Transcript of OA502: Why Critical Race Theory is Indispensable

Listen to the episode and read the show notes

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 502.  I’m Thomas, that’s Andrew, how’re you doing sir?

Andrew:         I am fantastic, Thomas, how are you?

Thomas:         I’m doing fantastic because I loved 501 so much.

Andrew:         [Laughs]

Thomas:         It was one of those ones that was a joy to edit.  Just going through it the second time, you did such a good job there, Andrew.  Guess what, everybody?  I think Andrew has a little announcement about our content that we’re deciding to do these next few episodes.

Andrew:         CRT is in the news right now, we wanted to do these episodes back-to-back so that if you’re out there sharing, maybe even sharing these episodes with an Uncle Frank in your life, you can kind of point that person to two episodes, back-to-back, two plus hours on Critical Race Theory and just as an introduction to that.  Yes – so, Uncle Frank if you’re listening.  Yes.  This is a liberal show, okay?  But nothing we’re going to tell you about Critical Race Theory has to do with our political opinions.  Part of that is because I, the lawyer involved, am not a Critical Race Theorist.  [Laughs] I have no incentive to secretly hide what it is so we can indoctrinate our children. 

I can prove that to you if you go back and listen to episode 477, which was my leftwing critique of originalism.  No reason to lie about that.  I talk about my jurisprudential hero, Ronald Dworkin; and in particular I defend the idea that there are some objectively right answers in legal cases.  They include cases like “you’ve gotta be 35 to be the President,” and they also include harder ones, like no, the 3rd Amendment does not give you a claim against surveillance by a FISA court.”

If you listened to episode 501 you will hear that the fundamental claim of critical legal studies, which was the foundational movement that gave rise to Critical Race Theory as an offshoot, is that there are no right answers, and that law should be a tool of progressive policy-making. So again, this is an inhouse dispute, and what I would challenge you to do, Uncle Frank, is to listen up and also to think about the fundamental tension that’s at issue here.  This will wrap into breaking news right now.

In episode 501 I talked about the Florida law banning the teaching of Critical Race Theory in Florida schools.  Two days ago, Florida passed another law, it is House Bill 233.  It was signed into law by Governor Ron DeSantis.  That law requires reporting by all Florida colleges and universities to file a report with the government as to whether they are complying with intellectual freedom and viewpoint diversity.

Thomas:         Oh my god.

Andrew:         Yeah.  It says that the State Board of education (quote) “shall not shield students from free speech protected under the First Amendment,” and it defines “shield” as “to limit students’ access to or observance of ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive.”

Thomas:         Well…

Andrew:         [Laughs]

Thomas:         Isn’t that already how it works?  Or am I-

Andrew:         Yeah, except that this is a whole new level of bureaucracy-

Thomas:         [Laughing] Yeah, creating-

Andrew:         That you actually have to file these, yeah.

Thomas:         Yeah.

Andrew:         We could talk about the party of limited government imposing brand new recordation requirements on Florida’s colleges and universities, but I don’t want to lose Uncle Frank yet.  I want to says you have to choose which side of that you’re on.  Critical Race Theory is predominantly a legal theory that is taught in law schools.  It can be taught, as we discussed in 501, in college history classes, and in high school advanced civics classes.  That’s pretty much its atmosphere, and so the question is do you favor academic freedom?  Do you favor exposing students to ideas that (quote) “they may find uncomfortable, unwelcome, disagreeable, or offensive,” (end quote) or do you not?  But you can’t have it both ways.  You can’t say “I don’t want free speech snowflakes,” and at the same time ban Critical Race Theory.  My argument is Critical Race Theory is a crucial component towards understanding modern jurisprudence, and we’re gonna develop that at length in this episode.

Thomas:         Yeah, I’m in the freakin’ Twilight Zone, man.  I mean, my memory’s bad enough-

Andrew:         [Laughs]

Thomas:         -that things that happened four years ago feels like they just happened.

Andrew:         Yeah.

Thomas:         You know, two, three, four years ago and maybe a little bit further back was speech after speech about how we need to be able – college, university is where you go to expose yourself to the ideas that you might whatever, and now it’s the opposite of that.  Now that group is saying ban these ideas at the college level.  I don’t even know what to do.

Andrew:         I’m with you, I see the scary door opening up.

Thomas:         [Laughs]

Andrew:         I hear the Rod Serling music in the background.  Again, as we document in episode 501, the model legislation in Idaho and the legislation in most other States is legislation that applies to post-secondary education.  It applies to teaching Critical Race Theory at colleges, universities, and graduate schools; which [Clenched Teeth] by the way is where this is taught.  And we’re gonna talk about it.

Thomas:         Yeah.

Andrew:         So, shall we dive in?

Thomas:         Anyway, the whole point was [Laughs] we don’t have to wait a week for part two!  I was gonna say, waiting a whole week for part two after that great part one, I was a little bummed about, so Andrew’s doing a switcheroo.

Andrew:         Yeah!

Thomas:         We’ll talk about the Rudy Giuliani news on Tuesday’s episode, gonna be a lot of fun.

Andrew:         And some breaking Supreme Court decisions, more on eminent domain.  Look, Tuesday is gonna be great.

Thomas:         Yeah.  It’s a switcheroo!  It’s a Rapid Response Tuesday!

Andrew:         There you go.

Thomas:         Alright, well, here we go, let’s talk about Critical Race Theory.

Critical Race Theory Part 2


Andrew:         Where we stopped in episode 501 was explaining the history of the critical legal studies movement, and how that evolved from the broader postmodern critique of language and practice that, in fact, plug for what should probably be either a forthcoming or by the time you listen to us, episode of Serious Inquiries Only talking about that from an academic, linguistic standing.  Beginning in the late 1930s, certainly by the 1950s and 60s you had this critical movement in the academy questioning language.  It was logical to then say oh, law is about language [Laughs] so let’s apply some of those techniques to the law.

I talked about some of them, but I really, really loved – this is an article from Richard Delgado and Jean Stefancic, who are two of the prominent critical legal studies and also Critical Race Theorist, and article called “Rodrigo’s Reappraisal” from 2021, very, very recent.  Here they’re talking about language and part of the narrative says “A law professor I know told me that he had been delighted to learn that many of the students at his new school aspired to careers in environmental law, which was then a new field.  Later he learned that many of them were planning to become attorneys for mining companies or Big Oil.”  [Laughs]

Thomas:         Huh.

Andrew:         “You see, their desire for a comfortable job in big law converted ‘environmental lawyer’ into a term that could encompass comfortable work defending corporate clients engaged in polluting the earth.”

Thomas:         Ew.  Wow.  It’s like “I’m a Civil Rights attorney, I want to defend people who violate people’s Civil Rights.  I’m a Civil Rights attorney.”  [Laughs]

Andrew:         That is exactly right.  Understanding how language is used is kind of crucial to understanding the law.  That’s the first point.  I love that example, I thought that really kind of drives home the appropriateness of critical legal studies.  Again, I’m not a CLS scholar, but I do appreciate the value of the contribution of the research to the field. 

Then we talked about how the current anti-CRT moral panic is driven by literally a singer person, Christopher F. Rufo; and he is a right-wing filmmaker with a bachelor’s degree.  That’s it.  When I say this is driven by him-

Thomas:         Hmm.

