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Abstract:
This article discusses empiricism and narrative as the heirs of Legal Realism. It addresses both the legal academy's increasing emphasis on empirical research and the ways in which stories and storytelling are sifting into litigation and legal academic literature.

The article also questions whether there are indicators of narrative truth by looking through the lenses of several recent cases, including Gonzales v. Carhart and Parents Involved in Community Schools v. Seattle School District No. 1.

Stories, storytelling, empiricism, narrative, Gonzales v. Carhart, Parents Involved in Community Schools v. Seattle School District No. 1, Brown v. Board of Education, Karl Llewellyn, narrative, social science, racial segregation

Abstract:
As kids we called it having to use the old noodle: needing to think real hard about something that was real hard to think about. It was the kind of thinking that would cause your face to get all scrunched up, and if you didn't stop or if someone didn't stop you - it would eventually make your head hurt. The expression came from our families when we figured something out: that's using your old noodle, they'd tell us. The noodle we eventually understood to be our brains, which, we reckon, do look something like noodles, though we were quite unaware of that fact. At the time, using your noodle was just one of those things our folks would say, and we could make sense of in a practical sort of way.

There is no rule that only kids can use the old noodle: you don't have to stop when you grow up, even if you do call it something more distinguished, like problem solving or critical thinking. The authors of this article are grown-up law teachers, which means that, whatever they call it, they are pretty much professional noodle users. This brings us to our problem. Explaining his opposition to even the mildest form of affirmative action Supreme Court Justice Clarence Thomas offered the anti-egalitarian maxim for the new millennium: Government cannot make us equal. Some folks see something quite appealing in this pithy little quote. Its attraction, however is superficial. In fact, we are fairly certain that the proposition is quite wrong. Government can make us equal, and, under current circumstances, it should. But demonstrating the errors in the proposition is no easy matter. It will take, we think, some serious use of the old noodle.

Fortunately, on this score, we have had good role models: our folks, our families, our friends. And Rodrigo.

Professor Richard Delgado is one of the founders of Critical Race Theory. He offers a template for critical thinking in two senses - not just the radicalism associated with Critical Legal Studies (CLS) and Critical Race Theory (CRT) of questioning received wisdom, but more importantly, critical thinking in the most basic philosophical sense. He is concerned with the criteria by which we test notions of justice, fairness, and equality - in short, the criteria of knowledge and reasoning. In this article, we develop the idea of critical thinking as a concept of basic philosophy and race reform. By critical thinking, we mean both the criteria of good reasoning and propositions that, if widely understood, would make a large percentage of the populace revise its background beliefs and world views. To operationalize this concept of critical thinking, we apply it to test Justice Thomas's assertion that Government cannot make us equal.

Equality, Equal, Critical thinking, Affirmative action, Critical Legal Studies, Critical Race Theory, Criteria of knowledge, Reasoning, Justice, Fairness, Equality, Neutral legal rules, Prejudice, Neutrality, Racism, Racial injustice, Formalism, Race Theory, Clarence Thomas

Abstract:
Black America, some people said, was dying. And they wondered what they would hear in the souls of white folk when white America heard the news.

Part of the story was told in June 1995, by the Supreme Court. The session of the Court had not been convened explicitly or exclusively to determine the fate of black America. Still, it was clearly on the agenda, with no less than three major race-related disputes on the High Court's docket.

And what the Court had to say on such matters did matter. As the highest tribunal in the land, it possessed the power to shape the law, and, the power to shape the larger society. This last point was the focus of academic debate--some questioned the societal impact of the Court's decisions--but this much remained certain: the law would play some role in shaping the development of societal conventions, and on matters of law, the words of the Supreme Court tended to be the final ones.

More importantly, the Court helped establish the parameters of cultural discourse. It was a major participant in the national political dialogue, and its voice carried an authority not often accorded its elected counterparts. Ironically, the paradigms it helped shape were not only legal ones: some were epistemological, some quite political, some downright moral. In reinforcing popular attitudes and beliefs, or in challenging them through new perspectives and dissonant information, the Court helped establish a national mood. It confirmed or denied the citizenry's sense of what is real and what is right. Over time, it transformed their sense of both the possible and probable, and forever changed the way the people saw one another and saw themselves. Yes, the Court's words mattered.

And what the Justices had to say on this occasion, in the closing weeks of their judicial term, might have mattered more than usual. Their words were addressed to the most intractable of national problems: the enduring dilemma of racial inequality. For a waiting nation--for judges, lawyers, lawmakers and their constituents, for teachers and students, parents and children, for the American people of every station, and every hue-- the Court would do no less than newly define the meaning of racial equality. It would be a progress report of sorts: how equal was America? But more importantly, it would set the agenda for the millennium. In this struggle for racial equality, what could be achieved, and how? Whose struggle was it, and when could it end? There were nine of them, one was black and eight were white, and they would need to explain what their souls had to say when they pondered the fate of black America.

They had chosen three specific issues to address: the racial desegregation of America's public schools; the national government's use of preferences or presumptions to benefit racial minorities; and the explicit reliance on race in the creation of electoral districts as a device to ensure minority representation in the federal legislature.

Doctrine, Narrative, Chronicles, Story, Stories, Race, Racial equality, Racial inequality, Segregation, Desegregation, Minorities, Minority, Preferences, Public schools, Racial imbalance, Affirmative action, Economically disadvantaged, Minority contractors, Discrimination, Redistricting

Abstract:
The goal of this Article is to assess two Supreme Court desegregation decisions. It is our view that Board of Education v. Dowell and Freeman v. Pitts are, by almost every measure, seriously flawed decisions. The opinions of the Court rest on epistemic premises - reductionist views of race and racism, and an absurdly formalistic conception of equality - that are by turns either anachronistic, cramped and inauthentic, or demonstrably wrong. Worse, they promote a vision of American society - fragmented, hierarchical, and shamelessly individualistic - that is fundamentally inconsistent both with the egalitarian norms embodied in the Fourteenth Amendment and with the moral mandate that the Court once assumed on behalf of all Americans. And if our own jurisprudential leanings do not permit us to declare that these decisions are in error, they do not preclude us from insisting that Freeman and Dowell are, in human terms, utterly tragic. In the end, what Freeman and Dowell achieve may be nothing less than the virtual death of desegregation. The project is torn from its constitutional moorings; stripped of its history; isolated from its cultural contexts; and divorced, finally, from its moral underpinnings. What is left is an empty shell: a jurisprudence that is isolated, marginalized, and vacant. Consigned, perhaps, to irrelevance, the law of desegregation survives, for now, in a constitutional ghetto: an insular doctrinal realm where comprehension is impoverished and compassion subordinated. It is a place where human initiative seems futile, a place fast running out of hope.

Desegregation, Race, Racism, Racial, Equality, Inequality, Fourteenth Amendment, Equal Protection, Race neutrality, Segregation, Public schools, School system, School district, Constitutional law