• Selected
• Entire List

Abstract:
Juan Perea, Richard Delgado, Angela Harris, Jean Stefancic, and Stephanie Wildman with West publishing are pleased to announce the June publication of the Second Edition of Race and Races: Cases and Resources for a Diverse America.

This best-selling casebook presents critical perspectives on race and racism. It updates the first edition with new material on the treatment of Muslims and Arabs in post-9/11 America. It also provides expanded treatment of Japanese-American internment, Jewish Americans, and native Hawaiians in the U.S.

The Second Edition includes new cases such as Grutter and Virginia v. Black, current statistics, and enhanced coverage of voting. It also features rich historical treatment of major racial groups in the United States: African Americans, Indians, Latinos/Latinas, Asian Americans, and Whites. The text contains chapters exploring implications of enslavement, conquest, colonization, and immigration, as well as on equality, education, freedom of expression, family and sexuality, stereotyping, and crime.

The Introduction and Table of Contents are available to download.

Abstract:
I wrote this piece exploring some of the intellectual origins of critical race theory for a 20-year anniversary of the movement held at the University of Iowa in April, 2009. In it, I look at the role of certain prominent university officers in purging their ranks of white radicals to prepare the way, in the late sixties and early seventies, for the first large group of post-Brown minority students who were starting to arrive around that time. I show how four promising white professors, two of law, one of history, and one of criminology lost their jobs and what they did afterward. I show that they continued to teach and write about left-wing thought in the hinterlands in ways that contributed to the rise of critical race theory. As they say, it is hard to kill an idea.

Critical race theory, Marxism, McCarthyism, Academic freedom, Purges, Intellectual history, Left-wing movements, Radical thought, Critical legal studies, The sixties, Student protest

Abstract:
The chronicle proceeds as a dialogue between the fictional alter ego, Rodrigo Crenshaw, and an older professor. After meeting in Rodrigo's city, the two friends, joined later by "Giannina," go out to dinner. Rodrigo, who is on his law school's admissions committee, has been thinking about affirmative action.

Prompted by his conservative colleague "Laz," Rodrigo has formulated a several-pronged attack on Sander's premise that "stairstep" admissions (and, later, law firm hiring) just hurts the cause of black lawyers.

The professor presses Rodrigo to defend his views, and the arrival of Giannina requires him to articulate them even more. You will enjoy the lively give-and-take among these three intellectuals of color.

civil rights, critical race theory, law school admission standards, affirmative action, racial discrimination, racism, law school admission policies, Richard Sander

Abstract:
In recent years, idealist approaches and discourse analysis have moved to the fore. Perhaps inspired by Continental philosophers such as Jacques Derrida and Michel Foucault, and by trends in literary criticism and theory, many contemporary critical race theorists work almost entirely in the realm of discourse. Although the occasional realist work does make an appearance, Critical Race Theory today is almost entirely dominated by the analysis of text, discourse, and mindset. The study of "race" has supplanted the study of race.

A new collection illustrates this shift. Crossroads, Directions, and a New Critical Race Theory, edited by three members of the new generation of critical theorists, brings the ascension of discourse analysis into bold relief. With essays on narrative, voice, the heroic, essentialism, anti-essentialism, and the black/white binary paradigm of race, Crossroads, which grew out of a recent Critical Race Theory conference at Yale Law School, constitutes a major, implicit statement in favor of discourse analysis and against the materialist/realist approaches of the movement's founding figures.

This Essay begins in Part II by outlining the history of Critical Race Theory and showing how a little recognized split between the two types of theories developed. Part III summarizes Crossroads and shows how it falls almost entirely on the side of discourse analysis. Part IV explains the limits of this approach and how it fails to even explain changes in the very racial consciousness it seeks to understand. Part V offers a materialist explanation for the recent turn. Part VI describes a radically different book written recently by Derrick Bell, one of the movement's founding figures; and Part VII concludes by sketching some issues that the next major volume of critical race writing should address.

civil rights, human rights, civil liberties, racism, racial discrimination, critical race theory, Derrick Bell, socioeconomic, prejudice

Abstract:
A recent innovation in criminal justice, the restorative justice movement has serious implications for the relationship among crime, race, and communities. Restorative justice, which sprang up in the mid-1970s as a reaction to the perceived excesses of harsh retribution, features an active role for the victims of crime, required community service or some other form of restitution for offenders, and face-to-face mediation in which victims and offenders confront each other in an effort to understand each other's common humanity.

