Denise Meyerson's objections to Critical Legal Studies

More than one reasonable answer doesn't mean that every answer is equally reasonable. That distinction does much of the work in Denise Meyerson's criticism of Critical Legal Studies, or CLS.

The opening first tells us how Meyerson understands the movement: it tries to expose contradictions in conventional legal theory. That description alone doesn't tell us whether she approves. The next sentence does. She thinks CLS finds contradictions where there aren't any and exaggerates the problems caused by conflicting values. We're about to hear her objections, not simply a neutral definition of the movement.

Paragraph 2 explains the position she objects to. According to CLS as presented here, conflicting legal values produce equally plausible opposing answers. Choosing between them must therefore be arbitrary or irrational.

Must it? Think about responding to a serious crime. We might disagree over life imprisonment versus the death penalty without thinking that throwing the offender a celebratory parade is just as reasonable. The example doesn't settle which punishment is right. It helps us see the difference between uncertainty about the best response and the absence of any meaningful standards. Nor does it mean CLS literally advocates parades; we're testing the leap from disagreement to arbitrariness.

Meyerson's first response is that we can sometimes rank the competing values. The confidentiality example puts two obligations in tension: preserving a client's confidences and avoiding harm to others. If we can justify giving the professional obligation priority in a particular case, the conflict can be resolved. The existence of two duties doesn't itself show that they must have equal weight.

Keep the qualification. We aren't being taught that confidentiality always overrides every other obligation. The example says the conflict can be resolved if that priority can be established in certain cases. It's an illustration of how ranking values could work.

Paragraph 3 takes the argument a step further. Suppose the alternatives really are equally compelling and we can't establish a single required answer. Choosing one can still be reasonable. A person can give reasons for a choice even if those reasons don't force everyone to make that same choice.

Compare two defensible solutions to a property dispute with awarding the property to whoever shouts louder. The louder-person rule is unreasonable in a way that the defensible alternatives aren't. The important comparison isn't just between the two good options; it's between both of them and a bad one. That's why the lack of one uniquely right answer doesn't establish that choosing is irrational.

The final paragraph introduces a different objection. The terminology looks imposing, but both terms are defined. Legal formalism says a rule-based, roughly deductive method can yield legal solutions. Objectivism, as used here, says the legal process has moral authority. CLS claims the first requires the second.

Why would being able to apply a rule mean we morally approve of it? Meyerson's game makes the distinction concrete. Imagine a competition to steal the most valuable item from a shop. We can identify who won under its rules without approving of theft or endorsing the competition. A clear answer under a set of rules doesn't establish that the rules are legitimate.

A possible CLS reply is that real legal cases aren't so self-contained. Applying the law requires considerations of purpose, policy, and value, and using those considerations amounts to endorsing them. Meyerson responds that these can be part of the rules themselves. Calling them external doesn't establish that they really stand outside the legal process.

So the objections fit together without being identical: conflicting values may be ranked; equally compelling options needn't make choice irrational; and applying rules needn't confer moral approval. Keep Meyerson's perspective separate from both CLS and the writer who is explaining this exchange.