Andrew Yaphe of Stanford Law School has posted "‘Reputation, Reputation, Reputation’: Fred Rodell, Felix Frankfurter, and the Reproduction of Hierarchy in the Unlikeliest of Places" on ssrn. I'm a huge fan of Rodell--mostly for "Goodbye to Law Reviews." Though it's now, what, seventy four years old, it seems as fresh as if it were written yesterday.
So I welcome this rehabilitation of Rodell -- and in particular I appreciate that Yaphe is reminding us that there's a lot of exciting and serious scholarship from the 1930s and 1940s. I think we all too often overlook that work these days. (And I might add that a lot of serious work from the 1920s and some of it was published in places other than mainstream law reviews. But my version of that story will have to await Reading the Great Constitutional Dream Book. Tiny bit of that story's here.)
Here is Yaphe's abstract:
If he is remembered at all, Fred Rodell is thought of as a marginal legal realist who spent his time irreverently mocking legal academia and the legal profession. Save for the “marginal” part, this description would be accepted even by Rodell’s admirers. But, as this Article shows, there is more to Rodell than witticisms. Rodell’s humor conceals a radical critique of elite legal education that prefigures the better-known critique put forth decades later by Duncan Kennedy. For Rodell, the institutions of elite legal education work to inculcate careerism and servility. And, for Rodell, the prime exemplar of the baleful influence of legal education was none other than Felix Frankfurter. In particular, this Article examines two of Rodell’s critiques of Frankfurter: his attack on Frankfurter’s slavish attitude toward Justice Holmes, and his consideration of Frankfurter’s veneration of “judicial restraint.” By following in Rodell’s footsteps and closely attending to what Frankfurter said about these topics, we can see how profoundly Frankfurter's worldview was shaped by the ideology of elite legal education.
In revisiting Rodell's scholarship it is good to remember that often, quite often, buried in humor is a serious point. And at a lot of times the humor may be the only (or if not only, then most effective) way of getting that point across. I think you'll enjoy the article.
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