A Critical Decision: Save the CLS Program

THE DISTURBING NEWS that as many as half a dozen senior professors at the Law School are considering offers from other universities threatens to wreck one of the most exciting and positive developments in the school's recent history: the debate over the future of legal education that has been sparked by the emergence of the Critical Legal Studies (CLS) movement. That so many top scholars are even considering a move away from Harvard is unprecedented. Their departure would damage both the Law School's reputation and its ability to deliver a top-quality legal education. But most important, it would mark a tragic and abrupt end to the current debate, whose culmination promises to be a turning point for the future of legal education. Their remaining, by contrast, could ensure the maintenance of the very intellectual diversity for which both sides have fought so hard.

The reason so many law professors are dissatisfied with their positions at Harvard is not merely opposition to the trend toward radical legal scholarship exemplified by Critical Legal Studies. While hard-line conservatives like Professor Paul Bator, who left Harvard for Chicago last spring, still challenge CLS work on principle, those who are now contemplating a move, both conservatives and moderates, generally acknowledge that CLS professors are good scholars. What many object to is the polarization of the Law School faculty that has accompanied the growing popularity of CLS.

The political infighting has led to bitterness among both conservatives and the liberal-CLS camp and has all but destroyed the tenure process. Neither side deserves all the blame for what at times has been bitter fighting, but the result of their unrestrained battle has been unfortunate. The Law School has been unable to tenure faculty from other schools since 1981 and has had routinely to promote junior faculty to fill teaching positions. With several liberal junior faculty members coming up for tenure this spring, many of the moderates and conservatives fear a leftist coup which might permanently divide the faculty. The result could be an unfortunate migration of some of Harvard's most prized legal experts.

Such a migration would be a slap in the face to positive change. Heightened debate, questioning and re-evaluation of legal education is healthy. The rise of Critical Legal Studies has broken a longstanding moderate-liberal consensus at the Law School and has opened the field not only for the left but also for a variety of new approaches, including an emergence of more firmly conservative approaches to the law. Albeit through drawn-out political infighting, Harvard Law School is notable for its diversity of legal opinion. Resignation is simply not the way to assure a constructive conclusion to the process.