This article questions whether restorative justice can deliver on its promises. Drawing on social science evidence, the author shows that the informal setting in which victim-offender mediation takes place is apt to compound existing relations of inequality. It also forfeits procedural rights and shrinks the public dimension of disputing. The article compares restorative justice to the traditional criminal justice system, finding that they both suffer grave deficiencies in their ability to dispense fair, humane treatment. Accordingly, it urges that defense attorneys and policymakers enter into a dialectic process that pits the two systems of justice, formal and informal, against each other in competition for clients and community support. In the meantime, defense attorneys should help defendants find and exploit opportunities for fair, individualized treatment that may be found in each system.

restorative justice, civil rights, inequality, victim-offender mediation, common humanity, federal criminal justice system, alternative justice, informal justice

Abstract:
The purpose of this Essay is two-fold: first, to recall Critical Race Theory to its materialist roots and second, to encourage it to consider making common cause with the incipient movement for economic democracy. I begin by demonstrating, through examples and argument, that idealist theories like [Professor Charles R.] Lawrence's, which explain racial dynamics in terms of thoughts, words, and internal urges, are analytically incomplete. I will then argue that attending to the material side of race and racism confers a number of benefits, while at the same time avoiding numerous drawbacks associated with the idealist approach. Finally, I will demonstrate that the approach I have recommended enhances the analysis of certain recurring social problems.

civil rights, critical race theory, unconscious discrimination, socioeconomic competition, affirmative action, immigrants, economic inequity, social inequality, purposeful intent

Abstract:
The author, Professor Richard Delgado, takes as his point of departure a remark by the chair of the University of Colorado committee that voted academic sanctions against Ward Churchill. This essay explores the role of retaliatory motives in academic misconduct cases. In Churchill's case, Colorado authorities delved deeply and painstakingly into Churchill's publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation's relation to the hue and cry that led to it have on its own legitimacy? Professor Delgado examines various possible frameworks for analyzing cases like these and argues that the committee chair's way of seeing the matter was the incorrect framework.

civil rights, academic freedom, academic sanctions, fair employment practice, freedom of speech, First Amendment, Ward Churchill, University of Colorado

Abstract:
This Review begins by summarizing The Trouble with Principle, by Stanley Fish, paying particular attention to passages that show Fish at his antifoundationalist best--sections on hate speech, affirmative action, academic freedom, and religion. Because Fish's prose is elegant but his argument demanding, I offer a metaphor designed to help readers understand Fish's insight. I then show that the defect Fish highlights is part of a larger disconnection that afflicts legal discourse, looming up not only when we discuss affirmative action, hate speech, and other controversial public-law issues, but also when we try to fit ordinary private-law rules into a coherent system. In short, Fish exposes only part of a more general self-delusion running throughout our system of legal thought. In a concluding section, I recommend a pragmatic, anti-normative approach, similar to Fish's, but applied more broadly, to guard against thuggery operating under the guise of principle. Such an approach, tied closely to our deeply held moral convictions, I argue, can help us remember to support what we need to support, resist what we need to resist, and avoid losing our way, like a proprioceptively handicapped patient, in the "body of law."

legal reasoning, civil rights, legal rhetoric, hate speech, affirmative action, academic freedom, free speech, religion, discrimination, Stanley Fish

Abstract:
In support of our bid for an alternative major prize for Derrick Bell and to honor his career and scholarship, this Essay summarizes some of his contributions to the understanding of racial replication, together with those of a few of his friends, including ourselves. A midget, you see, standing on top of the shoulders of a giant, can occasionally see even farther than the giant. Part I explains how culture replicates itself. Part II considers a set of homeo-mechanisms having to do with interest-convergence (one of Bell's signature themes) or the structure of legal thought, both of the conservative and the liberal variety. Part III explores differential racialization, including the part played by breakthrough legal decisions like Brown.

civil rights, Derrick Bell, James Watson, Francis Crick, Brown v. Board of Education, legal formalism, affirmative action, critical race theory, legal storytelling, social relations

