Law schools across the country have taken on a new function: cleansing students’ souls. The taint to be extirpated, of course, is racism and sexism, and in many classes the sometimes dramatic measures needed to root out such blights have driven away the more mundane task of teaching legal analysis. “I was going home crying every day,” says Linda P., a law student at New York University. The source of her unhappiness was her “Race and Legal Scholarship” course. “No matter what I said, the response was: you don’t know because you’re white. Some students wouldn’t speak to me after class. It scared me, because I thought I was this big liberal, and I was treated like the devil.”
Linda’s professor, Paulette Caldwell, practices the hottest form of legal scholarship today: critical race theory. While therapeutic courses such as Caldwell’s remain a small portion of the curriculum at most law schools, the theory behind them has nevertheless shaken up the legal academy. Only “feminist jurisprudence” rivals critical race theory in influence and sheer sex appeal; both fashions are cut from the same cloth.
The impact of critical race theory and feminist jurisprudence doesn’t stop at the ivy-clad walls of the legal academy. Feminist jurisprudence has revolutionized the law of sex discrimination and rape. Courts across the country, persuaded that legal practice is deeply racist and sexist, are conducting costly studies of their own alleged biases. Both movements are trying to limit First Amendment guarantees in order to protect female and minority sensibilities; their first success, beyond campus speech codes, has been in the workplace. These repercussions are all the more remarkable when you consider that critical race theory and feminist jurisprudence are fundamentally antithetical to the very notion of law.
Back in the law school classroom, Linda P. is not the only student crying these days. Law professors in many schools boast that their courses have reduced students to tears, sent them fleeing to the dean, and created crosscurrents of hostility in the classroom—proof that the professors are “ touching a nerve.” Frances Lee Ashley, a University of Tennessee law professor, faced numerous charges from students that her “Discrimination and the Law” class was simply a forum for white-bashing, that she favored black students, and that the class exacerbated racial tensions. Ashley was unrepentant. “If teachers intend to open this scary space,” she writes in the California Law Review, “they need to be ready to make it reasonably safe and bearable for all members of the enterprise. . . . As a teacher in a predominantly white but desegregating institution . . . you [cannot] consistently do the right thing if by that you mean behavior that allows the average white student to avoid any feeling of being personally accused or defensive when matters of race are discussed.”
Charles Jones, a professor at Rutgers-Newark Law School, asks students in his critical race theory seminar to write an essay about race relations, challenging, among other things, “the assumption that blacks, Jews, and Latinos are allies.” When a black student wrote about her indelible dislike of white people, Jones knew he had struck gold. He asked the student to read her essay aloud in class; an Italian-American woman burst into tears and fled the room. Fortunately, critical race teachers are prepared for such disruptions. “Getting in touch with your feelings is difficult,” explains Jones. “We let [the Italian-American woman] experience out her grief. She sat out a class or two, and when she came back, she wouldn’t talk.” It was a useful lesson, Jones concludes: “She was naive to think there’s not a lot of cross-racial hatred.” (However open-minded critical race teachers may be about “cross-racial hatred,” it is difficult to imagine this story coming out as it did had a white student written of his dislike for blacks.)
The core claim of both critical race theory and feminist jurisprudence is that law is merely a mask for white male power relations. Law, in other words, is indistinguishable from politics; the purported objectivity and neutrality of legal reasoning is a sham.
However crude the multicultural trappings of these theories, their fundamental argument has a respectable pedigree. For over a century, American legal scholars have challenged the traditional distinction between legislative and judicial action. According to the traditional view, legislators make the law; judges merely apply it. Judicial decisions, this tradition holds, are determined by preexisting legal rules, not by the judge’s own whims.
The stakes riding on the accuracy of this conception are enormous. For if rules do not in fact determine the outcome of cases, if judges inevitably enjoy such enormous interpretive discretion that they are virtually creating law as they go along, then the legitimacy not just of the judiciary but of governmental power itself is thrown into doubt.
The first American thinker to question the conventional understanding of law was also America’s greatest legal scholar: Justice Oliver Wendell Holmes, whose ideas foreshadowed virtually all of twentieth-century American jurisprudence. Holmes was reacting against the late-nineteenth-century view of law as a fixed system of unchanging, quasi-Platonic principles.
Bunk! replied Holmes; “law is no brooding omnipresence in the sky.” To equate it with a set of timeless legal principles ignores the fact that judges have always transformed the law in accord with changing opinions and social conditions. In fact, argued Holmes, there are no legal principles in any meaningful sense. Law is simply a prediction of “where the axe of the state will fall.”
