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Thomas: Hey everybody, before we get started with the episode, I thought you might like to hear something that my wife Lydia got for Andrew and I for episode 500. Here you go!
Stormy Daniels: Hi Thomas! Hi Andrew! Stormy Daniels, here, and I wanted to congratulate you on your 500th episode of your podcast, Opening Arguments. I mean, 500 is pretty awesome, but we all know that episode 154 is hands down the best, and I’m not just saying that because you had the bright idea to call it “Stormy Daniels is a Legal Genius.” I mean, okay, it had a little bit to do with it. Anyway, congratulations! Go out, celebrate, don’t do anything I wouldn’t do … [Sighs] Actually, don’t do most of what I would do, either, okay? Just… um… just… congratulations.
Thomas: Hello and welcome to Opening Arguments, this is episode 501(c)(3) – no, my brain-
Thomas: Yeah, this is episode 501. How’s it going, Andrew?
Andrew: Oh, it is extra fantastic. I just listened to all of those brand-new clips on the intro.
Thomas: Oh yes.
Andrew: Gotta love that.
Thomas: [Laughs] A good audio reminder for editor, whoever is editing this right now-
Thomas: -make sure you have also done the new clips. Thank you.
Andrew: Those are the best!
Thomas: That person deserves a raise! No. [Laughs]
Andrew: That person does deserve a raise.
Thomas: I am excited, this has been a lot of OA lately, but OA’s the best, so in addition to the bonus episode there’s the Law’d Awful Movies that hopefully is out for everybody. So much OA and I’m particularly excited for this episode, Andrew, because this was a listener Thomas S. question from a while back.
Thomas: That I think we kinda lost track of for a while and then the news has blown up and made it very relevant, so I’m glad we’re getting to it.
Andrew: Yeah, absolutely. Wanna get to it?
Thomas: Uhhhh? Yes. [Laughs]
Andrew: Okay, alright!
Critical Race Theory Part One
[3:07.8] [Segment Intro]
Thomas: So, Andrew, listener Thomas S. asks, and this was a while back, I think it was when it was first making the rounds. I wanted to know, when we talk about Critical Race Theory, and people who [Laughing] don’t know what it’s about talk about it.
Thomas: There’s that. But when people actually know something about it talk about it, they always make reference to the fact of well, you know, it started in the law. It started as a critical legal studies thing; it was a law review article kind of thing. One day it just occurred to me, oh, it started in the law. [Laughs] I’ve been thinking about Critical Race Theory and those surrounding kind of social justice issues, those kinds of things I talk about on Serious Inquiries Only. That tends to be where I talk about that kind of stuff, and it was one of those realizations of, like, wait a minute, I hadn’t been thinking about the fact that people just keep saying “it started in the law, it started in the law,” and we’ve got a law show! [Laughs]
Thomas: So, I wanted to know, what does that mean exactly? What does it mean to say that Critical Race Theory started in the law? What was the form it takes? When somebody writes a law review article like that, what effect did it have? Just kind of give us – you know, we obviously have to talk about the moral panic that’s happening now that’s just absurd. I could say so much about it [Laughs] I don’t wanna drag down the show, but it drives me nuts. I mean, it’s all the people who were all about free speech five seconds ago are banning speech. Literally banning books, saying you can’t teach people things. You know, it’s absurd, but I wanted to talk about the actual origins of it and setting that moral panic aside, what is Critical Race Theory? I know that’s a lot.
Andrew: Yeah! [Laughs]
Thomas: But, uh, I imagine you have a deep dive prepared.
Andrew: Yeah, so let’s work backwards through those two issues that you raise. Let’s start with, and then dispense with, the moral panic stuff; but our listeners do need to know this. As of this record – in fact, as of June 12th because that was the most recent article I could find updating, Critical Race Theory is banned to be taught in 8 States, and laws are pending and their passage seems imminent in 9 more.
Andrew: A quarter of the country is banning teaching Critical Race Theory. I’m gonna tell you why you will hear stories about like 3rd graders and whatever. Missouri Bill 952 applies to all state-supported 2- and 4-year colleges. The Idaho law applies to any institution of higher education, which includes law school by the way.
Andrew: And the Idaho bill is the model bill that the – and there’s literally one person driving this entire thing. The model bill that is being used for legislation in those other States applies to teaching college students – and the average age in law school is 26.
Andrew: Imagine – I just want you to imagine for a second a bill that said – imagine that all the worst things that are being said about Critical Race Theory were true; they’re not. Imagine passing a bill that says you cannot teach Karl Marx in college. You can’t mention it, you can’t talk about it. I can’t even – that did not happen at the heart of the Cold War.
Andrew: The idea-
Thomas: My first thought was oh, I bet they did that. [Laughs]
Andrew: No! The idea that you would not teach the historical philosophy of one of the most important philosophers of, you know, western civilization is just crazy.
Thomas: This is my first legal question, though. What happens when you pass a law but you have no understanding of the thing you’re banning? I’m not even just making a joke, I’ve actually wondered because I’ve seen some tweets that I think are very important to say it’s actually not Critical Race Theory that anyone’s banning in a lot of these situations, they are using the scare word, the moral panic word of “Critical Race Theory” which is – oh my god! Okay. I’m trying not to yell about this. But what they’re actually banning is just any talk of race or racism and all this other stuff. Is this the kind of thing where they are having to stipulate, like bullet point what things that are now – what utterances are now banned in our schools? Are they having to do that, or legally do they get to pass a thing that says “no Critical Race Theory” and then in the implementation we’re gonna have some sort of – talk about a kangaroo court – we’re gonna have some inquisitors that get to decide whether the banned knowledge was being taught or not? How does this work?
Andrew: It’s kind of the worst of both worlds. [Laughs]
Thomas: Oh god.
Andrew: For example, Florida’s new law amends 6a-1.094124, and it is about school curricula, and it says “public schools (quote) ‘may not distort historical events’” and then it gives two examples of “distorting historical events.”
Andrew: One is denying the holocaust, and second (this was the amendment) (quote) “the teaching of Critical Race Theory, meaning the theory that racism is not merely the product of prejudice, but that racism is embedded in American society and its legal systems in order to uphold the supremacy of white persons.” I’m sorry if this comes as a huge shock to any of our listeners? That statement is true.
