210 Journal of Legal Education
Daniel H. Benson
Introduction by William R. Casto
For most of us in the hinterland, Critical Legal Studies is a welcome source of amusement and cause of bemusement. When I read truly hardcore
CLS tracts, I desperately want to believe that the author is a true believer, but
I usually conclude, reluctantly, that he is only pulling my chain. Some time ago I was sitting in the faculty lounge drinking coffee when I saw my friend
Dan Benson. We began a discussion of the Stanford Law Review CLS issue, and I drew a precious analogy between the crits and the Russian intelligentsia. Like the intelligentsia, the crits are mostly salon thinkers, drawn from the middle class and the minor nobility, who sit in civilized drawing rooms drinking tea and calling for revolution. Such discussion may create a tempest in the drawing room, but nothing practical ever comes of it. The Russian
Revolution was the work, not of drawing-room thinkers, but of true revolutionaries like Lenin and Trotsky. Dan listened with appropriate politeness and replied, "You're right Bill, the pump attendants at gas stations are laughing at them."
The next day, Dan showed me The You Bet Metaphorical Reconstruc-
tionalist School, a dialogue inspired by Roll Over Beethoven.! Dan's dialogue has languished in my files for over a year, but a recent article 2 inspired me to submit the piece for publication. What follows is Dan's:
The You Bet Metaphorical Reconstructionalist School (YBMRS) was founded, if founded is the correct term, in late January of 1984, at the Texas
Tech! University School of Law in Lubbock, Texas. Through the use of metaphors, and what one might call an in-house set of terms (which the school steadfastly refuses to explain to anyone else), YBMRS scholars can communicate with each other in a full and satisfying way without ever
Daniel H. Benson is Professor of Law, Texas Tech University. The Introduction is by William R. Casto, Professor of Law, Texas Tech University.
1. Peter Gabel8c Duncan Kennedy, Roll Over Beethoven, 86 Stan. L. Rev. I (1984).
2. David Luban, Legal Modernism, 84 Mich. L. Rev. 1656 (1986).
8. "Tech" is neither an abbreviation nor a word. To the objection, voiced by many, that it therefore should not have been used in the name of a university, the young, rndical members of the YBMRS would reply, "you bet."
C1987 by the Association of American Law Schools. Cite as 87 J. Legal Edue..210 (1987).
HeinOnline -37 J . Legal Educ . 210 1987

The "You Bet" School 211 having an orgasm. The following exchange between Fred and Bill typifies its deeper initial insights:
FRED. But I don't want to discuss this. The moon's over the cowshed.
BILL. You bet. Under the new Federal Rules, the Ranching Heritage
Center.
FRED. Sure, you can come back with that, out of your angst. But is it the kind of thingness that you would be willing to stand tall on in a revolution, when one is behind the lick log? Would you "you bet" it?
BILL. You bet. You bet, you bet you betcha you bet, you bet. Ha, ha.
FRED. So, Prairie Dog Town again, is it? Do you use hickory wood when you smoke beef, baby? Is that you?
BILL. Moi? You suggest that I spit into the wind? Mutatis mutandis?
FRED. Si. And you bet. Face it. It has been authentically established.
BILL. Group the tumbleweeds if you will, Fred, just go on and group them all the hell day long if you feel like it . But when you are all through with that, it's still a sandstorm-Witherspoon or not. Those barns were built that way, Fred. Kelsen is just full of shit.
FRED. You bet.
BILL. If a judge, Fred, is a given case, knows how to decide the damned case, and cannot merely picket fence it all over the lot, where do you then come down saying that the bluebirds may not shit on the barn roof but the red ants still sting? The totality?
FRED. I thought this was for tomorrow's seminar. Hot on the saddle.
BILL. Le roi veut en deliberer, Fred! Now what do you say?
FRED. Essentially, then, you favor dirt in the well before taking a hard look at the rust on the windmill blades, at least as far as diversity jurisdiction goes at present?
BILL. You bet. Hand me a branding iron, old buddy. Is that about rights?