By the twenties and thirties, Holmes’s skepticism about legal rules had expanded into one of the most powerful movements in American legal scholarship. The “Legal Realists” developed detailed exposés of the malleability of legal reasoning in every kind of judicial decision making. Since precedent can always be found on either side of a case, they claimed, judicial decision making and even fact-finding are often determined by unconscious, irrational factors or by the judge’s political and economic beliefs. Legal rules, in other words, don’t determine outcomes; judges do.
Men of letters as well as the law, the Legal Realists produced a witty and urbane corpus of work—unlike that of the current crop of legal critics. The Realists argued that law should rest on a rational basis, such as the emerging discipline of social science, not on abstractions. Accordingly, they urged judges to sweep away archaic common-law rules that no longer made sense. Their criticisms were unimpeachable—many of the traditional distinctions determining when someone was liable for an injury, for example, were wholly artificial. But the skeptical judicial housecleaner often turns into the sorcerer’s apprentice. “Gradually, every limitation [on legal liability] begins to seem arbitrary,” warns Philip E. Johnson, a law professor at the University of California at Berkeley. Once a precedent has been established for ignoring existing case law, decisions that follow the law require justification just as much as decisions that depart from it, says Johnson.
Legal Realism lost much of its glamour after World War II. But in the 1970s, leftist law professors dusted off the Realists’ critique and dressed it up in German and French literary and critical theories. Their favorite phrase to describe their work—”trashing”—reflects their nostalgia for the anti- establishment 1960s. The result of their efforts was Critical Legal Studies (CLS), a diverse, sometimes impenetrable mix of Marxist analysis, postmodern literary criticism, and American legal skepticism. CLS dominated the academic left for well over a decade, gaining widespread media attention in the 1980s for tearing up Harvard Law School. (Concurrently, “Law and Economics”—equally iconoclastic—moved in from the right, creating, together with CLS, a pincer offensive on traditional jurisprudence.)
Like many of the Realists, the Crits (as CLS practitioners called themselves) argued that law is just politics wearing robes. But the Crits’ real gripe was not with law but with liberal society. They berated liberalism’s emphasis on individual freedom and limited state power. Many called for a world without distinct public and private spheres, in which the individual would not be “alienated” from the collectivity. The Crits were particularly scornful of “illegitimate hierarchies,” a phrase that included every possible type of ranking or distinction among individuals. Harvard’s Duncan Kennedy, the original bad boy of CLS, infamously called for breaking down law school hierarchies by rotating all law school jobs from dean to janitor on a regular basis and paying all employees the same salary.
According to the Crits, the real purpose of law is to make an oppressive capitalist system appear inevitable. Law does this by duping people into believing that the rules that govern the distribution of property, the performance of obligations, and the relation between the state and civil society are “natural” and necessary. We forget, say the Crits, that law is man-made and could as easily be constructed quite differently—property need not be private, for example; or an employer could have no right to control his employees’ behavior; or responsibility for deviant behavior could be assigned not to the individual but to social forces.
Unlike the Realists, the Crits seldom ventured into the practical world of law reform, preferring instead to generate anti-bourgeois theory in academic comfort. To the extent they did make practical proposals, these consisted of familiar Old Left prescriptions: public ownership of banks and insurance companies, rent control, union control of business, and vigorous housing-code enforcement.
Ironically, one of CLS’s most utopian aspects led to its demise as the Left’s regnant theory. Some CLS theorists called for the abolition of rights. Rights, they argued, merely reinforce the classical liberal view of individuals as autonomous and potentially antagonistic. They prevent individuals from fusing into the truly mutual community that the Crits seek.
Not so fast, objected minority scholars in the late eighties. We need rights. We have seen enough truly mutual communities, from Birmingham, Alabama, to Little Rock, Arkansas, to know that we mustn’t eviscerate government protection of individuals. By shattering the Crits’ claim to speak for the oppressed, this minority critique nearly stopped the movement dead in its tracks. The Crits looked in the mirror and saw faces that were white, heterosexual, and, usually, male—badges of shame in the multicultural eighties. Their bravura evaporated.
Alan Freeman, a Crit at SUNY/Buffalo, was particularly vulnerable to the new minority challenges, for he had argued that anti-discrimination law merely masks institutional discrimination. He struck the new tone of self-abasement in responding: “I regard this essay as the most difficult one I have ever tried to write. I am writing nervously. I do not want to be charged, at least unfairly, with insensitivity. . . . I am not going to try to refute systematically the arguments made in the critique. . . . I will begin with myself and the question whether, given my whiteness, I am at all qualified to write about racism.” Similar apologies for whiteness, as well as for maleness, heterosexuality, and “middle class” status, now routinely preface the writings of CLS’s most redoubtable warriors.
