Mark Twain1

It’s hard to know where to begin the history of a movement, for one can always recognize distant precursors of some characteristic aspects. Among all its other dimensions, Twain’s Pudd’nhead Wilson can be read as a softly ironic social commentary on nineteenth-century racial essentialism. In the passage quoted above, Roxy, who is fifteen-sixteenths white, bemoans the fact that "blood has finally told" in the morally reprehensible behavior of her son by a white father, despite the fact that she had taken precautions to pass him off as white since his infancy (by switching him with a white child in her charge, and raising the white child as her own). And indeed, as the novel unfolds, Roxy’s biological offspring proves to be a bad ’un, while the other child, the white one that Roxy raised as her own, proves to have the nobler character.

Read on the most superficial level, in terms of the respective fates of the two offspring of Roxy’s inadvertent social experiment, the outcome of Twain’s tale seems to reaffirm nineteenth century racial prejudices. But read on that level, the novel effectively reduces the reader to another of its unreflective characters. For Twain goes to considerable trouble to make it clear that nurture, not nature, plays the overriding role in what makes one character "black" and another "white", in the judgmental parlance of his day. In so doing, Twain may have simply shifted from one form of racial essentialism, the overtly racist nineteenth-century genetic essentialism which he is attacking, to a more modern variety: the social racial essentialism of late twentieth century liberal political theory, the unreflective assumption that there is such a thing as a unitary "black" experience. Attacks on this species of essentialism have been one of the trademarks of Critical Race Theory (CRT).2

Depending on where we look however, Twain’s visionary social commentary can take his reader even further. Early in the novel (at 64), Twain invokes a theme central not only to CRT, but also to Critical Legal Studies and contemporary feminist legal theory: "To all intents and purposes Roxy was as white as anybody, but the one sixteenth of her which was black outvoted the other fifteen parts and made her a negro. She was a slave, and saleable as such. Her child was thirty-one parts white, and he, too, was a slave and, by a fiction of law and custom, a negro." [Emphasis added.] In this comment, Twain anticipates an important conviction shared by all three movements: "that much of social reality is constructed. We decide what is, and almost simultaneously, what ought to be. Narrative habits, patterns of seeing, shape what we see and that to which we aspire. These patterns of perception become habitual, tempting us to believe that the way things are is inevitable."3 Roxy is a case in point: the narrative habits of a lifetime have transformed her into as thoroughgoing a racist as any of her white counterparts.

In one sense, I suppose this is Whig literary analysis, reading some of our present concerns into much earlier intellectual history. To the best of my knowledge, no CRT scholars have invoked Pudd’nhead Wilson as a formative work of the movement, or even as a remote source of inspiration. In terms of measurable influence, Twain’s novel is surely historically irrelevant to an account of the genesis of CRT. On the other hand, it’s always useful to remind ourselves that ideas are rarely completely new. If we look hard enough, we can usually find incipient versions kicking around in our collective past.

In Lewis Gordon’s contribution to this issue of the Newsletter, we find a portion of this longer view of the historical antecedents of Critical Race Theory, with an important difference from the speculation set forth above: the figures Gordon discusses actually were causally influential on the development of the movement. In this section I propose to try to complement Gordon’s work with a brief discussion of the actual inception of CRT as a contemporary social institution and intellectual movement.

While such decisions are invariably somewhat arbitrary, I would place the beginning of this particular story in October, 1968, which was marked by the publication of Lewis M. Steel’s "Nine Men in Black Who Think in White,"4 an event followed by his immediate dismissal as associate legal counsel of the NAACP. That organization did not care for such public criticism of its institutional ally, the U.S. Supreme Court.5 In this article, Steel charged that, despite appearances to the contrary, the behavior of the Court since Brown v Board of Education I & II6 did not reflect "a commitment to absolute equality." (Steel, 56) He noted that the slogan "with all deliberate speed," Brown II’s deliberately vague guideline for the pace of desegregation, constituted a decision to regard "the potential damage to white Americans resulting from the diminution of privilege as more critical than continued damage to the underprivileged." (Steel, 112) Anticipating future developments in legal scholarship, and reminding us of arguments which had been made by the NAACP and the government in Brown I, Steel also noted that the Court was motivated by a desire to defuse two new social forces which had been unleashed by World War II:

The war against Nazi Germany had raised the issue of racism and heightened the expecations of Negroes, who, because of labor shortages, were offered good jobs for the first time. Additionally, policy makers realized that the continuation of America’s brand of apartheid could damage our standing with the newly emerging nations. Most important, black Americans came out of the war determined to fight for their rights at home. Seen in the light of these pre-1954 shifts in attitude, the school-desegregation case did little more than bring the court up to date. (Steel, 56)

Steel went on to detail the ways in which, through a series of cases in the 1960s, the Court failed on numerous occasions to seize the initiative with which it was presented to become a real force for social reform. Instead, it restricted its "activism" to the business of striking down only the most overt forms of segregation in public education, public transportation, and public facilities which it found to exist in Southern and border states. (Steel 115) In the North, it upheld "accidental discrimination" associated with population demographics, and gradually "began to accept the protestations of good faith made by racist public officials, where only a few years earlier the majority had evinced a willingness to look beyond self-serving statements to ascertain the facts." (Steel 117)

Steel’s was only the first in a series of relatively isolated articles which appeared over the next decade, questioning the scope of judicially or legislatively mandated civil rights reform. In a series of seminal articles written in the late seventies, Derrick Bell anticipated a variety of CRT themes, both by introducing some new arguments in this area, and by developing a more theoretically sophisticated elaboration of those which Steel had introduced earlier. The first of these, "Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,"7 appeared in 1976. There Bell pointed out that there was a chronic and ongoing conflict of interest between school desegregation attorneys, who were engaged in the single-minded pursuit of unconditional integration, and their clients, whose ultimate goals were better schools and a better education for their children. Bell’s work in this paper constituted an ironic application of one of the basic principles underlying Steel’s earlier analysis: those with power (in this case, civil rights attorneys who profess to have the interests of their clients at heart), dictate the terms and the pace of legal reform to those who have none. The irony is that this principle can be applied even to the legal allies of the victims of oppression.

Four years later, in "Brown v. Board of Education and the Interest-Convergence Dilemma,"8 one of the most widely cited articles which has since come to be associated with the CRT movement, Bell focuses his sights higher on the legal food chain, elaborating on the central arguments in Steel’s article. Like Steel, Bell maintained that the Brown decisions came to pass primarily because they furthered certain interests of white socio-political elites in this country, including, most importantly, maintaining the stability of the social system which sustains and preserves that elite status. In addition to the two specific interests Steel mentioned (a concern to win the Cold War’s propaganda battle which the U.S. and the Soviets waged over Third World loyalties, and another to defuse potential domestic racial animosity engendered by the conflict between segregationist social institutions and the rising political and economic expectations of black Americans in the postwar era), Bell introduced a third: a concern to reform the antiquated economies of the southern states.

Sandwiched between Bell’s articles, Alan Freeman’s "Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine" appeared in 1978.9 Freeman distinguished between ‘perpetrator’ and ‘victim’ perspectives on racial discrimination, which suggest distinct legal remedies. Under the perpetrator perspective, we live in:

a world composed of atomistic individuals whose actions are outside of and apart from the social fabric and without historical continuity. From this perspective, the law views racial discrimination not as a social phenomenon but merely as the misguided conduct of particular actors. It is a world in which, but for the conduct of these misguided ones, the system of equality of opportunity would work to provide a distribution of the good things of life without racial disparities...in which deprivations that did correlate with race would be "deserved" by those deprived on grounds of insufficient "merit." (Freeman, 30)

The ‘victim’ perspective, on the other hand, focuses on the disparate effects of racial discrimination on the victims of racial oppression. Even if such effects are not the direct product of conscious hostility, they can nonetheless be traced to the long term institutional effects of racism, and as such require us to address the underlying conditions of those disparate effects. Freeman contended that our legal system has focused almost uniformly on the perpetrator perspective, because this permits complacency about our collective moral responsibility for such oppression, requires remarkably little by way of social reform (deal with the explicit racists), and reaffirms the widely shared myth that, but for the bigots, we live in a meritocracy. In effect, Freeman was pursuing the implications of Steel’s brief observation that the Courts tended only to strike down overt forms of deliberate discrimination, and offering an account of the underlying, not fully conscious, motivations for that behavior.