Andrew:         I’m gonna link in the show notes a Wall Street Journal article, which lays out the timeline of Donald Trump’s ban, executive order banning Critical Race Theory from executive departments and it goes like this:  On September 1, Christopher Rufo was invited on Tucker Carlson to complain about Critical Race Theory, then Donald Trump watched that.

Thomas:         [Laughing] Yeah.

Andrew:         The next morning, Mark Meadows, Chief of Staff, called Christopher Rufo and said hey, the President watched you on Tucker Carlson, can you brief him on the stuff that you talked about?  Then two days later, Trump issued that memorandum, which has since been rescinded by President Biden, which says (quote) ““all agencies are directed to begin to identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’ or any other training or propaganda effort” ([Laughing] propaganda effort…) “that teaches or suggests… that the United States is an inherently racist or evil country.”

When we say direct line, what we mean is Rufo went on Tucker Carlson, Trump watched it, and then two days later drew up an executive order.  Hard to draw a straighter line than that.  As I mentioned, Rufo does not have a law degree.  He has not written a law review article.  Thomas, when I went on Westlaw and did a search for how often Christopher Rufo has been cited by law review articles, is contributing to the field of jurisprudence, to discussion by and among lawyers, how many times do you think he’s been cited by law review articles?

Thomas:         Well, my initial instinct is zero but I don’t know how much the law would be, you know, littered with originalists trying to cite people – in the same way I had to analyze this paper in the Journal of Controversial Ideas and it cited James Lindsey over?

Andrew:         [Laughs] Mm-hmm?

Thomas:         I dunno, is there a lot of that?  Just people writing terrible work, citing terrible people?  Or if not I’m gonna guess zero.

Andrew:         You happen to be doubly correct.  There is motivated scholarship in academic journals, particularly in law reviews, and let me be honest, both left and right where you have unique legal theories from liberals that are being tested out in the waters of academia and there are a number of things that come to mind with respect to that, in particular the anti-corruption thesis that we’ve talked about.  And when you have trial balloons for right wing causes such as we have documented at great length, the proceedings in the 1980s that began in law reviews arguing for an individual right of ownership under the 2nd Amendment that percolated all the way up to the Supreme Court.  It is perfectly normal for judicial opinions to cite law review articles, so, you know, this is one way in which ordinary academics can influence the judiciary, and that is by writing a really, really good law review article and getting it cited in a judicial opinion.

Yes, there is a significant amount of motivation on both sides to do that.  Despite that motivation, Christopher Rufo-

Thomas:         [Laughs]

Andrew:         I need to tell you has been cited two fewer times in academic law review articles than [Laughing] Thomas Smith.  You’ve been cited twice as part of Opening Arguments in various law review articles.

Thomas:         The show has been cited twice.

Andrew:         Ah, you appear by name.  If someone gets onto Westlaw-

Thomas:         I do?

Andrew:         Yes, you do.

Thomas:         Oh, okay!

Andrew:         It’s part of the citation.

Thomas:         Cool!

Andrew:         I imagine if they type “Thomas Smith” they may get lots more hits.  [Laughs]

Thomas:         Yeah.  Is there another Thomas Smith doing another Opening Arguments?  It’s not impossible.

Andrew:         [Laughs] It’s not, you appear with me so I’m pretty sure that it’s-

Thomas:         Alright, cool!

Andrew:         -the two of us.

Thomas:         Been cited, everybody! 

Andrew:         Rufo’s central argument, you can go to his website, I linked it in the show notes last time, you can read it for yourself, and this has been picked up by even bigger idiots like James Lindsey, is that Critical Race Theory is Marxist; and as we showed in episode 501 that is preposterous because Marxist is modernist and I showed you that the critique of Black activists as Marxists is historically racist.  Go back, listen to episode 501 if you haven’t.  That’s Rufo.

The other thing we discussed is that critical legal studies pioneered techniques that are commonplace today, like the use of narratives in law review articles.  We read 1995 [Laughs] quotations from prominent judges freaking out at the idea that you would tell stories in a law review article.

Thomas:         [Sighs]

Andrew:         Today, again, that is a technique that is commonly displayed across the political spectrum, that Christopher Rufo himself engages in.  Part of, in addition to using narratives, part of what critical legal studies did was challenged students to sort of – think about the analogy of the goldfish doesn’t notice the water that they’re swimming in – to look at their own teaching materials, coursework, and say “what’s being taught, what’s not being taught?”

Thomas:         Mm-hmm.

Andrew:         We talked about how Derrick Bell’s textbook, “Race, Racism & American Law” from 1973 pointed out that law schools were not teaching the Dred Scott case to incoming lawyers.  Well, that’s not a great way of educating the next generation of lawyers about some of the institutional problems in the law if you’re just sort of pretending like the worst cases in history didn’t happen. 

Delgado & Stefancic pointed out another amazing example that I didn’t bring up that I want to touch on briefly, because it’s a little bit more law-geekery and so therefore I love it.

Thomas:         [Laughs]

Andrew:         But it’s also an example of a success story.  It’s a case called Johnson & Graham’s Lessee v. M’Intosh, and it’s from 1823.

Thomas:         The Macintosh?  Or just a guy named-

Andrew:         [Laughs] Well, I was gonna say, you can tell it’s a delightfully old timey case because M’Intosh is spelled with the apostrophe instead of the C.

Thomas:         Oh!

Andrew:         So, it’s M’-Intosh, but it’s pronounced “McIntosh.” 

Thomas:         Interesting.

Andrew:         This is a 9-0 decision, it was written by Chief Justice John Marshall, you know, the guy who invented judicial review, that John Marshall.  Again, one of the most storied justices in American history.  In Marshall’s Wikipedia entry it gets a one-sentence line.  It says, “In the 1823 case of Johnson v. M’Intosh, the Marshall Court had established the supremacy of the federal government in dealing with Native American tribes.”  That’s how that case is described to the public.

Here’s what the case actually said.  You had these two guys, Johnson and Graham.  They bought land from the Illinois and the Piankeshaw – and I apologize if I’m butchering those names – Piankeshaw tribes in 1773 and 1775 in what is now the State of Illinois.  You may know, Illinois was not one of the original 13 colonies, it was organized as a territory in 1809, admitted as a State in 1818.  You know, this was frontier wilderness in 1773.  They bought the land from the tribes.  At the time Illinois was the westernmost part of what was claimed by the British crown as the “British Province of Quebec.”

Thomas:         Huh.

Andrew:         It was ceded to the U.S. government in the 1783 Treaty of Paris that ended the Revolutionary War.  Then what the U.S. government did was – and I’m not gonna be able to explain this in this episode.  They patented the land. 

Thomas:         [Laughs]

Andrew:         Just put a pin in that-

Thomas:         Oh, wow. 

Andrew:         We’ll do it in another episode.

Thomas:         Talk about one weird trick, okay.

Andrew:         Yeah.  Then they said okay, we’ve got new land, we’re gonna patent it and then we’re going to grant a portion of that land to M’Intosh.