At that point, the critical movement splintered into warring factions defined by race, gender, and sexual orientation. Inevitably, minority and female scholars emerged triumphant. Yet having dethroned the Crits, the critical race theorists took up almost all their rhetorical ploys. They attacked liberalism as mystifying and oppressive. They even adopted the Crits’ argument against rights and anti-discrimination law, though some race theorists have added a black nationalist twist: since minorities can never hope for justice from whites, they argue, they should form their own schools, communities, and business organizations. Integration, according to these race theorists, is an unworthy ideal, for it ignores the distinctness and superiority—of African American culture.
The ascendancy of critical race theory and feminist jurisprudence almost makes one yearn for the good old days of CLS, which at least had analytic content and sometimes dealt with actual legal cases. Not so, much of the newest scholarship. Picking up the Crits’ assumption that legal reasoning is a sham, the new race and gender theorists have given it a final postmodern twist that carries it beyond the domain of law entirely. Law, they assert, is just a “story” told by white males.
Pronouncing something a story has powerful consequences in the academy these days. It absolves the speaker from having either to affirm or to deny the truth of the so-called story, since, according to the “deconstructionist” movement in literary criticism, “there is nothing outside the text.” Calling legal opinions stories allows professors to approach .judicial decisions as if they were literature and frees them from the need to analyze an opinion’s reasoning and use of precedent.
What, then, do they do? An article by Jack Balkin, a “deconstructionist” law professor at Yale, typifies the new style of legal analysis. Balkin discusses a Supreme Court decision denying parental rights to a man who fathered a child born to another man’s wife. Rather than analyzing whether the decision was correct (beyond accusing Justice Antonin Scalia of “ establishing the hegemony of Ozzie and Harriet” in the Constitution), Balkin engages in the fatuous word games deconstructive literary critics play.
He purports to find great significance in the etymological connection between “tradition” and “betrayal.” He lambastes 1950s and ‘60s sitcoms. He discovers parallels in soap-opera plots to the adulterous conception in the case.
To these games, race and feminist legal theorists add a less playful element. The problem with white male legal stories, these theorists say, is that they “silence” the voices of women and minorities. Law does this, some feminists argue, through the bogus patina of reason in judicial opinions, which masks self-interest and political manipulation. Other feminist critics seem to grant the reality of rationality, only to dismiss it as a perversely male way of approaching experience. Lucinda Finley, for example, a feminist professor at SUNY/Buffalo, argues that “rationality, abstraction, [and] a preference for statistical and empirical proofs over experiential or anecdotal evidence” reflect the “life experiences typical to empowered white males.” (Women who adopt “male” ways of thinking have been co-opted, according to Finley.) Triumphantly, Finley enumerates what male legal stories silence: “Rage, pain, elation, the aching, thirsting, hungering for freedom on one’s own terms, love and its joys and terror, fear, utter frustration at being contained and constrained by legal language all are diffused by legal language.” (And a good thing, too, since dispassionate legal reasoning is meant to correct the distortion of “rage” and other emotions.)
Feminists and race theorists are unanimous about the antidote to male legal stories: “counter-stories” by women and minorities. Robin West, an influential feminist at Georgetown Law Center, urges her colleagues to “flood the market with our own stories until we get one simple point across: men’s narrative story and phenomenological description of the law are not women’s story and phenomenology of the law.”
The result: a new genre of legal scholarship—first-person narrative. The most-cited law review articles today have dispensed with the conventions of legal scholarship—case analysis, statement of a legal problem followed by suggestions for its resolution—in favor of personal anecdotes telling of the author’s oppression.
There are no limits on what constitutes a relevant story. Paulette Caldwell, Linda P.’s professor at NYU, began the article that won her tenure: “I want to know my hair again, to own it, to delight in it again, to recall my earliest mirrored reflection when there was no beginning and I first knew that the person who laughed at me and cried with me and stuck out her tongue at me was me.” The hair theme is picked up again by Margaret E. Montoya, professor of law at the University of New Mexico, in “Mascaras, Trenzas, y Grenzas [Masks, braids, and messy hair]: Un/masking the Self While Un/braiding Latina Stories and Legal Discourse.” She begins: “One of the earliest memories from my school years is of my mother braiding my hair, making my trenzas.” Not since the Age of Aquarius has hair possessed such political significance.
Even more personal subjects are also favored. In an article widely viewed as a model of the narrative genre, Marie Ashe of Suffolk Law School presents graphic descriptions of her reproductive life, including the birth of her children.
