Hutchinson on “Racial Exhaustion”

By Alfred Brophy

You may be interested — perhaps very interested — in Darren Lenard Hutchinson’s new article “Racial Exhaustion,” which is forthcoming in the Washington University Law Review. Here’s Hutchinson’s abstract:

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and Whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that Whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme Court have all taken a skeptical stance towards claims of racial injustice by persons of color and have resisted demands for tougher civil rights laws and race-based remedies. They have viewed these policies as: (1) unnecessary, given the eradication of racism and the prior implementation of formal equality measures; (2) excessive in terms of substance or duration; (3) futile because the law cannot alter racial inequality; (4) misguided because nonracial factors explain racial disparities; and (5) unfair to Whites and a special benefit for persons of color. Adhering to these beliefs, a majority of the public has reached a point of racial exhaustion.

This Article argues that the public’s racial exhaustion did not recently emerge, and it is a product of a hard-fought and successful battle against racial subjugation. Instead, throughout history, opponents of racial justice measures have invoked this discourse to contest equality measures and to portray the United States as a post-racist society, even when efforts to combat racial hierarchy were in an embryonic state and persons of color lived in extremely vulnerable political, social and economic conditions. To elaborate this claim, this article examines political resistance to civil rights legislation and remedies immediately following the Civil War and during Reconstruction, after World War II and through the Cold War era, and in contemporary political and legal discourse in order to demonstrate the persistence of racial exhaustion rhetoric. This Article then considers how social movement actors, civil rights lawyers and theorists, and scholars interested in the interaction of law and rhetoric could respond to the persistent portrayal of racial egalitarianism as redundant and unfair by dissecting the premise of these claims, placing them in an historical context, and, if necessary, by strategically modifying their arguments to focus on class and other structural barriers that correlate or intersect with racial inequality. Despite the presumptive constitutionality of class-based remedies, political opposition to social welfare policies and the depiction of these programs as handouts to undeserving individuals – including persons of color – might limit the efficacy of economic approaches to racial inequality. Moreover, the intersection of race and poverty suggests that class-based remedies alone might not adequately address racially identifiable material inequity.

It’s a long article and deals with a lot of history and contemporary politics, too — we’re going to be hearing more about this. You can download the article for free here.

Merkel on the Nascence of Free Soil Constitutionalism

By Alfred Brophy

We continue to hear lots of talk about antislavery and proslavery law–it’s in part a response to the growing discussion of reparations. William Merkel of Washburn University’s law school has a new article out on “Jefferson’s Failed Anti-Slavery Proviso of 1784 and the Nascence of Free Soil Constitutionalism.”

Merkel’s abstract reads:

Despite his severe racism and inextricable personal commitments to slavery, Thomas Jefferson made profoundly significant contributions to the rise of anti-slavery constitutionalism. This Article examines the narrowly defeated anti-slavery plank in the Territorial Governance Act drafted by Jefferson and ratified by Congress in 1784. The provision would have prohibited slavery in all new states carved out of the western territories ceded to the national government established under the Articles of Confederation. The Act set out the principle that new states would be admitted to the Union on equal terms with existing members, and provided the blueprint for the Republican Guarantee Clause and prohibitions against titles of nobility in the United States Constitution of 1788. The defeated anti-slavery plank inspired the anti-slavery proviso successfully passed into law with the Northwest Ordinance of 1787. Unlike that Ordinance’s famous anti-slavery clause, Jefferson’s defeated provision would have applied south as well as north of the Ohio River.

You can download the full article here for free.

Alfred Brophy

Buckner Inniss on Reparations Rhetoric

If you’ve been following the reparations movement of late, you’ve likely seen talk of the lawsuits filed back in 2002 in federal courts around the country.  They were consolidated in the Northern District of Illinois in front of Judge Norgle.  The name of the case was In re African American Slave Descendants Litigation.  Whew, that’s a mouthful.

Lolita Buckner Inniss of Cleveland State University’s Law School has recently posted a paper analyzing Judge Norgle’s 2006 opinion dismissing the case.  (So maybe I should have titled this post, Buckner Inniss on anti-reparations rhetoric.)  Her abstract is as follows:

In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants’ Motion to Dismiss Plaintiffs’ Second Amended and Consolidated Complaint in ‘In Re African American Slave Descendants’, a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric.  Critical legal rhetoric is a potent tool for exposing the way in which the public ideologies of society and the private ideologies of jurists, legislators and other legal actors are manifested in legal and law-like pronouncements. After introducing this case, I briefly tracing the evolution and meaning of the term rhetoric and examine the relationship between rhetoric and law. I next explore the connection between rhetoric and ideology, which is crystallized in the form of the ideograph and its use as a tool of what is known as critical rhetoric.  Finally, I show how critical legal rhetoric is achieved by bringing critical rhetoric to law, and thereafter apply critical legal rhetoric to the case of ‘In Re African American Slave Descendants’.

You can download the paper here for free.

Alfred Brophy

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.