Andrew: Racism is embedded in American society and its legal systems in order to uphold the supremacy of white persons. Do I believe that it’s getting better? I certainly do. But the level of willful ignorance of American history-
Andrew: And we’re gonna talk a little bit about this. For that to be what the bad guys are writing- [Laughs]
Andrew: To be like well, you know, obviously racism isn’t endemic in society. Are you kidding me? Anyway.
Thomas: Do they think once we crossed out the 3/5 clause or something? Oh, we got it! That was the last – we got all the racism.
Andrew: I’m gonna get to something that actually was a surprise to me.
Andrew: And that sort of talks about the crucial aspect of why Critical Race Theory must be taught, particularly in law schools. Let’s start with the most obvious, Mari Matsuda’s article on hate speech was cited by the Missouri – the Minnesota Supreme Court in the hate speech case that was reversed at the U.S. Supreme Court, R.A.V. v. City of St. Paul.
You cannot objectively, factually teach the history of the 1st Amendment in this country to adults without teaching, in some way, Critical Race Theory. You certainly cannot ban it at the law school level and give people an accurate education. I would say that that ban would extend all the way down to any AP government, advanced honors civics class in high school; because if you’re going to explain the theory of the marketplace of ideas, for example, reasonably bright honors high school kids ought to be exposed to the arguments against the marketplace of ideas. And by the way, those arguments are almost all grounded in Critical Race Theory. Those are all off the table in what is soon to be 17 states.
Never minding the fact that, again, you are miseducating your lawyers if you can’t say, um, the Minnesota Supreme Court ruled that hate speech was a violation of the 1st Amendment, drawing extensively from the work of Mari Matsuda.
Who’s responsible for this? It is one guy. It’s a guy named Christopher Rufo.
Thomas: Yeah, I’ve seen that name fly around.
Andrew: Who works for our old enemies at the Discovery Institute.
Andrew: If you don’t know who the Discovery Institute is, they are a right-wing creationist organization whose explicit goals are, I’ll link this in the show notes, (quote) “To replace materialistic explanations in science classes with the theistic understanding that nature and human beings are created by god” (end of quote). That’s their words, not mine. Rufo’s a monster, you can go to his website which … I guess I’ll link, because he has – again, it’s at the early stages of the movement, so they’re saying the quiet part loud. You can go read his “CRT Briefing Book,” which is [Laughs] I’m gonna quote from it. “Defining the problem in simple terms, Critical Race Theory reformulates the old Marxist dichotomy of oppressor and oppressed, replacing the class categories of bourgeoisies and proletariat with the identity categories of white and black.” Put a pin in that, Critical Race Theory is not Marxist. It wouldn’t matter if it were, but explicitly is anti-Marxist, which is kind of funny.
Thomas: It is?
Andrew: Oh yeah.
Thomas: Huh, interesting.
Andrew: And the criticism of “Critical Race Theory is Marxist” is part of a longstanding ploy to discredit African American legal activism in this country. Rufo’s website gives tips on (quote) “winning the language war.” “To successfully fight against critical race theory, we must adopt language that is trenchant, persuasive, and resonates with the public. Here are some powerful words and phrases to include in your communications: Race-based Marxism; State-sanctioned racism; woke racism; racial engineering; Critical race theory divides Americans into oppressor and oppressed based on their skin color.” I’m not gonna read the rest of these, not just ‘cuz they’re gross, but again-
Thomas: This is like the helpful moral panic fact sheet?
Thomas: Like, hey-
Thomas: I hear you wanna help me start a moral panic. Here are some buzzwords to use-
Andrew: [Laughs] Yes.
Andrew: He is the Clippy combined with Frank Luntz-
Andrew: -of how to start a moral panic, that is correct.
Thomas: [Laughs] That’s really good!
Andrew: The thing that I laughed the hardest about that two people listening to this show will laugh the hardest about, and then the rest of you will kind of get it at the conclusion of the episode is this line, and I’m not making this up. (Quote) “The strongest line of attack against critical race theory is to cite specific stories about critical race theory in practice. When you are designing your communications, weave in stories about the reality of critical race theory in American institutions.”
Now, you didn’t laugh at that, and the reason you didn’t laugh at that is because I haven’t explained what Critical Race Theory actually is yet, but I will tell you, for 30 years the most controversial feature of Critical Race Theory was its use of narrative storytelling in legal journals.
Thomas: [Laughing] Oh.
Andrew: That produced clutched pearls that I am going to read to read to you on this episode. In other words, the person who is – the explicitly religious, bigot, creationist monster-
Thomas: So Rufo is like “hey, make sure to talk about your lived experience.” [Laughs]
Andrew: Is employing exclusively, explicitly, Critical Race Theory arguments and constructions and forms to make his arguments against Critical Race Theory.
Thomas: [Sighs] Augh.
Andrew: He is also an Alex Jones level conspiracy theorist and propagandist. If you go try and dig through his supposed “evidence” it links back to articles that he wrote, which when you then click on the hyperlinks link back to other articles that he’s written. Eventually you get to what he calls – like everything he calls a “whistleblower document,” I almost did that in the Alex Jones voice – and they’re just like handouts that kids bring home from school that he, like, scours through until he can find language like – and this is really something that caused him to flip out – at one elementary school presentation they began with “we want to recognize that the United States was built off the stolen labor of kidnapped African and enslaved Black people’s work; which created the profits that created our nation.” Again, I don’t care if you don’t like that, that’s true! If it gives you hurt feelings, uh, tough. Facts don’t care about your feelings.
Gotta pull out one more pin. I told you the criticism that Critical Race Theory is Marxist is embedded in historical racism, and I want to link the October 4th, 1983 edition of The Washington Post, A.1, and this was the most racist Senator in modern history, Senator Jesse Helms, filibustering making Martin Luther King Day a federal holiday. And, as we record this the day before Juneteenth-
Thomas: [Sarcastically] What? The filibuster was used for racism?! No way.
Andrew: Yeah. [Laughs]
Thomas: I thought it was only used to come together in a bipartisan way and reach understanding, pass laws.
Andrew: Martin Luther King – by the way, bipartisanship, this would be broken by Republican Bob Dole. So, there was some-
Andrew: -bipartisanship, but that was in breaking filibusters.
