The Bloods and the Crits

(Look Closer at the Toe Tag)

A great way to make yourself feel even more stupid, or a I call it, stupider than you already feel after having two months of bar exam study push out every other bit of knowledge and insight is to read what Actually Smart People have to say. A second way is to write really long, confusing, meandering sentences like the above.

I'm not just talkin' about real-life law professors, although I bow to their brilliance. But most of the time I can follow their arguments and analysis. Even in a complex area of the law like ERISA preemption, I can get what they're saying, extract the meta-principle of it all. Statutory interpretation is complicated, but the arguments, if they're good, should be clear and simple. "Based on line X of the statute and related case precedent Y, we conclude that...." Not too bad, right? Sure, interpretive methodologies will differ, but they all make sense at least--do you rely on only a strict textual reading or consider it in conjunction with the legislative history and purpose? Again, I can still follow this. Most of the time, what's blocking comprehension is boredom. After 20 pages of legislative history, code citation and case precedent analysis, anyone can feel like life has passed them by. But in terms of reading diffculty, I don't think cases and law review articles are that bad. There's usually a long, explanatory set up of history, background, facts. Nice! Then there's an analysis, which are (supposed to be) a series of logical arguments that build upon one another. Cool! In law review articles, the introduction is supposed to be the 5-7 page run down of the entire (40) page article, so you pretty much know all the author's arguments and conclusion before you begin the actual paper. Footnotes are incredibly long, taking up almost half the paper, but they are supposed to add complexity and nuance to the argument (but compare my conclusion with the conclusions of five other authors; see also five other articles making similar but different argumetns) without making the reader deal with it in the body paragraph (which makes said body paragraph clearer and easier to digest). The footnotes themselves are quite explanatory, turning a 100 page opinion or article into a two-line sumary. Not too bad, right?

So I read these things, and I think to myself that I'm not as brilliant (by comparison) or as accomplished (yet) as the authors, but at least I can get this stuff. They may be brilliant analysts of the law and very clear, cogent writers--but there's nothing to say that with some time and practice, I couldn't write an article that's at least half as good. The hardest part is coming up with a novel, useful argument--the actual reading/writing/analysis part is, I think, trainable.

So, feelin' pretty okay with my reading/writing skills, I hop on over to The Valve, at S.E.K.'s suggestion. I can hardly understand a word these Smart People are saying. This is really ego-crushing. Four years ago, if you had asked me, I would have said that I was a better English Lit scholar than a political scientist. This had mostly to do with the fact that I actually enjoyed reading novels and writing essays, but could get bored with regression analysis and area studies. Four years later, I think the difference could have been resolved by picking better classes in my poli sci major, but whatever. The point was, English lit came naturally to me. I could think of thesis arguments/paper topics on the fly. I could write essays and term papers really quickly and still get really high grades. I was the only person who actually enjoyed Criticism 100A and 100B. If I had gone to grad school in English with my quite respectable GRE English Subject test score, I think I could have done well. If I had gone, I would have probably specialized in 20th modernist American Lit, analyzing the racial themes in Southern literature, with an emphasis in Critical Theory.

I know now, that I would have failed and been the stupid one in the department.

Me, known as "theory head" back in law school! I concentrated in Critical Race Studies in law school, which is a two-year program emphasizing Critical Race Theory and anti-discrimination law. What is CRT?:

The historical origins of Critical Race Theory provides a contextual understanding to contemporary legal debates concerning the effectiveness of past civil rights strategies in current political climate. Derrick Bell is arguably the most influential source of thought critical of traditional civil rights discourse. Bell’s critique represented a challenge on the dominant liberal and conservative position on civil rights, race and the law. Derrick Bell employed three major arguments in his analyses of racial patterns in American law: Constitutional contradiction, the interest convergence principle, and the price of racial remedies.

Other significant contributors to the Critical Race Theory discourse in the 1980s to the present are Richard Delgado, and Kimberle Crenshaw. Delgado in defense of Bell’s story telling or narrative style argues that persons of color speak from an experience framed by racism. Delgado (as cited by Tate, 1996) argues that the stories of persons of color come from a different frame of reference, and therefore give them a voice that is different from the dominant culture and deserves to be heard. Critical race theorists believe that in order to appreciate their perspective, the voice of a particular contributor must be understood.

Crenshaw argued that little difference existed between conservative and liberal discourse on race-related law and policy (Crenshaw et. al, 1995). Crenshaw (1988) identifies two distinct properties in anti-discrimination law: expansive and restrictive properties. The former stresses equality as outcome relying on the courts to eliminate effects of racism. The latter treats equality as a process. Its focus is to prevent any future wrongdoing. Crenshaw argues that both the expansive and restrictive properties coexist in the anti-discrimination law. The implication of Crenshaw argument is that the failure of the restrictive property to address or correct the racial injustices of the past simply perpetuates the status quo.

