The Loyal Critic

Lloyd M. Bentsen Chair in Law and Associate Dean of Research, School of Law; Professor of History, University of Texas at Austin


In this “toast,” I’d like to say a few words about two of the three words in this panel’s title: Bob Gordon as mensch and Bob Gordon as theoretician.

If you’re an untidy character like me, your email inbox probably has many years’ worth of mail in it. One great advantage of this is that it means I have an archive that documents just what a mensch Bob Gordon is. For in my inbox is a bundle of emails going back several years from “Robert W. Gordon” – emails about projects, articles, even journalistic screeds of mine, which Bob spotted and found time to read and write lovely, wry, shrewd notes about. I wager this is true for a great many people in this room – indeed, for scores of people who have entered the ranks of legal historians during Bob’s long reign as our menschlich meta-historian-in-chief.

William Forbath addresses Bobfest, with Alison Lacroix (l), Robert Weisberg, and Carol Rose. Photo Misha Bruk, Stanford Law School

Bob, I’m sure that you’ve written hundreds of such notes, that each was a gem, and each a great boost for its recipient. For which: many, many thanks.

Let me turn to the second word in the panel’s title – Bob Gordon as theoretician – although you’ll see we are not leaving the mensch behind.

I have called Gordon a meta-historian. Meta-history aptly describes most of the essays in Taming the Past.[1] I want to say something very brief about Gordon’s work in meta-history in relation to Gordon as a workaday historian and as a scholar of professional ethics. Two big things unify the meta-history and the other two bodies of work. One is that in one way or another, all three concern the legal elite – the leaders of bar and bench, the lawyer-statesmen, the corporate bar, the state-builders, the big firm lawyers, the liberal legal academy and intelligentsia, the mandarinate.

The second unifying theme is this. Read together, the meta-history, the workaday history and the ethics scholarship show that for all his wryness, irony, and modesty: Gordon is a moralist. He is a radical critic of the legal elite and all its works, but he is what Michael Walzer calls a situated or loyal critic[2] – loyal to and situated within what Bob unabashedly calls “the great tradition of republican lawyering.”[3] Most openly in his writings on professional ethics, but not far from the surface in his historical accounts, Gordon chronicles and laments the decline of the public-regarding, justice-seeking side of this elite tradition. He is the always-skeptical but ever-hopeful keeper of the lost republican soul of the corporate bar. And of course, part of what makes Gordon’s recurring narratives of decline so wry and shrewd is that he is so full of meta-historical awareness of the genre in which he is writing and all its conventions and limitations.

But if Gordon is a moralist, what is the moral? The moral is agency – moral agency and moral responsibility. The recurrent lesson is the lawyer’s active part in constructing the social world for good or ill, which she cannot fob off on the system, the code, her client or anyone else. This is the thrust of Bob’s recent treatments of the ethical world of the big-firm practitioner. It also is the outlook animating Bob’s early historical essays on the leading corporate attorneys and liberal legal reformers of Gilded Age New York and their divided souls, as they strove, in Bob’s biting words, to “address the conditions of their own degradation.”[4]

1984 was the year Gordon published “‘The Ideal and the Actual,’” the gem of these essays.[5] It was also the year he published the canonical “Critical Legal Histories,”[6] the centerpiece of Taming the Past. “Critical Legal Histories” has become a premier guide and theoretical toolkit for doing legal history. As such, it has received some penetrating critiques. These have focused on Gordon’s key moves in that essay – underscoring the indeterminacy and contingency of legal arrangements, and, at the same time, law’s constitutive part in constructing the social world. The key critique of these moves is that Gordon sometimes seems to conflate the deep logical indeterminacy of legal discourse with a deep indeterminacy of historical developments and of legal-institutional developments, in particular.

This criticism was often leveled at Critical Legal Studies, more broadly, and at least with respect to some Critical Legal Studies work of the 1980s, there is something to the point. There was a common style of detailed critical, deconstructive legal-doctrinal history that leapt from detailed work on how some set of important private law doctrines could readily have been (as a discursive matter) flipped around, with potentially great distributional consequences, to highly general claims about the contingency of social hierarchies, and of law’s part in constructing those hierarchies.