Thomas:         Dangit!  I’ve got this new product idea!  It’s that exact plot of land- ah, man!  I can’t do it; they have the patent!

Andrew:         [Laughs]

Thomas:         Dammit!

Andrew:         It kind of has some similarity to that.

Thomas:         [Laughs]

Andrew:         But again, it would be such a rabbit trail, can’t go down it.

Thomas:         Yeah, we won’t do it!  [Laughs] Someday you’ll have to explain that to me.

Andrew:         But here’s the thing, that U.S. land patent was the same land that Johnson and Graham bought in 1773 and 1775.

Thomas:         Oh, okay.

Andrew:         So, Johnson and Graham on the one hand, and M’Intosh went to court to figure out who owns the land.  In fact, Johnson and Graham filed a Motion in Ejectment to kick M’Intosh off the land and M’Intosh was like “wait!  The U.S. government gave this to me,” and Johnson and Graham said, “well, they couldn’t have given it to you because we bought it from the Indians before the U.S. government came around.”  The Supreme Court had to decide who owned the land: Johnson and Graham or M’Intosh?  I’m gonna eliminate the suspense, uh, the Supreme Court said “well, it’s M’Intosh because you know, Indians couldn’t really own the land, so whatever Johnson and Graham bought, uhh, was not land and here’s why.”

Thomas:         I mean, note, you’ve been speaking in the old-timey sense, by the way.

Andrew:         Yes.

Thomas:         From the actual case, right?

Andrew:         Correct, correct.

Thomas:         Okay.

Andrew:         First, the Supreme Court said Native Americans couldn’t actually own property in the Lockean sense – and that is the idea set forth in the two treatises of government that you mix your labor with that which is unowned and thereby come to own the entire thing- because the Native Americans didn’t construct permanent structures.

Thomas:         Oh my god.

Andrew:         By the way, this is why you get that kind of “noble savage, use every part of the buffalo, live in commune with the land” stuff in American history textbooks, particularly the younger that it is, because that ethnographic stereotype played into the legal reasons why-

Thomas:         Oh my gosh!  Really?!

Andrew:         Oh yeah, absolutely.  Because they’re not building buildings the way Europeans build buildings, they’re not “really” transforming the land, it’s still kinda public land.

Thomas:         So, they can’t possibly own land?  Or have any like claim to it?

Andrew:         Let’s parse that out.

Thomas:         Okay.

Andrew:         The Supreme Court didn’t say they couldn’t have any claim to it, they just couldn’t have full ownership in the way that Western Europeans do, and if you think I’m putting a gloss on it-

Thomas:         Oh my god.

Andrew:         -that is the precise language from the opinion I’m about to quote in a minute.  Indians had a “right of occupancy” but did not own the property in fee simple.  Which is to say all of the rights that come along with property.  Then, and again, I’m going to quote directly from the opinion.  When (quote) “the great nations of Europe” (end quote) discovered this (quote) “uninhabited continent-

Thomas:         [Laughs]

Andrew:         “The character and religion of its inhabitants” (that is to say the Indigenous people living here)-

Thomas:         Wait.  Sorry.  Does it really say “uninhabited,” comma-?

Andrew:         It does.

Thomas:         “The character and religion of its inhabitants.”

Andrew:         It does.  It does.

Thomas:         Did I … did I hear you correctly?

Andrew:         Yup, you heard that correctly.  So, “the character and religion of its inhabitants afforded an apology” (that is an argument) “for considering them as a people over whom the superior genius of Europe might claim an ascendency.”

Thomas:         Holy smokes.

Andrew:         Yeah.  Again, this is further in the opinion.  “By bestowing on them civilization and Christianity,” (that’s a direct quote).

Thomas:         [Exhales]

Andrew:         The argument was that the colonizing nation adequately compensated the natives for taking away their right of occupancy on the property.  Yeah, you don’t own the land-

Thomas:         Wow.

Andrew:         -because you’re not building factories.  You just have a right – but you do have a right to live here, we’re recognizing that, but we’ve compensated you for taking away your right to live here because we’ve given you the “benefits” of civilization and Christianity.

Thomas:         Oh my god.

Andrew:         Therefore, only colonizing nations from Europe have a right to own property – have an original right to own property in the United States.  That was called the Right of Discovery. 

Thomas:         [Laughs]

Andrew:         It was confined to countries (quote) – that it excluded any other claims (quote) “then unknown to all Christian people,” (end of quote).  This is word for word from the opinion.

Thomas:         I mean, it really is.  We are finding – we’re typing up a legal document, we’re putting in all these formal legal words to say “we count as people and you don’t count as people in the same way,” essentially, right?

Andrew:         That is exactly what this case says, and you’ve never heard of it before.

Thomas:         No!

Andrew:         Johnson and Graham’s Lessee v. M’Intosh, 1823, does not roll off the tongue the way Dred Scott does.  But I will tell you, because of critical legal studies and only because of critical legal studies, this case is taught to 1st year students in their property law class in the same way that Dred Scott is taught.  In the way of saying “uh, this is kinda problematic and here’s what the Supreme Court said-

Thomas:         [Laughs] That goes beyond problematic. 

Andrew:         Yeah.  Right.  But we are at least learning history now as opposed to having had history whitewashed.

Thomas:         Yeah, doesn’t that seem important?  It seems important to me.

Andrew:         And that, finally in this part two on Critical Race Theory, [Laughing] brings us to Critical Race Theory!

Thomas:         Right, I mean if that case was just hiding because the people in charge weren’t teaching it, uhh, what else is out there, I wonder?

Andrew:         That’s exactly right.  That is how, because of the arguments of critical legal studies to interrogate the things that you’re being taught led to law students in particular, Mari Matsuda and Kimberlé Crenshaw to say, “um?  We’re not being taught with any of, in particular we’re not using, we’re not building on Derrick Bell’s legacy, we’re not being taught about the history of institutional racism and discrimination in our nation’s history.”  Building on the exact same arguments that Derrick Bell made that were, quite frankly, documented in 1973.  Not controversial 50 years ago.  Descriptive of what the law is.  They basically created their own shadow-course using Bell’s text as curriculum while at Harvard, and then both of them, as well as many others, went on to become influential professors in their own right as part of the movement. 

I want to talk about the unique scholarship that both have developed.  Here I’m overgeneralizing because we’re gonna do this in a relatively short episode.  Mari Matsuda I’ve mentioned numerous times on the show.

Thomas:         Uh-huh.

Andrew:         For writing the book “Words that Wound,” which I read in law school, and it challenged my foundational beliefs about the marketplace of ideas.  By the way, again, that’s exactly what law school is for.  That’s exactly what the Florida law that we talked about – you should – I came in with the idea that Locke was correct that the solution to bad speech is more speech, and Matsuda wrote about hate speech a lot and I would encourage you to get her book, but you can read the prelude to that, a 1989 article called the “Public Response to Racist Speech: Considering the Victim’s Story,” and I’ll put that link in the show notes. 

It is important to note how Critical Race Theory applies the exact same techniques and the same underlying arguments as critical legal studies.  Again, first being the critique, the postmodern critique of objectivity.  Again, this is crucial because we are refuting the assertion that this is Marxism.  Matsuda, not a Marxist for the same reason that Bell is not a Marxist, for the same reason that Unger is not a Marxist.

