Heated discussions have become commonplace among legal scholars when it comes to issues relating to any new "legal movements."1 In the 1970’s, some traditional (equated with "liberal" in the literature) scholars denounced the polemics coming from a renegade new legal theory, Critical Legal Studies (CLS). Paul Carrington, then dean of the law school at Duke University, called for the resignation of those CLS faculty who had nothing but scorn for the law.2 Ironically, established CLS promoters appealed to liberal sensitivities when tenure denials claimed their younger recruits. A similar hue-and-cry went up when another upstart movement, Law & Economics, began a discussion that included a market solution to the problem of adopting babies. Recent reactions to Critical Race Theory (CRT), the last of the new born legal theories, have raised the heat intensity to a different and worrisome level. Beneath the polite veneer of academic language used by those from the CRT and its critics, an outsider hears charges that sound like "You are a racist" and "You are an anti-Semite."

An investigation of a single work by two CRT critics (Daniel Farber and Suzanna Sherry) and an analysis of a few telling examples from their work (Beyond All Reason: The Radical Assault on Truth in American Law3) will bring the accusatory tones to the foreground for the purpose, not of placing academic animosities in the limelight, but to suggest a philosophical and a political way to remove the noise from the heated exchanges. The new jurisprudence has a reputation for tainting legal debates with politics. Ironically, CRT and its critics need not less but more politics, at least in the form of richer political philosophies. A brief history of CRT might shed some light on the predicament.

Critical Race Theory (CRT) has taken on an oppositional role throughout its brief history beginning in the 1980s. CRT developed within two types of critiques. The first critique focused on the civil rights movement and civil rights scholarship. Derrick Bell, who became Harvard’s first black law professor in 1969, led an attack on the reformist, liberal underpinnings of the civil rights era with its exaggerated hope that courts could eradicate racism. Bell saw the reforms as more beneficial to whites than to blacks.4 Brown v. Topeka Board of Education (1954), for example, represented a practical expedient, where dominant white interests converged with those of blacks, rather than a principled victory for justice.5 The Brown decision happened to converge with the interests of whites who wanted to: (1) win third world support against the communists; (2) appease blacks, especially World War II veterans; (3) modernize the Southern economy. (Bell [1980], 524-525) The civil rights era achieved formal equality with little substance. "We Shall Overcome" has become part of the American racial fantasy but little part of racial reality. Bell, adopting a narrow version of Legal Realism, urges an abandonment of the legal ideal of racial equality. Except for a few clarion calls for a continuation of idealism, Bell’s thesis met with a relatively calm reaction. Political scientists, quite independently (and without attribution), have generalized Bell’s thesis to the courts writ large. The title of Gerald N. Rosenberg’s book The Hollow Hope answers the already rhetorical question of the subtitle, "Can Courts Bring About Social Change?."6

The second type of critique centered around discussions and debates within Critical Legal Studies and Feminist Jurisprudence. CRT proponents found that both gave inadequate attention to race.7 For example, Mark Tushnet, a CLS founder, warned political progressives against relying on rights to achieve social change.8 CRTs charged that Tushnet had failed to realize the importance of rights language to aspirations of people of color and had refused to acknowledge the small but important gains made by appeal to rights.9 Critical Race Theorists found Tushnet’s trashing of rights symptomatic of CLS critiques. CLS persisted in locating the problem of racial (and gender) domination in Liberalism and failed to give racism (and sexism) causal status. Liberals joined hands with CRT in defending rights discourse. The two critiques provided more than enough momentum for CRTs to form their own movement during a 1989 meeting in Madison, Wisconsin.

CRT writings from the first and second critique eras received some muted and patronizing critiques. Liberals in particular greeted CRT works mostly with silence. Few "Crits" or "Fem Jurs" (as proponents of CLS and Feminist Jurisprudence are called) directly challenged CRT. Changes in the critics’ low-key demeanor began appearing with the publication of Randall Kennedy’s "Racial Critiques of Legal Academia," which some outsiders viewed as a breaking of ranks from within CRT.10 Mark Tushnet soon followed the criticism bandwagon, engaging fellow CLS traveler Gary Peller in a heated exchange over CRT.11 However, the publication of Beyond All Reason by Farber and Sherry, law professors from the University of Minnesota, marks a highly disturbing turning point in debates over CRT.

