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.

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