Don't you think that's relatively straightforward? The articles may be a bit more complicated, but by their structure they're easy enough to follow even if you don't know what "post-structuralism" is, or how to do a semiotic analysis of a legal opinion. I mean, even though Critical Race Theory draws on a lot of critical theory from other disciplines to make its arguments, it applies them to cases and examples so you can see what they're saying. They're not arguments in the abstract about "let us consider the letter 'A'."Among CRT's arguments:

1. The scholar brings a certain perspective to the material, hence minority scholars will necessarily bring their identity politics and perspectives in their analysis, making 'storytelling' and narrative a valuable part of scholarship--without which, there is a shallower context in which to understand how personal experience with discrimination affects the outcome of a legal argument;
2. There is no such thing as neutrality in the law, thus judge-authored opinions are examples of personally influenced value-based arguments rather than "objective" interpretations of "neutral" legal principles;
3. CRS scholors should endeavor to bring the "voices from the bottom"--the minority, oppressed, marginalized--to the fore in legal analysis, so as to deconstruct the idea that laws interpreted "objectively"can have "race-neutral" and "just" results--because the law is infected by racism, any interpretation of the law that is not anti-discrimination outcome oriented will result in the maintenance of the status quo racial hegemony of white privilege.

I'm over-simplyfing here, but the point is, while CRT draws on critical theory, and principles of deconstruction, narrativity, authorial voice/agency, audience reception, etc., it does so in a kind of "let me break it down for you easy-like" way. Most CRT scholars are not trained critical theorists. Like me, maybe they had one quarter/semester of it, if at all. Most are relying on interdisciplinary secondary texts to make their argument--in other words, they're reading someone else's(a sociologist, ethnic studies professor) interpretation of Derrida, Althusser, Lacan, Spivak and building on that comparison/argument to apply it to the law. I'm not saying this isn't great--but in terms of actually being real ground breaking theory, well, it isn't. It's mostly derivative. Some of the best work in CRT is historical analysis--situating an opinion in the historical context, how it rose through the lower and appellate courts, the backgrounds of the justices, etc. But that's kind of old as critical methodology goes.

I'm not saying there's a death of theory. I'm just saying that compared to other cognate disciplines, CRT is not as groundbreaking anymore, and the texts/methodologies it relies on are kind of old. Reading The Valve, I'm struck by how little I know, how dated what I know is, and how much more complex the arguments/theories are than what I get in CRT. I mean, I really don't understand a word these smart people are saying. It's as if that "A" in Criticism didn't matter (it didn't).

CRT, believe it or not, lacks a coherent theory. It has a general project of anti-subordination, but no one unifying theory: it is a series of methodologies with which to apply to the analysis of the law. The problem is, CRT is at a crossroads right now because one theory does not fit all--it's trying to absorb queer issues, transgender issues, inter/intra group conflicts (particularly among immigrant groups of the same pan-ethnicity), how to integrate theory and praxis when they can be in tension (we are lawyers after all), and globalization issues. Lawyers are bound to represent their clients. What if you're a lawyer, representing Asian-American clients arguing that the ceiling quotas for Asian-American admissions are racially discriminatory--even where they are intended to improve the admissions changes for Blacks, Latinos, and other underrepresented minorities? (See Ho v. SFUSD) A theory of anti-discrimination could argue that there is a hierarchy of oppression--but which group is less historically oppressed? Should we argue that a certain theory of fairness/anti-discrimination would block such a suit? How do you do coalition building? See how praxis (lawsuits, legislation, the practice of enforcing civil rights and anti-discirmination) can conflict with the theoretical imperatives behind such praxis? Think of segregation--the path to de-segregation was bit by bit--first, challenge separate-but-equal, and by doing so prove that separate can never be equal--setting up a law school for blacks in the basement (true story) can never be equal to the reputational and academic quality of the whites-only institution. The same pragmatic approach is being used for gay marriage--first go for gay partnership, work your way up to marriage. But in both desegregation and gay marriage, there are thos who say "we should not fight piecemeal, be "pragmatic"--we should argue for the complete victory, take a stand on principle." See the tension between theory (big idea) and praxis (little by little)?

I'm still really proud of my training and my committment to anti-discrimination theory and practice--I'm just not sure that I learned enough, and that what I did learn is insufficient to cope with the challenges of dealing with the often conflicting interests of various subordinated groups. Stanley Fish says that critical theory isn't the answer, but some part of me wonders whether its the theory part of critical race theory that's failing to provide direction for the future. Maybe theory is useless, and the dead-in-the-water growth of CRT should just be abandoned for a more pragmatic, praxis-oriented approach. You know, the whole "if the ideas are broke, just go for what works" thing.

What most troubles me, other than the fact that I'm too dumb to understand what real critical theorists are talking about, and the fact that my own field seems stifled and comatose, is whether my future research project is totally useless and without value. Civil rights litigators are of more use than a silly theory-head.

Maybe this is why I've shifted gears in the last six months and revisited my political science training/original research interest (my senior thesis was on the Rehnquist Court). Maybe I'm just now articulating what I've know all along: while I can use CRT principles to inform my analysis, the most valuable part of my work won't be "theoretical," but rather practical and empirical. Has theory failed me? If I focus solely on theory, will I fail my committment to anti-discrimination? If I focus on only "the usual suspects" area of anti-discrimination law, am I dooming myself to contribute in less significant ways to the understanding of how race infects the law? Is this why I'm going in the direction of federalism?

In other words, am I selling out, or just being smarter and more pragmatic? Is theory dead? Should we focus on praxis and empiricism to the exclusion of theory?

I don't know whether theory failed me or I failed theory. Or maybe I'm just too stupid to understand it, and it's the fault of neither.