Andrew: This is kinda gross, but I want to read you, this is what Jess Helms said from the floor of the Senate.
Thomas: Okay, historical gross language content note, I take it?
Andrew: Yeah. “A federal holiday should be an occasion for ‘shared values,’ but [Martin Luther] King’s ‘very name itself remains a source of tension, a deeply troubling symbol of divided society,’ (quote) I think most Americans would feel that the participation of Marxists in the planning and direction of any movement taints that movement at the outset . . . . Others may argue that Dr. King’s thought may have been merely Marxist in its orientation. But the trouble with that is that Marxism-Leninism, the official philosophy of communism, is an action-oriented revolutionary doctrine. And Dr. King’s action-oriented Marxism, about which he was cautioned by the leaders of this country, including the president at that time, is not compatible with the concepts of this country.”
When interviewed by the press, asked whether he considered Martin Luther King a Marxist-Leninist, he said “But the old saying–if it has webbed feet, if it has feathers and it quacks, it’s a you-know-what.” And then asked again if he considered King a Marxist, Helms said, “I don’t think there is any question about that.” Then, “When asked if his attack on [Martin Luther] King would cause him political trouble in North Carolina, Jesse Helms said (quote) ‘I’m not going to get any black votes, period’ (end of quote).” Almost certainly true. Look, I use that example but there are hundreds like this. Just Google “Martin Luther King Marxist,” okay? This is 100% the language of racists, and has been forever.
Let me first explain, Critical Race Theory is avowedly anti-Marxist, [Laughing] okay? Part of that is understanding philosophy, because Marxism is a modern philosophy. Critical Race Theory based on critical legal studies is emphatically post-modern.
Andrew: If you wanted to be correct about it, you would say they’re post-modernists and some honest critics will say that. The problem is that, like, Marxist is still a “dirty word,” and post-modern brings to mind, you know, French academics, you know?
Thomas: What’s funny is as you say that, we’ve churned through three or four other mini moral panics on the way to this one.
Thomas: Marxism, obviously that’s a big moral panic, but postmodernism, they workshopped, I dunno about Rufo, but obviously I have a history with James Lindsey, who I think has played – I know it seems like Rufo is responsible for most of this, but I think James Lindsey probably played no small part in this. He really has done a lot to add to this idiotic moral panic over-
Thomas: Critical Race Theory, and I’m just remembering now, maybe I should go back and try to create a taxonomy in case – I’m sure someone has.
Thomas: The trail of moral panics leading up to this one. It was intersectionality was the buzzword, “ah, intersectionality,” it was “identity politics,” and then it was in there too, and then we got to Critical Race Theory now. It’ll be something else a few months from now, it’ll move on, but they really have churned through all these terms and they mean the same thing to them?
Andrew: [Laughs] Yeah.
Thomas: Which is, you know, to them it means Black people and other marginalized peoples having a voice in history and not just being the whitewashed version of everything. I think that’s all what it means, and it’s taken on different names through the years that they’ve railed against, “their teaching our kids X,” you know?
Thomas: They’re teaching our kids blah blah blah. It’s so interesting that we’ve gone through all of these terms, it’s blowing my mind. Do you remember the postmodern one?
Andrew: Oh yeah.
Thomas: Or is that just in my-
Andrew: No no no.
Thomas: -little circle’s- [Chuckles]
Andrew: That’s still active among far-right wing evangelical sources. They will say, oh yeah, postmodernism teaches there’s no such thing as objective truth, which is especially hilarious since, you know, virtually all contemporary defenses of the New Testament are like “oh, you know, let’s not talk too much about the slaughter of the Amalekites in the Old Testament.” It’s explicitly postmodern! It’s explicitly like oh, well, you know, those were rules directed to those people at that particular time, and you can’t read that as-
Andrew: -God telling you to commit genocide today. And you’re like, oh, that’s real funny that you’ve been railing about postmodernism and you and Derrida seem to have a lot in common!
Andrew: Anyway, postmodernism came about in the 50s and 60s as a broader social philosophical movement, and one of the fundamental underlying features that persists today is deconstruction of text. Since law is primarily about text-
Thomas: There’s a lot of text, yeah. [Laughs]
Andrew: Right! It made sense that all of a sudden the techniques that literary theorists like Derrida and Foucault were using to understand written language, that somebody would say well hey, why don’t we talk about that in terms of the law? That really is the fundamental inspiration for critical legal studies, which is the legal forerunner to Critical Race Theory. Again, just to nail down, critical legal studies is not Marxist, number one, because dialectical materialism is explicitly modernist and critical legal studies is explicitly postmodernist; and number two, the dominant strain of CLS – and again, it’s easy to understand how people on the far right who don’t see nuance can see this. It is a lefty movement, but they are explicitly anti-Marxist lefties. The fact that from a philosophical basis they see the law as a potential tool for progressive social change runs directly contrary to the dialectic theory of history that’s crucial. Marx is not just about taxing people and giving money to poor people, right? It is about the dialectic view of history, and critical legal studies explicitly rejects that.
Oh, we also have a [Laughing] fun way to empirically confirm it, because the founding father of critical legal studies is a guy named Roberto Unger. I’m gonna quote from his 1983 Harvard Law Review article, “The Critical Legal Studies Movement.” The fact that he was the guy who felt like he could write that and did write that gives you some sense. [Laughing] Roberto Unger, in addition to being a Harvard law professor, also ran for President of Brazil twice. He started a political party in Brazil, and that political party in Brazil was an explicitly anti-Marxist leftist party. It was called the Brazilian Democratic Movement Party, or MDB. I could read – I’m gonna save you, if you get the show notes you will see all of the quotes in which the founding members of critical legal studies cast aspersions at Marxist political thought.
If it’s not Marxism, what is it? Critical legal studies has two primary features that it derives from postmodernism. The first is a critique of what they call formalism/objectivism in the law, and they do not mean Ayn Rand-ian objectivism, there. Formalism is the view of the law that you hear Republican’s bullet point on originalism. It’s the idea that – here, we’ll quote from Roberto Unger. “This thesis,” (the formalistic thesis) “is the belief that lawmaking and law application differ fundamentally.”
