Of Skepticism, Illegitimacy, and Fools: The Power and Potential of Committed Legal Writing

Abstract

The law is once again facing a legitimacy crisis—one brought into full relief during Justice Kavanaugh’s confirmation hearings, wherein the future of the independent judiciary was, if not decimated, at least hotly debated. Though this current crisis may be novel in its precise implications, such crises are not new. Indeed, skepticism concerning the legitimacy of the law and the act of lawyering has been leveled at the profession from its beginnings. Nevertheless, the divisiveness of our current political and social climate has given the issue fresh meaning. How can legal practitioners and participants respond to this crisis without perpetuating a cycle of cynicism? This article argues for an increased reliance on several skeptics of the law—William Shakespeare and Simone de Beauvoir among them—to help realign our understanding of what contemporary legal actors—and legal writers in particular—can do in the face of illegitimacy. It draws on these classic thinkers to propose a model of “committed legal writing” that advocates for disrupting illegitimate modes of legal reasoning with a goal of restoring legitimacy to legal practice more generally.