None of these early papers actually belong to Critical Race Theory as a recognizable intellectual movement, for it did not yet exist as such. But Freeman certainly, and Bell to a lesser extent, can be said to have been influenced by the intellectual ferment that emerged in the late seventies as the Critical Legal Studies (CLS) movement.10 Indeed, Freeman is one of the founding members of this movement. The direct connection between Bell’s and Freeman’s work on antidiscrimination law and CLS turns on the "law as ideology" thesis advocated by CLS scholars. On this view, inspired in part by the concept of hegemony developed by the Italian Marxist Antonio Gramsci, the chief function of our legal system is to disseminate an ideological myth designed to perpetuate the existing hierarchy of socio-economic classes and power relations by convincing both the elite and the subjugated classes that this arrangement is morally legitimate. All law is just politics conducted under another name, but disciplined and carefully orchestrated politics. Hegemony is the principle of orchestration: the practice of making modest concessions to dominated groups for the purpose of convincing their members that they too are being treated justly, that their concerns are valued equally when brought before the bench.11 But the putatively objective exercise of judicial reasoning, for example, which the courts undertake in order to derive written opinions from statutory or constitutional text and judicial precedent, is really a myth offered in service of the dominant ideology, a specialized language deployed to cloak hegemonic adjudication with an objective and value-neutral gloss.

Building on this insight about the role of hegemonic strategies within our legal institutions, some of the earliest CLS work was naturally devoted to areas traditionally associated with Marxist analysis: political theory,12 legal theory,13 contract law,14 and labor law.15 In the latter area, for example, Robert Gordon explains the role of hegemonic analysis in Karl Klare’s work as follows:

It’s easy enough to see how critical analysis of twentieth century civil rights law would be a congenial intellectual neighbor of this kind of analysis of labor law. And for a number of years, progressive legal theory concerning racial issues was closely allied to the CLS movement. Apart from the natural affinity between these areas of legal scholarship, legal race theorists really had no distinct academic community which might claim their primary allegiance. Such a community first began to emerge only in 1981, when some student activists organized "The Alternative Course" as a form of protest against Harvard’s decision to ignore student demands that the law school hire a scholar of color to replace Derrick Bell, who had departed Harvard in 1980 (temporarily, as it turned out), to serve as Dean of the University of Oregon Law School.

Bell had regularly taught Race, Racism, and American Law, the only course in Harvard’s law curriculum devoted exclusively to civil rights law, and published a casebook of the same name.17 With Bell’s departure, the future of that course was in jeopardy. In response to the student demands, Harvard’s law school administration proposed instead to substitute a three-week mini-course to be taught by visiting adjunct faculty: Jack Greenberg and Julius Chambers, both distinguished for their work in civil rights litigation. Although Chambers was black, his lack of academic credentials struck many of the students as evidence that the adminstration was engaging in unresponsive tokenism. Greenberg did have a track record of academic publications, but his role as the white head of the NAACP’s Legal Defense Fund did not endear him to students who regarded him as "the archetypal white liberal who facilitates black advancement in society at large but retards it in his immediate environment by exercising authority in a way that precludes the development of black leadership."18 Objecting students decided to boycott the mini-course, organizing their own full-length course instead, bringing in a series of guest lecturers to speak on topics organized around the chapters of Bell’s textbook, and securing academic credit through the collusion of sympathetic white law faculty who consented to sponsor "independent study" courses. As a result, the core of the future CRT community began to develop, bringing together, for example, future CRT scholars Kimberlé Crenshaw and Mari Matsuda (among the students), and Richard Delgado, Charles Lawrence, Linda Greene, and Neil Gotanda (among the guest faculty).

