Truth and Mystification in Legal Scholarship

I am going to take advantage of having been scheduled late in the conference by offering comments that are cumulative.My views are directed primarily at the papers presented by Bob Gordon, Paul Brest, and Mark Tushnet, with all of whom I agree, and each of whom needs to be pushed a few steps further.The starting point, however, is something that came up yesterday.John Ely, in commenting on Paul Brest's paper, denounced "trashing" as a form of legal scholarship.I was simultaneously insulted and gratified by Ely's comment -insulted because I am a partisan and sometime practitioner of trashing, gratified because trashing has now been accorded formal status as a kind of legal scholarship.What I would like to offer is a defense of trashing, which I regard as the most valid form of legal scholarship available at the moment.There is a strong tendency among scholars on the left, especially in the law school world, to stop short, to devote great efforts to exposing contradictions in mainstream thought or work, and then to go home.The tendency stems, I think, from a fear of being too closely associated with the Marxist tradition, a fear of being quickly categorized as a "vulgar" Marxist or naive reductionist, and thereby denounced, silenced, and denied academic credibility.I am going to take up the challenge of those fears this morning.Gordon, Brest, and Tushnet all made implicitly radical presentations.Each should be chided for not following through on the implications of his paper.Gordon, for example, so wonderfully described the strategies employed by legal scholarship to avoid direct confrontation with history.He never explained, however, why those strategies are employed, suggesting only that they may be a result of a professional impulse to keep the enterprise going.I think Gordon's characterizations were accurate and will be quite useful in advancing the enterprise of trashing.He offered them in the specific context of avoiding historicity; they can easily be generalized as strategies for avoiding reality.Brest, on the other hand, did a splendid job of exposing the recur-