FRED. Then why are we talking? Is this all just a razor strop, Bill?
BILL. You bet. Trials are like that, J.P. court or Supreme CoUrt.
FRED. I have to hand it to you, Bill, the logic ' of that is tight. It's almost as though a mule had given birth to a plum orchard.
BILL. You bet, at least as far as equity courts are concerned, the stupid, childish fools. This is just a razor strop.
FRED. Have you completely forgotten the central insight of our movement? Let me state it as concisely as I can. It is this: different people differ at times in their views regarding the nature of things, including the nature of the good society, the purpose. of law, whether God exists, the councilmanager form of city government, and other matters.
BILL. Yes, I know that, I know that. That's our central insight, of course.
And God, it's so new and radical and so bloody raw.
FRED. And the first corollary of our central insight is that people sometimes act intentionally to advance what they understand to be their own interests. They act out of self-interest sometimes.
BILL. Just as the ~low follows the tractor, Fred. Hell, yes. Raw.
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212 Journal of Legal Education
FRED. Our second corollary being that people sometimes lie about the things they do, and misrepresent their true motives, purporting to act on the basis of one motive or principle when in fact they are really acting on the basis of a quite different motive or principle.
BILL. You have planted the com, Fred. That's the corollaryness of the utmost corollary tude. You plowed the field with that one. We are in agreement. I accept everything you have said just now. Raw.
FRED. Well, that's it. The windmill is pumping the water now.
BILL. No, no it isn't pumping it at all. If all we had was that, we wouldn't be any better than those CLS scum. They know all of this. But what they don't know, what they are light-years away from finding out, is the practical application of our central insight and our most corollaristic corollaries. And that's this: we know that ..
.
FRED. Shut up. You are going beyond you bet. Are you now Orestes?
BILL. No, I have to say this. We know, in our movement, that if an old judge used to be an oil-rich Republican millionaire before ascending to the bench, she may make some of her judicial decisions differently than she would if she had been a poor person, an ethnic minority person, or an angry communist revolutionary under 25 years of age. Person.
FRED. Do we really know that? For sure? Is it our essence to know that?
BILL. You bet we do. You bet, old buddy, you bet we know it. And that's brand-new, raw, sleet-in-your-face-in-winter truth, insight, smarts.
FRED. Now, like when the outhouse falls over in a blue norther, Bill, I have got to come at you with this: if that's all we know, what really makes us any different from those CLS chaps?
BILL. Fred, you old posthole digger, bless your heart, what we know that the CLS types don't know is that nobody gives a damn, and nobody important is going to listen to us, or pay us a damned bit of attention, or do anything we suggest. It's the same for them, but they don't know it. And we dol We realize that pump attendants at gas stations laugh at us.
FRED. Der Berg ist hoch. It's really hoch. Certainly for the CLS tractordrivers at harvest time. Pump attendants laugh at them, too.
BILL. You bet. And by her very essence, man is the possibility of minor transcendence which has become conscious of itself. This presupposes that only this self-transcendence toward the immediacy of the law school experience takes place at least in one person, or in a few persons, and, secondly, that all persons form one mutual intercommunication mass. Otherwise, both notions would have to be abandoned. We would be down the wellshaft. We would be tangled up in the fence wire, that's all. So, as Walker
Percy puts it, why is it that the first time you see yourself in a clothier's triple mirror, from the side, so to speak, it comes as a shock? Sure the gas station attendant laughs at CLS types.
FRED. Well of course he does, but what else would you expect? You can't call a new John Deere diesel a cosmological red shift, can you? I mean, with any consistency? Can you spit into the wind with la cistifellea?
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The "You Bet" School 213
BILL. You bet, and that's just it, Fred, damn it all, that's just it. That is the very essence of the it-ness of it all. You talk about la cistifellea, let me just put it to you: quando si arrival Do you know?