The strongest impetus contributing to the creation of a sustained CRT community came later however, when a rift developed in the late eighties between those scholars who came to be known as CRT participants, and some members of the CLS camp, just as it did between feminist legal theory and "mainstream" CLS scholarship. Part of the problem, both for feminist legal scholars and within the nascent CRT movement, was a growing sense that the intricacies of the legal experiences of both women and minorities (especially, in the early days of CRT, African-Americans) were suffering from a policy of benign neglect in most CLS scholarship, comparable in some ways with Richard Delgado’s earlier critique of liberal legal scholarship (discussed in the next section). From the perspective of those especially concerned about race, the same could be said of feminist legal theory. Angela Harris, in her work introducing the concept of racial essentialism, characterized the problem with some feminist legal theorists as follows:

their work, though powerful and brilliant in many ways, relies on what I call gender essentialism—the notion that a unitary, "essential" women’s experience can be isolated and described independently of race, class, sexual orientation, and other realities of experience. The result of this tendency toward gender essentialism, I argue, is not only that some voices are silenced in order to privilege others,...but that the voices that are silenced turn out to be the same voices silenced by the mainstream legal voice of "We the People"­ among them, the voices of black women. (Harris [1990], 585)

At the institutional level, concerns of this nature, both for feminist legal theory and race theory, were first raised in the 1986 CLS conference, which was organized by feminist CLS-ers. These conference organizers asked some scholars of color to conduct some concurrent sessions about race in legal theory. Those scholars in turn chose to discuss the extent to which racial power was manifested, not just in our existing legal institutions, or in the mainstream literature of liberal and conservative legal theory, but in the institutional structure and theorizing of the Critical Legal Studies movement itself. Needless to say, while this critical self-examination was welcomed by some, others regarded it as a betrayal of a radical movement in which fellow-travellers should be supportive of each others’ work against the common foes: mainstream legal institutions and traditional legal theory.

The following year, at another CLS conference, the rift took on a more theoretical caste when the nascent CRT movement partially repudiated the CLS critique of reliance on the concept of legal rights as a viable source of legal reform. From the CLS perspective, talk about rights was simply another way to sustain traditional socio-political hierarchies while pretending to make concessions to oppressed classes. In the context of gender law, for example, the dominant ideology is patriarchy, and hegemonic adjudication is enlisted in the cause of sustaining the subordination of women. A number of CLS theorists have argued that rights talk was enlisted in this cause when the Supreme Court decisions to invalidate laws regulating contraception19 and prohibiting abortions.20 These decisions were designed to create the illusion of impartiality while actually serving to reinforce social practices necessary to sustain patriarchy. On this view, when the Court chose to base its Griswold and Roe decisions on a newly minted constitutional right to privacy, it effectively offered to improve women’s lives by defending their "rights" only at the price of reaffirming, in a more explicit manner than it had ever done before, the validity of the public/private distinction which had served the interests of patriarchal hegemony so well in the past.

From the CRT perspective, while it’s true enough that rights talk is indeterminate, and therefore can be interpreted in ways which serve to reinforce existing social hierarchies, it can also be construed in ways which advance the cause of legal reform.21 To a limited degree, it has been the latter effect which black Americans, and more recently hispanic Americans, have experienced through the invocation of civil rights since Brown I & II:

Viewed from the perspective which Patricia Williams sets forth here, rights talk in legal discourse can and does sometimes function similarly to the noble lie which Plato invoked in the Republic: the cultivation of a useful fiction in order to achieve politically desirable ends. Her point is that, given the kind of legal system under which we operate, rights are going to get reified through legal discourse in any event, so we might as well try to direct that discourse in ways that will have transformative value for creating "rights-bearing" citizens out of hitherto legally invisible oppressees. When CLS scholars indiscriminately trash all rights talk, they are displaying insensitivity to the potential utility which such talk can have for exacting real gains from the legal establishment on behalf of oppressed minorities.

