What's Loving Got to Do with It?

Iowa Law Review

Volumn 81, Issue 5, 1996, Pages 1489-1501

  Epps, Garrett ^a  

^a UNIVERSITY OF OREGON   (United States)

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EID: 0030328096     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (83)

1. Jim Chen, Unloving, 80 Iowa L. Rev. 145 (1994) (responding to Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243 (1993)).
2. Jim Chen, Unloving, 80 Iowa L. Rev. 145 (1994) (responding to Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243 (1993)).
3. Chen, supra note 1, at 145.
4. Id. at 155.
5. Id.
6. Id. at 169.
7. Id. at 157.
8. Chen, supra note 1, at 160.
9. Id. at 172.
10. Id. at 155.
11. Id. at 156.
12. Id. at 173, 175 n.**.
13. Chen, supra note 1, at 149.
14. See id. at 149 n.25 (citing Professor Chen's tenured colleagues, Professor Daniel A. Farber and Professor Suzanna Sherry, as representative of the "serious scholars"); see also Keith Aoki & Garrett Epps, Dead Lines, Break Downs and Troubling the Legal Subject or "Anything You Can Do, I Can Do Meta," 73 Or. L. Rev. 551, 557 n.19 (1994) (noting and emulating common practice of "gratuitous cites to colleagues' work").
15. Chen, supra note 1, at 147 n.16 (citing Nixon v. Condon, 286 U.S. 73 (1932)).
16. Id. at 150 & n.36 (citing New Orleans v. Dukes, 427 U.S. 297 (1976)).
17. 388 U.S. 1 (1967).
18. I am not attempting to suggest a moral equivalence between these lonely figures and Professor Chen, only that there's something distinctly odd about his analytical method and the vehemence with which he pursues it. It may be worth noting, however, both Professor Chen and the streetcorner scholars of my youth were almost obsessively concerned with miscegenation and racial cross-breeding; the Southern theorists vehemently opposed it, while Professor Chen seems to regard it as a kind of moral obligation for everyone. Beyond this obsession, Professor Chen and my remembered pamphleteers share, I suggest, an obsessive concern with scholarly form and spurious citation over analysis and content. Two "serious scholars" have recognized that merely because materials have scholarly form does not make them scholarship. "James Kilpatrick played a major role in transforming the southern reaction to Brown v. Board of Education from cautious dislike to outright defiance, but no one would suggest that his form of undisguised racism should count as legal scholarship." Daniel Farber & Suzanna Sherry, Telling Stories Out Of School: An Essay On Legal Narratives, 46 Stan. L. Rev. 807, 843 n188 (1994) (citing Garrett Epps, The Littlest Rebel: James J. Kilpatrick and the Second Civil War, 10 Const. Commentary 19 (1993)). For more explanation of the presence of this footnote, see supra note 13 and accompanying text (noting prevalence of practice of self-citation by legal scholars).
19. I am not attempting to suggest a moral equivalence between these lonely figures and Professor Chen, only that there's something distinctly odd about his analytical method and the vehemence with which he pursues it. It may be worth noting, however, both Professor Chen and the streetcorner scholars of my youth were almost obsessively concerned with miscegenation and racial cross-breeding; the Southern theorists vehemently opposed it, while Professor Chen seems to regard it as a kind of moral obligation for everyone. Beyond this obsession, Professor Chen and my remembered pamphleteers share, I suggest, an obsessive concern with scholarly form and spurious citation over analysis and content. Two "serious scholars" have recognized that merely because materials have scholarly form does not make them scholarship. "James Kilpatrick played a major role in transforming the southern reaction to Brown v. Board of Education from cautious dislike to outright defiance, but no one would suggest that his form of undisguised racism should count as legal scholarship." Daniel Farber & Suzanna Sherry, Telling Stories Out Of School: An Essay On Legal Narratives, 46 Stan. L. Rev. 807, 843 n188 (1994) (citing Garrett Epps, The Littlest Rebel: James J. Kilpatrick and the Second Civil War, 10 Const. Commentary 19 (1993)). For more explanation of the presence of this footnote, see supra note 13 and accompanying text (noting prevalence of practice of self-citation by legal scholars).