She writes, in talking about outsider jurisprudence and feminist jurisprudence – that is a jurisprudence belonging to people of color, and she says “What is it that characterizes the new jurisprudence of people of color?  The first is a methodology grounded in the particulars of their social reality and experience.  From the fear and namelessness of the slave, from the broken treaties of the indigenous Americans, the desire to know history from the bottom has forced scholars to sources often ignored: journals, poems, oral histories, and stories from their own experiences of life in a hierarchically arranged world.”

Again, the idea that says first we’ve gotta break down the methodology, the academy that says “pfft, [scoffs] story – you’re gonna use narratives.  That is intellectually banal and facile” as we talked about in episode 501. 

Then second, a focus on social justice.  Matsuda says, “This progress” in critiquing how law is done, “can lead to a just world free of existing conditions of domination.  The prescriptive message of outsider jurisprudence signposts to guide our way there: the focus on effects.  The need to attack the effects of racism and patriarchy in order to attack the deep, hidden, tangled roots characterizes outsider thinking about the law.”  Again, this is validly anti-Marxist because it says we’re not looking at a historical dialectic, we can look at the law as a progressive tool of change.  “Outsiders search for a rachet, legal tools that have progressive effect, defying the habit of neutral principles to entrench existing power.  They have derived rachet-like measures to eliminate effects of oppression, including affirmative action, reparations, desegregation, and the criminalization of racist and misogynist propaganda.”

Okay.  That’s Matsuda’s approach.  Her argument is that hate speech – and this kinda takes us full circle to an argument you raised to me, I think, in episode 6 of the show, five years ago.

Thomas:         What?  I don’t remember.

Andrew:         Yeah.

Thomas:         [Laughs]

Andrew:         That is, should hate speech – and by that I’m going to define it in such a way as to make the answer “no” in current constitutional legal studies.  Should hate speech that does not result in imminent lawless action – that is I get up and I denigrate an entire group of people based on their race but I don’t cause a riot, I’m not doing it in front of an angry mob that then lynches somebody.  Is that protected?  Should that be protected by the Constitution?  Matsuda’s argument is that level of hate speech should not be protected by the Constitution.

Here’s what she says: “While violence and hate propaganda are officially renounced by elites, other forms of racism are not.  Covert disparate treatment and sanitized racist comments are commonplace and socially acceptable in many settings.  The various implements of racism find their way into the hands of different dominant-group members.  Lower- and middle-class white men might use violence against people of color, while upper-class whites might resort to private clubs or righteous indignation against ‘diversity’ and (quote) ‘reverse discrimination.’”  Things you still see today.

Institutions also perpetuate racism through a variety of overt and covert means.  From the victim’s perspective, all of these implements inflict wounds, wounds that are neither random nor isolated.  Gutter racism, parlor racism, corporate racism, and government racism work in coordination, reinforcing existing conditions of domination.  Less egregious forms of racism degenerate easily into more serious forms.  Violence is a necessary and inevitable part of the structure of racism.  It is the final solution, as fascists know-

Thomas:         Ooh.

Andrew:         – held at bay while the tactical weapons of segregation, disparagement, and hate propaganda do their work.  The historical connection of all the tools of racism is a record against which to consider a legal response to racist speech.”

Let’s parse that a little bit.  The current standards of what constitute hate speech in constitutional jurisprudence say “I have to say something and then that has to immediately lead to the criminal act and then it can be prohibited.”

Thomas:         Mm-hmm.

Andrew:         Matsuda’s argument is what if you’re lighting a very, very long fuse?

Thomas:         Right.

Andrew:         What if – yeah, it’s not A causes B, it is A and B and C and D and E and F and G all lead together to cause Z.  At some point you have to realize as we are looking to balance out the interests, you have to look at the totality of the circumstances and say alright, what causes Black men to be lynched in the South?  The answer is a lot of things, but certainly perpetuating racist propaganda is one of those things.  Again, all I would say in understanding Matsuda’s work is if you’ve just listened to those, to my five minutes here, is that something you would want to ban law students from discussing?  Maybe you have a counterargument.  Maybe what you want to say is “nope, we’re gonna stick with the Lockean, European conception in isolation and view each remark and say no, the solution to somebody promulgating racist stereotypes is to spread true information and that the true information will crowd out the false.”  We have some reason to…

Thomas:         Yeah, yeah.  Good luck with that.

Andrew:         [Laughing] Maybe that’s not the case?  But the question is, should students be allowed to interact with this idea?  Is this so dangerous, so fundamentally anti-American that you want to ban it?  I don’t think that it is.

Thomas:         I don’t think that anything would be like that.  I don’t think that we need to ban, by law, any ideas in the university, and the left never has thought that.  I think academia handles kinda the gatekeeping of their own thing.

Andrew:         Yup.

Thomas:         They would know best.

Andrew:         Yup, I agree entirely.  Let’s talk briefly about Crenshaw’s contribution, because this, I think, is even more egregious to ban, and it gives us a little bit of common ground if Uncle Frank is still listening.

So, Matsuda wrote about hate speech.  She wrote about a lot of other stuff too, but her enduring first contribution is changing the way we think about and discuss hate speech in this country.  As I’ve pointed out, you cannot discuss – the Minnesota case, R.A.V. v. City of St. Paul that the Supreme Court overturned on hate speech cites to Matsuda’s article, the one that I just quoted from before overruling it.  If you ban teaching Critical Race Theory, you cannot explain as a matter of history the foremost case from the Supreme Court on free speech.  You would have to say “well, they overturned a Minnesota case we can’t talk about.”  That is literally how you would have to teach it at a law school-

Thomas:         [Laughs]

Andrew:         -which is preposterous. 

Thomas:         Wow.

Andrew:         Crenshaw’s contribution is something called intersectionality.  Again, I want to go, because you can read this online and because I love looking at the kind of initial formative stages of thought.  I’m gonna link in the show notes a 1991 called “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color” in the Stanford Law Review. 

Let me give a brief content warning, we’re gonna discuss without graphic examples violence against women, and we’re gonna talk about some of the issues that surround that.  It’s not gonna get into any kind of detail but if that’s not the kind of thing you wanna listen to you might want to skip ahead about fifteen minutes.

[34:07.3] Content Warning Skip Ahead

Andrew:         Okay, Uncle Frank, you’re still with us.  Kimberlé Crenshaw’s article begins with, I am not making this up, a critique of identity politics.

Thomas:         Hmm.

Andrew:         You’re probably not expecting this [Laughs] and you may not agree with it, but here, let’s quote from her.  “This process of recognizing as social and systemic what was formerly perceived as isolated and individual has also characterized the identity politics of African Americans, other people of color, and gays and lesbians, among others.  For all of these groups, identity-based politics has been a source of strength, community, and intellectual development.”  Okay, yeah Uncle Frank, that’s what you expect from some crazy liberal CRT thing, but here’s the “but.”

“The problem with identity politics is not that it fails to transcend difference, as some critics charge, but rather the opposite—that it frequently conflates or ignores intragroup differences.  In the context of violence against women, this elision of difference in identity politics is problematic, fundamentally because the violence that many women experience is often shaped by other dimensions of their identities, such as race and class.

