How Much (Deconstructionist) Theory Belongs in Law and Society? In An Empirical Study?

I've recently had occasion to re-read Laura E. Gomez's article "A Tale of Two Genres," which is in The Blackwell Companion to Law and Society (ed. Austin Sarat). In this article, she argues that Law and Society scholars, while focusing on discrimination and oppression, have failed to utilize fully the theories of Critical Race Theory, which might enhance and flesh out "undertheorized" studies of institutional and structural discrimination. Law and Society and Critical Race Theory both descend, in some part, from Critical Legal Studies, and yet their paths have wildly diverged: CRT is all theory, L&S is mostly empirical. Both seem to have different projects, vocabularies, methodologies, etc. Both seem to write in a vacuum. L&S may use race as a variable to explain ____ phenomenon, but it is an independent variable. In contrast, CRT considers race to be the dependent variable, that ___ legal/social phenomenon operates to produce this definition/change on race. Moreover, race is not a discrete, easily defined variable, and it is not merely Black/White--CRT champions intersectionality theory, arguing that race is socially constructed and contextual, and always interacting with gender, class, sexuality, etc. L&S ignores this complexity, in favor of abstracting race into some easily measured variable. So why aren't these two legal academic genres talking to one another?

Gomez is a wonderful scholar, and her essay is provocative and interesting. A professor at the law school at the University of New Mexico, Gomez was one of the founders of the Critical Race Studies program at UCLA Law. In the wake of Prop 209, outlawing racial preferences in admissions, a group of legal academics pushed the administration for a formal programmatic way of exploring the mutually constitutive relationship between race and law, in hopes of training new generations of civil rights lawyers and legal academics.

I used to be really, really into Critical Race Theory. Such an interest has roots in my undergraduate days at UC Irvine, where I studied deconstructionist literary theory. Heck, Derrida taught there one quarter a year until he passed, recently.

What is Critical Race Theory? It is very hard to summarize succinctly. It is as much of a movement as a methodology, born in 1989 at a Critical Legal Studies conference in which Black legal scholars challenged the white hegemony of CLS's focus, even as CLS was making Marxist anti-hegemonic arguments about hierarchy and class privilege. It is the scholarship of resistance, committed to the project of anti-subordination. It claims to and strives to speak for the "voices at the bottom," using such methodology as narrative, ethnography, the historic comparative, and "storytelling," in which the author uses personal narrative to flesh out a normative argument.

It is a lot of stuff that I agree with in certain ways (at least the basic principles and ends, such as anti-discrimination) but no longer want to do in terms of methodology or intellectual approach. Deconstructionism is awesome as a tool for hacking down false constructions such as "neutral principles" or "colorblindness" in doctrinal law. But where do you go from there? Somewhere in the last few years I have shifted from wanting to deconstruct everything to wanting to be more constructivisit and workably prescriptivist. While CRT has as one of its central tenets that the existing legal paradigm will not work to achieve the radical social and legal change that is needed to restructure society in order to effectuate anti-subordination principles (at the same time it argues about the importants of rights for conferring legal consciousness to oppressed groups), I actually want to be able to do something in the interim, within the legal framework, before we toss out the Constitution. Which we never will, I don't think.

I have documented my struggle with coming to reject the methods and some central tenets of CRT here and here.

Jack Balkin, a law professor at Yale, has a short essay on the Critical Legal Studies movement here.

This provoked further comment by Brian Tamanaha, another law professor at St. Johns, here, arguing that the emphasis on deconstructionism in CLS and CRT is wrong.

I have a brief post on "the danger of deconstructionism" here.

But enough build up. You all are sociologists, who have your own complex relationship with similar theories, whether Marxist or Foucauldian.

My questions to you:

1. How much deconstructionist theory belongs in Law and Society?

2. How successfully can a descriptive/normative empirical study on ____ incorporate untestable deconstructionist theory without being totally compromised in design and methodology?

3. Can race, gender, sexuality be more than an independent variable? That is, can it be made to be a dependent variable, in how law/society/institutions/organizations construct race/gender/sexuality? However, if an argument of CRT's is that race/gender/sexuality and the law are mutually constitutive, is it possible to design a study in which race/gender/sexuality are both dependent and independent variables, or at least mediating variables?

4. How can an empirical study's design and methodology be grounded in some theory that is not only normative, but posits itself as the scholarship of resistance and still claim to have some sort of external validity and neutrality? That is, not that every project is theory-generating; perhaps the theory being tested is that ___ causes ___ discrimination. But while every project should have a theory, wouldn't too much theory--too great a desire to prove a normative point, before data is even gathered--compromise the integrity of a study?*

5. Bonus question from Belle: CRT makes a big case for having "come up with" intersectionality theory, or at least as a (failed) legal strategy for arguing discrimination on two axes of identity. I swear I have heard of iti before coming to law school though. Can anyone tell me the intellectual genesis of this theory? I swear that is from sociology.

*there are anecodotes I could share about how centers for ____ disfavor funding studies whose designs might lead to results that might compromise the centers' political goals, but that's a post for another day.