FRED. Well, when we get there, of course. That's when, that's exactly when. Hell, Bill, you know that and you shouldn't compromise our movement in that way. I mean, if even a gas station pump attendant, to stick with your model, thinks we are full of shit, then I ask you why it wouldn't be? We can learn, you know, from the CLS nerds, can't we? I mean, fas est et ab haste
doceri, as Chet Atkins taught us right after the Watergate days. God, how he detested Ehrlichman.
BILL. I knew you would bring up Watergate sooner or later. That's how you milk the cows, Fred, back behind the barn. No, we cannot.
FRED. You mean to tell me that you reject Fred Rodell's analysis as a critique of the critique?
BILL. Loosen it up Fred. Now you are appealing to another Fred. Is
Fredness all you want me to buy? Is that all the bang I get for my buck?
FRED. You bet.
BILL. Was it a good thing?
FRED. Come on, Bill, you know Rodell had it right. The judges phrase the questions and decide which buttons to push, and when a judge does that, she pushes "deprivation of property without due process of law" and out pops "unconstitutional" like clockwork.
BILL. Do you want to ignore Marx, Fred?
FRED. Marx? What has Marx got to do with this phase of the phaseness we are dealing with?
BILL. Not anything, really, but it is of course de rigueur to mention Marx in a discussion of this sort, indeed in any hot-shot new legal thought movement one has to mention Marx or she is missed the point of having a new legal thought movement in the first place. Mentioning Marx is how one shows that she is dealing with nouveautes , and not just old, worn out, trite tripe. .
FRED. You bet. You ' know, Bill, in all candor, you are the kind of rich lawyer who thinks that if Marcuse had reversed the order of his studies at
Berlin and Freiburg, he would have burned ' out before 1933.
BILL. I never said that or anything like that. I deny that entirely.
FRED. You as much as said it.
BILL. Say that again?
FRED. You bet. You as much as said it.
BILL. No, I just said Marx.
FRED. In China, now, they think Marx is just an old, dead German.
BILL. So what? Does that mean if some idiot in China cloesn't like Mont-
Saint-Michel and Chartres you just go out there with a wrecking ball and knock them down? Marx is stare decisis in its essence, when one looks at it as she should, from the point of view, say, of a Kautsky. Then it irrigates the crop, boy.
FRED. And the Socratic method in law school? Se dix t'sit, que fais tu ilec1
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214
BILL. Simple, Fred. I do here what I do elsewhere in law school technique. This has nothing to do with the premise of the premise; it concerns, instead, the basis of the premise.
FRED. But if you stick with Socratic, that's just like Bishop Pike consulting Ena Twigg to get Paul Tillich's spirit to talk to him in a dark room.
Hegel would have laughed himself sick at the thought of a transaction into such a pure essence as to betray the working class. And if you buy a standard casebook and go into class with it and put on that act and that front, then you have sold out. You have told the sheep-herders where the creek is running while the cattle-persons were away at the state fair.
BILL. So?
FRED. So, you bet. And you bet again. And you keep on going with pure you bet until you see, you finally know in your gut, that the evidence for this tradition is tendentious and represents later elaboration instead of a bunch of new onions all growing in a row.
BILL. But do you remember, Fred, the poem that gave birth to our movement, the night half the faculty was drunk at the National Lawyers Guild party? I do. It's burned into my memory, and I'm just thankful to Naill
Brennan for protecting and preserving it. Let me say it for us now:
There goes the happy moron
He doesn't give a dam';
I wish I were a moron.
My Godl Perhaps I am.
And do you remember how old Riggles began to weep, and Smithers apologized publicly to the students present for having given exams in his courses over the years? You could smell the emotion of that evening like fresh organic fertilizer beyond the med school parking lots when the wind is blowing the wrong way and it rains hard.
FRED. Shut up.
BILL. You bet.
FRED. I want us to relate to people in a more meaningful way so that when a barn burns nobody waits for the rural fire fighters to get there first.
Each person present just does his or her utmost to put out the fire without using capitalist tools that hurt other human beings in the depth of their humanity. A welding torch is just that, nothing more. Crying into one's beer can't change it into Sartre's own version of a nightmare about the judicial hunch.
BILL. You bet.
FRED. You bet.
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