For example, racism as experienced by people of color who are of a particular gender—male—tends to determine the parameters of antiracist strategies, just as sexism as experienced by women who are of a particular race—white—tends to ground the women’s movement.  The problem is not simply that both discourses fail women of color by not acknowledging the (quote) ‘additional’ issue of race or of patriarchy but rather that the discourses are inadequate even to the discrete tasks of articulating the full dimensions of racism and sexism.”

Let’s stop, there’s a little bit more, but let’s stop and break that down.  That is to say, even when well meaning folks are trying to say okay, let’s look at the experiences of individuals in suffering from racial discrimination, that that will tend to reinforce Black male discrimination or white female discrimination and we can see – I’m about to give a modern example of where that could come into tension, that the solutions that come to mind for one group would be inappropriate for another group. 

Again, notice, Crenshaw’s own words, “race and class,” socioeconomic status.  We’re not just talking about the kinds of things, Uncle Frank, that you think of as identity politics.  We’re talking about looking at actual lived experiences to try and find commonality between poor whites and people of color.

Thomas:         Yeah.  This is the kind of thing that I spent a number of, I dunno, months or years arguing back against people who are criticizing intersectionality and criticizing it using intersectionality.

Andrew:         [Laughing] Right!

Thomas:         Because they didn’t know what it was.  It was, again, another precursor in this moral panic evolution, and it’s a lot like CRT.  It’s a lot like Critical Race Theory, criticizing it without knowing what it is.  Intersectionality is, obviously, the right way to look at stuff.  I mean, obviously we have different identities and different components to our identities that are gonna make a difference in our experience.

Andrew:         Yeah.

[37:36.2] [Commercial]


Andrew:         A friend of mine from law school, Aya Gruber, who is now a professor at University of Colorado Law School, she has written an article a couple weeks ago called “Against Carceral Feminism,” and it draws upon her experiences [Laughs] in understanding how the failure to consider intersectionality had devastating real world consequences for women of color.  Here she talks about how the feminist movement, one of their successes was in getting laws changed to require mandatory arrests in domestic violence cases. 

You look at that and you’re like that seems like a totally rational response to the actually existing problem that, because of the nature of domestic violence many women do not follow through and file charges against their attackers, and because they’d been psychologically beaten down-

Thomas:         Yeah.

Andrew:         When you take their statements, they’re like, “well, he didn’t really mean to do it.”  You can totally understand from the perspective – certainly from the perspective of, you know, this white guy reading it, you’re like yeah yeah yeah, okay.  Let’s change the law that says whenever the police report a domestic violence case that the prosecutors must bring a case, must arrest.  The police must arrest and the prosecutors must evaluate prosecuting those who commit acts of domestic violence, and understanding that is overwhelmingly male.  How did that turn out to be a problem?

Well, here I’m gonna quote from Professor Gruber: “By the 1990s, several large-scale policing studies revealed that [mandatory arrest policies]” and that she contrasts with “instead of mediating, offering services in lieu of arrest, or temporary separation” the stuff that was in place before, “could be criminogenic: that is, it could escalate domestic violence, particularly in poor minority communities with high rates of unemployment.  As it turns out, mandatory arrest polices didn’t affect every woman equally.  There was a much better proposition for middle-class white women with employed husbands than for poor women of colour with unemployed spouses.

Mandatory arrest policies hurt battered women not only because they caused many batterers to become more violent” (which did) “but also because they resulted in women being arrested.”

Thomas:         Hmm.

Andrew:         “In 2007, the state of California issued a report comparing domestic violence arrest data from 1988 (before its mandatory policies) with data from 1998 (after the policies).  Arrests for domestic violence had increased generally, but the increase was far more profound for women than for men.  Thus, while domestic violence arrests of men proportionately decreased in that 10-year period, arrests of women increased more than four-fold.  Stripping police of discretion to decline arrest relieved them of their inclination to mediate domestic violence cases and not arrest men, but it also relieved them of their gendered instinct not to arrest women.  And as might be expected, this new willingness to arrest women disproportionately impacted Black women, whom police were more likely to see as (quote) ‘mutual combatants’ than victims defending themselves.”

Then she talks about her own experience as a public defender in a specialized domestic violence court.  She says, “I saw a revolving door of incarceration for poor people of colour that didn’t serve victims very well – many called me to beg to stop prosecutions.  I saw prosecutors proceed with cases against women’s wishes … I saw immigrant women lamenting that their call for help triggered an unstoppable penal machine that made their spouse deportable … Historically, legal authorities didn’t under-enforce laws against sexual and domestic violence so much as selectively enforce them depending on the class, race and other statuses of the parties.”

Then she alludes to something that’s gonna take us back to Crenshaw, “During the Reconstruction era in the late 19th century, Southern whites cited women’s protection from rape as ground for their campaign of terror against Black men.”  We know that trope.  Directly led to lynching, littered throughout history where Black men were seen in public with white women.

Let’s go back to Crenshaw who called out Donald Trump in 1991 over the Central Park Jogger case, the jogger who was raped in New York Central Park; yes, was coopted in many ways by feminists to talk about the problems of rape that are real and underserved in society, but as Crenshaw notes, “the public discourse on the assault ‘made the story of sexual victimization inseparable from the rhetoric of racism.” … “the dehumanizing the rapists” and here she’s quoting from news coverage, “as ‘savages,’ ‘wolves,’ and ‘beasts,’ shaped the discourse around the event in ways that inflamed pervasive fears about black men. 

Given the chilling parallels between the media representations of the Central Park rape and the sensationalized coverage of similar allegations that in the past frequently culminated in lynchings, one could hardly be surprised when Donald Trump took out a full-page ad in four New York newspapers demanding that New York ‘Bring Back the Death Penalty and Bring Back Our Police.’”  That, I think is really the best example of intersectionality that I can come up with, where something that seems to benefit women-

Thomas:         Mm-hmm.

Andrew:         Does not benefit all women, and ran to the contrary of poor women, immigrant women, women of color.  All [Laughing] literally, all Crenshaw is saying is we should think about that when we’re engaged in-

Thomas:         Yeah.

Andrew:         -understanding of the law.

Thomas:         That seems like a pretty modest claim. 

[47:11.1] [Content Warning Skip]

Andrew:         It feels that way to me, too.  I have, but I do want to get to our kind of wild cardy segment, so maybe we can take on some of Rufo’s claims in a future episode, because they are laughably bad.

Thomas:         [Laughs]

Andrew:         I want to just summarize them as what he does is he writes articles, which then go out to various right-wing newspapers.  They will have hyperlinks for his claims.  When you click on the hyperlinks for his claims, they will link back to a rewritten version of the article on his own website.  When you click on the hyperlinks on his own website, it will then take you to yet a [Laughing] third page on his website, which he – every single time – which he will describe a (quote) “whistleblower document,” which always means a handout or power point that was given to him either by a student or a parent or an administrator.

