The recent trend in cutting-edge legal discourse has been to question the presumed neutrality of entrenched legal principles. A prior thread of inquiry, dating all the way back to Oliver Wendall Holmes, led to the finding that various judges and legal scholars might come to strikingly different conclusions based on the same set of legal assumptions, all perfectly valid and reasonable. Just as deconstructionist literary theorists have argued that language is hopelessly flawed, leaving texts wide open to interpretation aside from their authors' supposed intent, the same set of legal principles may be interpreted in different ways, all valid.
Proponents of Critical Legal Studies (CLS) extend this line of reasoning further, arguing that such indeterminacy leaves much room for latent racial and sexual bias to manifest itself in judicial rulings. As Derrick Bell of New York University provocatively puts it, law is "not a formal mechanism for determining outcomes in a neutral fashion—as traditional legal scholars maintain—but is rather a ramshackle ad hoc affair whose ill-fitting joints are soldered together by suspect rhetorical gestures, leaps of illogic, and special pleading tricked up as general rules, all in the service of a decidedly partisan agenda that wants to wrap itself in the mantle and majesty of law." Bell specifically argues that judges only rule in favor of black defendants when the interests of whites are thereby served, even in the case of Brown v. Board of Education. Jerome Culp of Duke Law School writes that "[f]acially objective and disinterested standards in fact serve the interests of the white majority." Critical Race Theorist Alex Johnson writes that "the presumed norm of neutrality actually masks the reality that the Euro-American male's perspective is the background norm or heuristic governing in the normal evaluative context."
Some argue that the very notion of static legal principles is merely a
reflection of the dominant Western society that promulgates it, and
thus is inherently biased against excluded groups. Gary Peller of
Georgetown Law School
writes that there can be "no neutral theory of knowledge," since
knowledge is itself "a function of the ability of the powerful to
impose their own views." One theorist writes that false notions of
objectivity are an instrument of "social power" that led to the
triumph of evolutionary theory, and caused creationism to become
marginalized as hopelessly subjective.
Stressing subjectivity, advocates of CLS have largely dispensed with the tradition of recounting cases in their writings in order to build logical arguments. Instead, they have embraced a form of autobiographical anecdote or even fictional parable: storytelling. Part of the appeal of storytelling is its ability to present points of view that wouldn't ordinarily make their way into legal discourse.
Columbia's Patricia Williams, for example, wrote a lengthy account of a racial indignity she experienced at a Benetton store. While certainly not invalid on some level, such an anecdote would traditionally not be relied on to form an argument about the functioning of the legal system. Other writers offer accounts of similar experiences on a train or in a taxicab. A feminist law professor recounted in grisly detail her own reproductive experiences in an academic paper, with only mysterious allusions to the legal system. Derrick Bell wrote a fable of space visitors who propose to buy blacks and remove them from American society, an offer whites in the story accept.
Farber and Sherry note that "[t]oday one can open a leading law journal and find a dialogue between the author and an imaginary radical friend, or a recollection of some incident in the author's past. Often, the story recounts how the author was mistreated because of race, gender, or sexual orientation." Writing in Commentary, Heather MacDonald adds disapprovingly that emerging controversial legal issues, such as the future of copyright law and Fourth Amendment protections in the face of the Internet, are increasingly being crowded from legal journals by such discourse.
Storytelling is designed, as one advocate explicitly put it, to advance the interests of "the outsider community." As such, it is not open to criticism from members of the privileged class. One can neither deny the storyteller's experience nor ask for its logical relevance. Even sympathetically recounting stories may be interpreted as misappropriation of the storyteller's pain. Defending the role of personal experience at a CLS retreat, one white woman referred to the story told by an Inuit woman, only to be told: "Did that woman intend to appropriate my pain for her own use, stealing my very existence, as so many other White, well-meaning, middle and upper class feminists have done?" Most notoriously, Patricia Williams argued that the truthfulness of Tawana Brawley's rape accusation against several white law enforcement officers was effectively beyond question.
Farber and Sherry conclude that perhaps silence is the only
permissible response to a story, but often silence can only be hoped
for. Providing uncharitable interpretations of several storytelling
narratives, Anne Coughlin wrote an article in the Virginia Law Review with the provocative conclusion that their autobiographical
orientation relies primarily on conventional Western individualism,
with all the negative connotations that entails. Jerome Culp responded
with a pseudo-psychological counterattack: that Coughlin and other
critics of storytelling were passing from denial into anger, as one of
the standard stages of grief over the death of white hegemony. Richard
Delgado, whose story was among those criticized, quoted a feminist
literary critic concerned that, by applying literary theory to texts
by black writers, white feminists replicate a slave owner writing a
"ruthlessly reductive" account of the behavior of his slaves.
Delgado wrote that Coughlin "strikes me as coming close to
replicating the sin of the slave master... in her mistaken analysis of
the autobiographical efforts of critical race scholars."
In another article in the Georgetown Law Review, Mark Tushnet discussed the relationship between narrative and the law. In a brief passage, he criticized a story by Patricia Williams in which she overheard anti-Semitic remarks by clerks in a store, but failed to speak up and later felt guilty about it. Tushnet notes that contrary to her usual practice, Williams does not identify the race of the clerks, and that readers would likely dwell on that ambiguity to the exclusion of whatever point Williams was trying to make. That is, if the clerks were black, readers might conclude that Williams was trying to avoid the subject of black anti-Semitism. If they were white, readers might conclude that "Williams was and at some level wanted to be complicit in the expressed antisemitism of the salespeople" because she, as a member of an excluded group, might gain temporary acceptance by demeaning another excluded group.
Gary Peller, a colleague on the Georgetown faculty, responded by denying any ambiguity in the story, finding "there is simply no reason to conclude that the salespeople were black." Instead, the story was obviously about "how participation in the prejudices of the dominant group might serve as a substitute avenue of inclusion for those who are otherwise excluded." Peller also rebuked Tushnet for failing to reveal the fact that he is Jewish, "a social fact of some import in understanding why Tushnet might read her text in such an overreaching manner." Peller dwelled on Tushnet's motivations to explain his "undertone of hostility and disrespect" towards CLS scholars. For one thing, "[n]ow that the agenda [of CLS] has begun to consider the social construction of intellectual merit itself, many likely feel threatened." For another, the attack on the idea of a neutral public space is particularly disturbing to Jews because of a "basic cultural compromise" under which "we would be permitted our Jewish identity in our private lives," while ceding the supposedly neutral public space to the white, middle class, Protestant powers that be. "Our cultural compromise requires that we suppress that perception of public space," but CLS makes it an issue again.
Tushnet replied that Peller distorted his position, citing it as an example of a white male academic "colonizing" discourses on excluded groups by incorporating them into his own discourse. In Tushnet's view, Peller also covets inclusion in excluded groups, offering a "contemporary version of a phenomenon common in the history of the white left in this country" in which whites defend positions they attribute to the minority community and then "offer those defenses as evidence that the minority communities ought to welcome them as honorary members." Finally, Tushnet says that Peller's response reflects insecurity over his own intellectual standing, what one would expect from people "who know (at some level) that their contributions as scholars... are not as substantial as they believe (or fantasize) them to have been."