The objectionable rhetorical devices used by Farber and Sherry will become more apparent as I engage their "arguments" in the same manner that they critique CRT. Farber and Sherry have accomplished a difficult task. They produced a model of reactive political rhetoric and polemic in the name of rationality, objectivity, and science--ideas that they repeat throughout the work as mantras. Farber and Sherry offer a searing charge of anti-Semitism against CRT. Paradoxically, a critique that also lodges searing charges helps illuminate a serious fundamental problem with the debate over CRT. Contrary to first appearances, the frontal attack launched by Farber and Sherry against CRT does not represent a deplorable situation where scholarship has plummeted into the grimy depths of politics. The debate among legal theorists has not become the academic version of street warfare among blacks and Jews. Rather, the debaters have failed to become fully political. Many sides of the debate persist in treating political issues as academic ones. Farber, Sherry, and their CRT opponents need to examine anti-Semitism and racism in their fullest historical, political, senses. Farber and Sherry have a muddle-headed implication (or association) sense of anti-Semitism. CRT highlights a noteworthy but woefully incomplete psychological sense of racism. Unfortunately, space precludes a full analysis of racism and anti-Semitism beyond pointing out a few of the glaring forms of harm that these new jurisprudential movements largely ignore. The objectionable nature of the critique found in Beyond All Reason will provide more than enough matters of concern here.

For convenience sake, I shall use the shorthand "RAT" to designate the RATionalist perspective that Farber and Sherry attempt to take and "RC" for, the Radical multiCulturalist attacked by Farber and Sherry. The RC extremists appear as named individuals in the book’s first few pages. The line-up includes Derrick Bell, Richard Delgado, Catherine MacKinnon, and Patricia Williams. Since all but MacKinnon have associated themselves with CRT, I shall take RC and CRT as equivalent sets, as most members of CRT would qualify as members of RC by association even though Farber and Sherry might spare some from this fate. Let us begin with the argument sketch found the book’s "Introduction." Farber and Sherry set out to call rubbish "rubbish." RCs pretend to launch a rational attack against the idea of academic merit, but the RCs produce garbage in the form of an attack on Jewish success in higher learning. By not recognizing the anti-Semitic implications of their critiques, RCs exhibit a false-consciousness and an ideology (p. 9).12

Yet it is the logical RATs who fail to recognize a bad argument. Their prejudice-by-implication presumption reads as follows: criticism of a policy that aids a group implies a prejudice against that group. If the presumption holds, then an attack on affirmative action, which aids blacks, is racist, especially if the dismantling of affirmative action disadvantages blacks. Any objection to a policy has potentially bad implications in the sense that a particular policy implementation designed to meet the objection might have bad effects. If policy makers discard merit and replace it with a policy that gives advantage to the historically mistreated, then the original objection deflects a charge of anti-Semitism if Jews benefit from its implementation. The RATs consistently refuse to develop arguments favorable to RC with the excuse that the RCs would not listen to rational criticism. This failure to display characteristics of the Enlightenment critique they revere does not deter the RATs from unabashedly portraying RC as a danger, since RCs are portrayed as enemies of the Enlightenment shield, which has protected Jews. Presumably, then, critiques of capitalism stand accused of anti-Semitism if the free market has given Jews advantages. To paraphrase Farber and Sherry, given the natural reluctance of readers to believe that respectable scholars like Farber and Sherry are taking seemingly crazy positions, I shall examine, in the next section, issues relating to the CRT’s use of narrative before going on in the last section to suggest a more fundamental problem with CRT and the Farber-Sherry critique.