20. Chang, supra note 1, at 1244.
21. See infra notes 27-39 and accompanying text (discussing how Professor Chen inaccurately labels Professor Chang's work as racial fundamentalism).
22. Chang, supra note 1, at 1249.
23. Id. at 1251.
24. Id. at 1258-65.
25. Id. at 1303.
26. Id. at 1303.
27. Chang, supra note 1, at 1303-07.
28. Id. at 1314.
29. Chen, supra note 1, at 145 & n.7.
30. Id. at 148.
31. This doggerel, part of a satirical work called "The Masque of Balliol," was first circulated as an anonymous broadsheet during Hilary Term 1881. John Jones, Balliol College, A History 1263-1939 (1988). Contemporary scholars attribute the work to H.C. Beeching, Bloomsbury Dictionary of Quotations 26 (1987).
32. This doggerel, part of a satirical work called "The Masque of Balliol," was first circulated as an anonymous broadsheet during Hilary Term 1881. John Jones, Balliol College, A History 1263-1939 (1988). Contemporary scholars attribute the work to H.C. Beeching, Bloomsbury Dictionary of Quotations 26 (1987).
33. Fundamentalist was the title taken by a group of American Evangelicals, of all Protestant denominations, who banded themselves together to defend their faith against liberal encroachment after the First World War. . . . The name developed out of the habit of referring to the central redemptive doctrines which Liberalism rejected as "the fundamentals." This usage goes back to at least 1909. In that year there appeared the first of twelve small miscellany volumes devoted to the exposition and defence of evangelical Christianity, entitled The Fundamentals. J.I. Packer, "Fundamentalism" and the Word of God 24-28 (1968, repr. 1983). Packer provides an excellent summary of fundamentalist theology from a believer's standpoint. A good historical summary can be found in Sydney E. Ahlstrom, A Religious History of the American People 805-24 (1972).
34. Fundamentalist was the title taken by a group of American Evangelicals, of all Protestant denominations, who banded themselves together to defend their faith against liberal encroachment after the First World War. . . . The name developed out of the habit of referring to the central redemptive doctrines which Liberalism rejected as "the fundamentals." This usage goes back to at least 1909. In that year there appeared the first of twelve small miscellany volumes devoted to the exposition and defence of evangelical Christianity, entitled The Fundamentals. J.I. Packer, "Fundamentalism" and the Word of God 24-28 (1968, repr. 1983). Packer provides an excellent summary of fundamentalist theology from a believer's standpoint. A good historical summary can be found in Sydney E. Ahlstrom, A Religious History of the American People 805-24 (1972).
35. Some commentators have adopted this approach to evangelical and fundamentalist Christianity in its contemporary American form. See, e.g., Michael Barone, Why Ridicule Someone's Religion?, Wash. Post, Sept. 21, 1986, at C8; see also Garrett Epps, Voices of '88: A Surprising New Politics Of Protest; Robertson's Evangelicals, Wash. Post, Feb. 14, 1988, at C1; Garrett Epps, Pat Robertson's a Pastor, but His Father was a Pol, Wash. Post, Oct. 19, 1986, at H1; Garrett Epps, Born-Again Politics is Still Waiting to Be, Wash. Post, Mar. 30, 1980, at C1. For a general discussion of the kind of ignorance and hostility that inspires the misappropriation of religious terms for polemical purposes, see Stephen Carter, The Culture of Disbelief (1993).
36. Some commentators have adopted this approach to evangelical and fundamentalist Christianity in its contemporary American form. See, e.g., Michael Barone, Why Ridicule Someone's Religion?, Wash. Post, Sept. 21, 1986, at C8; see also Garrett Epps, Voices of '88: A Surprising New Politics Of Protest; Robertson's Evangelicals, Wash. Post, Feb. 14, 1988, at C1; Garrett Epps, Pat Robertson's a Pastor, but His Father was a Pol, Wash. Post, Oct. 19, 1986, at H1; Garrett Epps, Born-Again Politics is Still Waiting to Be, Wash. Post, Mar. 30, 1980, at C1. For a general discussion of the kind of ignorance and hostility that inspires the misappropriation of religious terms for polemical purposes, see Stephen Carter, The Culture of Disbelief (1993).