Legal storytelling has redefined the goal of legal scholarship and, with it, standards of evaluation. The purpose of stories is to “build community”—defined in racial and gender terms. Good scholarship strengthens community; bad scholarship threatens it. The implicit corollary is that only those within that community can contribute to the scholarly effort. Critical race theorists are virtually all minorities; feminist theory is almost exclusively the domain of women. Anyone who suggests applying traditional meritocratic standards to critical race scholarship (or to hiring decisions regarding those who produce it) is branded a racist. A central contention of race theorists is that meritocratic standards are a front for white supremacy.
A favorite theme of the new writing is the author’s oppression at elite law schools, often Harvard. For example, Montoya’s article on braids and messy hair, while rambling across a bewildering terrain of topics, including “ Latina Mothertalk” and “Daughtertalk,” makes the obligatory visit to (racist) Harvard, where Montoya was a student. Critical race superstar Patricia Williams has generated much attention by windily recounting her courageous battles against racist faculties and administrations in the various elite schools where she has taught.
In this new scholarship, factual accuracy is no longer important. Writes Stuart Alan Clarke in the Yale Journal of Law and the Humanities: ”It is naive, if not disingenuous, to suggest that all that matters is the promotion of the truth.” Patricia Williams’s portrayal à clef her teaching stint at Stanford Law School is deeply distorted, according to former colleagues there—leftists all. Williams fittingly takes refuge against such charges in the shadow of Tawana Brawley: “When students . . . believed and then claimed that I had made . . . up [another of her personal victimization stories], they put me in a position like that of Tawana Brawley.” Indeed, Brawley, whom Williams beatifies as the patron saint of victimized black women, is the perfect symbol of the movement: as Brawley’s supporters on the radical left would have it, it didn’t matter if her story of racial brutalization wasn’t actually true, because it could have happened that way.
The legal storytelling movement rests on the premise that all women share a single, distinct voice, as do all minorities. Establishing the precise origin of that separate voice can be tricky, however. Duke law professor Jerome McCristal Culp Jr., a black, invokes his coal miner father to educate his students about the differences between black and white law professors though it turns out that two of his white colleagues at Duke also had coal miner fathers. As for women’s distinctive voice, Ann C. Scales of the University of New Mexico Law School suggests that it derives from the injury done to women by the imposition of a male solar calendar on their lunar biological cycles.
Still newer versions of “different voice” theory are already enshrined in law school catalogs.
Harvard Law offers two courses in gay and lesbian theory: one of them, “Law, Sex and Identity,” “explore[s] sexual identification (Bi?, Straight?, Gay?, Other?), outness and the closet, violence (domestic, gay bashing, gay/lesbian battery, S/M), art/erotica/pornography, community intersectional identities, regulations of sexuality, sexuality and disease, deviance and sexual outcasts, families and children and others.” Yale Law School also offers two courses in gay (or “Queer”) theory. More multicultural legal specialties are sure to follow.
Although not all critical race and feminist scholarship uses the first- person voice, all of it aims to overthrow settled expectations of law and society. University of Pennsylvania law professor Regina Austin, for example, specializes in promoting black deviance. In a widely republished article, Austin argues that the black community should embrace the criminals within its midst as a form of resistance to white oppression. “ Reliance on the traditional values of hard work, respectable living, and conformity to law,” may, under certain circumstances, be “a perfectly progressive maneuver for ‘the community’ to make,” she grudgingly concedes. But “on the downside, [traditional values] intensif[y] divisions within the black community.” Austin is more persuaded by the downside. She urges the community to discard the distinction between lawful and criminal activity. People of color should view “hustling” as a “good middle ground between straightness and more extreme forms of lawbreaking.” Examples of hustling include “clerks in stores [who] cut their friends a break on merchandise, and pilfering employees [who] spread their contraband around the neighborhood.” (It apparently never occurs to Austin that the hustlers’ employers may be black.)
Austin has also argued in favor of teen pregnancy, which she irresponsibly claims has a positive effect on teens’ schooling and commitment to the workforce. Like lawbreaking, teen pregnancy has a political dimension as well: it represents an “attempt to break out of the rigid economic, social, and political categories that a racist, sexist, and class-stratified society would impose” on poor black girls. Austin has also characterized prostitution as an “exciting job in a public sphere” and has warned against assuming that black streetwalkers “have nothing to teach us, such as how to identify and deal with pimps.”
How could Harvard resist so innovative a thinker? In the late 1980s it hired Austin as a visiting professor. (It did not offer her tenure, however, prompting then-professor Derrick Bell to storm off in one of his signature protests.)