The following gives a fair representation, of tone and argument, of the RATs’ analysis (interpretation) of the RC reliance on narrative: RCs relentlessly replace traditional scholarship with personal stories, which hardly represent common experiences. The proliferation of stories makes it impossible for others to debate the RCs since RCs replace standards of scholarship with authenticity. Quarrels within RC rage over, not who has the best argument, but whose story has the most authenticity. An infatuation with narrative infects and distorts RC attempts at analysis. Instead of scientifically investigating whether rewarding individuals according to merit has any objective basis, RCs insist on telling stories about their personal struggles in academic politics. RCs think that the more they repeat their stories, the more tenable becomes the thesis that merit is socially constructed (p. 77). If the RCs would examine the data, they would discover that minority candidates do not fare worse in the law school hiring process. To prove this, the RCs need to look at the fact that white males seeking academic employment in law schools are half as likely to find employment through the traditional process as minorities.

The RATs’ appeal to a proof leaves many questions unanswered. The RATs do not consider numerous problems with the data, which they obtained, in part, from an unpublished manuscript. What is the relevant applicant pool? If minorities make up only two of the total of 100 in the applicant pool, the lower employment chances (relative to minorities) of the forty white males says little about unfairness, inequality, or injustice. Why is the applicant pool structured in the way that it is? Why are there so many white males and only two minorities in the pool? What has the applicant pool looked like in previous years and decades? Do the black applicants have a greater chance of being hired at the best schools? So, the RATs pose an overly simplified choice between narrative and objectivity. The RATs gloss over complicating questions, choosing instead to offer a mutually exclusive and overly simplified choice between RC narrative and RAT objectivity. In their hastened appeal to objectivity, they refuse to acknowledge the problems.

The RATs not only paint a misleading picture of objectivity, they also often get the narrative half of the choice between narrative and objectivity wrong. While RCs relish telling tales, RATs search in vain for some thread of objectivity in RC scholarship. RATs throw up their hands imploring RCs to reveal the point of any particular tale. Take the now infamous Benetton story by Patricia Williams: "Williams describes how she was refused access to a Benetton store by a teenage clerk when she was trying to buy a sweater for her mother, and how she encountered difficulties in persuading a law review to publish a full account of the episode" (p. 85). From a scientific sampling (including a "conversation" with an unnamed, even in the footnotes, "radical feminist colleague") the RATs find evidence of many different interpretations of the Benetton story. This leads the RATs to conclude that the story has little value in contributing to public debate, except perhaps leaving readers with a message to boycott Benetton stores (p. 85).

Apparently, abiding by RAT standards, if critics have different interpretations of Beyond All Reason, then readers have a strong social reason providing good grounds for displaying the unopened book on the coffee table, but conference organizers lack scholarly grounds for devoting a plenary session to it at an academic conference. Instead of continuing to mimic RAT polemics in this vein, I shall offer a limited defense of Williams.

By adopting the standard "context matters" and looking at the original text, the value of the Benetton story should become more apparent. Titles help frame context. The Benetton story also occurs within a book entitled The Alchemy of Race and Rights: diary of a law professor.13 The alchemist Williams sets out to transform common substance (the far from atypical experience of a female of color) into a substance of value. The Benetton story appears as a chapter under a section entitled "Excluding Voices: A Necklace of Thoughts on the Ideology of Style." The section title suggests that Williams wants to make a point not only with the Benetton story but also about the different stylistic presentations of the story. Within the text, Williams recounts different tellings of the same tale--her journal, a law review rendition, a law school conference presentation, newspaper reports of the conference, and in many subsequent speeches. According to Williams, each retelling transformed the story by destroying the common, ordinary character of the experience, as the chapter’s title, "Death of the Profane," suggests. For example, with the law-review version, the story took on symbolic, professional, political importance. Williams recounts (and the RATs’ exposition excludes) how she had to negotiate with the law review editors to counter their policy of excluding any reference to personal physiognomy, including race.