Abstract:
This paper is in response to a query from a colleague whose son, a promising high school runner, was considering UC-Berkeley. She asked about the school 's running program, political and intellectual atmosphere, and the legacy of 1960's-era track coach and Dean of Students Brutus Hamilton, after whom the track stadium is named.

critical race theory, racism, prejudice, mentors, academia, law school professors, legal profession, Brutus Hamilton, UC Berkeley

Abstract:
Under the influence of radical feminism and critical race theory, the last remnant of 1890s mechanical jurisprudence is beginning to give way to a view of speech that is flexible, policy-sensitive, and mindful of communication theory, politics, and setting. Steven Shiffrin's Dissent, Injustice, and the Meanings of America is a welcome addition to this emerging "First Amendment legal realism" vein of scholarship.

This Review begins in Part I by outlining Shiffrin's book, paying particular attention to its principal themes of flexibility of analysis on the procedural side and encouragement of citizen participation and dissent on the substantive side. As Part II will make plain, an interpretation of First Amendment law that places dissent at its center and protects speech insofar as it takes the form of dissent offers a vital corrective to social apathy and domination by big corporations. Nevertheless, any approach to free speech law that emphasizes (even flexibly) a single variable has overtones of the old formalist approach and is apt to work injustice in certain cases. In particular, Part II, which focuses on Shiffrin's treatment of hate speech, shows that, although he comes to the correct general conclusion by way of his dissent-based approach, Shiffrin loses nuance by framing the problem in that fashion. Part III outlines additional features that future realist analysis should consider. Part IV draws on all of the above to posit a number of practical solutions to the problem of regulating hate speech. The book review concludes with some lessons that realist First Amendment scholars should draw from Shiffrin's book, both from its formidable strengths as well as from its occasional lapses.

mechanical jurisprudence, law and society, critical legal study, feminist legal theory, critical race theory, First Amendment, free speech, Roscoe Pound, Steven H. Shiffrin

Abstract:
Richard Delgado and Jean Stefancic examine the history of racial mistreatment of citizens of color in California. Beginning with incidents of racial brutality during the early Spanish colonial period and proceeding into the present, Delgado and Stefancic reveal that California has not been the egalitarian paradise many suppose. The authors write against a background of recent attacks on affirmative action in higher education which raise the prospect that the diversity rationale that universities had relied on to justify race-conscious admissions policies may no longer be constitutional. Recognizing this possibility, the authors offer remediation-making amends for past misbehavior--as an alternative basis for maintaining race-conscious programs in higher education. In particular, the authors argue that historical and recent racial discrimination in states such as California provides sufficient justification for adjusting admissions and hiring practices so that affected minority groups are placed in the status quo ante, that is, the position they would have been in had the discrimination not taken place.

racial discrimination, California history, civil rights, equal rights, college admissions, hiring practices, affirmative action, academia

Abstract:
The fiftieth anniversary of Brown v. Board of Education provided a good time to step back and survey recent writings about race. It brought forth a wealth of scholarship-retrospective, critical, and celebratory. The three books that I take as illustrative are each, in their way, excellent. Reflective, even ruminative, All Deliberate Speed interweaves the story of author Charles Ogletree's life with national events that took place during the same period, such as the Brown decision, the Anita Hill-Clarence Thomas hearings, and the lawsuit for black reparations growing out of the 1921 Tulsa riots. Ogletree's book brings these events to life, while reinforcing how much remains to be done to effectuate Brown's mandate. In Whitewashing Race, Michael K. Brown and his coauthors put forward a scorching critique of an emerging neoconservative approach to race and show how it has produced a new type of tough-minded, "realist" racism exemplified by Stephen and Abigail Thernstrom's America in Black and White: One Nation, Indivisible. Alexander Tsesis's book, The Thirteenth Amendment and American Freedom, audaciously seeks to reorient racial jurisprudence so that it avoids the cultural inertia and doctrinal baggage that recent books - including the other two reviewed here - document. He seeks to place such jurisprudence on sounder footing.

