Critical Race Theory

As the reader might imagine, audacious movements championing sweeping insights into American society and employing nontraditional forms of scholarship have come in for their share of criticism. At first, criticism was relatively muted. Book reviewers and tenure committees welcomed the new scholarship and gave it a warm reception. However, critics have taken the movement to task for making undocumented assertions and substituting personal experience and anecdote for provable fact. Other critics have focused on the movement's critique of merit and other Eurocentric mainstays. With merit, for example, Daniel Farber and Suzanna Sherry ask, what will replace it as a basis for distributing jobs, places in a law school class, and other scarce social goods? And, what are we to make of the current distribution of wealth and influence? If it was improperly gained, as the critics suggest, through a series of rigged competitions, what of minority groups such as Asians and Jews who have done well under the current regime? Perhaps the critique of merit is implicitly anti-Semitic.

Critics from the left level a different type of criticism. Interest convergence, a Supreme Court that subtly discourages racial reform even in the act of advancing it, and other bleak scenarios are too depressing to serve as rallying cries for liberal reformers. Moreover, they are poor tools for students and young attorneys, who require more action-oriented, inspiring fare. Derrick Bell and his colleagues reply that happy myths about progress and faith in the law that, in the end, turn out to be untrue discourage the activist even more and lead to disillusion and dropout. The solution for the reformer is to learn to derive meaning from the act of struggle itself—whether or not it brings immediate victory.

Other mainstream critics take the movement to task for departing from a conception of law as a system of exact, predictable, formal rules and teaching, instead, that it is full of indeterminacy and veiled, clashing interests. Some of these critics charge that critical race theory's focus on narrative and subjectivity, instead of objectivity and uniform rules, is dangerous. Jeffrey Rosen, legal affairs editor for the New Republic, for example, rebuked several critical race authors for providing the basis for the O. J. Simpson acquittal. When Simpson's lawyer, Johnny Cochrane, successfully appealed to the jury to imagine a different story from the one the state prosecutor advanced—a story in which the Simpson prosecution was infected at every stage with racial prejudice—Cochrane was simply using applied critical race theory. This strategy—"playing the race card," in Rosen's view—amounted to a dangerous departure from what should have been the main objective of a trial: finding the truth.