Lawless II: Critical Theory Returns with a Vengeance
Yesterday I laid out my how my personal experience led me to “do the work” and write Lawless. That research uncovered some disturbing differences from when I was in law school in the early 2000s. Back then, critical theory was a spent force. But now “the crits” are back, even stronger, and not just in literature and sociology departments.
Critical legal studies (CLS), which developed in the 1970s, teaches that laws enshrine biases against marginalized groups and thus preserve the status quo. CLS scholars also criticize formalism, which they see as overly focused on analyzing the logic of doctrines, principles, and texts without considering broader social and political implications. From their perspective, the law is simply the codification of the cultural and political preferences of those in power.
In 1973, Derrick Bell, the first black tenured professor at Harvard Law School, wrote that racism was a permanent feature of American life that couldn’t be remedied under existing legal structures. After he left Harvard to become dean at the University of Oregon, students began protesting their law school’s lack of diversity. The Harvard Law Review invited Bell to write the prestigious foreword to its 1984 Supreme Court volume, allowing him to dispense with academic rigor and instead present his theories of racial grievance as allegorical narratives. Those establishmentarian career-builders thus helped mainstream the ideas that would become CRT.
In 1989, Kimberlé W. Crenshaw, a disciple of Bell who would become a law professor at UCLA and Columbia, organized a workshop in his honor that established the new academic framework of CRT, a term she is credited with coining. Crenshaw is also known for introducing and developing the study of “intersectionality,” meaning how various social identities overlap and relate to systems of discrimination and oppression.
CRT scholars have built on Bell and Crenshaw’s work to replace the traditional American belief in equality (of legal status and opportunity) with the newer idea of equity (equality of outcome). They reject the ideas of nondiscrimination, free speech, meritocracy, and private property because they are tools in the systemic oppression of racial minorities. They prefer race-conscious systems that provide “op
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