Critical Race Theory

This is about literally one guy who said on twitter maybe he wants to shorten the excerpt of Dred Scott his students read https://t.co/Nk13Yk9k91

— Shane (@shaneferro) June 9, 2021

I also had other classes where the professors were just like "yep the origin story here is racism" and nobody was encouraged to raise their hand and question that reasoning and I also felt I came to a very full understanding of those parts of the law

— Shane (@shaneferro) June 9, 2021

CRT would, if you jammed it into one "discipline," come under the rubric of "jurisprudence" in law school. I only went to one law school, I can't speak for all of them, but jurisprudence is not taught in law schools (by and large) for much the same reason Dred Scott is not really belabored in Con Law:

Number of times these cases come up in actual practice = 0

— lex amissa (@lexamissa0) June 9, 2021

And yes, as a reply to that tweet points out, CJ Roberts mentioned Dred Scott in an opinion in 2015. The exception that proves the rule, especially since I know many a litigator who never takes a case to their state appellate court, much less to the Supreme Court. There are a lot of lawyers out there, and a lot of cases tried every year, and the number of them that reach any appellate court, much less the Supremes, is, if you extrapolate "downward" from the top, immense. Mind-bogglingly immense.  And Supreme Court justices throw cases like that around because they are Supreme Court Justices; the rest of us, are not.

But I digress:  CRT, if it comes up anywhere, should come up in law schools.  Probably it does, in the schools that treat law more theoretically than practically.  My impression of UT Law students, for example, is that they all thought they were suited for the state Supreme Court upon graduation, because they understood the "theory" of the law.  Students from Baylor Law, OTOH, were famed as fierce litigators, because their education focussed on how to handle yourself in a courtroom or an appellate court.  When I worked for a law firm in Austin, one of the UT grads with a few years experience (not, granted, in litigation) sent a UT law student clerking there, to find me.  His mission was to go to the courthouse for docket call.  He was sent to me to find out where the courthouse was, and what to do when he got there.  I hadn't been to law school yet, and I had more practical experience than that guy.  This is not really unusual. (More lawyers show up at docket call, than show up in court for a trial. A small percentage of the cases I worked on as a legal assistant in a busy litigation firm in three years went to trial.  A very small percentage.)

The point of CRT, as I understand it, is to examine the relationship of law and racism in America, and to examine it critically.  It's the bugbear of white Americans who fear losing their privilege again.  They don't even hide that:

"They're not acknowledging any improvement in our culture, the gains made, how we are more equal, even despite our faults, than any other country," Kilmeade said. "The other thing is they are not only trying to raise up minorities and make sure the playing field is even, they're trying to take down the white culture."

"This generation of Americans wonders why aren't we all Americans?" he continued. "Why are we being marginalized on a daily basis based on our gender, our sexuality, and the color of our skin. And it's not even subtle! It is actually out there! It is written in black and white!"

It's a familiar complaint, but it's nakedly racist, too.  "They're trying to take down the white culture"?  What culture would that be, pray tell?  Western culture, which learned the "zero" from Arabic culture?  Which even learned its Aristotle from the preservation of those texts by the Arabs, after "whites" torched the Library at Alexandria?  The "white" culture that destroyed the Moor, Othello?  (Who is a "Moor," an African in our parlance, to mark him as "outside" the culture of Venice as possible.  It's the culture of Venice, the "white" culture, embodied in Iago, that destroys Othello.)  The white culture (Columbus) that brought slavery to the "New World"? Or the white culture in America that created the slave trade solely on the basis of commerce, that developed an international industry based solely on the purchase and exploitation of human beings based on skin color, and then kept that practice alive in law long after it was banished as commerce, for another 150 years and counting?

I could go on; you could, too.  Even to raise the idea of analysis, of critique, of critical examination, is too much for these people.  And yet, do we really need to belabor Dred Scott in law schools?

Not for most lawyers.  The principle it espoused is dead.  Most legal practice has nothing to do with civil rights.  If a real estate lawyer comes across a deed restriction "for whites only," all that can be done is ignore it.  It can't be extirpated from the chain of title, and it can't be enforced.  Wince, and move on.  Most litigation is about torts (personal injury), or it's family law.  Unless you have a particularly racist or sexist judge on the bench, basic questions of civil rights don't come up every day.  The principles of Dred Scott are no longer law.  No lawyer is going to cite it in a brief or pleading, and if they do, some law clerk will have to justify such an esoteric case before it gets before a judge.

CRT would examine that, not exterminate Dred Scott.  It has it's place in such an analysis of law in America as a whole.  I honestly think the issue here is a professor fool enough to air his curriculum considerations on Twitter, assuming all who read will be of like mind, or at least collegial.  Honestly it amazes me how guileless people can be about "social media."  They create their own problems.

Which is still not as bad as being openly racist on a cable news show.  Although I can almost guarantee you what Kilmeade said won't even get a mention in the New Yorker.  A "debate" (if that's what this is) certainly won't erupt over it.

Which is something else CRT could probably tell us about; if we weren't so scared of who we are and what we and our ancestors have done.  Shame and guilt are truly powerful forces.