Andrew: That the politics of lawmaking is an appeal to various policy outcomes, whereas – so, right. The idea is you get together in a democratic society and the legislature makes the laws and the courts interpret the laws, and the formalist approach, dare I say an approach that I subscribe to for the most part, is there’s a difference between the act of making law and the act of interpreting law.
Andrew: That’s why it’s such a trenchant critique when right wingers say “oh, yeah, if you’re not an originalist then you’re just legislating from the bench.” The idea is there is a difference between those two, and the difference is that interpreting the law is more constrained.
Andrew: You’re not free to sort of just say “well, I like this outcome so that’s where I want to go with.” You know, you really have to look at what were the underlying principles? What’s the precedent? What’s the text of the law? You have these hard and fast rules that govern what you’re doing, and as we talked about in our originalism episode, my jurisprudential hero Ronald Dworkin has said yeah, there are right answers in legal cases. There is a way to interpret a law that is objectively wrong and that all people of good will who would look at that would be like no, that’s wrong.
Critical legal studies says yeah, that’s all nonsense. Laws are a tool of power, like everything else. There’s no difference between making law and interpreting law, there’s no one right answer. It is the system. Here’s a quote from Unger again, “Authoritative legal materials, the system of statutes, cases, and accepted legal ideas, display – though always imperfectly an intelligible moral order.” That’s the thesis of objectivism. That means they have a normative force. “The laws are not merely the outcome of a contingent power struggle or of practical pressures lacking in rightful authority.” And we talked about that on the originalism episode, too. That’s what gives force to the rule of law.
Unger said that’s all nonsense. [Laughs] He said as we look at the relationship of power in how laws get formed and how they get interpreted and how they get applied, it’s the same people at every stage of the process engaging in the same horse trading and the same-
Andrew: You know, political considerations, and you’re kidding yourself if you think there’s a right answer, or that there’s some kind of rules, it’s just the interplay of dominance in power politics. He gave a lot – look, Unger’s really hard to read, as are a lot of postmodernists if you’ve read-
Thomas: As is Marx, by the way. I was gonna say this earlier, I tried to read a little Marx. Unreadable, can’t do it.
Andrew: Yup, I recommend not reading any Foucault. [Laughs]
Andrew: But I think – this is not an example Unger used, but I think it’s consistent with his spirit. If there are Unger fans, CLS fans out there, write in, feel free to correct me. Do you know Arrow’s Theorem in voting?
Thomas: Can’t remember.
Andrew: It works like this. Imagine you have three voters in the electorate and you have three candidates.
Andrew: Voter 1-
Thomas: Is this the thing that shows that you can’t get the optimal…
Andrew: Yes, yes.
Andrew: So, Voter 1, if you rank the votes, would rank them A, B, C.
Andrew: Voter 2 would rank them B, C, A and Voter 3 would rank them C, A, B. It’s a rock paper scissors.
Andrew: Two people want A over B, two people want B over C, two people want C over A, two people want A over – right? There’s no – how you draw the runoff rules will determine who gets to win, but when you look at that composition there is no objective winner.
Thomas: There’s no way you could determine who is the most valued candidate in the voters,
Andrew: I love the fact, because this is like I haven’t sent you my notes yet. Unger calls this the Indeterminacy Thesis.
Andrew: The idea that in interpreting the law there is no one right answer, no unifying theory that demands that you reach a particular result.
Thomas: That’s a very, very, very constrained thought experiment, though.
Andrew: Yes, yes.
Thomas: I don’t think you can – unless I’m wrong, and maybe this is just me not knowing the full application of this. Sure, you can come up with a three-person electorate that has that exact set of preferences that makes it indeterminate, but I feel like that’s a far cry from the real world and it would be mathematically amazing if that held for like groups of millions of people.
Andrew: Oh, sure. I don’t want – and I have indeed made that counterargument publicly; I think I’ve made it on the show, I know I’ve made it in our Facebook group. Arrow’s Theorem is not a practical argument against rank choice voting.
Andrew: [Laughs] But it’s meant to show that philosophically there are legal situations in which how you choose the rules-
Andrew: -determines who’s going to be the winner, and the only basis for choosing rules-
Thomas: Is your own personal biases, maybe? [Laughs]
Andrew: Is the outcome you want to reach.
Andrew: You know, yeah.
Andrew: If you want one candidate to win, you’ll be like let’s runoff A and B first. Okay, A wins; let’s runoff A versus C. Okay, well now C wins, so by choosing that order I can get C elected, but there’s no objective principle that says C ought to win. As you point out, a philosophical example that maybe doesn’t necessarily map out onto legal principles particularly well because, again, it’s very narrowly circumscribed. Think about how much of the underlying language in the law is contractual in nature. In particular that we analogized from contracts among individuals to the social contract; the idea that people voluntarily agreed to form a society. Then (this is a bit of a sneak preview) but read into that the idea that, you know, for 200 years in this country African Americans were not allowed to form contracts. They were not legal citizens entitled to that right. Now map that onto today, where how much bargaining are you doing when you click the “I agree” on your end user licensing agreement?
Andrew: That’s a contract. The principle that enforces that against you is the same principle as in the 18th century two landowners do a handshake deal-
Andrew: -and sign a deed. You didn’t have any choice on that.
Thomas: Right, and also the talking point during this pandemic with the unemployment up. Oh, the job is not offering you enough money? Well, just don’t pay that low paying job. It’s like, well, the power imbalance, I’m not free to pick and choose what job, I need to eat. It’s not an equal power relationship.
Andrew: That’s exactly right. Doing some injustice because we have to get from critical legal studies to Critical Race Theory-
Andrew: That’s the first prong. There are two components of critical legal studies. The first is the indeterminacy thesis, the idea that there is no one right answer, and so that obviously implies certain things that you then do. The second is the idea of law as a force for social change.
Again, I’ll quote from Unger. “If the criticism of formalism and objectivism is the first characteristic theme of leftist movements and modern legal thought, the purely instrumental use of legal practice and legal doctrine to advance leftist aims is the second. Nothing in the nature of law or in the conceptual structure of legal thought, neither objectivist nor formalist assumptions, constitutes a true obstacle to the advancement of leftist aims.”
