40 Pages Posted: 24 Sep 2005
This Essay, written for a 2005 symposium issue of the U.C. Davis Law Review, responds to an important question posed by the symposium organizers: What is the future of critical race feminism? In this Essay, I use a common law contractual good faith antidiscrimination claim, developed and proposed by me in a series of previously written articles, to help answer that question. While, in the past, my proposed good faith claim aimed principally to operationalize some recurring and foundational insights of critical race theory, such as the race crits' critique of the intentionality requirement in conventional antidiscrimination law, the Davis Symposium inspired related challenges and questions. What does my good faith antidiscrimination claim do for the future of critical race feminism? Does the claim have the potential also to operationalize foundational tenets of critical race feminism? Additionally, how might the insights of critical race feminists enable the further development of my good faith project?
This Essay begins to answer those questions. To provide background, it lays out the theoretical foundations of my proposed good faith antidiscrimination claim, specifically describing Devon Carbado and Mitu Gulati's influential working identity theory and its impact on the development of the claim. The Essay then sets forth aspirations of my proposed good faith claim, as well as for the future of critical race feminism more generally, that call for more aggressive critical engagement and 'publicization' of private law. It then describes the elements of the good faith antidiscrimination claim itself, and explains how the claim was developed to operationalize Carbado and Gulati's working identity theory. Finally, in the last part of the Essay, I begin to explore the potential that my proposed claim may have for transferring the related critical race feminist theories of antiessentialism and intersectionality into praxis, and, on the flipside, the implications those theories may have for the further refinement and development of my good faith claim. In this regard, the Essay defines the foundational critical race feminist concepts of antiessentialism and intersectionality and offers some responses to various critiques of those concepts. It then attempts to operationalize antiessentialism and intersectionality vis-a-vis my proposed claim, specifically in the context of sexual harassment and a sexual harassment hypothetical, in order to demonstrate how the claim might move critical race feminism toward praxis along the lines I have suggested elsewhere in the Essay.
Keywords: Antidiscrimination, Feminism, Critical Race Theory, Sexual Harrassment
JEL Classification: K30
Suggested Citation: Suggested Citation