Thomas:         [Laughs]

Andrew:         It’s like this, you know, I’m a brave hero; then it is so wildly mischaracterized that again, if you do any level of digging you will realize that this is a dishonest actor.  I’ll just summarize the first example he goes to, and by first example I mean when he, in his most recent article that he wrote for the New York Post he said that “I’ve shed light on public schools forcing 8-year-olds to deconstruct their racial identities, telling white teachers they must undergo ‘antiracist therapy’ and encouraging white parents to advocate for ‘white abolition.’”  That’s his talking point, those are the three things that came most to mind.

The “forcing 8-year-olds to deconstruct their racial identities” was about a presentation to a class of 3rd graders that says “identify your social identities, that is the part of your identity that have been created by society for a very long time and the groups or categories that we get lumped into, sometimes not our choice.”  They gave examples; race, ethnicity, socioeconomic class, gender, age, languages, religious beliefs, etc., then said “which parts of your identity hold power and privilege?”

Thomas:         Hmm.

Andrew:         That is what got misrepresented as “deconstructing their racial identities.”  The “telling white teachers they must undergo antiracist therapy” was even more preposterous.  It was a presentation made to school administrators and teachers – so, to adults – bringing in a specific teacher.  Her name is Bettina Love, she is an academic theorist that subscribes to a school called Abolitionist Teaching.  She was there to make teachers think about things.  [Laughs]

Thomas:         Yeah.

Andrew:         She said yeah, what does abolitionist teaching call for?  Well, you are gonna be shocked by the radical nature of this list.  It is that schools should:  Hire, support, and retain Black, Brown, and indigenous teachers;

Thomas:         Mm-hmm.

Andrew:         That there should be community involvement in hiring; that school boards should reflect the diversity of the student population; that there should be equitable funding across schools; that they should reduce class sizes.  You know, kinds of radical bomb throwing.  But one of the items is there should be free therapy for educators and support staff.  She divides that bullet into two things, free radical self & collective care and therapy for educators and support staff of color and free antiracist therapy for white educators and support staff. 

Again, you want to quibble with those beliefs?  That’s fine.  You wanna say everybody should have access to the same standards, fine.  Make that argument.  But to describe that as “telling white teachers they must undergo antiracist therapy” is as fundamentally dishonest as anything I have seen in the 502 episodes that we’ve done of this show.

Thomas:         [Laughs]

Andrew:         It’s just preposterous.  Look, by the way, this person was brought into the New York schools because of a situation that requires the application of Critical Race Theory and it is this:  the best public magnate high school in the City of New York, in Manhattan, is Stuyvesant High School.  I dunno if you’ve heard of it, I know it through speech and debate.

Thomas:         Never heard of it.

Andrew:         The graduating senior class, 4% go to Harvard and Yale.

Thomas:         Hmm.

Andrew:         It is – because I remember talking to kids that were like yeah, my ability to get into Harvard if I’m not in the top 25 in my class is really limited.  [Laughs]

Thomas:         Yeah, I think zero percent of my high school went to Harvard and Yale.

Andrew:         Zero percent of mine as well.  That school-

Thomas:         Wait, didn’t you go to [Laughs]-

Andrew:         [Laughs] Uh, not-

Thomas:         Harvard Law?

Andrew:         I didn’t get in – yeah, for law school, but yeah, I didn’t get in in college.

Thomas:         Okay.

Andrew:         I didn’t apply, so who knows.

Thomas:         Gotcha.

Andrew:         But, yeah, that high school has 895 spots and in 2021 that was filled with 7 African American students.

Thomas:         Wow.

Andrew:         You know, right, when you have this amazing public magnate gateway to the upper echelons, the inner circle of power, right?  The fact that it’s less than 1% African American is something you would want to think about.

Thomas:         It’s just so unfair.

Andrew:         Yeah.

Thomas:         I know I’ve said it before, but with the people railing about affirmative action and all that, you know, the legacy admissions to these places.  The legacy admissions, just because your family was there and you’re likely white vastly outnumber any, the entire Black population of these places.

Andrew:         Yup.

Thomas:         It’s staggering.

Andrew:         It absolutely is.  Those are the first two.  The “encouraging white parents to advocate for white abolition” had to do with misrepresenting the language, again, actual Critical Race Theorist Barnor Hesse, but this was at an incredibly racially diverse school in the East Village; that is a school that is 15% white, 85% nonwhite.  54% Hispanic, 17% Black, 10% Asian.  The principal is white, because people in leadership positions even serving communities of color tend to be white, and so parents sent the white principal – a super well-meaning guy named Mark Federman – material from Barnor Hesse discussing how white people ought to think about how they interact in communities of color.

Then what Federman did was email this out to parents and students and said “this is food for thought.”  That is literally what the email said, “this is food for thought.”

Thomas:         Hmm.  Wow.

Andrew:         Hesse has developed an ethnography of whiteness, that actually I find super interesting and super valuable.  It is a 1-8 linear scale in which he says okay, 1 is white supremacist.

Thomas:         Mm-hmm.

Andrew:         Clearly marked white society that preserves, names, and values white superiority.  It’s like, what’s one step better than that?  What he calls “white voyeurism.” Wouldn’t challenge a white supremacist-

Thomas:         Huh.

Andrew:         But desires non-whiteness because it’s interesting, seeks to control the consumption of non-whiteness, has a fascination with nonwhite culture.  Think about cultural appropriation.  Think about people who are like “ooh, well I have a Black friend.”

Thomas:         Uh-huh.

Andrew:         They would sort of fall under the white voyeurism.  Then, moving along the spectrum, white privilege.  These are people who might critique supremacy, but a deep investment in questions fairness or equality under the normalization of whiteness and the white rule; the sworn goal of “diversity.”  These tend to be the folks who fall into the category of, like, well let’s just have colorblind admissions right now.  We want to get rid of what I don’t understand, let me quote Martin Luther King and say let’s not just anyone by the color of their skin but the content of their character.  Let’s have no affirmative action, no nothing.  That’s, again, as he recognizes, that’s way better than being a white supremacist, but not quite far enough towards understanding what’s going on in culture.

Moving along the scale, white benefit, sympathetic to a set of issues but only privately; won’t speak or act in solidarity publicly because you’re benefitting from whiteness in public and notes that, you know some people of color fall into this category as well.  In any event, without going through the entire philosophy, it ends with what he calls “white abolitionist.”  You can sort of pull out that pin from the previous issue from Bettina Love. 

The idea of abolitionism is a phrase that appears in African American academia and I think it’s really scary to a lot of white people, but what he calls the white abolitionist is somebody who is devoted to changing institutions, dismantling whiteness, and not allowing whiteness to reassert itself as a form of privilege.  Abolition is actually a really – a totally appropriate word there.  [Laughs] It is to say, it is not enough to just say we want to stand with people of color on X particular issue, but rather to say okay, let’s look at the underlying rules and dismantle the ones that tend systematically to advance white people.

Sending that email with that chart, with the instructions, (quote) “food for thought,” [Laughs]-

Thomas:         Yeah.

Andrew:         Is what Rufo characterized as-

Thomas:         [Yelling in Horror] White genocide! 

Andrew:         “Encouraging white parents to advocate for white abolition.”  Yeah, that’s exactly right.

Thomas:         [Sighs]

Andrew:         Abolition does not mean abolish white people; it means dismantle institutions of privilege.  We can do that for hours-

Thomas:         Yeah.

