The Racial Subject in Legal Theory
THE OXFORD HANDBOOK OF LAW AND POLITICS, Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira, eds., August 2008
Posted: 6 Feb 2008
For the better part of the twentieth century, neither the subject of race, nor its racialized subjects, played a significant role in legal scholarship. Only recently have legal scholars began seriously to engage matters of race and the experiences of people of color in the United States. This chapter, which will appear in the 2008 version of the Oxford Manual of Law and Politics, tracks why, and when, race moved from being virtually nonexistent to occupying the margins and finally assuming a prominent place in legal scholarship. It critically maps the ways in which scholars have addressed the problem of race in legal theory in an attempt to provide context for ongoing debates about the persistence of racial inequality, to underscore the limitations of early theories about race and discrimination, and, finally, to highlight the promise of engagement with "traditional" legal theories for understanding the nature of racial subordination. Part I explores legal discourse on race in the years preceding the groundbreaking U.S. Supreme Court decision, Brown v. Board of Education. Part II considers Brown and its aftermath, tracking the origins of the legal process theory embraced by scholars during the 1950s, 1960s, and 1970s. Part III discusses the rejection of legal process theory that characterized the 1980s and 1990s, and charts the emergence of Critical Race Theory (CRT), a movement that made race and the experiences of racial minorities the subject of legitimate intellectual discourse in American legal scholarship. Finally, Part IV looks at recent scholarly work in the area of race, documenting, among other things, the multiple understandings of race, identity, and subordination now prevalent in many legal communities. The chapter ends by identifying fruitful areas of future study regarding the place of race in American law.
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