The final chapter in the development of the CRT movement was the business of coining a name, and convening conferences devoted specifically to the shared interests of its participants. This happened in the summer of 1989, with the formation of the Critical Race Theory Workshop, underwritten by a grant provided by David Trubek, who had also been instrumental in the organization of the CLS Conference more than a decade earlier. The rest is (still more) history, well beyond the scope of this essay.23

In terms of the discussion so far, Critical Race Theory can be regarded as an academic niche carved out from liberal legal theory in virtue of its alliance with some of the basic tenets of Critical Legal Studies, including especially the thesis that law is indeterminate and fundamentally an instrument of political power, and the related thesis that, typically, that power is exercised to sustain existing socio-political hierarchies. But CRT has also carved out an approach, characterized by a more pragmatic assessment of the value of rights talk in legal discourse, and by an explicit focus on the actual experiences of minorities of color in our legal system, which distinguishes it from CLS scholarship.24 There are many aspects of CRT scholarship which have not even been touched on here, but with respect to the last of the defining characteristic mentioned above, it is important, I think, to spend some time examining what has come to be regarded as perhaps the most distinctive feature of CRT scholarship, its "narrative turn" ­ the business of telling concrete stories, sometimes fictional, sometimes autobiographical, as a more effective method to "get the word out" about the real lived experiences of people of color vis-a-vis our legal institutions.

Richard Posner25

In 1984 Richard Delgado coined the term ‘imperial scholar’ in a controversial article of the same name.26 Delgado’s imperial scholars were, by his count, 26 authors of the leading theoretically-oriented law review articles published on civil rights subsequent to Brown v Board of Education I & II, as measured by publication in a major law review and frequency of citation by courts and other commentators.27 What disturbed Delgado about these articles was not just the fact that they were all by white (non-hispanic) authors, writing about legal and moral rights of people of color, but the additional fact that the footnotes in these articles consisted primarily of citations of the work of other members of this elite group, with virtually no citations of scholars of color, apart from the occasional reference to black historian W.E.B. DuBois. Even the views of influential contemporary political figures like Martin Luther King, Jr., Malcolm X, and Cesar Chavez were ignored. Yet Delgado pointed out that, at the time he was writing "The Imperial Scholar", there were close to 250 black, hispanic, and Native American tenured or tenurable law faculty in this country, some of whom had produced an extensive body of work on civil rights law. (Delgado [1984], 53, notes 1 & 2)

From Delgado’s perspective, this practice of building a scholarly career by theorizing about the way our legal system handles minority rights issues, while ignoring related research done by members of that group, amounted to yet another case of well-to-do whites benefiting from a subtle form of exploitation of people of color. Citation patterns have changed over the years since Delgado’s article appeared, but the concern about exploitation can take other forms. As Kim Hall puts it in a sensitive review of a rather different dimension of this problem in her contribution to this issue of the Newsletter:

There are reasons to be suspicious of white philosophers (male and female) who are suddenly proclaiming an interest in Critical Race Theory....In a social, political, historical and discursive context in which white supremacy and patriarchy are linked, the voices of white men are considered the most authoritative voices....[T]he problem is not the fact that white men and women write and speak about people of color. Rather, the problem concerns the way in which white people write and speak about people of color....[they] need to consider the effects of their work to ensure that it does not reinforce existing race and gender hierarchies. (Hall, 27)

Delgado (unlike Hall), goes so far as to suggest that white scholars ought to butt out of this area of legal scholarship:

While no one could object if sensitive white scholars contribute occasional articles and useful proposals...must these scholars make a career of it? The time has come for white liberal authors who write in the field of civil rights to redirect their efforts and to encourage their colleagues to do so as well...As these scholars stand aside, nature will take its course. I am reasonably certain that the gap will quickly be filled by talented and innovative minority writers and commentators. (Delgado [1984], 53)

To some extent, Delgado’s prediction has come true: scholars of color now dominate the civil rights field. But the Posner quotation with which I opened this section constitutes a new form of civil rights meta-scholarship, written mostly by white authors, commenting on methodological features of (some of) the scholarship which has emerged under the new order. It serves as a dramatic illustration of the concerns expressed above by Hall. Richard Posner makes reference to an oft-cited dimension of Critical Race Theory (CRT) scholarship: the penchant for writing fictitious or autobiographical narrative tales as dramatic, personalized, and therefore more emotionally effective ways to elicit novel reflection from ill-informed readers about the true nature of our legal system’s impact on people of color. Posner, a non-ideological but nonetheless fairly conservative federal appellate judge, has moved from an earlier position of grudging, albeit very critical, respect for CRT,28 to one of overt hostility in the article quoted above. When a critic of Posner’s stature speaks so negatively about narrative legal writing, his remarks have an impact, fairly or unfairly, on the extent to which such scholarship is regarded as authoritative.29