Although these otherwise strong books contribute greatly to current knowledge, they - like much recent writing about race - nevertheless devote scant attention to two issues that ought to be on the agenda of every serious treatment of race: white privilege and the place of nonblack groups such as Latinos and Asian Americans in the civil-rights equation. Not only for African Americans, but also for other groups, two forces - oppression and favoritism - maintain white supremacy, so that ending one without attention to the other would do little to improve matters. If the demise of formal, state-sponsored racism has left in place a system of informal favors, exchanges, informational networks, old-boy references, and college-entrance criteria by which whites see to their own, the system of white-over-black power relations will hardly budge. White privilege thus demands the serious attention of every race scholar.

This Review proceeds in four parts. Part I describes the three books. Part II highlights what is valuable in each and points out a few minor respects in which they fall short. Parts III and IV identify a deeper shortcoming: the failure to come to terms with white privilege and the black-white binary paradigm of race, issues that lie outside the conventional paradigm of race scholarship but that are becoming more salient with each passing day.

racial discrimination, civil rights, oppression, white supremacy, white privilege, favoritism, Charles J. Ogletree Jr., Michael K. Brown, Alexander Tsesis, Brown v. Board of Education

Abstract:
Randall Kennedy's book, Nigger, asserts the startling thesis that nigger may be a loaded term-the worst in the lexicon of racist insults-but still does not warrant banishment from polite society. Because "a word is not a crystal, transparent and unchanged," but capable of bearing many meanings, we should not condemn nigger categorically or endow it with more power than it deserves. Instead, we should use the term casually, repeatedly, even laughingly, so as to deprive it of its sting. According to Kennedy, this jiu-jitsu approach will defang the word, reclaim it from bigots, and enable its former victims to elude its awesome power.

On the way to developing his audacious proposal, Kennedy reviews the word's origin, history, and many uses, including times when it has found its way into court proceedings. He discusses the perils of fighting it and advocates the solution-using the word frequently and casually so as to weaken its impact-that many of his readers have found so startling. The author of leading work on black crime and the death penalty, and a critic of contemporary racial movements, Kennedy advances a number of familiar themes, many of them bracing, intellectually appealing, and in keeping with the feisty independence that marks his earlier work: the need to avoid dwelling on victimization and wounded feelings, an emphasis on colorblindness, and the need to avoid overreaction. He also places responsibility on the pro-regulation side to show that their problem is real and not the product of a herd mentality, increased racial sensitivities, or media hype.

word origin, word power, etymology, racial discrimination, civil rights, equal rights, Randall Kennedy, nigger

Abstract:
This article argues that our times, characterized as they are by dreams of vast wealth, environmental destruction, and growing social inequality, resemble nothing so much as earlier get-rich-quick periods like the Gilded Age and the California gold rush.

I put forward a number of parallels between those earlier periods and now, and suggest that the current fever is likely to end soon. This will come as a relief to those of you who, like me, deplore the regressive social policies, bellicose foreign relations, and coarsening of public taste that we have been living through-even if some of our more libertarian friends found the times invigorating.

civil liberties, civil rights, Fourteenth Amendment, critical race theory, racism, inequality, official corruption, environmental law, international law, Gilded Age

Abstract:
Because of conservative challenges to affirmative action, standardized testing today is emerging as the chief barrier to the educational ambitions of minorities and the poor. The same conservatives who have been attacking affirmative action strenuously support standardized testing, equating test scores with the objective merit that affirmative action is said to ignore. A host of critics take issue with that equation.

I outline here the case against standardized testing. But before I begin, I would like to note that many of us are deeply invested in test scores, having done well on standardized tests and seen them open doors for us as we have gone through life. Yet, I would like to give you some reasons to start thinking about those scores in a different light. And, toward the end, I will address the reaction that many listeners have on hearing arguments like these, that is, what is the use, things will never change. I provide a series of alternatives to the LSAT and ways to assure that these alternatives receive attention.