The proposals of feminist legal theorists can be equally dramatic. Martha Fineman, a professor at Columbia Law School, argues in her book The Neutered Mother, the Sexual Family, and Other Twentieth-Century Tragedies for the abolition of marriage—a bold new response to the incontrovertible evidence that divorce harms children. According to Fineman, it is only the unnecessary “moral baggage” currently associated with divorce, and not parental separation itself, that hurts children. Therefore, Fineman would replace the concept of spouse with “sexual affiliates.” If sexual affiliates want to separate (assuming they have decided to cohabit at all), there would be no moral consequences and so the children would emerge unscathed.
Fineman dismisses children’s need for a male role model in the house: “A role model who beats them? Who abuses their mother?” she asks sarcastically. In Fineman’s view, domestic abuse is “fairly common”; indeed, if you include emotional abuse, it is “extremely common.” This contempt for the male contribution to child rearing is a standard feature of feminist legal scholarship. Accordingly, radical scholars are working hard to cleanse illegitimacy of whatever deviant status still adheres to it and establish single motherhood as the norm for child rearing. They have targeted “ familialism” for particular scorn.
Classroom assignments in many feminist and critical race classrooms follow the fashion of starting from the self. Students write “reflection papers” that either relate their reading to their personal experience and emotions or sometimes even dispense with outside sources entirely. At Rutgers, for example, Charles Jones asks his students to describe and rank in importance their various identities: “Is the fact that you’re gay more important than that you’re Jewish?” he prompts the class.
The message that objectivity is a sham and that law should be a forum for self-expression hits a chord with many students. Those who feel overwhelmed by law school a common experience—now have a ready explanation: their voice has been silenced. Writing in NYU Law School’s student paper, Karen L. Myers, a first-year student, reflects the influence of the new scholarship: “I have been searching for myself and my experiences in the law books and I have not been able to locate either. . . . How could I possibly be expected to sit in a contracts class and swallow [the idea] that formal reasoning is anything more than a smokescreen for keeping the white male perspective as the interpretive elite?”
The evolving persecution complex in many female students can make teaching difficult. Says Fordham law professor Marc Arkin: “If you call on them, you’re imposing hierarchy; if you don’t call on them, you’re overlooking them. Either way, they’re upset.” To help professors navigate this dilemma, Fordham gave its faculty sensitivity training in classroom gender relations.
Feminine self-pity received a wonderful boost this February when Lani Guinier, a University of Pennsylvania law professor and President Clinton’s failed nominee for assistant attorney general, published a study showing that women do worse in law school than men. Guinier and her co-authors attributed the gap to “insidious” sexism in legal education. The article was an immediate hit. Law schools across the country convened conferences to discuss how to improve the “hostile learning environment” for women and minorities; increasing the number of feminist and critical race theory courses usually headed the list of suggested reforms.
Not just female students have absorbed the doctrine that law should reflect their individual “voice.” In 1990, participants in NYU’s annual moot court competition refused to argue one side of the chosen case: a father’s custody petition against his estranged lesbian wife. The father’s position was indefensible, the students claimed; dignifying it with an argument would be “ hurtful” to themselves, to homosexuals, and to the NYU community. Such a protest would have been unthinkable even 20 years ago, but when law becomes a vehicle for telling one’s own “story,” it becomes difficult to ask students to take positions contrary to their own beliefs.
Yet for every student who finds his or her calling as a victim in the new legal scholarship, many more reject the heavy-handed politicization of the classroom. “It was the worst learning experience of my life,” says Richard B., a first-year law student at Columbia, about his course with Patricia Williams. “If [Williams’s] goal is racial equality, she does more to impede it. She breeds racism. I’m embarrassed that she’s here.” Linda P., the scapegoat of Paulette Caldwell’s class at NYU, says that the course inadvertently taught her “how not to deal with people. I was known as a super- liberal feminist in the firm I worked in over the summer. I would tell people: ‘You can’t say that because you’re a privileged white male.’ Now I feel like calling up and apologizing.”
Such student skeptics have a hard time getting heard, however. Though administrations take students’ oppression as minorities and women for granted, they pay more attention to maintaining faculty “diversity” than to students’ problems as just students. Columbia’s Patricia Williams is a case in point. Williams’s own book chronicles the anguish she has caused students, who complain that she is “in over her head,” incoherent, and given to personal tirades. How could she commit such a response to the page? Because it demonstrates her students’ racism, she claims. Despite a history of devastating student evaluations and a corpus of writing that makes Captain Queeg look well-adjusted, she has traveled from one prestigious law school to another, finally landing tenure at Columbia. This year a delegation of her first-year students went to the dean of students requesting placement in a different section. Though Columbia had set up an alternative class for students unhappy with a conservative professor, it told Williams’s students to stay put. Given Columbia’s presumed determination to hold on to a minority professor in an age of scarcity, the school’s apparent unwillingness to ruffle her feathers is unsurprising. Williams’s predilection for chronicling the abuses she has suffered from a racist world may also exert a chilling effect on an administration’s willingness to respond to student complaints.