Gordon, however, did something original. He did not conflate logical and discursive indeterminacy with historical indeterminacy. Rather, he took hold of the Critical theme of contingency and indeterminacy (and the corollary point about law’s hidden social and political weight and significance) and set out to give them a dramatic grounding in social and economic history. In “Critical Legal Histories,” Gordon puts his vast knowledge of comparative history and sociology to work, in order to clinch something like the following thesis (crudely stated on my part). Capitalist development across the globe has seen not only a vast array of disparate legal codes, doctrines and discourses, but also a great variety of institutional arrangements, some of them dismal but others far more equitable and egalitarian than our own. So, it follows that not just the legal doctrines but also the whole institutional form which, say, U.S. labor regulation, or U.S. insurance systems, or the general distribution of risks and rewards in American industry, has taken was a matter of historical contingency, open to many alternate pathways of development. Legal decision-makers, in particular, could have pushed these alternatives, at countless crossroads, large and small. Some did; but most were mired in the false necessity of the contingent institutional arrangements they happened to know best, or take for granted.[7]

The upshot of this highly influential history-writing lesson, so the critics of “Critical Legal Histories” say, has been an orgy of contingency and alternative paths not taken in the work of the next two generations of legal historians. Too often, this Gordon-esque style of history is blithely indifferent to whether some given development really was a historically contingent one, in any meaningful sense. At least some of the important books and articles that “Critical Legal Histories” helped inspire seem not to bother seriously to explore whether some alternative pathway, painstakingly excavated from the archives, ever really had a snowball’s chance in hell. Some of the work seems never to consider that what happened in this or that corner of the socio-legal-institutional world might have been not so contingent at all, but more or less over-determined by the surrounding constellations of social and political power and/or the inertial force of institutional paths-already-laid.

However, if I’m right in my reading of Gordon, then this critique is something of a bum rap! Gordon wrote “Critical Legal Histories” as a guide alright, but not a guide to history-writing. In the essay itself, Gordon describes what he is offering as a “little guidebook” to “Critical legal writing” and more precisely, a guidebook for “liberal lawyers” who might be “interested” and “curious” to know what all the fuss over Critical Legal Studies is about.[8] And there is the rub. “Critical Legal Histories” is not an all-around guide to history-writing. It uses history, but it is the work of a radical moral critic of the liberal legal elite – a loyal and situated critic, a simpatico critic from the point of view of the mainstream liberal legal intelligentsia – and he is using history to bring a message to the liberals about the radical gospel of Critical Legal Studies.

That is why for all its quiet erudition, “Critical Legal Histories” crackles with moral energy. It uses history to assail what Gordon sees as the moral as well as theoretical failings of functionalism and determinism, which, Gordon shows his readers, actually do a lot of apologetic work in standard liberal legal explanations of why things are the way they are. When Gordon seems to go on – in a rather one-sided fashion – about the contingency of legal arrangements, when he seems to slight the power-constellations and structural and cultural constraints that made some paths of institutional development vastly less open than others: he is doing so with a purpose. And, again, that purpose is not to produce a rounded guide to history-writing. It is to drive home the moral agency and responsibility of the elite lawyer and law scholar, and the wide-open world of alternate social possibilities she really ought, at least, to ponder.

So, if Gordon helped bring about an orgy of overblown contingency in the next generation’s legal historical imagination, he is not entirely to blame. He was doing a different kind of work – missionary work, if you will.

If I had world enough and time, I would demonstrate my point in another way. I’d show you that Gordon’s own workaday history-writing – his own narratives of long-term legal historical developments – often don’t follow the supposed guidebook model. When you look under the hood at the theoretical engine, you don’t find as much contingency or open-ended paths of development as you might expect. In fact, you find a lot of structural determinations.[9]

But that is for another time. For now, I want to salute the fine, fierce and gentle, earnest and hilarious moralist who inhabits all Gordon’s work and shines through in his countless everyday acts of solidarity and support.


[1] Robert W. Gordon, Taming the Past: Essays on Law in History and History in Law (2017)

[2] Michael Walzer, Interpretation and Social Criticism. Cambridge, Mass: Harvard University Press (1987)

[3] Robert W. Gordon, Portrait of a Profession in Paralysis, 54 Stanford L. Rev. 1427, 1443 (2002)

[4] Robert W. Gordon, “The American Legal Profession, 1870-2000,” in The Cambridge History of Law in America: The Twentieth Century and After, vol. III (1920- )(Michael Grossberg & Christopher Tomlins, eds., 2008), 73, 76. In the quoted passage Gordon is characterizing the law work and law reform projects of David Dudley Field and the other elite New York lawyers, which form the subject matter of his great early essay, “’The Ideal and the Actual in the Law’: Fantasies and Practices of New York City Lawyers, 1870-1910,” in The New High Priests: Lawyers in Post-Civil War America (G. Gawalt, ed. 1984).

[5] Gordon, “‘The Ideal and the Actual,’” supra note 4.

[6] Robert W. Gordon, “Critical Legal Histories,” 36 Stanford L. Rev. 57 (1984).

[7] Id. at 75-116.

[8] Id. at 58.

[9] See, for example, “The American Legal Profession, 1870-2000,” supra note 4, at 96-98, for a rather structural-functional explanation of the emergence of the distinctive governmental and state-building roles of the private corporate bar in late nineteenth- and early twentieth-century U.S., in virtue of the absence of a European-style central administrative state elite.