« Dworkin's morality: rule by Supremes | Main | Can the nation's lawyers 'lick' the GOP's agenda? »

The Law on Trial

[Review of "Beyond All Reason" by Daniel Farber and Suzanna Sherry. Originally appeared in the Wall Street Journal, October 14, 1997].

The vogue for identity politics in humanities scholarship has been talked to death, while the similar trend in law schools has drawn far less attention. Yet alarming things can happen, observe Daniel Farber and Suzanna Sherry in "Beyond All Reason" (Oxford, 186 pages, $25.00), when “the cloistered world of the academy meets the world of law and coercion”.

"Beyond All Reason" strikes me as a work of merit, a view that might draw cavils from Harvard Law School’s Duncan Kennedy (“Judgments of merit are inevitably culturally and ideologically contingent”) or Duke’s Stanley Fish (“there is no such thing as intrinsic merit”), to say nothing of Ann Scales of the University of New Mexico (“feminist analysis begins with the principle that objective reality is a myth”). Mr. Farber and Ms. Sherry, both law professors at the University of Minnesota, respectfully disagree with these deconstructionist notions.

Their targets are “radical multiculturalists”, a group that includes critical race theorists, legal feminists and other identitarians. According to a New York Times account in May, advocates of critical race theory are now on the faculty at almost every major law school. This group of thinkers “holds that people’s perspectives on events are overwhelmingly determined by their racial background” to the point that “competing racial versions of reality” come to replace the earlier notion of an objective standard of accuracy.

Critical race theory wants to bring race to the very center of the analysis of most situations,” one adherent told the Times. The traditional view of, say, tax audits, would be that some few audits might be affected by the gender or race or accent of the taxpayer or IRS agent. That presupposes a previous model of an “untainted” audit in which identity factors play no role. Pounce! Such a supposedly untainted model is actually gendered (male), white, Anglo, and so forth.

Doting on subjectivity, critical race theory relies heavily on a type of storytelling that can range from memoir to parable to sci-fi tale. As the authors note, writers on law have always spent a lot of time recounting cases. But now Columbia’s Patricia Williams writes at length of a personal racial indignity she endured at a Benetton store; others offer accounts of experiences on a train or in a taxicab. New York University’s Derrick Bell pens a fable of space visitors who propose to buy blacks and remove them from American society, an offer to which his fictional whites respond by behaving -- are we surprised? -- badly.

Problem number one with the new-style stories is that they’re not checkable even in principle. Most legal discussion derives from records of public disputes in which each side has had some chance to get its version on the table. It would be nice to know what the Benetton store’s personnel have to say about Ms. Williams’s story, but we’re unlikely ever to find out. Instead, write Mr. Farber and Ms. Sherry, “[personal] stories lend themselves to several conversation-stopping moves”: announcing offense that one’s story has been challenged or accusing a rival storyteller of inauthenticity or of trying to speak for someone else’s group.

Not all race theorists go as far as Alex Johnson Jr. of the University of Virginia, who has written that the “voice of color” is one that “rejects narrow evidentiary concepts of relevance and credibility”. Still, Mr. Farber and Ms. Sherry believe the movement has become “a self-sealing ideology that resists punctures by evidence or logic”. Thus Catharine MacKinnon casually dismisses reports that Denmark and Japan, though tolerating pornography, have very low rates of rape; her explanation is that faced with governments so evil, women do not report sexual assault. Critical race theorists have devoted considerable ink to (baldly self-serving) assertions that minority law profs find it harder to get tenure offers at prestigious schools than do similar white counterparts, yet Farber and Sherry adduce evidence that the opposite is the case. And while even cautious discussion of such issues is apt to bruise feelings, many of the radicals rub things raw with a truly epic incivility, documented in detail here.

Intellectually, the new theorists reject the Enlightenment with its “aspiration to universalism and objectivity”; practically, their most important influence has been to undermine the Enlightenment-derived tradition of free speech by leading efforts to criminalize or attach civil liability to speech they believe hurtful. While Mr. Farber and Ms. Sherry concede that most of the radicals are not themselves anti-Semitic, they also charge that the anti-Enlightenment project of rejecting a common intellectual life guided by reason and injecting racial consciousness into every realm inevitably prepares the way for anti-Semitic sentiment.

As the authors note, the ideas they deplore can turn up anywhere on the spectrum: Thus defenders of creationism have smoothly borrowed from deconstructionist attacks on the authority of science. At a time when some on the right as well as left are trying to turn individual liberty and the Enlightenment into swear words, these good old causes could use some help. They get it here.