LSAT, Law School Admissions Test, standardized testing, affirmative action, SAT, GRE, ETS, discrimination, minorities, inequity, poor

Abstract:
Does United States antidiscrimination law embrace a black/white binary paradigm of race, in which other, nonblack minority groups must compare their treatment to that of African Americans in order to gain redress? In this Derrick Bell Lecture, Professor Richard Delgado argues that it does, and that other minorities also fall from time to time into the trap of exceptionalism, placing their own experiences at the center of discussion. Taking as his text a recent chronicle by Derrick Bell, Bluebeard's Castle, Professor Delgado argues that narrow binary thinking-regardless of the group that engages in it-weakens solidarity, reduces opportunities for coalition, deprives one group of the benefits of the others' experiences, makes one overly dependent on the approval of the white establishment, and sets one up for ultimate disappointment. The black/white binary, in short, is bad for blacks, just as her foolish fixation on the gloomy noble of operatic fame finally doomed Judith, the heroine of Bluebeard's Castle.

critical race theory, black/white binary, discrimination, desegregation, racial realism, legal reform, interest convergence, Derrick Bell, Bluebeard's Castle, Brown v. Board of Education, Mendez v. Westminster School District

Abstract:
The editors of the Harvard Civil Rights -Civil Liberties Law Review have invited me to offer my thoughts on the relationship between civil rights and civil liberties. Both are emblazoned on their masthead. A few years ago, one of my favorite authors, historian Robin Kelley, wrote a prize-winning book about white media, black culture, and the huge gulf between them, entitled Yo' Mama's Disfunktional. Does a similar gap exist between civil rights and civil liberties? Is the masthead dysfunctional, committing CR-CL by its terms to an inherently self-contradictory agenda, like a law review that billed itself as "The Global Development and Environmental Protection Journal" or "The Review of Religion and Atheism"?

Are civil liberties and civil rights in tension, pulling in different directions? Is it possible for a society to have both, in full measure and without limitation? If not, should CR-CL split up into two separate journals? Part I of this Essay examines a few instances in which civil rights and civil liberties may be entirely compatible. Then, Part II shows how our system of civil rights and civil liberties can exhibit tensions and strains, as exemplified in the area of hate speech. Part III explains the source of these tensions, while Part IV offers some thoughts on how to live with them. I hope that what follows will prove helpful not just in this one area but will also enable us to understand better the relationship between civil rights and civil liberties in general.

civil rights, civil liberties, jurisprudence, racial justice, contradiction, compatible

Abstract:
In this episode of Rodrigo's chronicle, Rodrigo speaks with his mentor, a senior law professor, about his thesis involving Brown v. Board of Education and Latinos. Together they discuss how the outcome of the Supreme Court case benefited white self-interests and modestly advanced black interests, while creating a black/white binary of race, offering little for non-black minorities. Their talk provides an analysis of Ian F. Haney Lopez's book, RACISM ON TRIAL: THE CHICANO FIGHT FOR JUSTICE.

civil rights, critical race theory, Latino History, racial discrimination, Latino civil rights, racial justice, Ian F. Haney Lopez

Abstract:
This Essay reviews Mary Dudziak's Cold War Civil Rights, which demonstrates how the self-interest of elite groups fueled breakthroughs for blacks in order to advance U.S. strategic objectives in the Cold War with international communism. An impressive feat of historical research, Cold War Civil Rights strengthens the case for crediting material explanations for the uneven line of racial progress and retreat.

civil rights, racial discrimination, critical race theory, Derrick Bell, Mary Dudziak, Cold War, Brown v. Board of Education, Black radicals, War on Poverty

Abstract:
Using the alternating voices of rap and standard academic discourse, this short piece is a plea for the civil rights community to "get real" and to put some of its efforts into reforming the actual conditions under which many of the less fortunate live. The rap passages are rude, direct, even raunchy, while the prose passages proceed in academic English. This dichotomy is intentional: Rap represents the voice of the people, the voice from below, the voice of those who live in neighborhoods filled with broken glass. It is an impatient, insurgent voice that bears little in common with the complex, jargon-filled sentences of most contemporary left discourse. The latter voice, in the author's view, has become too detached from that of the many constituents who worry about their children turning to gangs and drugs and dropping out of school, about police harassment, and where their next paycheck is coming from.

civil rights, discrimination, critical race theory, disadvantaged, academic discourse, legal discourse, voice of the people, hip hop, rap, legal scholarship