Let me try and translate that a little bit. What Unger is saying is once we recognize that the system is rigged, we’re not gonna play by your rules anymore. And Unger wrote really trenchant, difficult critiques of the concept of the system of rights. Now, mind you, he’s writing this during the civil rights movement at a time in which lots of people on the left were saying yeah, the way to protect minorities in this country is to get them acknowledged to be rights holders, and then they’ll have rights and then they’ll be able to assert them as claims against the government just like white people have been doing for years, and Unger’s reproach was like yeah, if that happens they’ll just concoct some BS reason to rule against the – let’s not try and charact – let’s not play by their rules, let’s just tell judges to reach the result that’s the most fair for oppressed people.
The critical transformation there was the idea that we’re done abiding by these kind of formal boxes of logic. We’re gonna describe what actually happens and then appeal to justice.
Thomas: I have a lot of sympathy for that with this current Supreme Court, where it’s like well, it seems as though the rules are a joke. It feels to me like almost all the reasoning of the right-wing Supreme Court justices and that area of people is like post hoc rationalization for the thing they already want and it’s left me real bummed out about these high-minded legal principles.
Thomas: So, I can kind of see where they’re coming for, there.
Andrew: And think about, we have lauded the Sheldon Whitehouse brief, the amicus brief that he submitted in the –
Andrew: New York Pistol and Rifle Association case that was 100% a critically inspired document. That brief did not purport to cite case law, it didn’t play by the rules, it didn’t say – it just said “we’re watching you and we’ve noticed in 76 of 77 5-4 cases-
Andrew: -you just happened to reach this conservative result, and we’re gonna shout that from the rooftops.”
Thomas: Yeah, I don’t wanna hear your crap about “oh, well you don’t understand, the commerce clause – they’ve never before done” [Laughs] the stuff we talked about last episode.
Thomas: Like cool, dude, but also in whatever percentage of these cases you seem to find a lot of little quirks of principles of crap to justify your decisions.
Andrew: Right, to reach the result, 76 out of 77 times that you won, yeah.
Andrew: That’s right. So now that notion of law as a tool for progressive change inspired several different practices. Here I want you to pull the pin out from us making fun of Rufo. The biggest one is the use of narrative. This is now so mainstream, think back to episode 500. The way I told the story of eminent domain was from the narrative, the story of how this came about, but also the libertarian’s hijacked that. The suit where they won was when they told the story of Susette Kelo and her little pink hou- they lost, but they came closest to-
Andrew: And the battle they’re still fighting is not a legal battle, there’s nothing – you go to the Institute for Legal Justice, the libertarian institute that went in and defended Susette Kelo in that case, there is nothing on their website about the history of the 5th Amendment, it’s all telling stories about people being kicked out of their homes by the government.
Thomas: This feels like the way that almost everybody in history argues about everything. [Laughs] You know? We always use these personal stories to make points and to advocate for stuff, don’t we?
Andrew: I want to tell you, not just recently in legal terms, I mean post-Ally McBeal there was – the same people who are up in arms about critical legal studies right now were up in arms about the use of narratives in law review articles. I’m not making this up, I knew you wouldn’t believe me.
Andrew: So, I’ve come prepared with quotes.
Thomas: Because why talk about the actual people who are subject to these laws whose interests actually matter? Why talk about their actual experiences? What?
Andrew: In 1997, Daniel Farber and Suzanna Sherry wrote a book-length right wing hit piece on CLS called “Beyond All Reason, The Radical Assault on Truth in American Law,” and there is over a chapter with some of their sharpest invective devoted to the horrors of narrative [Laughs] in law review articles.
Here is Richard Posner – now Richard Posner, Chief Judge of the U.S. Court of Appeals for the 7th Circuit at the time that he’s writing this, reviewing that book. Okay. “In the ostensibly liberal pages of the New Republic,” so here is a very prominent conservative justice in a position of authority speaking to liberal academics. That’s who read the New Republic. I was a subscriber since I was like 10, but you know. [Laughs]
Andrew: I’m weird. (Quote) “Critical Race Theorists teach by example that the role of a member of a minority group is to be paid a comfortable professional salary to write childish stories about how awful it is to be a member of such a group. I do not doubt the power of literature to awaken readers to injustice, but the stories told by Critical Race Theorists do not rise to the level of literature. They are flops as stories-
Thomas: Oh my god.
Andrew: -and as Farber and Sherry demonstrate, flops as scholars. Even when stories are true, they are not a reliable basis for generalization by foreswearing analysis in favor of storytelling they come across as labile and intellectually limited.”
Andrew: There you go. If you tell stories, if you’re Christopher Rufo, Chief Judge Posner thinks that you are labile and intellectually limited.
Thomas: Well, also-
Thomas: -this just seems racist A.F. to me; also, it feels like already you’re saying well they’re not doing any reasoning; they’re just telling stories.
Thomas: As thought there’s no analysis? Am I really gonna believe, Andrew, that there’s no analysis? There was just storytelling. The article was like “once upon a time,” and it just told a story, nothing else.
Andrew: Well, and in fact, [Laughing] we’re gonna tell some of those stories later on. Yeah, no, storytelling is – again, it has become such an embedded feature of the law, but that article was written 23 years ago. That article was written [Laughing] while I was in law school. You know, if you want to think about the massive success that critical legal studies has been, James Lindsey is not out there saying storytelling is bad, who the [Bleep] knows – [Laughing] excuse me. Who knows what James Lindsey is saying?
Thomas: Yeah, we can’t really use-
Andrew: But that battle’s been lost. The incorporation of narratives into the highest levels of legal argument is now firmly entrenched. Something else critical legal studies theorists invented, and I love this, and I know you will love it. As far as I can tell, they invented the word “trashing.”
Thomas: Huh, really?
Andrew: It means exactly what it means today. To trash somebody is to systematically go through and humiliate and make fun of a contrary position without showing fundamental respect for the underlying speaker. The idea is if they are racist, misogynistic then yeah, you can defeat those arguments and part of what CLS did was like, with some of them you might do the “my esteemed professor colleague so and so,” and with some of them you’re just like “well, then there’s this asshole.”
Andrew: And that dates back to CLS. Prior to that there was no, as far as I can tell, can you find examples? I’m sure you can, but the idea was a position expressed in an academic journal had to be treated with respect and engaged on its own terms rather than trashed.