37. Some commentators have adopted this approach to evangelical and fundamentalist Christianity in its contemporary American form. See, e.g., Michael Barone, Why Ridicule Someone's Religion?, Wash. Post, Sept. 21, 1986, at C8; see also Garrett Epps, Voices of '88: A Surprising New Politics Of Protest; Robertson's Evangelicals, Wash. Post, Feb. 14, 1988, at C1; Garrett Epps, Pat Robertson's a Pastor, but His Father was a Pol, Wash. Post, Oct. 19, 1986, at H1; Garrett Epps, Born-Again Politics is Still Waiting to Be, Wash. Post, Mar. 30, 1980, at C1. For a general discussion of the kind of ignorance and hostility that inspires the misappropriation of religious terms for polemical purposes, see Stephen Carter, The Culture of Disbelief (1993).
38. Some commentators have adopted this approach to evangelical and fundamentalist Christianity in its contemporary American form. See, e.g., Michael Barone, Why Ridicule Someone's Religion?, Wash. Post, Sept. 21, 1986, at C8; see also Garrett Epps, Voices of '88: A Surprising New Politics Of Protest; Robertson's Evangelicals, Wash. Post, Feb. 14, 1988, at C1; Garrett Epps, Pat Robertson's a Pastor, but His Father was a Pol, Wash. Post, Oct. 19, 1986, at H1; Garrett Epps, Born-Again Politics is Still Waiting to Be, Wash. Post, Mar. 30, 1980, at C1. For a general discussion of the kind of ignorance and hostility that inspires the misappropriation of religious terms for polemical purposes, see Stephen Carter, The Culture of Disbelief (1993).
39. Chen, supra note 1, at 149.
40. Id. at 153.
41. Id. at 154.
42. Id. at 168.
43. Id. at 167.
44. 183 U.S. 1 (1967).
45. Chen, supra note 1, at 172.
46. Id. at 174 (quoting Dante Alighieri, I The Divine Comedy, Canto III, 11. 2-4 (Robert M. Hutchins ed. & Charles E. Norton trans., Encyclopedia Britannica 1952) (describing placard above the gateway to the circle of Hell reserved for those who have lost the good of their intellects)).
47. If I were Professor Chen, I would here provide a footnote like, see 133 Cong. Rec. S5847-02 (daily ed. May 1, 1987) (remarks of Sen. Simon) ("George Burns, whose energy is a source of amazement, has taught the public that not all 91-year-olds are cranky.") This would give me a satisfying air of erudition and give the student cite-checker something to chase down. But, like many of the footnotes in Professor Chen's article, see supra note 13 and accompanying text, it would actually provide no information of any real value. I suppose, if we take the word of members of Congress, it does prove that, yes, Virginia, there is a George Burns - but did we really doubt that? And are my scholarly bona fides really more firmly established because I have dug up this worthless piece of political boilerplate? Does attention to this kind of extraneous and pedantic detail make me a scholar? To paraphrase an old Southern saying, "If a kitten is born in an oven, does that make her a biscuit?" In fact, truly footnoting this routine would be an all-but-impossible task. (On the difficulty of documenting this sort of cultural ephemera, see Aoki & Epps, supra note 13, at 556.) I heard it on a record my parents got sometime in the 1950s by sending in labels from cans of Alpo dog food. The record contained samples of the routines of many of the great comedians of the radio era, then just ending. I spent hours listening to the record before it was mangled beyond playability by the dog whose eating habits earned it for us in the first place. Easy come, easy go, I suppose. However, anybody who doubts that it existed can call me and I'll put him or her in touch with my Mom and Dad.
