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DeGirolami on "Counter-Progressive" Legal Theory

By Lawrence Solum

Over at Prawfs, Marc DeGirolami has a really nice post entitled "Counter-Progressive" Legal Theory?. Here is a taste:

Here's [G.E.] White on the counter-Progressive tradition in American legal history: "Counter-Progressive work assumes that describing American society as a shifting clash of classes and interests is simplistic and potentially pejorative, imposing anachronistic post?New Deal categories on past epochs. It assumes that judging is more than what the judge ate for breakfast or an imposition of the judge's instinctive and class biases on public policy. It assumes that judges are importantly constrained by legal doctrine, so that the relationship between law and current political ideology is delicate and complex. And it assumes that law, far from being simply a 'mirror for society,' is, at any moment in time, in a dialectical relationship with American culture at large, so that law is both constitutive and reflective of its cultural setting." (footnote omitted). Everything that counter-Progressivism isn't, of course, Progressivism is.

Now to the first question. When I saw this list, I wondered what exactly distinguished a counter-Progressive from any sensible observer of the operations of American law. Assuming that law is "more than what the judge ate for breakfast" harkens to one of the standard and rather tired formalist/realist tropes, and like many of those tropes, they die very hard among those who are looking to stain each new wave of legal scholarship with the pigments of "progress!!" and "regress!!" But did anyone ever really think that judges' meals controlled the fates of claimants? Did anyone -- anyone serious -- ever really think that law is merely -- only -- the imposition of class "bias" on policy? Find me that mythic chimera in American legal history who believed that judges are only trivially constrained by legal doctrine, or that law simply trails like some sort of limp dead fish in the ship of state's wake.

Full post as published by Legal Theory Blog on October 05, 2010 (boomark / email).