In the context of a speech before a law student audience, the Benetton story took on yet another life. After the speech, Williams invited her audience to raise objections to the Benetton story. Some of the objections read as if they had come from the RATs themselves. However, she does not leave the story as transformed into grist for the rational-debate mill. Williams captures something (albeit in a footnote) which the RATs persistently miss: rational standards have a temporal psychological dimension. Williams does not discount the cognitive components of the objections raised by the students following her presentation. Rather she draws attention to the circumstances of the objectors’ speed in objecting. The Stanford law students were very quick to question whether Williams concocted the story. When a disinclination to believe becomes so reactivity quick, that may signal the possibility that racism played a causal role in the formation of the objection. To see the plausibility of Williams’s powerful insight consider the following two questions: (1) Would the students have raised similar objections so quickly if a white male told a comparable story in the classroom? (2) Do attitudes concerning gender and color influence skepticism? Contrary to the RATs’ quick dismissal of her story (and work), Williams provides a frame for a public debate about gender and race, if critics care to engage her work.

RATs presume to occupy a space in opposition to those who rely on narrative, implying that narrative plays little role in their critique. Yet, narratives colonize the RATs’ universe as well as the opposition’s. The authors pepper the text with devices that create associative images. Each chapter begins with a carefully-chosen, pithy, italicized quote, Salman Rushide leads the quotables with a plea to call rubbish (RC) "rubbish." Each quote and numerous remarks in the text draw associative links between RCs and a host of other bad characters: fanatical Muslims (p. 3), postmodern nonsense (p. 15), totalitarianism (p. 34), the Nazis (p. 52), the Great Communicator Ronald Reagan (p. 72),the Chinese Cultural Revolution (p. 106), the Soviets (p. 118). The RATs remind the reader of their own identity (law professors, Jews) throughout the book. They even find a clever way to provide personal narratives. One of the RATs’ (the reader does not know which one) alcoholic and gambling mother abused (her?) physically and emotionally. Sherry, let us presume, faced ethnic and gender discrimination, having been beaten for being the wrong race and entering an academic and legal world where she and the other female associate were the lowest paid lawyers in the firm (pp. 112-113). Before the reader begins to feel too much sympathy for the victim, Sherry quickly provides a welcome relief by deconstructing the story to expose the misleading parts of her narrative. Yet, although Sherry aims to show that RCs have no way of preferring the misleading narrative to the more truthful deconstructed version, an image still lingers in the reader’s mind: An individual has faced some hard times. The difficulties do not compare to what an RC writer would have made of them, but they certainly qualify as unpleasant. Yet, despite the troubles, hard work and a fair system produced a successful "minority" law professor. Perhaps, the RATs have unwittingly slipped in their truly authentic narrative.

The RATs’ persistent use of narrative makes their refusal to seriously examine the role of narrative in law all the more troubling. The idea of narrative has played a long and influential role in legal scholarship. Robert Cover, who does not even warrant a place in the RAT’s extensive index, saw that law occupies a normative world (nomos) that includes a legal structure (rules and institutions) and, most importantly, stories (narratives) and images (precepts).14 Stories, for Cover, gave law its context and meaning. Interpretative commitments hold the legal universe of values together. The dominant forces do not need to have their stories heard since their stories and images already pervade the culture. Oppositional forces need to proclaim their stories in sometimes loud and strident voices to be heard above the status quo’s roaring din. Thomas Ross, one among many recent scholars to examine narrative in a sensitive and reflective manner, finds a way to cut beneath the limited choice between narrative and objectivity. "Legal feminists are not refusing to talk abstractions and syllogisms because they eschew tough-minded reasoning--they do not. But to get the initial premises right, they have to displace the culture’s stories with their own."15 Legal words and phrases connect to commonly held images and narratives. The premises of an argument invoke and depend upon images and narratives for their persuasive force. Counter-narrative plays a philosophical role by addressing the foundations of the argument. If nothing else, this shows that narrative, at least, merits serious attention.

