Lkgal history and intellectual history legal historians - many of them affiliated with the Conference on Critical Legal Studies — applied his interpretive method to yet other fields. The essays of this group by no means merely replicated Kennedy’s argument; each was in many respects original. But the central themes of Kennedy’s approach - the ubiquity of deep conflicts in Western culture and liberal theory; the presumption that systems of legal argument and thought are shaped largely by the need to mediate those conflicts; and the tendency of those systems to break down over time - can be found in all.'^-^ Gregory Alexander, for example, argued that the law of trusts in AngloAmerican culture has long been afflicted with a fundamental contradiction: it is impossible simultaneously to protect fully both a testator’s freedomto control the uses c)f his or her property after his or her death anti the freedom of the donees of that property to use and dispose t:)f it as they will. Nineteenth-century American lawyers, obsessed with freeing property from feudal restraints on alienation, developed various doctrines to obscure this contradiction, ineluding the idea of “repugnancy” (the principle that restraints are void when incompatible with the “nature” of the estate on which they are imposed) and the separation of law and equity. At the end of the century, Alexander contended, the efforts of legal scholars to rationalize the lawof trusts - and, in particular, to deal with the problemof spendthrift trusts - resulted in the discrediting of these mediating devices. The next generation of lawyers sought once again to mask the underhdng contradiction (invoking, for example, balancing tests and the criterion of economic efficiency), but those devices will likely prove no more durable. Elizabeth Mensch’s study of the development of property law in colonial New York is in the same vein. Two c'lpposed conceptions of property rights, she argued, clashed in colonial lawsuits and popular discourse: “voluntarism” (in which entitlements derived fromuse and occupancy or fromdistributions of land from the towns) and “hierarchy” (in which entitlements derived from the King and were shielded bv principles of security). Lawyers struggled to find doctrines that would mitigate the tension between these principles. Suecessful for a time, those devices collapsed during the period of the American revolution. In 1984, Duncan Kennedy, the originator of this mode of analysis, renounced one of its central features. In a published conversation with Peter In addition to the essays discussed below, see Joseph Singer, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,” Wisconsin Law Review (1982): 975; James Kainen, “Nineteenth Century Interpretations of the Contract Clause,” Buffalo Law Review 31 (1982): 381. Gregor\- Alexander, “The Dead Hand and the Law of Trusts in the Nineteenth Century,” Stanford Law Review37 (1982): 1189. Elizabeth Mensch, “The Colonial Origins of Liberal Property Rights,” Buffalo Law Review 31 (1983): 635. 39
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