48. Chang, supra note 1, at 1318 n.400.
49. Id. at 1318.
50. Chen, supra note 1, at 158.
51. Chang, supra note 1, at 1252.
52. Id.
53. Id. at 1253 n.44.
54. Chen, supra note 1, at 149, 160.
55. Loving v. Virginia, 388 U.S. 1, 4 n.3 (1967).
56. Id. at B n.4.
57. See id. (quoting Plecker, The New Family and Race Improvement, 17 Va. Health Bull., Extra No. 12, 25-26 (1925).
58. Don't bother to see Pocahontas (Walt Disney Motion Pictures 1995).
59. Thomas Jefferson Wertenbaker, "Pocahontas," in 15 Dictionary of American Biography 18, 19 (Dumas Malone ed., 1935).
60. Grace Steele Woodward, Pocahontas 156 (1969) (quoting Edward D. Neill, History of the Virginia Company of London, with Letters to and from the First Colony Never Before Printed 86 (1869)). Woodward's work draws upon contemporaneous accounts attributed to Capt John Smith. See id. at 208.
61. Id. at 156.
62. Id.
63. Id. at 158-59 (footnotes omitted).
64. Id. (quoting Raphe Hanor, A True Discourse of the Present Estate of Virginia 64 (1615)).
65. Woodward, supra note 53, at 162.
66. Id. at 163.
67. Id. at 164.
68. Id. at 169.
69. Id.
70. Woodward, supra note 53, at 168-69.
71. Id. at 172.
72. Id.
73. For an account of how this transformation occurred, see generally Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (1975).
74. The idea of the "beloved community" emerges from the theory of nonviolence as formulated by the Fellowship of Reconciliation (FOR) and practiced by the American Civil Rights Movement. It is most strongly assocated with the Reverend James Lawson, the Methodist pastor and FOR member who helped organize the Student Non-Violent Coordinating Committee (SNCC) in 1961. See, e.g., Clayborne Carson, In Struggle: SNCC and the Black Awakening of the 1960s 21-22 (1981); Robert Weisbrot, Freedom Bound: A History of America's Civil Rights Movement 21 (1990). A moving statement of the vision emerged out of the early meetings of the SNCC: "Nonviolence as it grows from Judaic-Christian traditions seeks a sodal order of justice permeated by love." Student Nonviolent Coordinating Committee Statement of Purpose, May 14, 1960, reprinted in The Eyes on the Prize Civil Rights Reader: Documents, Speeches, and Firsthand Accounts from the Black Freedom Struggle, 1954-1960 at 119 (Clayborne Carson et al. eds., 1991).
75. The idea of the "beloved community" emerges from the theory of nonviolence as formulated by the Fellowship of Reconciliation (FOR) and practiced by the American Civil Rights Movement. It is most strongly assocated with the Reverend James Lawson, the Methodist pastor and FOR member who helped organize the Student Non-Violent Coordinating Committee (SNCC) in 1961. See, e.g., Clayborne Carson, In Struggle: SNCC and the Black Awakening of the 1960s 21-22 (1981); Robert Weisbrot, Freedom Bound: A History of America's Civil Rights Movement 21 (1990). A moving statement of the vision emerged out of the early meetings of the SNCC: "Nonviolence as it grows from Judaic-Christian traditions seeks a sodal order of justice permeated by love." Student Nonviolent Coordinating Committee Statement of Purpose, May 14, 1960, reprinted in The Eyes on the Prize Civil Rights Reader: Documents, Speeches, and Firsthand Accounts from the Black Freedom Struggle, 1954-1960 at 119 (Clayborne Carson et al. eds., 1991).
76. The idea of the "beloved community" emerges from the theory of nonviolence as formulated by the Fellowship of Reconciliation (FOR) and practiced by the American Civil Rights Movement. It is most strongly assocated with the Reverend James Lawson, the Methodist pastor and FOR member who helped organize the Student Non-Violent Coordinating Committee (SNCC) in 1961. See, e.g., Clayborne Carson, In Struggle: SNCC and the Black Awakening of the 1960s 21-22 (1981); Robert Weisbrot, Freedom Bound: A History of America's Civil Rights Movement 21 (1990). A moving statement of the vision emerged out of the early meetings of the SNCC: "Nonviolence as it grows from Judaic-Christian traditions seeks a sodal order of justice permeated by love." Student Nonviolent Coordinating Committee Statement of Purpose, May 14, 1960, reprinted in The Eyes on the Prize Civil Rights Reader: Documents, Speeches, and Firsthand Accounts from the Black Freedom Struggle, 1954-1960 at 119 (Clayborne Carson et al. eds., 1991).
