatic challenge to mainstream law in the 1970s and early 1980s, the standard view holds that CLS quickly lost its influence and visibility-which had rarely reached far beyond the margins of a few elite law schools.8 Later-formed branches of critical legal theory have survived and even thrived by focusing on particular problems of race, gender, and sexual identity.9 However, it conservative vision supporting tax cuts for the very rich with the tepid, unclear defense of the estate tax by liberals); Matt Bai, The Framing Wars, N.Y. TIMES, July 17, 2005, (Magazine), at 38 (discussing recent struggles among Democratic political leaders to find academic experts who can help formulate a more successful liberal message). 6. See JOHN MICKLETHWAIT & ADRIAN WOOLDRIDGE, THE RIGHT NATION: CONSERVATIVE POWER IN AMERICA (2004) (discussing why American politics veered sharply to the right in the late 20th century). 7. See infra Part I.C.; see also HERMAN SCHWARTZ, RIGHT WING JUSTICE: THE CONSERVATIVE CAMPAIGN TO TAKE OVER THE COURTS (2004) (showing how conservative activists drew on legal scholars to help fuel a dramatic change in the politics of the judiciary). 8. See, e.g., DUNCAN KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM 219 (2004) (discussing the decline of critical legal studies); Richard A. Epstein, Let "The Fundamental Things Apply" Necessary and Contingent Truths in Legal Scholarship, 115 HARV. L. REV. 1288, 1294 (2002) (mentioning that Critical Legal Studies achieved prominence in the 1970s and 1980s for its "socialist concern[s]" but that it "has, as best one can tell, withered away in the past decade."); Simon, supra note 4, at 178-79 (explaining that the only significant recent left legal theory, critical legal studies, is extinct, had little lasting impact within legal scholarship, and none outside of it). 9. See, e.g., Francisco Valdes et al., Battles Waged, Won, and Lost: Critical Race Theory at the Turn of the Millennium, Introduction to CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY 4-5 (Francisco Valdes, Jerome McCristal Culp & Angela P. Harris eds., 2002) (discussing the persistent strength of critical race theory despite the challenges from the current time of racial backlash and retrenchment); Edward L. Rubin, Jews, Truth, and Critical Race Theory, 93 Nw. U. L. REV. 525, 536-37 (1999) (distinguishing critical legal studies' failure
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