The response of the law school professoriate to the burgeoning of critical race theory and feminist jurisprudence has been as meek as that of school administrators. Unlike Critical Legal Studies, which provoked a firestorm of protest at Harvard and enormous debate in the law reviews, race and feminist theory have achieved their position of dominance with little argument: their practitioners wear the impregnable mantle of victimhood. Few professors are willing to question publicly the worth of the first-person narrative movement, though some of its sharpest unpublished critics are the Crits themselves, who call the first person movement an intellectual dead end lacking all analytic content. When Randall Kennedy, a mainstream black scholar at Harvard, criticized the “different voice” theory of race scholarship in the Harvard Law Review, he found himself nearly frozen out of conferences.
These new fashions in legal education have changed law schools in fundamental ways. The schools are under enormous pressure from student caucuses and leftist faculty to hire race theorists and feminists. But because of the paucity of highly qualified minority law graduates, hiring standards are dropping. John McGinnis, a professor at Cardozo Law School, one of the more conservative schools, says: “We interview people who would not be given a second thought if they were white, for the applicant pool for minority scholars is far, far weaker.”
Critical race and feminist theories also have affected how traditional courses are taught. For example, teaching rape doctrine in criminal law has become a minefield. Moreover, students now seem to assume as a matter of course that the law has a color: the president of the Harvard Law Review, David Friedman, explained to me that “you can’t study criminal law and not have race come up a lot. The mere fact that so many defendants are black means that the law treats blacks differently.”
Similarly, many students have absorbed the doctrine that law is purely discretionary on the part of judges. A student in a constitutional law course at Columbia recently argued that it didn’t matter whether a law was constitutional, as long as a judge was enforcing it. Such a view undermines the very premise of a constitutional law course that laws violating the Constitution are void and unenforceable. Yet the professor—a critical race theorist—accepted the student’s remarks approvingly and moved on without further comment to a different topic.
The speech code movement in academia owes its theoretical scaffolding to the critical race scholars. From its onset, critical race theory has singled out the First Amendment for particular scorn: free speech, the theory argues, is nothing more than a tool of the powerful to oppress the weak. The marketplace of ideas will never correct racist views, the theorists claim, because racism silences its victims. Therefore, censorship is needed. “We should not let a spurious motto that speech be ‘everywhere free’ stand in the way of outlawing speech that is demonstrably harmful,” argue Richard Delgado and Jean Stefancic of the Colorado Law School. “Overextending the [First Amendment] provokes the anger of oppressed groups.”
But the most striking impact to date of race and feminist theory has been on the law reviews, where critical race theory and feminist jurisprudence now reign supreme. It’s hard to find a top law review that will publish a conventional contract or tax article anymore, according to Fred Schapiro, a Yale law librarian who is conducting a study of legal scholarship over the last decade. Moreover, the proper race and gender are becoming a de facto prerequisite for writing on certain subjects. Richard Delgado, a leader of the critical race studies movement, has strongly implied that whites who write on civil rights issues should quietly retire. Indeed, if the logic of hiring minorities and women is that they bring a unique perspective of oppression to the law, why do we need white males to write about “minority” and “women’s” subjects at all?
Outside the academy, much of critical race and feminist legal scholarship is unlikely to influence policy. Proposals such as promoting black deviance or abolishing marriage are wildly out of step with the national mood regarding values. Critical race theory and feminist jurisprudence thrive in the academic hothouse where they need never confront practical reality. The concept of law as story, for example, is utterly useless in either practicing or reforming law. Unlike a storyteller, a judge has to decide between competing claims in reference to a given set of rules.
The feminists’ attack on objectivity as destructive of female connectedness is equally naive. Robin West of Georgetown Law Center urges that judges abandon their pretense of objectivity and openly empathize with litigants. West’s proposal overlooks a basic fact of human nature: empathy flows most naturally to someone who is like the empathizer. To ask judges for empathy is to ask them for partiality.
Indeed, for all their sophisticated skepticism about the rule of law, contemporary leftist legal theorists are remarkably credulous about the ability of their communitarian utopia to treat everyone fairly. The Crits and their progeny vaguely gesture toward a system of informal communal justice, seemingly oblivious to the fact that such discretionary systems have produced the guillotine in France and Mao’s People’s Courts in China, to cite just two examples. As for their wholesale rejection of all hierarchy as “illegitimate,” historian Eugene Genovese has remarked that the “Crits appeal to no history whatsoever to support their contention that civilized life is possible without some form of hierarchy. History shows that . . . were men left wholly free to express themselves they would eat each other alive.”
