Duncan Kennedy and My Worst Nightmare

David Trubek
What is a young professor's worst nightmare? That students will pierce the mask of infallibility that we all pretend to. It doesn't occur often: I once had to counsel a first year teacher who was worried that this would happen. "Don't worry about the students," I said. "Remember, the lion tamer knows the lion can eat him, but the lion may not." But it happened to me in 1968 in my second year of teaching and that is how I met Duncan Kennedy. My first year of teaching Property had been
more » ... ng: fresh from 4 years working for USAID in Latin America and unprepared to be a law school teacher, I had picked an old textbook that the students and I found boring. So for the second time around I looked for something more innovative and challenging. I settled on a book that seemed ideal: instead of organizing the course by doctrinal categories, this text was organized functionally around the role of property law in land development. Of course, I knew even less about land development than I did about property law doctrine. But I figured I could pick up both as I went along. That wasn't so easy given the way the book was put together. But I was managing to keep a little ahead of the students and thought I could muddle through. Then one day a student stood up. Announcing that the book was utter nonsense, he proceeded to rip it to shreds. That was Duncan Kennedy in his first year in Law School. Oh my God, I thought, who is this guy? Although for a few minutes it looked like my life, or at least my teaching career, was coming to an end, I managed to rally and accept the challenge. From then on, critique of the book became a legitimate theme in the class with Duncan in the lead. It made the class livelier. It might even have helped students learn more: after all, to critique the book you had to know the doctrine you claimed was poorly presented. Needless to say the next year I found another text. That was how my 45-year friendship and collaboration with Duncan Kennedy began. Our second major encounter in his student years dealt with his essay about Yale entitled "How the Law School Fails: A Polemic." 1 A sweeping denunciation of educational practices at the school, this essay was a precursor to the more famous monograph on Legal Education and the Reproduction of Hierarchy. 2 The 1970 essay analyses all aspects of the Law School, paying close attention to the psychology of students and teachers, the psychodynamics of the classroom, and the School's role in the formation of America's managerial elite. It paints a dismal picture of the school and critiques faculty and students alike.