The RATs also refuse to seriously engage philosophy, even though they make many appeals to it. The RATs boast that they avoid philosophy when examining truth (p. 96). The lack of philosophy does not stop them from formulating an analysis of "whether Truth exists" or of accusing RCs of discarding any concern for truth.16 On a more specific level, the RATs provide the following analysis of three statements. The first statement ("He slapped me.") illustrates "the conventional view of true or accurate account" (p. 97). The second statement ("If you, a male observer, had been there, you probably would not have seen anything that looked like violence, but I felt exactly as if he had slapped me.") adds gender perspective. The third statement ("Although I didn’t feel like I had been slapped, I recognize now that the sort of event I am describing is a kind of slap in the face to women.") contains an admission to not feeling the slap and an assertion that this type of event is a metaphorical slap in the face of women. RATs accuse the RCs of failing to distinguish these types of statements.

The RATs miss an opportunity to provide a serious analysis. An article by bell hooks provides an seemingly easy test case for the RATs’ critique.17 In her analysis of an "incident" where her lover hit her, she clearly confuses the three statements. Does she have any grounds for refusing to stop at the first statement, which describes the fact that he hit her? Statements of the first variety occur in contexts. Compare the following: (1). "He hit me once." (2). "She is a battered woman." (3). "She feigned a brutal rape." The article begins with a personal narrative about hooks’s partner hitting her in the mouth. She wants to demonstrate how the overly used term "battered woman" deflects attention away from other forms of violence in intimate relationships. She does not fail to differentiate the harms referred to in (1) and (2). She readily acknowledges the comparative horror of the extreme violence of repeated physical abuse. However, she cautions against underestimating the harm involved in the more frequent and more common occasional hitting. Contrary to the RATs, taking a particular perspective and reflecting back upon an event does not indicate someone being unconcerned with truth or claiming that objective reality does not exist. Rather the views provided by narrative help attain the truth about objective reality. If "He slapped me." is kept separate from narrative that provides context, then the RATs’ proclivity to give a higher truth status to a simple statement will probably divert them from the more context dependent truth and objective reality. The personal and political perspectives, represented in the second and third statements from the previous paragraph, tease out more of the details implicit in the first statement ("He slapped me."). The use of the word "slap" glosses over the relevance of the recipient’s feeling regarding the action and implicitly assigns a relatively low value to the harmful effects of the event. The interpretive frame, skillfully employed by hooks, leads to questioning whether statements of the first variety distort reality.

The RATs might offer the following response: The RCs have appealed to the public through personal narrative. The RATs have tried to write a more popular book to meet the RCs on their own popular-appeal turf. For those interested in a more scholarly defense, they should consult the extensive list of works painstakingly compiled in the book’s endnotes as well as the RAT’s scholarly articles. I shall resist the temptation to demonstrate the pseudo-scholarly quality of the citations because something more important is at stake. The RATs have written a political work disguised by appeals to scholarship, rationality, objectivity, and the Enlightenment. I want to suggest that, in the end, the most important issue that divides RATs and RCs is political and not epistemological. Scholars for whom race matters on personal, scholarly, and political levels and other scholars for whom Jewishness should not matter on scholarly and (certain) political levels find prejudice in the other. Is this an academic version of racists versus anti-Semites? I shall show, by focusing in the next section on the RATs’ critique of Derrick Bell, the differences are better seen in terms of an impoverished view of racism and anti-Semitism.

Beginning with the 1985 Forward to the Harvard Law Review, Derrick Bell has experimented with metaphorical tales. His "Chronicles employ stories that are not true to explore situations that are real enough but, in many and contradictory dimensions, defy understanding."18 In "The Space Traders," Bell asks the reader to imagine that aliens negotiate a contract with the United States government.19 The aliens propose to give the Americans the means to solve major problems, including gold for economic woes, chemicals to destroy pollutants, safe renewable nuclear reactors for energy scarcity. In return, the Space Traders want the United States to give up all its black people, who will return with the aliens to their home star (planet).

