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State-Lovers, State-Haters, and Orly Lobel

Responding to Orly Lobel, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 Harv. L. Rev. 937 (2007)

Professor Orly Lobel has authored an interesting contribution to scholarship, combining political science, sociology, and legal history in her thoughtful examination of the role of legal institutions as the catalyst/forum for successful social change. Her article focuses on two historical examples of the interplay between law and societal reform: the labor movement during the New Deal and the civil rights movement of the 1960s. Were statutes, court decisions, and other manifestations of “law” the critical instrumentalities in achieving the results history records, or were they more reflectors of cultural or sociological developments? Or more perniciously, were they improvidently relied upon — did they fail to achieve the real transformation promised by their sponsors, or did they do so only with attendant costs commonly ignored or improperly discounted?

Professor Lobel examines the ongoing academic debate among schools of historical legal realism as well as among the more contemporary proponents (and adversaries) of critical legal studies concerning the role of legal systems as engines of societal progress. I commend her for her apparent interest in thinking and writing inductively. I have some frustration with the habit of scholars who engage in deductive filtering in debating the issues Professor Lobel discusses. That is, they start with the a priori assumption that “the state is evil” (and hence reform through legal mechanisms is intrinsically and necessarily flawed), or alternatively, that only reform by means of the state is legitimate and effective. The brain is a nefarious and silent filter, and will allow all of reality to be distorted — not through direct fabrication, but through the mere selection of what is received by the brain, in what order, and with what allocation of time and attention. It is the subject matter of thought, what we choose to think about, that is the essential manifestation of our biases.