In this case, Posner’s characterization of CRT narrative methodology is indeed quite unfair. He declares, without any argument, that narrative and rational analysis are somehow incompatible. Narrative is fictional or quasi-fictional, in Posner’s view, and therefore at best anecdotal, at worst a tissue of lies ­ not the stuff of reasoned argument. Yet the dream-like "chronicles" of Geneva Crenshaw, Derrick Bell’s fictional heroine who relates a series of visionary morality tales to Bell’s unnamed (and equally fictional?) academic narrator,30 and the fictional dialogues between Rodrigo Crenshaw (Geneva’s Latino/black half brother) and Richard Delgado’s "Professor",31 two of the most well-known examples of CRT narrative, consist mostly of reasoned argument, couched in the language of narrative fiction. Bell’s chronicles are routinely followed by analytical dialogues between Geneva and the narrator, often packed with enough quotations and citations to satiate the most authority- & precedent-ridden of law review editors. Delgado skips the visionary tales altogether, and cuts straight to the chase: still more analytic dialogues, set against the backdrop of Rodrigo’s comings and goings, with the usual complement of citations.

The specific objections which CRT critics raise against the narrative turn in CRT scholarship are often more revealing about their sources than their targets. Following the passage quoted above, Posner goes on to complain that "these theorists are not talented storytellers, with the exception of Patricia Williams" and "the stories told by the critical race theorists do not rise to the level of literature. They are flops as stories and...flops as scholarship." (Posner [1997], 42) In an equally heated attack on CRT scholarship, Jeffrey Rosen declared that: "few of the storytellers are gifted at telling stories. Richard Delgado uses his characters as vehicles for provocative speeches about subverting the dominant racial paradigm, interspersed with an ongoing dialogue about their shared affinity for gourmet coffee." (Rosen, 33) Posner’s and Rosen’s aesthetic complaints echo an earlier critique of Derrick Bell’s work by Mark Tushnet:

At the heart of these aesthetic complaints is Tushnet’s observation that Bell, and also Delgado and at least some other unnamed CRT scholars, compose overbearingly didactic narratives, in the mode of some kind of story-telling ethnic traditionalism that just doesn’t work in the secular setting of twentieth century legal discourse. Such didactic literature requires an appeal to a well-ordered moral universe, to an authoritative conception of right behavior which either transcends or eschews rational deliberation, and which is shared by both speaker and listener.

Medieval morality plays or central European fairytales come to mind, and Bell’s chronicles do sometimes have that aesthetic feel about them.33 But the content certainly doesn’t conform to this model, especially when we turn to Bell’s and Delgado’s dialogues between the Crenshaw siblings and their respective interlocuters. It struck me, when I first read Tushnet’s remarks, that there is indeed a didactic model at work here, but a very different one: the rationalist analytic discourse exhibited first in Plato’s Socratic dialogues, and emulated later, with varying degrees of success, by Augustine, Galileo, Berkeley, Hume (among others), and more recently in the context of fictional judicial proceedings by Lon Fuller and Sanford Levinson (again, among [many] others).34 It was gratifying to discover subsequently that Bell himself, in an introductory discussion of his narrative work, conceives of his enterprise in this way, referring expressly to both Plato and Fuller. (Bell [1987], 6)

In this respect, at least some types of CRT narrative writing are not so very different from traditional law review material. If we examine, for example, the first few chronicles in Bell’s And We Are Not Saved, we find several of them to be narrative expressions of the same class of issues and arguments which, in previously published work, Bell had set forth in the more traditional law review style of analytical case-study exposition and argument. (See note 36 below and accompanying discussion.) Tushnet at least seems to be cognizant of this fact in Bell’s case (cf. his comment: "Take away the narrative frame and Bell’s Chronicles are a series of law classroom hypotheticals."). And yet Tushnet, Rosen, and Posner offer a uniform aesthetic complaint: with the notable exception of Patricia Williams,35 CRT narrative work is, for the most part, not very well written. Why?