Andrew:         But there you go.  I hope this is a pretty comprehensive guide to the manufactured controversy over Critical Race Theory and I hope it leads at least some people to rethink whether it’s appropriate to get behind dishonest efforts to restrict this and go back to, you know, really undo the natural grassroots progress we have made over the past 50 years where we actually are teaching our mistakes to law students now.  You actually learn about Dred Scott now, you learn about the M’Intosh case, even though that hasn’t permeated the popular – we’ve got a lot of work left to do.

Thomas:         Yeah.

Andrew:         The fact that you know, the fact that our listeners know Dred Scott but don’t know Johnson v. M’Intosh, that’s a failure.  [Laughs]

Thomas:         Mm-hmm.

Andrew:         That’s a failure of American education.  The fact that as I was explaining the “noble savage” and how that empowered discrimination and you were like “I’ve never heard that before.”  [Laughs]

Thomas:         Yeah, I did- I wouldn’t have thought that, yeah, it’s all these things that have permeated the culture, so many of which have been tools of white supremacy.  It’s like the fish not knowing, not recognizing the water it’s in, and that’s exactly why we need things like Critical Race Theory to do this work.  To challenge, no just the things we’re learning, but which things are being included in the things that are being taught.  You know, that meta level that I never would have had any idea about in school as a student.  I would’ve never had the slightest idea which things I wasn’t being taught.

Andrew:         You’ve said that so much more eloquently than I did, so maybe we draw it to a close there.

Andrew Was Wrong about Arrow’s Theorem


Thomas:         Alright, well that was a lot of fun and Andrew, I think we are squeezing in a quick Andrew Was Wrong here? 

Andrew:         [Laughs]

Thomas:         [Laughs]

Andrew:         Yeah!  I need to do this, we need to do it now because when I was giving an example of the indeterminacy thesis, I said think about Arrow’s Theorem, which I then said could be illustrated with the rock, paper, scissors.

Thomas:         Mm-hmm.

Andrew:         People prefer A to B; people prefer Candidate B to Candidate C; people prefer Candidate C to Candidate A; so, any rule you pick to differentiate between that-

Thomas:         Mm-hmm.

Andrew:         -is going to be arbitrary.  A bunch of mathematicians wrote in.  Some kindly, some less so, [Laughs] and said that was my oversimplification of a subject matter in which I do not have a PhD, was actually a subset.

Thomas:         Ah.

Andrew:         It was the Condorcet paradox.

Thomas:         What’s a condor say?

Andrew:         [Laughs]

Thomas:         This is not an elaborate dad joke?

Andrew:         No, but I-

Thomas:         It’s the Condorcet?

Andrew:         Oh, that is so good!  [Laughs] I think the condor says “help, I’m almost extinct.”

Thomas:         So, which one is the Updog Theorem? 

Andrew:         [Laughs] It’s a corollary of the Bofa Correspondence.  So, Arrows Impossibility Theorem is a more precise mathematical statement that no voting system can simultaneously satisfy four fairness criteria, assuming there are at least three candidates.

Thomas:         Ah.

Andrew:         I think this is important, I think it’s worth saying.

Thomas:         Yeah, sounds interesting already.

Andrew:         Number one, non-dictatorship.  That is there is no single voter whose preferences always determine the outcome.

Thomas:         Okay.

Andrew:         That’s good.  Number two is unanimity; if all voters prefer A over B, then A will finish higher than B.  Okay.

Thomas:         Kay.

Andrew:         Number three, monotonicity.

Thomas:         Monotonous?

Andrew:         If a function is monotonically increasing or decreasing it only ever moves in that one direction. 

Thomas:         Huh.

Andrew:         A monotonically increasing function always increases by variable amounts but never decreases.  The way that that applies in voting is if a voter from round 1 to round 2 moves Candidate A up in their rankings it shouldn’t cause Candidate A to move down in the final outcome.

Thomas:         Okay.

Andrew:         That actually can happen-

Thomas:         Yeah.

Andrew:         Where, you know, all of a sudden I move from Candidate A to Candidate B; Candidate B is now viable and is winds up with that Candidate B finishing lower in the rankings.  [Laughs]

Thomas:         Mm-hmm.

Andrew:         That’s monotonicity.  And then finally, independence of irrelevant alternatives; if some number of voters change their preferences with respect to candidates who are not A and B (but keep A and B the same relative to each other), then A and B will stay the same in the final vote. Then Jordan notes, “This is the most complicated criteria. The best way to think about it is that if a third candidate is added or removed from a race, it shouldn’t change the relative positions of A and B.”

Thomas:         Sure.

Andrew:         Right.  That last condition is easily confused with the Condorcet paradox.

Thomas:         What’s a condor say?  [Laughs] Sorry!

Andrew:         [Laughs] Never stop being funny, yeah.

Thomas:         I was expecting you to make some sort of bird noise when I say that.

Andrew:         [Laughs]

Thomas:         This is a long setup.

Andrew:         You control the editing so you can insert a bird noise here. [Laughs]

Thomas:         [Laughs]

Andrew:         Arrow’s Theorem formally proves that there is no solution to the Condorcet paradox; the A over B over C over A.  That is fair.

Thomas:         Uh-huh.

Andrew:         That meets those four criteria, the independence of irrelevant alternatives, whether Ralph Nadar runs or whether Jill Stein runs in 2016, even though that doesn’t change how voters preferred Clinton over Trump or Gore over Bush absolutely effected the outcome.

Thomas:         Mm-hmm, yeah.

Andrew:         You know, an irrelevant alternative changed the outcome.

Thomas:         And I imagine, again this is just speculation about this whole mathematical thingy.  I imagine this is a super fascinating theoretical concept.  Our voting system is already so bad that I don’t think the problem-

Andrew:         [Laughs]

Thomas:         -is gonna be some technical contradiction, you know what I mean?

Andrew:         Yup.

Thomas:         I feel like we’re not even close to optimum, so I’m not entirely worried about this paradox yet, you know?

Andrew:         Yeah, and as our buddy Alex Schaefer – maybe he threw some sharper elbows, man, he says, “This is often paraphrased as ‘there’s no perfect voting system.’”

Thomas:         Sure.

Andrew:         Which, yeah, right.  Exactly.  That does not mean we should not try to improve it. 

Thomas:         Yeah.  Like, if we were sitting at one of the best possible ones and were like “can we make it any better?” and then the mathematicians are like we’ve crunched the numbers.

Andrew:         [Laughs]

Thomas:         Can’t make it any better.  Damn!  Then that might be sad, but we’re not there.  [Laughs]

Andrew:         I wanted to add this last bit, Jordan notes that “Ranked choice voting fails both the independence of irrelevant alternatives-

Thomas:         Hmm.

Andrew:         –and the monotonicity requirements; but only does so in rare circumstances-

Thomas:         Right.

Andrew:         Which is a good example of why failing more criteria does not mean the system is worse.

Thomas:         Ohh!

Andrew:         I really love that, right?  Winner take all-

Thomas:         Yeah, if you fail more criteria but in fewer circumstances, maybe?

Andrew:         Exactly right.

Thomas:         Is that what it is?  Like in fewer outcomes.