But though most of feminist jurisprudence and critical race theory is both useless in the practical realm and antithetical to the very concept of law, the movement’s primary political message—that American society remains ineradicably racist and sexist—has found an eager audience outside the academy. Extraordinary to say, it has affected practice in courtrooms across the nation.
Radical feminist law professor Catherine MacKinnon, for example, has revolutionized sex discrimination law through hundreds of federal lawsuits. In 1977 she persuaded a court for the first time to recognize sexual harassment as a form of illegal sex discrimination. In 1986 the Supreme Court accepted her argument that a “hostile work environment” can constitute sexual harassment. In Canada she has had even greater success with legislators and judges. The Canadian Supreme Court has adopted her definition of pornography as any material that subordinates, degrades, or dehumanizes women. In addition, MacKinnon and local feminists engineered a Canadian law requiring men to take “reasonable steps” to ensure consent before engaging in any sexual activity. (MacKinnon has also implied that all sexual intercourse is rape, which of course would make consent irrelevant.) In the United States, pressure from feminist theorists has forced changes in rape law. Some of the pressure has been salutary, but some of it aims, MacKinnon-style, to make sexual intercourse per se suspect.
Individual judges and court bureaucracies have responded to the message that racism and sexism pervade American law and society. Jack B. Weinstein, senior district judge for the Eastern District of New York, quoted feminist legal scholars, including Columbia’s Martha Fineman, in a speech to the New York City Bar Association last March. Weinstein criticized the federal sentencing guidelines for excluding the consideration of sex—along with race, national origin, and other factors—in sentencing. Echoing feminist theorists, Weinstein said that many women who commit crimes are “oppressed and driven by the males in their lives . . . [and are suffering from] the long term psychological effects of socialized dependence and abuse.” Needless to say, to portray women as lacking responsibility for their actions resurrects an ancient stereotype of feminine helplessness. No matter—contemporary feminist theory has so far had it both ways: arguing bias and seeking special treatment.
Prodded by feminist and critical race law professors, as well as by political activists, state and federal courts have undertaken a feverish search for internal sexism and racism. Eight of the 11 U.S. circuit courts of appeals, numerous district courts, and at least 34 states have created task forces to study gender and race bias in judicial administration, at enormous taxpayer expense. “I have never seen such fear among judges all over the country,” says Laurence Silberman, a judge on the D.C. Circuit Court of Appeals. “All are agreeing to task forces; women judges are under particular pressure.” The failure to uncover concrete evidence of bias stops no one. In the words of one task force report: “Gender bias is alive and well. It has just gone underground.”
No court has taken the anti-bias campaign further than the Ninth Circuit Court of Appeals on the West Coast, Inspired by a 400-page task force report alleging widespread gender bias, it adopted a resolution in 1994 urging all courts within the circuit to prohibit “comment or behavior that can reasonably be interpreted as manifesting prejudice or bias toward another on the basis of gender, race, ethnicity, or national origin, citizenship, pregnancy, religion, disability, age, or sexual orientation.” Incredibly, in a circuit with no shortage of conservative jurists, only one judge—the ultra liberal Stephen Reinhardt—objected to the resolution as a violation of free speech. “The Ninth Circuit has gone insane,” argues Judge Silberman.
“A lot has been stirred up by the gender study,” says Ninth Circuit Judge Alex Kozinski, a little ruefully. A fellow judge accused him in a dissent of sexism and misogyny for using the phrase “the iron maiden of bankruptcy law” in an opinion.
The only bias task force effort to have received close scrutiny has been the D.C. Circuit’s 500-page document. The results were devastating. Stephen Thernstrom of Harvard analyzed the report’s statistical methods and found that, far from supporting its claim of widespread discrimination, the report’s own evidence proved the opposite. Minorities are overrepresented on the nation’s judiciary, Thernstrom found; the chance of being appointed a judge if you are a black or Hispanic lawyer is twice that of a white lawyer. Likewise, minority law graduates—at least black graduates are almost certainly overrepresented as judicial law clerks, since students at the top of the class in all the major law schools are disproportionately white, and those at the bottom are disproportionately black. “The report implicitly views meritocratic claims as a smokescreen for bias,” writes Thernstrom, “but if clerks were selected purely on merit, there would be no minority law clerks.” In a rare show of courage, the D.C. Circuit voted no confidence in the report.
The final tally on the impact of critical race theory and feminist jurisprudence is not yet in. Some conservative law professors, such as Yale’s Robert Ellickson, argue that the impact of various multicultural movements in the academy has been overstated. It is true that, for all the ferment in law schools, most students graduate pursuing that lucrative job in a law firm just as ardently as when they matriculated. The majority of students regard legal theory as a sideshow; they chafe when they think even traditional courses are not preparing them to pass the bar. Even those who are persuaded that law is wholly indeterminate have to forget their skepticism pretty quickly when asked for their first client opinion letter.
