Article by: Paul Horwitz

41 PEPP. L. REV. 943 (2014)

If I were to select a candidate for Legal Theory Trends That Should Have Been, one of my first nominees would be Conservative Critical Legal Studies. The list of key practitioners in the field would, I admit, be tiny. But one of its most honored members would be Steven D. Smith. Of course there is something puckish in this description. The positions Smith argues for, or at least treats as worthy of consideration, are not usually associated with the Critical Legal Studies (CLS) movement, which is generally assumed, both in the popular imagination and by many of its less supple academic fans, to be entirely a creature of the Left. But at least a few observers have long understood that the CLS approach, while it may be intrinsically radical, is not intrinsically tied to the Left. In particular, two central CLS themes—the “identification, in numerous substantive areas of law, of paired oppositions and standard arguments deploying sets of claims from one side of those oppositions against sets drawn from the other side,” with the inevitable effect of destabilizing or heightening the visible contradictions in those sets, and the related sense of “alienation from, or as expressed within, the legal system”—are no political side’s sole preserve. To the extent that a common, or key, CLS move is to “recast the assertions of mainstream scholars as doubts,” or to “take mainstream claims one at a time, severing them from their fluid interrelationship with their negation in mainstream work, and extend them seriously until they succeed or collapse”—usually the latter—nothing requires that move to end in a particular political location (or to end at all).

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