The third idea that really came out of CLS was challenging law students. Here, again, kind of have to tell a bit of a story to help explain what this is. I’m quoting from Anthony R. Chase who’s a Critical Race Theorists, writing “Race, Culture, and Contract Law: From the Cottonfield to the Courtroom.” He says “The hackneyed phrase ‘think like a lawyer’ epitomizes the ‘objective’ (quote)(unquote) goal of a legal education. The phrase emphasizes the development of an analytical structure from which a lawyer can approach and organize problems rather than learning and applying hard and fast rules. Law students are expected to appropriate that analytical structure without question despite its flawed premise. Ironically, law students are taught to examine closely all doctrines, premises, concepts, tenets, acts, principles, and postulations, but not the very body of thought that legitimizes their analytical findings. The most resounding effect is that the cultural perspective of most white law students is validated, while the perspectives of rights, fairness, justice, and equality of many African American students and professors are seen as less worthy of serious considerations. Those students are encouraged and rewarded by the legal community for believing that the dominant views of their culture are fair and unbiased.” That means white students, right?
“On the other hand, African American law students often find that they have a limited basis for identifying with the legal community. Issues of race are considered inappropriate for classroom discussion, and any attempt to bring them to the forefront is seen as a case of special pleading, and only serve to widen the gap. Considering the paucity of African American law professors, case law authors, and relevant curriculum subjects, African American students cannot avoid noticing the marginal role their culture plays within the legal system.”
Again, this was written at the exact same time that Posner is trashing narrative. You have Chase saying right, one of the typical methods of communication outside of the western confrontational approach is the narrative storytelling approach, and look, it’s getting trashed. Part of what critical legal studies theorists did was began to teach their students, hey look, I’ve got this case book but you should know white dude wrote this case book, picked all the cases, and that reflects the unique background of the person selecting what they want to teach you, and I want you to think about – as part of thinking like a lawyer I want you to not just use this method to critique the outcomes of various cases, but I want you to critique the method that I’m using to teach you in the first place.
Andrew: That’s critical legal studies, and that was its effect in the classroom. Interestingly enough, that’s how we spawned Critical Race Theory.
Andrew: It began with a critical legal studies scholar who became the forerunner, the first person to write on Critical Race Theory, Derrick Bell. He wrote a book called “Race, Racism, and American Law,” and he wrote it in 1973. Long before anyone recognized that there was going to be a Critical Race Theory movement. It is the first casebook to study the systematic effects of racism in American law.
Thomas: Wow. Woww.
Andrew: It was – we talked about some of this from the beginning. It was the first textbook to point out that the Emancipation Proclamation freed no slaves, but allowed for 200,000 Blacks to be conscripted into the army. It’s one of these things that – Judge A. Leon Higginbotham reviewed the book in 1974 and conducted his own survey. What he did was he identified just four cases that he thought was critical to understanding the role of race in American law. Two of those were pre-civil war. You will have heard of Dred Scott v. Sanford–
Thomas: Heard it, yeah.
Andrew: -that said even freed Blacks were not intended to be citizens. There was also a case, a very important case, called Prigg v. Pennsylvania.
Andrew: Which affirmed the supremacy of the Fugitive Slave Act over a Pennsylvania law that said it was not valid. It basically, even if you’re in a free State, the Federal Fugitive Slave Act would apply, would preempt your Pennsylvania State laws. Okay, so his idea was any good casebook on constitutional law has gotta talk about those two cases, and it has to talk about two post-civil war cases, including the Civil Rights cases, which held that the 13th and 14th Amendments did not prohibit private discrimination; and Plessy v. Ferguson, which again you know. That’s the separate but equal case.
Then he added kinda a fifth criterium of did the casebooks publish Justice Harland’s dissents in those two cases? The Civil Rights cases and Plessy v. Ferguson, which were sort of stirring, hey man, seems like the Supreme Court is really racist. Here’s what he found looking at textbooks from 1895 to 1973; and this was published in 1974. Comprehensive review of 21 textbooks from 1928-1950 none of the authors excerpted or cited Dred Scott as a principal case.
Andrew: From 1928-1972 only one author included it in any major respect. Only the 1895 textbook included the Prigg case, none of the others. From 1895-1950 none of the casebooks included the dissents to the Civil Rights cases or the dissent in Plessy v. Ferguson. The first ones to do so were in 1950 and 1951 respectively. Think about what that means from an institutional perspective. The next generation of lawyers is not learning that these cases are a part of American Constitutional history.
Andrew: Liberal law professor [Laughing] John Frank wrote to Judge Higginbotham and said yeah, there was a one-sentence reference to Dred Scott in his Con-law handbooks and wrote to say – that was under the Chief Justice of the Supreme Court at the time was Chief Justice Taney, and he wrote both Dred Scott and Prigg like he was just … a racist, and on reconstructed racism.
Frank said, “We need not pause long with the judicial work of the Taney court for most of the Supreme Court decisions at the time, as was the case of Dred Scott, which for all its fascination, no longer has immediate relevance for our times.” (End of quote).
Andrew: That was it.
Thomas: They’re trying to whitewash – I guess I’m trying to understand the effect of this. It’s like law school textbooks essentially are white washing the history. Now, is this – how normal – I know it’s hard because obviously racism and slavery and all this stuff in America is pretty unparalleled in American history, there’s not a lot direct comparison you can make, but how normal is it that law that is no longer relevant in certain ways, like it’s no longer in effect, how is that normally taught? Are there other issues – I hope this makes sense.
Thomas: Are there other issues where it’s like the law has changed a bunch and the textbooks are like well, we don’t bother with that because that’s not how the law works anymore, or is it not equivalent in that way?
Andrew: It is – that is the perfect question to ask. The legal textbook casebook method is the one that spends the most amount of time on overturned cases from history, because you learn what it started off with in 13th Century Saxony-
Andrew: -how it evolved, which parts got overturned, which parts survived. That’s why I can call that up.
Andrew: Because that method is just drilled into you each and every class in law school. You start at the beginning. I told the story of, you know, Liz Warren and my friend being a sumpsit guy.
Thomas: The sumpsit, yeah.
