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90 Geo. L.J. 131 (2001-2002)
Mark Tushnet, Legal Historian

handle is hein.journals/glj90 and id is 153 raw text is: Mark Tushnet, Legal Historian
MORTON J. HORWITZ*
The early phase of Mark Tushnet's work on legal history, from 1977 to 1983,
represented an effort to save Marxist historiography from the accumulating
assaults on its premises and methodology. Tushnet was an active participant in
the growing critique of Marxism within the Conference on Critical Legal
Studies, which was founded in 1977.1 The first critical legal studies summer
camp, at Santa Cruz in 1980,2 was already devoted to an intense discussion of
whether there was anything left to save in Marxism as methodology.3
The central texts that summer focused on the debate between the noted
English Marxist historians E.P. Thompson and Perry Anderson over scientific
versus cultural or consciousness Marxism.4 The debate involved such
issues as the relationship between base and superstructure in Marxist
thought, a particularly important question for legal scholars whose life work
was condemned by orthodox Marxism to the reflective and derivative realm of
the superstructural. If the economy (or the means of production) were the
independent variable, then law (as well as thought, culture, and religion)
constituted the mere dependent and reflective superstructure.
Tushnet's early writing was, above all, an effort to criticize this rigid determin-
ism in orthodox Marxism and, in particular, its claim that law was merely a
reflection of a more fundamental base. Much of this early work emphasizes
indeterminacy in three dimensions. First, he spends a good deal of time
restating the message of legal realism for his generation of legal scholars.5 (It
may come as a surprise to learn that, like Aristotle during the Dark Ages, legal
realism had been marginalized, and then forgotten, for an entire generation after
1940. I never once heard the term legal realism in my three years at Harvard
Law School between 1964 and 1967. It may be that at Yale Law School, which
Tushnet attended between 1966 and 1969, the flame of legal realism was kept
alive, especially because the identification of Yale with legal realism during the
1920s and 1930s is what propelled Yale into the first rank of law schools.) The
legal realists, Tushnet explained, demonstrated the indeterminacy of legal doc-
trine, which meant that rules and precedents could be manipulated to produce
often contradictory legal outcomes.6 The result was, the realists argued, that the
* Charles Warren Professor of American Legal History, Harvard Law School.
1. See John Henry Schlegel, Notes Toward an Intimate, Opinionated, and Affectionate History of the
Conference on Critical Legal Studies, 36 STAN. L. REv. 391, 396 (1984).
2. Id. at 401 n.30.
3. See id. at 396-97.
4. See Perry Anderson, The Antinomies of Antonio Gramsci, NEW LEFr REv., at 5, 6-7 (Nov.
1976-Jan. 1977) (citing articles by Thompson and Anderson). For a discussion of the conflict between
scientific and cultural Marxism, see ALvIN GOULDNER, THE Two MARXsMs ch. 2, at 32-63 (1980).
5. See, e.g., MARK TUSHNET, RED, WHrrT, AND BLuE: A CRncAL ANALYSIS OF CONsTrrToNAL LAW ch.
6, at 191-98 (1988).
6. See id.

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