Daily Archives: May 11, 2008

Derrick Bell and James Madison on Interest Convergence

By Alfred Brophy

Professor Derrick Bell of New York University Law School is famous for, among other work, the “interest convergence” theory: that white people will support racial justice only to the extent that there is something in it for them. That is, only to the extent that there is a “convergence” between the interests of the white people and racial justice. Perhaps the best-known application of this thesis involves the 1954 decision in Brown v. Board of Education: the idea is that the Supreme Court supported Brown because it served the United States’ cold war agenda of supporting human rights. Moreover, it was a decision that was largely imposed (in Bell’s picture) on the south by people in the north. Thus, the interests of those who were devising the decision converged with the interests of the black plaintiffs.

There’s a lot that can (and has) been said about this. For instance, it implies a close connection between judges and the interests of the white community more generally. There is relatively little room for judges to have autonomy to make their own decisions. It also denies the African American community much of a role in shaping law. I’m planning on talking a lot more about the ways that African American intellectuals set the agenda for constitutional development in the twentieth century soon. (A quick take of my ideas appears here.)

So while I disagree with the strong version of his thesis, I have to agree with a weaker version of it: that the will of the majority tends in the direction of its self-interest. Bell’s ideas channel that of another great political theories, James Madison. Madison was one of the co-authors of a series of newspaper articles supporting adoption of the Constitution known as the “Federalist Papers.” One of Madison’s great concerns was about the influence of “factions.” In Federalist 10 Madison addressed the problem of factions and in particular the problems with factions have a majority–that the majority will allow its interests to dominate the “public good”:

When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

Madison wondered how the effects of factions might be limited:

Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

Madison wrote more fully about the problems with the self-interest of factions in an essay written on the eve of the Constitutional Convention in 1787, Vices of the Political System of the United States. Madison asked what would restrain a majority “from unjust violations of the rights and interests of the minority, or of individuals?” Well, only three things and he found none of them very powerful:

1. a prudent regard to their own good as involved in the general and permanent good of the Community. This consideration, although of decisive weight in itself, is found by experience to be too often unheeded. It is too often forgotten, by nations as well as by individuals that honesty is the best policy. 2dly. respect for character. However strong this motive may be in individuals, it is considered as very insufficient to restrain them from injustice. In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame. Besides, as it has reference to public opinion, which within a particular Society, is the opinion of the majority, the standard is fixed by those whose conduct is to be measured by it. The public opinion without the Society, will be little respected by the people at large of any Country. Individuals of extended views, and of national pride, may bring the public proceedings to this standard, but the example will never be followed by the multitude. Is it to be imagined that an ordinary citizen or even an assemblyman of R. Island in estimating the policy of paper money, ever considered or cared in what light the measure would be viewed in France or Holland; or even in Massts or Connect.? It was a sufficient temptation to both that it was for their interest: it was a sufficient sanction to the latter that it was popular in the State; to the former that it was so in the neighbourhood. 3dly. will Religion the only remaining motive be a sufficient restraint? It is not pretended to be such on men individually considered. Will its effect be greater on them considered in an aggregate view? quite the reverse. The conduct of every popular assembly acting on oath, the strongest of religious Ties, proves that individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets.

Obviously Madison is talking about legislatures rather than courts, but Bell and Madison are running on closely parallel tracks. They both emphasize the role of self-interest (or group interest) in politics. What interests me here is that Bell’s thesis has a distinguished parentage. But also I think it’s important to think about ways that the Constitution–that Madison designed–regulates the expression of self-interest.

I’m not so pessimistic as Bell and Madison (though that may just mean that I’m wrong). Perhaps we should talk some more about the ways that the Constitution and judiciary limit self-interest and protect the rights of racial minorities.

Revisiting Narratives in Legal Scholarship

By Alfred Brophy

We haven’t heard a lot about use of narratives in legal scholarship of late. They were quite popular in the 1980s and 1990s, but scholars have migrated to other methods–partly towards empirical legal studies, partly towards legal history, and to other places as well. There were a lot of attacks on narratives, including questions about whether they are “legal scholarship” or some other kind of advocacy.

One thing that I think was lost in that debate was the role that narratives have held in American history. Was not Uncle Tom’s Cabin a narrative attack on southern legal institutions? To be sure, it was a lot of other things, too. But I have never seen Uncle Tom’s Cabin ever discussed in the narrative debate.