Andrew:         That is exactly right.

Thomas:         Yeah, no, that makes sense.

Andrew:         Yeah, made total sense to me, too.

Thomas:         Cool.

Andrew:         Look, ranked choice voting just got put to the test in the New York City Mayoral Primary.

Thomas:         Mm-hmm.

Andrew:         We are going to see, and we are going to continue to cover and talk about, because you’re going to see lots of public objections to the process.

Thomas:         Yeah.

Andrew:         Primarily, you know, there’s a longer timeframe of indeterminacy around this while you run the runoffs.  I have a feeling we’re gonna be talking about this topic a lot.  You and I have both been large proponents of moving from straight winner take all to ranked choice voting, I still fall into that category.

Thomas:         Yup.

Andrew:         I think you still fall into that category, so I loved the clarification.

Thomas:         Yeah! 

Andrew:         I wanted to talk about it.

Thomas:         Great, yeah.  Thanks for writing in and insulting Andrew for messing up your thing.

Andrew:         [Laughing] It’s okay! 

Thomas:         [Laughs]

Andrew:         Hey, I zealously defend legal theories-

Thomas:         Uh-huh.

Andrew:         -with perhaps the same level of minutia.

Thomas:         Sure.  Now you’re too nice.  [Laughs]

Andrew:         I knew it was meant with love and we love you guys too.

[1:05:21.7] [Patron Shout Outs]

T3BE Question

[1:06:37.0] [Segment Intro]

Thomas:         And now it’s time for T3BE, Thomas Takes the Bar Exam with a friend, with a coin.  Off a nice victory last week, let’s see if I can keep it going.

Andrew:         Yeah, you did fantastically well.  I’m feeling a rough level of confidence here.  So, Thomas, the president of a pharmaceutical firm-

Thomas:         Guilty! 

Andrew:         [Laughs]

Thomas:         Oh, sorry.

Andrew:         – received a report from his testing bureau that a manufactured lot-

Thomas:         Hmm.

Andrew:         – of the firm’s anti-cancer prescription medication was well below strength.

Thomas:         Wow.

Andrew:         Concerned about being able to fulfill contractual commitments, the president instructed his staff to deliver the defective lot. 

Thomas:         Eeee.

Andrew:         Yeah.  A cancer patient who had been maintained on the drug died shortly after beginning to take the defective pills.

Thomas:         Bummer of a question, gosh!

Andrew:         Medical evidence established that the patient would have lived longer had the drug been at full strength, but would have died before long in any event.

Thomas:         Huh.

Andrew:         The president was convicted of murder.

Thomas:         Murder!  Oh, wow.

Andrew:         On appeal, he argues that his conviction should be reversed. Should the conviction be reversed? 

Thomas:         And so this is in some sort of fictitious society where, like, executives of pharmaceutical firms are actually held accountable for stuff?  Okay, so I gotta get in-

Andrew:         [Laughs]

Thomas:         We’re like in middle earth or something.  This is not a law question about this planet.  Okay.

Andrew:         Yes.  Should the conviction be reversed?  (A) No, because the intentional delivery of adulterated or mislabeled drugs gives rise to strict criminal liability.

Thomas:         Strict criminal liability, okay.

Andrew:         (B) No, because the jury could have found that the president’s conduct was sufficiently reckless to constitute murder.  (C) Yes, because distribution of the defective lot was only a regulatory offense.

Thomas:         [Laughs]

Andrew:         Or (D) [Laughs] Yes, because the cancer, not the president’s conduct, was the proximate cause of death of the patient.

Thomas:         Oh man.  What a question!  Almost every answer I can come up with a logic for it, which is fascinating.  Like, even just talking morally speaking, is this the kind of thing that someone should be convicted of murder for or is this like a manslaughter thing that should come with obviously a steep punishment, but I would’ve thought this was more like a negligence thing and not necessarily a murder charge.  A, no because the intentional delivery of adulterated or mislabeled drugs gives rise to strict criminal liability.  Oh, boy.  This is a challenging answer because I really like that answer.  Like, I think that should be right but what I’m worried about is strict criminal liability.  That sounds like you’re liable as a criminal, that doesn’t sound like something that would justify murder versus manslaughter.  You know what I mean?  Because those are all crimes.  I like the idea that it is strict criminal liability, like you’re not gonna get out of it and just get a civil suit.  But, don’t know that A would tell you that it’s definitely murder versus like, you know, manslaughter or some other range of very serious crime.  If I’m right about this I think A is a very attractive distractor but I think maybe that’s not right.

Let’s see.  B, no because the jury could have found that the president’s conduct was sufficiently reckless to constitute murder.  I think that’s a strong contender, I think that’s a strong contender.  If you’re trying to overturn your conviction and the response is no, we’ve looked at it and the jury could have found you were reckless enough this is murder; if that’s a possible outcome a jury could’ve come to then may – so B is a solid contender.

C, yes because the distribution – so the no answers were it’s not getting reversed.  Now we’re on the yes, it is getting reversed answers.  C, yes because the distribution of defective lot was only a regulatory offense.  Okay, easy elimination there.  [Sighs] If that’s right we can just pack up and leave.  Whatever.  Okay.  [Laughs] That might be like the actual American answer, effectively, but I’m gonna eliminate C.

Or D, yes because the cancer, not the president’s conduct, was the proximate cause of death of the patient.  That is a – oh!  That is a tough one.  That’s a tough one.  That could be it, and I hate to say it because I don’t want that to be the answer, but I think D is a strong – I think I’m strongly between B and D and I hope my read of A is right because I’m taking a risk.  It sounds like a great answer, but I think it doesn’t work, so I’m going between B and D.  You know, D is a solid contender.  In murder there is a proximate cause of death thingy, there is that.

I think hypothetically, let’s say someone has some sort of ticking timebomb of a medical condition.  Let’s say it’s diab- maybe like diabetes or something, and you dilute their insulin or something I don’t think you can be like “well, it’s not the conduct of diluting insulin that caused the problem, it was the diabetes.”  I don’t think that would work, so I think I’m gonna go with B.  I’ll go between B and D, and my answer is B, no because the jury could have found that the president’s conduct was sufficiently reckless to constitute murder.  I think that’s it.

Alright, let’s see if the coin agrees with me.  The coin disagrees.  I’m sad that that’s not in our intro anymore, but our intro is great still.

Andrew:         [Laughs]

Thomas:         There’s a lot of other good stuff.  The coin is going with D, I’m going with B, final answer.

Andrew:         Alright!  And if you wanna play along with Thomas and the coin, you know how to do that.  Just share out this episode on social media, include the hashtag #T3BE; include your guess, your reasons therefore.  We will pick a winner and shower that winner with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Well, Andrew, that’s our show.  Another great one.  I really enjoyed this Critical Race Theory and critical legal studies deep dive.  I love that we tackled kinda the legal origins of it, because it’s something that I hear just referenced all the time, but it’s nice for a legal show like ours to really give the full extent of that origin, so, super cool!  I really enjoyed it.

Andrew:         I’m really glad, I hope our listeners enjoyed it as well.

Thomas:         I bet they did.  Alright, we’ll see you next time!

[Show Outro]

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