The Space Traders Chronicle has generated considerable debate, which the RATs fail to even acknowledge, as evidenced by the following interpretations. Michael Olivas faults Bell’s failure to include other racial groups (Indian Tribes, the Filipinos, the Native Hawaiians, the Japanese, the Guamese, the Puerto Ricans, the Vietnamese) "whose conquest, enslavement, or immigration histories mark them as candidates for the Space Traders’ evil exchange."20 Robin Barnes proposes a different and more likely ending for the chronicle: while the offer puts the spotlight on interest and on hate groups, Americans vote against the trade. The Space Traders then confess to making a fraudulent offer to force Americans to examine their own irrationalities.21 The vote ushers in a new community of peace and harmony. Apparently, some RC fellow travelers think that some interpretations are better than others. By dwelling on this seemingly scholarly debate, the RCs risk associating Bell too closely with modernist discussions about interpreting literature.

The RATs do not entertain or offer any interpretation of the overall story. Instead, they hone in on one passage. A full version of the offending passage reads:

A concern of many Jews not contained in their official condemnation of the Trade offer, was that, in the absence of blacks, Jews could become the scapegoats for a system so reliant on an identifiable group on whose heads less-well-off whites can discharge their hate and frustrations for societal disabilities about which they are unwilling to confront their leaders. Given the German experience, few Jews argued that ‘it couldn’t happen here.’" (Bell [1992], 186-187)

The first sentence provides the RATs with evidence of Bell’s anti-Semitism for it imputes ignoble motives to Jews (p. 4). To defend their charge, the RATs provide an interpretation of Bell’s passage. The RATs thereby carry out a form of interpretation that they find so objectionable in RC narratives. To make matters worse, they present a bad interpretation. First, the RATs do not have strong grounds for identifying Bell with the narrator. Given the general disdain the RATs have for narrative, they would have to accept the following "truth" about fictional narrative: a narrator’s identity remains contestable. Bell himself is unclear about the narrator’s identity. Is the narrator the lawyer-prophet Geneva Crenshaw, the fictional heroine of And We Are Not Saved (p. xiii)? Let us grant that the narrator’s identity does not have an easy and certain answer. Despite this admission, the question "Who narrates ‘The Space Traders’?" has some answers that are "objectively" better than others. The RATs would not accept nor ever claim to be the tale’s narrators. So, "The RATs are the narrators" is not a good answer to the question. Likewise, given that the author identifies the chronicle as a piece of fiction, "Bell is the narrator" is also not a good answer. Nor does it help to draw an imagined inference from the passage to Bell’s theory (whatever that is) or ideology.

Second, the RATs do not offer a convincing case for their interpretation of the passage as anti-Semitic. The RATs draw a moral from the story for Bell: "Jews don’t really desire black equality; they want to keep blacks around as convenient targets to deflect white gentile anger" (p. 4). What is so offensive about a depiction of a situation where those not quite at the bottom-of-the-well express concern that, without those at the bottom, those next in line would feel the wrath of those on top? A concern for ‘Who is next?’says little about the position of those exercised about equality, but it does say a great deal about survival and history, on small and large scales. A clumsy player might welcome the soccer coach berating her teammate for being overweight, since the coach’s verbal abuse deflects the wrath away from her. However, the social dynamics of this situation says more about the coach than it does about the clumsy player.

Further, the Jews in Bell’s story "express a concern," which is not the same as revealing their "true motivation," as the RATs charge. In fact, the RATs miss the point of the Jews’ concerns in the story. The Jews understand better than anyone else that Nazism and the Holocaust could happen in the United States. As their chronicle unfolds, the Jews’ concerns prove well-founded. In the name of patriotism, the forces of anti-Semitism are unleashed. Bell has raised (unoriginally, I might add) important questions: Could a virulent form of anti-Semitism take root in the United States? Could a Holocaust happen here? To these the RATs might add: Has anti-Semitism taken hold among some blacks? Have the seeds of anti-Semitism begun to sprout among black legal academics?