Yet the prominence of race and feminist legal theory should be cause for concern. Grant Gilmore of Yale once wrote: “What is taught in the law schools in one generation will be widely believed by the bar in the following generation.” And when law schools award mediocre scholars with jobs and tenure simply for espousing the fashionable view that American society is pathologically racist and sexist, they provide an authoritative stamp of legitimacy to that view. A student of Patricia Williams, who was otherwise deeply critical of her teaching, told me: “If Williams thinks racism is everywhere, then it must be more prevalent than I think it is.” The race card, played so skillfully by defense lawyer Johnnie Cochran in the O. J. Simpson trial, may become more frequent and more respectable as young attorneys, fed on critical race doctrine, join the bar.
Moreover, exotic courses in victimology come with an opportunity cost. The problem isn’t limited to radical theories: a variety of interdisciplinary studies like “Law and Literature” or “Law and Psychology” are crowding out traditional courses in commercial law, bankruptcy, and jurisdiction, so that students come out of school with less legal knowledge than did students three decades ago. Andrew Kleinfeld, a judge on the Ninth Circuit Court of Appeals, argues in the journal Academic Questions that top students from the best schools know less law, and far less history and government, than they used to. The consequence, Kleinfeld says, may be inadequate legal craftsmanship, ironically—and ominously—making a reality of the theory that law is nothing more than the arbitrary imposition of judicial power.
Student efforts to return the curriculum to the mainstream can be unavailing. Students at Rutgers Newark, a hotbed of critical race theory, recently petitioned the administration for more business law courses. Many minority students signed the petition. Charles Jones, one of the many critical race theorists there, suggests where the battle lines will be drawn: “It’s fine to have more business courses, assuming they don’t come at the cost of more recent innovations.” But given the limited resources of most schools, simply adding more traditional courses is rarely an option.
Few professors today, on either the right or the left, share Judge Kleinfeld’s view that law school should focus on teaching students legal doctrine. They view their role as more exalted as paid thinkers about the law. Teaching legal rules, they say, is stultifying and often futile, since laws change. But the value of traditional courses is not only that students absorb a fixed body of law but that they teach students to think like lawyers: to analyze facts and reason from principles.
Race and gender studies lake legal training further away from that analytic ideal than any previous critical theory. The Crits were at least interested in doctrine; many were excellent teachers. But the proper response to the oppression stories favored by race and feminist theory is not analysis but empathy. Indeed, warn Daniel Farber and Suzanna Sherry of the University of Minnesota Law School, “some advocates of storytelling come close to suggesting that silence is the only permissible response to stories. Whites who sympathetically attempt to analyze or even recount stories told by people of color are said to be guilty of misappropriating the storyteller’s pain.” This antagonism to critical thought is antithetical to everything law school once stood for. It is particularly ironic in theorists who denounce the “ silencing” of “voices.”
Needless to say, critical skepticism has a vital role in legal education. Many legal doctrines cry out for revision, and law schools should encourage students to think critically about the role of legal institutions in society, including their impact on women and minorities. But to cross the line from skepticism to nihilism is a risky business. Were the view that law is only the judge’s politics ever to be widely held, citizens would have no reason to grant judges legitimacy, and the basis of the legal order would crumble.
In fact, the Grits and their multicultural progeny are fighting a straw man. Few citizens are so “mystified” by the law that they believe that it is handed down on tablets of stone, untouched by human hands. People are well aware that legal rules and the concomitant distribution of property are human constructs; questioning the current legal regime is the very stuff of political debate. Nor are people blind to the role of discretion in judicial decision making. We are all Legal Realists now. Contemporary judicial confirmation battles reflect the Realist view that a judge’s politics matter as much as his legal training.
Yet the current crop of critical thinkers overestimates the uncertainty of legal reasoning. The majority of potential disputes never reach a court because the legal outcome is already clear. And even when legal rules do not literally dictate the decision in a case, they influence it by channeling the judge’s discretion in a predetermined direction. Over 60 years ago, John Dickinson rightly identified legal skeptics as “disappointed absolutists”: “ Holding an impossibly exalted view of [legal] certainty, they insist on all or none.”
Race and much feminist theory represent a dangerous flight from reason and logic. A legal system that aspires to objectivity is one of culture’s greatest accomplishments. The fact that, like other human institutions, law does not always live up to its goals is no argument against its trying to do so. The current effort to give law a color and gender or to dismantle it entirely in the name of racial and sexual solidarity would be a giant step towards unreason.
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