77. See, e.g., Heather Mac Donald, Law School Humbug, Wall St. J., Nov. 8, 1995 at A19 (denouncing Critical Race Theorists and legal feminists as "mediocre legal scholars" who attain "jobs and tenure simply for espousing the fashionable view that American society is pathologically racist and sexist"). One of the objects of this attack is Duke University Professor Jerome McCrystal Culp, who, the author says, "invokes his coal[-]miner father to educate his students about the differences between black and white law professors - though it turns out that two of his white colleagues at Duke also had coal[-]miner fathers." Id. As a former student of Professor Culp, I have no hesitation in branding this statement as of such willful sloppiness as to be morally indistinguishable from a conscious lie. Culp does not discuss his father's occupation to prove anything about other law professors, or anything about race. He does often mention it as a way of focusing a classroom discussion on issues of class. The technical term for this kind of writing is smear.
78. See generally Jerry Adler et al., Taking Offense: Is this the New Enlightenment on Campus or the New McCarthyism?, Newsweek, Dec. 24, 1990, at 48; Barbara Dority, The PC Speech Police, The Humanist, Mar.-Apr. 1992, at 31; Chester E. Finn, Jr., The Campus: "An Island of Repression in a Sea of Freedom," Commentary, Sept. 1989, at 17; Nat Hentoff, Free Speech on the Campus, Progressive, May 1989, at 12; James Traub, P.C. vs. English: Back to Basics, New Republic, Feb. 8, 1993, at 18.
79. See generally Jerry Adler et al., Taking Offense: Is this the New Enlightenment on Campus or the New McCarthyism?, Newsweek, Dec. 24, 1990, at 48; Barbara Dority, The PC Speech Police, The Humanist, Mar.-Apr. 1992, at 31; Chester E. Finn, Jr., The Campus: "An Island of Repression in a Sea of Freedom," Commentary, Sept. 1989, at 17; Nat Hentoff, Free Speech on the Campus, Progressive, May 1989, at 12; James Traub, P.C. vs. English: Back to Basics, New Republic, Feb. 8, 1993, at 18.
80. See generally Jerry Adler et al., Taking Offense: Is this the New Enlightenment on Campus or the New McCarthyism?, Newsweek, Dec. 24, 1990, at 48; Barbara Dority, The PC Speech Police, The Humanist, Mar.-Apr. 1992, at 31; Chester E. Finn, Jr., The Campus: "An Island of Repression in a Sea of Freedom," Commentary, Sept. 1989, at 17; Nat Hentoff, Free Speech on the Campus, Progressive, May 1989, at 12; James Traub, P.C. vs. English: Back to Basics, New Republic, Feb. 8, 1993, at 18.
81. See generally Jerry Adler et al., Taking Offense: Is this the New Enlightenment on Campus or the New McCarthyism?, Newsweek, Dec. 24, 1990, at 48; Barbara Dority, The PC Speech Police, The Humanist, Mar.-Apr. 1992, at 31; Chester E. Finn, Jr., The Campus: "An Island of Repression in a Sea of Freedom," Commentary, Sept. 1989, at 17; Nat Hentoff, Free Speech on the Campus, Progressive, May 1989, at 12; James Traub, P.C. vs. English: Back to Basics, New Republic, Feb. 8, 1993, at 18.
82. "Some circumstantial evidence is very strong, as when you find a trout in the milk." Henry David Thoreau, Journal, Nov. 11, 1854 (1906) (quoted in John Bartlett, Familiar Quotations 557 (Emily Morrison Beck ed., 15th ed. 1980).
83. "Some circumstantial evidence is very strong, as when you find a trout in the milk." Henry David Thoreau, Journal, Nov. 11, 1854 (1906) (quoted in John Bartlett, Familiar Quotations 557 (Emily Morrison Beck ed., 15th ed. 1980).