Abstract:
Two recent books illustrate this preoccupation with interracial coalition. Lani Guinier and Gerald Torres's book, The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy, forcefully argues that minorities should unite, beginning with local issues, in pursuit of social justice. Eric Yamamoto's book, Interracial Justice: Conflict and Reconciliation in Post-Civil Rights America, outlines a program for minorities to bury their grievances and work together toward essentially the same ends. The two books differ greatly in their organization, style, and scope. For example, one is elegant, even overwrought, while the other is lucid and terse. But they share the faith that America's hope lies with a heady coalition of the dispossessed. They argue that outsider scholars and communities, because of the legacy of oppression, enjoy a deeper, sharper sense of social justice than the more complacent majority. Accordingly, if blacks, Latinos, Asians, Native Americans, and down-and-out whites join forces, not only they but also the country as a whole will benefit.

Part I of this Review briefly describes and compares the Guinier-Torres and Yamamoto books, noting their strengths and weaknesses. Part II explores the logic of coalition making. Part III shows that when race is an element, coalition making becomes more, not less, problematic. Part IV examines the historical record of interminority coalitions. The Conclusion urges reformers to replace the procedural objective of coalition with the substantive goal of social justice and to work to realize that goal both individually and collectively. The hope for a great union of dispossessed people standing shoulder to shoulder is, ultimately, an evasion, motivated by the unspoken desire to let someone else do the hard work. The "differential racialization" hypothesis posits that racial harms will vary from group to group and over time. It logically follows therefore, that redress for those harms will take culturally specific forms so that the collective dimension of struggle will very often take second place to the individual one.

civil rights, racial discrimination, critical race theory, interracial justice, coalitions, social reform, panethnicity, browning of America, politics

Abstract:
In this episode of Rodrigo's chronicle, Rodrigo meets with his mentor, a law professor, before a party and discuss celebratory jurisprudence. Their discussion focuses on Hernandez v. Texas as a milestone for Latino civil rights.

civil rights, critical race theory, celebratory jurisprudence, Hernandez v. Texas, Latino civil rights

Abstract:
In this episode of the Rodrigo chronicles, the eccentric law professor's young protege discusses his new thesis involving invisible "racism," or the near disappearance of the term. He postulates that civil rights no longer serve their original, supposed purpose. Together, the professor and his fiancee and Rodrigo and his wife consider instances that evidence racism's existence and whites' denial of their occurrence. Realizing that revealing a problem does not solve it, they propose tactics to uncover subtle racism and ways to prevent it. The two protagonists come to a bittersweet realization, namely that the purpose of civil rights has undergone a silent shift. Originally designed to protect minorities' interests in fair housing, employment, and equal education - in short, nondiscrimination - it has taken on a new dimension. Today, that body of law aims to protect whites' interests and feelings, principally their wish not to suffer the indignity of being labeled a racist.

Interest conversion, civil rights, critical race theory, discrimination, Brown v. Board of Education, 1964 Civil Rights Act, colorblindness, black-white paradigm of race, affirmative action

Abstract:
This essay reviews Ward Churchill's "On the Justice of Roosting Chickens: Reflections on the Consequences of U.S. Imperial Arrogance and Criminality" (2003).

One of the most talked about - but least read - books of recent years, "On the Justice of Roosting Chickens," documents a long history of U.S. wars, invasions, and violations of international law on the way to concluding that when the terrible events of 9/11 took place, the U.S. deserved and should have expected retribution. In popular language, we "had it coming." As the reader may recall, when Hamilton College rescinded Churchill's invitation to speak in the winter of 2004, it set in motion a cascade of events including further such cancellations, efforts in Colorado to dismiss him from his tenured position, and nightly discussion on Fox News.

The review evaluates Churchill's argument that the U.S. is an outlaw nation, as well as his "little Eichmanns" corollary that the investment bankers and stockbrokers who perished in the conflagration were complicit with the U.S. war machine and thus legitimate targets of the Muslim suicide bombers. It breaks his argument down into its component parts or premises, shows which ones are moral and which ones factual, and evaluates each one's plausibility and cogency. The review also addresses the author's treatment at the hands of Colorado authorities and the implications of that treatment for academic freedom.

freedom of speech, First Amendment, civil rights, terrorism, human rights, Imperialism, Ward Churchill, international law, academic freedom