Andrew: There’s no such thing as a sumpsit anymore, we got rid of a sumpsit in like 1910, but you start by reading an action in a sumpsit from 1704. The answer to your question is not just a good, you know, fair and balanced view of history includes the – it is no. Explicitly this is amazing to have this kind of omission because that’s precisely the sort of thing we don’t omit in every other aspect of the law. It certainly – in property law, in tort law, in civil procedure. All of those we teach in a way that tries to begin and work through history, that’s the whole point of the caselaw method.
Andrew: I will tell you; it has gotten better because of what Derrick Bell wrote in 1973. I know we’re sort of hitting the end of the segment, I do wanna give 30 seconds as to how that birthed the Critical Race Theory movement, and then I guess we’ll have to do a part two on the in-depth teachings of the Critical Race Theory movement.
Here’s what happened: Derrick Bell wrote “Race, Racism, and American Law.” First textbook on racism in American history. Flashforward to 1980 and he resigns from Harvard Law School over their hiring practices.
Andrew: Specifically over not hiring enough persons of color. He goes on to become the Dean of Law at the University of Oregon Law School. I believe the first African American law Dean, but that could be wrong. Now we’re in the mid-1980s and I love this story. Multiple law students, including people you’ve heard me mention, Mary Matsuda and Kimberlé Crenshaw, basically staged a revolt. [Laughs]
Andrew: They were like, uh, you drove Derrick Bell off of campus, you’re not hiring Black professors, and they created a shadow course.
Andrew: They lined up students to take this, they used Bell’s textbook as the textbook for the course; they invited people like Richard Delgado who’s probably another sort of leading light of Critical Race Theory, onto campus as guest speakers and then, by the way, Mary Matsuda, Kimberlé Crenshaw, went on to become law professors and leading lights in the Critical Race Theory movement. It was really birthed by student reaction to critical legal studies pedagogy and the situation involving Derrick Bell at Harvard Law School. They said yeah, look, you’re teaching us, interrogate our methods. Well, we’re interrogating those methods. You give us all these casebooks; you’re not using Derrick Bell’s casebook. You drove him off of campus, you’re not hiring Black professors. We want to start talking about those issues. I just love it was the sort of truly organic kind of grassroots offspring of a free exchange of thought spurned on by the critical legal studies movement that produced Critical Race Theory, and I can’t wait to tell you-
Andrew: -about their contributions to legal scholarship!
Thomas: Oh my gosh, what a cliffhanger! There’s just too much and we want to do it justice, so we’ve gotta save this for a part two, Andrew. But wow. I’m really intrigued. You know, in my mind – I wanted to ask you just to kinda make sure I grasp all this. In my mind because of the whole Critical Race Theory conversation, I think I was bringing some baggage into the critical legal studies conversation. I just want to make sure I understand it. How explicitly race-related was the critical legal studies movement there? Or was that something that kinda stands on its own regardless of some of these really bigger systemic issues of racism? I just don’t know how explicit that was.
Andrew: Think of critical legal studies as like providing the framework in which Critical Race Theory could-
Andrew: -develop as an offshoot. Critical legal studies continues to this day. Again, it reflects those two principles; the idea of legal indeterminacy, that is developed from the postmodern deconstruction of language-
Andrew: -and the ongoing influence of that coupled with the notion of disaggregating the lokai of social power. Critical legal studies theorists would talk about race, but they would also talk about other issues that result in power imbalances; economic, gender, queer theory is another-
Andrew: -offshoot of that. The idea is, you know, you sort of first say I’m recognizing the law as having the following structural defects, and then you propose the remedies that you think will fix those defects. I think that answers the question?
Thomas: Yeah, yeah.
Thomas: I guess also, is there any way – I dunno how this is measured – but is there any way to quantify or to give an indication of, like, how adopted critical legal studies is?
Thomas: You know, is that still just a little offshoot or is it something that the greater legal world has absorbed?
Andrew: I think it’s both.
Andrew: I wanna go back. Again, I’m defending, because there is much about critical legal studies to defend, and it has had long-lasting impact on how non-critical legal theorists write law review articles. It certainly has influenced how I talk about that on this show. I don’t identify as a critical legal scholar; I’ve told you I sort of reject those two theses. I lean much more in a modernist view of the rule of law, as you heard me defend during our episodes on originalism. I would say this, even among liberal scholars I would say critical legal studies represents a profound minority.
Andrew: I often use that as kind of the equivalent – probably larger on college campuses among professors than hardcore originalists.
Thomas: Oh, interesting.
Andrew: I haven’t done any mathematically rigorous surveys-
Thomas: Uh, how many critical legal studies theorists are there on the Supreme Court, though?
Andrew: Uh, not only zero, but that would be instantly – it would be agreed that it would be disqualifying across the political spectrum. You would get three Democratic votes and 97 votes in opposition.
Thomas: Maybe that’s … not right. [Laughing] Maybe it shouldn’t be disqualifying.
Andrew: I have used it as an example of a legal philosophy that, in a vacuum, ought to be disqualifying, because if you think there are no right answers then I don’t know that I want you to be on the place where people turn to for the answers in the law. I instantly say – you don’t even have to make the argument. I know what the counterargument is. Now that we’re filled with right wing activists, maybe you should rethink that.
Thomas: Well, and not only that, it may not be the worst thing in the world for Supreme Court justices to be trying to dole out justice rather than (quote) (unquote) “right answers” based on some principles, high minded principles that actually maybe not are always that high minded and aren’t consistent. It might not be that bad for them to be like “I’m a justice who just wants to find the most just outcome in a given case” or a given thing. Maybe we’ve reached an era in which that shouldn’t be disqualifying as a possibility.
Andrew: I want to say two things to that. Number one, I think that’s a respectable argument. I think we could – I think it’s a respectable argument. Number two, I will tell you the way in which you phrased it is really echoing, for me, again sort of tied up in the endemic racism in the system, that Thurgood Marshall was tarred with that branch. Whenever Thurgood Marshall said “I never forget that our first and foremost duty is to do justice-
Thomas: Mm-hmm. [Laughs] Ah, look at this commie! Marxist!
Andrew: Went apoplectic – well, and began circulating – we’ve talked about this, the kind of criticisms, subtle digs at oh, well, you know, maybe this guy – he just argued Brown v. Board of Education, but maybe this guy isn’t the smartest apple in the orchard or whatever.