Now a student at Yale Law School, Monica Bell, enters the scene with an article forthcoming in the University of Pittsburgh Law Review that looks at the work of four younger African American legal scholars–Kenneth Mack of Harvard, Devon Carbado of UCLA, Tracey Mears of Yale, and Richard Brooks of Yale. Bell observes that none of them are writing in a narrative tradition. Bell herself, however, begins the article with several pages of narrative (a dialog between “me” and another student at the fictional Calabresi Law School–and I’m going to put out a wild guess here that that’s Yale Law School).

Here’s her abstract:

This Article revisits the debate over minority voice scholarship, particularly African-American scholarship, that raged in the late 1980s and early 1990s with the advent of critical race theory (CRT). Many critical race theorists elevated the voices of minority scholars, arguing that scholarship in the minority voice should be accorded greater legitimacy than white intellectuals’ work on race. Many scholars of all ethnicities disagreed with Crits’ analyses. They charged that good scholarship by minority writers should be judged as a fact-in-itself, not ghettoized or subjected to less rigorous analysis than other scholarship. This Article explores the work of four current up-and-coming black legal scholars to revisit that early disagreement and its ramifications in the modern black legal academy. By and large, it appears that the anti-CRT writers have won the debate. Today’s legal academy more closely reflects the anti-narrative perspective on scholarship. Black scholars continue to write on racial topics, but tend not to convey points through claims of authenticity. This Article suggests that one reason African-American legal scholars continue to write about race, despite the risks of doing so, is their sense of obligation to the black community. I contend that this obligation runs just as deeply for black academics as it does for black practitioners, who tend to closely relate the legal profession with the struggle for racial justice.

You can download the article for free here.

I very much enjoyed Bell’s article. But I wonder about this statement: “The small number of courses and professors who teach critical race theory at the most elite institutions is additional evidence that critical race theory is gradually being phased out of legal academe.” (Bell at 45)

We may be too far down the road from narratives for them to make a comeback, but scholarship about the centrality of race to the legal system shows no sign of diminishing. In fact, I think we’re going to continue to see vibrant, terrific scholarship on race and law. There’s no shortage of subjects for study or of interest in it.

Thanks to Mary Dudziak’s legalhistoryblog for bringing this to my attention.

The Most Important Books to Randall Kennedy

By Alfred Brophy

The current issue of Newsweek features Harvard Law Professor Randall Kennedy. It talks about the five most important books to him. Pretty intriguing list. Professor Kennedy writes:

1. “The American Political Tradition” by Richard Hofstadter. It ignited my interest in history.

2. “Black Boy” by Richard Wright. It indelibly imprinted on me the horrors my grandparents and parents faced as blacks in the pre-civil-rights Deep South.

3. “Reconstruction: America’s Unfinished Revolution, 1863–1877” by Eric Foner. A magnificent scholarly edifice.

4. “Our Undemocratic Constitution” by Sanford Levinson. A fearless examination of the Constitution by one of the most adventurous (and overlooked) U.S. intellectuals.

5. “Four Quartets” by T. S. Eliot. Because it contains the poem “East Coker,” in which one finds the lines: “For us, there is only the trying. The rest is not our business.”

As I say, it’s an intriguing list. I need to think about what would be on my top five–perhaps we’d overlap in Foner’s Reconstruction–a brilliant and sweeping book. When I first read it I couldn’t even begin to imagine how one person could have the knowledge to write such a comprehensive book.

I’d probably include C. Vann Woodward’s Strange Career of Jim Crow and Morton Horwitz’ Transformation of American Law, 1780-1860 and maybe G. Edward White’s Marshall Court and Cultural Change, because it gave me a sense of how to combine cultural and intellectual history with legal thought. Wright’s Black Boy is a fabulous volume, of course; but for me Ellison’s Invisible Man was more influential, because it lead me to understand the response of African American intellectuals to Jim Crow. And it’s the source of the title of one of my current projects, “The Great Constitutional Dream Book.” Really small tidbits are here and here. And there’s some more in the first chapter of Reconstructing the Dreamland.

If we’re talking about articles and essays that have influenced us, I would add Kennedy’s “Race Relations Law and the Tradition of Celebration: The Case of Professor Schmidt,” which appeared in the Columbia Law Review back in 1986.

Alfred Brophy