Many scholars contend that Plato’s dialogues are well written, that the same goes for Augustine, and perhaps many other classic figures. Are Posner and company prepared to suggest instead that Plato wrote rather badly, that this is a barren and tedious literary form? I suspect not. Perhaps the complaint is that Bell, Delgado, and others who emulate this form do it poorly, that like Plato in his later dialogues, they succumb to too much preaching, and the dialogue form becomes an artificial vehicle for pontification.

I doubt that this characterization is really fair to Plato, and I certainly don’t think it’s fair to Delgado and Bell. Their fictional dialogues do become stilted soliloquys from time to time, and they certainly do read as if they were written by analytically-trained academics. But they are quite effective and imaginative most of the time. I would much prefer to introduce the ideas in Bell’s "Interest Convergence Dilemma" (Bell [1980]) or "Serving Two Masters" (Bell [1976]) to my undergraduate students through his analogous narrative treatments of these issues in his "Celestial Curia" and "Sacrificed Black Schoolchildren" chronicles.36 On the other hand, Patricia Williams’ work,37 praised for its literary value, comes in for the most focused objections from those same CRT critics.38 Why do these critics pan Bell’s and Delgado’s literary efforts, but reserve their best shots for Williams?

I think the answer to this question can be traced partly to a literary double standard with which the critics operate, and partly to some inadvisedly raised expectations created by some of the more rhetorical remarks made on behalf of CRT narrative techniques. On the one hand, it’s hard to criticize the Socratic approach used by Bell and Delgado without also questioning more traditional approaches to legal theory, because both the style and the content are already familiar territory in the American legal community (although more typically in the law school classroom rather than the law review). On the other hand, by promoting lofty expectations about the virtues of CRT narrative writing as a different voice capable of revealing a hitherto unappreciated and misunderstood minority perspective about our legal institutions,39 its advocates have set a standard unlikely to be fulfilled. Since it clearly isn’t fulfilled in the writings of Bell and Delgado ­ not because they write badly (they do not), but because they don’t write so very differently from other legal theorists ­ the rhetoric enables critics to dismiss them as indifferent writers more easily.

The double standard comes in when critics turn to writers like Williams, who uses an autobiographical and confessional style rather than Socratic dialogue, an approach which is novel in the arena of scholarly legal discourse. For now the critics reverse course, and apply standards of truth and objectivity that seem to them to be necessary conditions of good legal discourse, and then castigate Williams for disregarding veracity and supplanting objectivity with personal anecdote.

The objections are sometimes quite venal. Posner, for example, in his [1995], at 372, asks whether Williams really pressed her face against the glass of a Benneton store window, and whether she troubled to check store hours to make sure the store was indeed open (on a Saturday, at 1:00 in the afternoon).40 A little later, at 375-77, Posner castigates Williams for failing to check her facts about Beethoven’s ancestry, when she examines an incident at Stanford University, in which a white student, incredulous about a black student’s claim that Beethoven had black forebears, anonymously posted a negrified portrait of Beethoven outside the black student’s dorm room. Yet it is quite clear from the context of Williams’ discussion of the incident that the actual facts about Beethoven’s ancestry are irrelevant to the points she wants to make, which concern the source of the white student’s incredulity, as Williams understands it (the implausibility of a connection between "black" genes and music of genius), and the singular failure of Stanford’s disciplinary board to recognize the public nature of the harm (privatizing the harm to the black student that was targeted), or that there even was a harm. (Williams [1991], 110-15) This was a story about perceptions, not one about Beethoven’s ancestry. But for Posner it was a target of opportunity to question Williams’ veracity.

He has others. For example, concerning Tawana Brawley’s apparently fraudulent claim that she was raped and brutalized by six white law officers in 1987, Posner complained that Williams was twisting the truth when she said that Brawley "was the victim of an unspeakable crime...No matter who did it to her ­ and even if she did it herself." (Williams [1991], 169-70, as quoted in Posner [1995], 375) But again Posner misses the point of Williams’ discussion, which is about public reactions fueled by unexamined bigotry, and the unprincipled opportunism of Brawley’s handlers.