The RATs draw a profound epistemological conclusion from their analysis of Bell and the RCs. The RATs think they have uncovered the RCs’ agenda, namely, a "wholesale condemnation of purportedly objective standards" (p. 26). Instead, the RATs have revealed feeble senses of politics underlying claims of both RATs and RCs. The RATs use political rhetoric and polemic disguised as academic scholarship to attack the RCs. To paraphrase Farber and Sherry, my argument against their pseudo-politics and questionable scholarship is unavoidably harsh, because I view their flaws as serious, profound, and dangerous (p. 13). I warned at the outset that I would use, however ineffectively, rhetorical devices similar to those employed by Farber and Sherry. Using the shorthand "RATs" for the rationalist perspective constitutes a feeble attempt to link Farber and Sherry with a rodent image. The association of RC (Radical multiCulturalist) with PC (Political Correctness) probably only resonated with those imaginations politically attuned to alliteration. Farber and Sherry deploy rhetorical devices more subtly (guilt by association, unsubstantiated charges, popularized appeals to reason) to make the anti-Semitism charge stick. As one more example, consider the fact that the label "Radical Multiculturalism" disguises the real target, Critical Race Theory. If the actual dispute between Critical Race Theorists and some critics is over racism and anti-Semitism, then racism and anti-Semitism should be the critical concepts that cry out for attention, analysis, and action. The next step in this deconstruction reveals that CRT and its critics use impoverished senses of racism and anti-Semitism.

A common understanding about racism and anti-Semitism has evolved among academics. Accordingly, brutal, direct, and loathsome racist and anti-Semitic attacks have largely become things of the past in this country. Prejudice has taken on far subtler forms. Words convey racist images. Theories have anti-Semitic implications. Anti-prejudice politics, then, retreats to more subtle terrain, where battles are fought over words and symbols. CRT devoted considerable energy to instituting hate speech codes, and its critics wonder why CRT excludes Louis Farrakhan’s brand of anti-Semitism from falling under its hate speech codes. CRT condemns the Confederate flag as a racist symbol, and its critics cite studies that show the complexities of southern culture and its use of symbols (p. 111). Prejudice takes on the form of action-at-a-distance. It has become largely an indirect phenomenon, often hiding in the interstices of words, symbols, theories, and ideologies. A racist remark uttered or racist symbol used in a Stanford University dormitory affects blacks everywhere.22 Black legal scholars, by offering critiques of merit and resorting to narrative, are anti-Semitic without knowing it.

While the subtle forms of prejudice get the bulk of attention, the more direct kind do not receive the attention they deserve. We do not have to look very far to see prejudice operating in fairly direct ways. Burgeoning "hate groups," deteriorating ghetto conditions, and a growing prison industry begin a list of concerns that should give us some pause. Criminal law, juvenile justice, and poverty law cry out for attention. A more general theory of harm is needed to connect the direct, structural, and indirect forms of prejudice. Antagonisms between blacks and Jews are of great concern. What forces mold and sustain the animosities? Perhaps blacks and Jews do not fully understand each other’s pain. Comparing slavery and the Holocaust seems to border on the obscene. Yet, implicit and often distorted comparisons underlie at least some of the antagonisms between blacks and Jews. Blacks and Jews do not appear to understand each others pain, present or past. Critical Race Theorists and their critics need to listen to and critically interpret each other’s narratives.23 More importantly, they also need to look past one another to the pernicious harms festering outside the legal academy.

1. Critical Legal Studies, Republicanism, Law & Economics, Feminist Jurisprudence, and Critical Race Theory have been referred to as philosophies, theories, perspectives, movements, and ideologies. I do not attach any particular importance to any of these labels here. See, for example, Gary Minda, Postmodern Legal Movements (New York: New York University Press, 1995). Anthologies of legal theory, particularly those used in law schools, have increasingly used the different movements as an organizational device.

2. Paul Carrington, "Of Law and the River," 34 Journal of Legal Education 34 (1984), 222.

3. New York: Oxford University Press, 1997. All references to this work will appear in parentheses within the text.

4. I shall follow, with apologies, the critics of CRT use of "black."

5. Derrick Bell, "Brown v. Board of Education and the Interest-Convergence Dilemma," 93 Harvard Law Review 93 (1980), 518, at 524-525. Farber and Sherry see Bell’s claims as an assault on the Enlightenment (p. 7).

6. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991).

7. Mari Matsuda, "Looking to the Bottom: Critical Legal Studies and Reparations," 22 Harvard Civil Rights-Civil Liberties Law Review 22 (1987), 323; Angela Harris, "Race and Essentialism in Feminist Legal Theory," Stanford Law Review 42 (1990), 581. (Harris’s critique of Catherine MacKinnon’s feminist jurisprudence has become a classic, but her assessment is complicated by the fact that MacKinnon has herself come to embrace many insights of Critical Race Theory.)

8. Mark Tushnet, "An Essay on Rights," Texas Law Review 62 (1984), 1363.

9. Patricia J. Williams, "Alchemical Notes: Reconstructing Ideals from Deconstructed Rights," Harvard Civil Rights-Civil Liberties Law Review 22 (1987), 401.

10. Randall Kennedy, "Racial Critiques of Legal Academics," Harvard Law Review 102 (1989), 1745. Farber and Sherry claim that Kennedy "was pressured against publishing a critique of critical race theory and ostracized when he published it anyway" (p. 104). They place Kennedy in the same league as Jules Lester, who was "drummed out of the Afro-American Studies Department at the University of Massachusetts for essentially refusing to stand silent while other blacks made anti-Semitic remarks" (p. 104), which makes one of many tenuous associative links of CRT to anti-Semitism. Yet, they fail to cite sources where they make the claim. However, a search through their odd system of citations reveals the New York Times as the authoritative source (p. 173, fn. 14).

11. Gary Peller, "The Discourse of Constitutional Degradation," Georgia Law Journal 81 (1992), 313; Mark Tushnet, "Reply,"Georgia Law Review 81 (1992), 343.

12. Treating CRT as an ideology undermines a great deal of the Farber-Sherry critique. If CRT consists largely of "a set of relatively simple ideas and slogans that help hold a group together and give it a coherent view of the world" (pp. 8-9), then the charge that CRT fails as a theory carries little weight since Farber and Sherry fail to treat CRT seriously as a theory from the outset.

13. Patricia J. Williams (Cambridge, MA.: Harvard University Press, 1991).

14. Robert Cover, "Forward: Nomos and Narrative" Harvard Law Review 97 (1983).

15. Thomas Ross, Just Stories: How the Law Embodies Racism and Bias (Boston: Beacon Press, 1996), 112.

16. Apparently, Farber and Sherry, after presenting a considerable toned-down version of their book at the 1995 Yale Law School symposium on narrative, did not stay long enough to hear Catherine MacKinnon say: "Fiction can be closer to reality than nonfiction, or it can be as lying as art....Story telling in law is regressive when it promotes the notion that there is no such thing as ‘what happened’ in a society that is still determinately unequal and a legal universe that will find inequality or not." Catherine A. MacKinnon, "Law’s Stories as Reality and Politics," in Law’s Stories. Peter Brooks and Paul Gewirtz, eds. (New Haven, CT.: Yale University Press, 1996), 236.

17. bell hooks, "Violence in Intimate Relationships," Talking Back: Thinking Feminist/ Thinking Black (Boston: South End Press, 1989).

18. Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, 1989), 7.

19. Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (New York: Basic Books, 1992). The Chronicle of the Space Traders was originally published in "Racial Realism--After We’re Gone: Prudent Speculations on America in a Post-Racial Epoch,"St. Louis Law Journal 34 (1990), 393.

20. Michael A. Olivas, "The Chronicles, My Grandfather’s Stories, and Immigration Law: The Slave Traders Chronicle as Racial History" St. Louis Law Journal 34 (1990), 425.

21. Robin D. Barnes, Race Consciousness: The Thematic Content of Racial Distinctiveness in Critical Race Scholarship," Harvard Law Review 103 (1990), 1864.

22. "Even though the remark [made by Fred, a German Jewish student at Stanford] was not made to me or even in my presence, I respond to it personally and also as a member of the group derogated; I respond personally but as part of an intergenerational collective." (Williams [1991], 112-113).