Andrew: It was, like, not subtle racism. Yeah, we have – the way I would sort of merge those two things together is we have a long trend in legal, even liberal academic circles, of equating the desire to do justice, the desire to do social justice, with a lack of academic rigor. You see that, it’s why I made the joke from the very beginning of the episode. You see that in “the facts don’t care about your feelings” crowd.
Andrew: The idea is that if you care that must mean non-factual rather than-
Andrew: As is so often the case, [Laughing] both factual and feelings.
Andrew: As part of a larger project that says we ought to be thinking about and looking for ways to decouple that inherently biased assertion that caring about the effect of what you do somehow makes you less rational than somebody on the right, I 100% agree.
Thomas: Alright, well, we still went over even though we tried to do a part two, but that’s okay.
Thomas: This is awesome stuff, I am learning so much, and I’m really excited for part 2, I suppose it’ll be the next Tuesday deep dive. I know it’s a long wait, but it’ll be worth it, can’t wait.
[58:03.7] [Patron Shout Outs]
[1:11:13.4] [Segment Intro]
Thomas: Okay, Andrew! It’s time for T3BE, Thomas Takes the Bar Exam Answer Time. Let’s see if the coin and I got this right or both have to, you know, hug each other. Me and my coin.
Andrew: [Laughs] Alright, everybody, hug it out!
Andrew: Yeah, we got a real property question. This was a question about shutters.
Thomas: [Laughs] Shutter law.
Andrew: A man has custom made exterior wooden shutters installed on the windows of his home, the contractor did so by drilling screws and brackets into the exterior window frames and the shutters, then he sells the house, it’s silent about whether it comes with the shutters or not. Before conveying he deinstalls the shutters, fixes the window, repairs the frames and everything and the buyer’s like hey man, I get the shutters too. The question is, and seller says nope. Then buyer sues. Is the buyer likely to prevail?
I don’t know a way to package this any differently, you not only got this exactly right, you got this exactly right at every step of the process.
Andrew: Your reasoning was entirely correct.
Andrew: You eliminated the bad answers A and D for exactly the right reasons. It was A, no because the sales agreement did not mention the shutters; and you were like yeah, I don’t think the sales agreement’s gotta say everything.
Thomas: [Laughs] There’s a lot of stuff in there but I don’t think they mention every single little thing in the house.
Andrew: Right! You eliminated D; I was most impressed by this. D, because the man gave the buyer a warranty deed and the absence of the shutters violated a covenant of the deed. You were like that sounds like a lot of legal word salad. That’s a lot of legal word salad.
Andrew: It is nonsense. A warranty deed just means that you are warranting that you have good and marketable title to the property.
Thomas: Oh, okay.
Andrew: You’re saying “I actually own this property,” then the question was are the shutters fixtures or not? You asked the question, is “screws and brackets gonna be the key?” The answer is-
Andrew: -screws and brackets are the key. There are a couple different tests, but by and large the primary test for whether something is a fixture and therefore conveys with real property is whether the item is permanently affixed to the wall, ceiling, or flooring.
Andrew: When you screw it into the wall, that becomes a fixture.
Thomas: Very interesting.
Andrew: There’s some other aspects, but by and large if you remember that fixtures are screwed into the wall or are things that are intended to be part of – you could remove the tiling from the kitchen floor-
Thomas: You can?
Andrew: -that’s not screwed onto the floor.
Andrew: Yeah, you pry it up with a crowbar-
Thomas: No, I mean, yeah, but you’re saying you’re allowed to-
Andrew: Not, but not legally. No, no no-
Thomas: Oh, gotcha sorry. [Laughs]
Andrew: It’s physically-
Thomas: Yeah yeah yeah.
Andrew: Could do so.
Thomas: [Laughs] I was waiting for the explanation.
Andrew: But if you did that-
Thomas: Of why you’re flooring tile’s not fixtures.
Thomas: But no, it is fixtures, gotcha.
Andrew: Yeah, it is a fixture even though it’s not screwed into the floor.
Thomas: Right right right. So, something like a ceiling fan or, you know, I’m trying to think of stuff that might be on the margin. With appliances oftentimes there’s a little – well yeah, actually, I think our microwave is mounted with a bracket. Is that a fixture now?
Andrew: If the microwave is mounted with a bracket, it’s a fixture.
Thomas: Oh my gosh.
Andrew: If your refrigerator fits into a little niche, which it almost always does, then your refrigerator is a fixture.
Thomas: I guess the key is before you list the house or whatever, if you take that stuff out first then you’re good? Or what?
Andrew: Yeah. Or if you exclude it from the sale. You can just say right in there, by the way, we’re not giving you X.
Thomas: Oh. Alright.
Andrew: Always write stuff into contracts.
Thomas: Yeah, smart. Okay, well I nailed this. That’s a proper celebration of episode 500 was-
Thomas: Not only yes but hell yes, in terms of the question.
Andrew: Exactly, exactly.
Thomas: Nailed it every turn. The coin and I are shaking hands right now vigorously celebrating. Wow, cool! I got one right!
Thomas: And it actually provided some useful information for if I ever sell this house! Cool!
Andrew: There you go.
Thomas: Well, let’s find out which listener is our big lucky winner who probably also nailed it because they’ve listened to [Laughing] 500 episodes of this show, too. Who won the T3BE?
Andrew: Well, Thomas, 500 episodes is pretty special, so this week’s winner is pretty special herself. It’s our very own Teresa Gomez who writes “C. The key words for me are ‘window frame’ and ‘repaired’. Once the shutters were physically attached to the window, they became a fixture. The seller should have included an exclusion list in the contract if they wanted to keep them. Only fortune no fame please!”
Well, you heard her, do not follow @teresagomez00 on Twitter. Maybe follow @oawicki which she maintains, but send her gifts of money, and congratulations Teresa on being this episode 500 very special T3BE winner, and thank you for all you do.
Thomas: And that’s our show, thanks so much for listening. Oh my gosh, Andrew, great part one to this deep dive, can’t wait for part two, but I have to. I gotta wait a whole week along with everybody else. We’ll see you all for a Rapid Response Friday.