Instead, Posner conflates Williams’ sympathetic response to the suffering which Brawley really appears to have endured, whether she was complicit in it or not, with her remark, several pages later, that "Tawana’s terrible story has every black woman’s worst fears and experiences wrapped into it. Few will believe a black woman who has been raped by a white man." (Williams [1991], 174; quoted by Posner at 375) The "story", at this juncture in Williams’ text, is not Brawley’s original tale about the alleged rape, but the story of the subsequent public reaction, the speed with which media cynicism set in, and the crassly opportunistic behavior of public figures (Al Sharpton, Alton Maddox, Vernon Mason, and Louis Farrakhan) who set out to use Tawana Brawley to further their own political agendas.

Perhaps Posner is genuinely myopic here rather than deliberately misleading. From his perspective, the only real issue that needed addressing was the question whether the original alleged crime had been committed. If it had not, then the public cynicism was justified; a more nuanced examination of the public reaction is irrelevant.41 That’s a fairly natural conclusion for a white male in our society to draw, when occupying a position of power comparable to Posner’s, whose word would almost never be questioned by anyone in a position to do damage. I’m reminded of the singularly clueless question which Wyoming Senator Alan Simpson put to Anita Hill during the Clarence Thomas hearings subsequent to his Supreme Court nomination. He simply could not fathom how she could follow Thomas from one appointment to another, given the way Thomas had allegedly behaved towards her in the past, and put this to her as a kind of reductio argument against her charges. On the most charitable reading, it was simply beyond Simpson’s comprehension that a black woman’s avenues to professional success might just be significantly more limited than his own, and even that women, black or white, have to put up with a good deal of intrusive and evening threatening male behavior to get on with their careers.

Other objections are nothing more than gratuitously ad hominem attacks. Mark Tushnet, for example, in the course of reviewing a shopping trip which Williams made to Au Coton, asks why she didn’t explicitly identify the race of three young sales clerks who made overtly anti-semitic remarks within her earshot. Tushnet goes on to suggest that, if they were black, then Williams’ evasion represents a reluctance to deal squarely with the issue of black anti-semitism. This might mean, in turn, that she’s guilty of moral hypocrisy: wanting to point a finger at bigotry only when it is exhibited among whites. Or worse, perhaps she agrees to some extent with the antisemitism. (Tushnet [1992a], 269, text and note 81)

In a reply to Tushnet, Gary Peller argues that the omission is inadvertent, for it is clear from various clues in the text that the sales clerks are white.42 The message then, concerns:

a tale of how someone who is an outsider along one dimension (race) can be seduced into complicity with those who are insiders along that dimension as they attempt to make others outsiders along a different dimension (religion). In this version, the story raises the possibility that, in her silence, Williams was and at some level wanted to be complicit in the expressed antisemitism of the salespeople. The story then deals with how a vicious community can sustain itself by at least fleetingly securing the affiliation of those who it demeans on other occasions. (Tushnet [1992a], 269)

In fairness to Tushnet, I quoted him here rather than Peller to point out (contra Peller’s assessment43) that Tushnet does indeed understand the point of the story if the sales clerks were white. But what is troubling about Tushnet’s reaction is the fact that he thinks this interpretation is a non-starter, assuming instead that Williams’ omission is deliberate, and then reading mischief into the omission:

Returning now to the central thread of this section, why the relatively virulent, and often unwarranted, attacks from both the right (e.g., Posner) and the left (e.g., Tushnet) on CRT narrative contributions to legal literature? It’s sometimes possible to explain individual instances of these attacks, but it’s hard to ignore either the volume of the collective accumulation, or the hostility of the tone.45 More specifically, in light of the fact that the style of Socratic dialogue employed by Bell and Delgado embraces rational deliberation and reasoned discourse, why do critics like Posner, Rosen, and Tushnet complain (using Williams as an example) that CRT storytellers turn their backs on rationality and objectivity? In the final section of this article, I will try to address these questions, and I hope that, in doing so, I can say something useful about the actual significance of CRT’s narrative turn, and about the central controversy which engendered this hostility between CRT and other contemporary communities in legal theory.