Beyond all criticism?

Minnesota Law Review

Volumn 83, Issue 6, 1999, Pages 1735-1765

  Farber, Daniel A ^a   Sherry, Suzanna ^a  

^a UNIVERSITY OF MINNESOTA   (United States)

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EID: 0346684293     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (135)

1. DANIEL A. FARBER AND SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997).
2. See Francis J. Mootz III, Between Truth and Provocation: Reclaiming Reason in American Legal Scholarship, 10 YALE J.L. & HUMAN. 605, 613-20 (1998);
3. Roderick M. Hills, Jr., Truth or Consequences? The Inadequacy of Consequentialist Arguments Against Multicultural Relativism, 15 CONST. COMM. 185, 186-87 (1998).
4. See, e.g., Jerome McCristal Culp, Jr., To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637, 1642 (1999) ("I do not think you can read what I or other critical race theorists have done as being an effort to represent the communities of color in conflict with the Jewish communities.");
5. John O. Calmore, Random Notes of an Integration Warrior - Part 2: A Critical Response to the Hegemonic "Truth" of Daniel Farber and Suzanne Sherry, 83 MINN. L. REV. 1589, 1603 (1999) [hereinafter Calmore, Random Notes - Part 2] ("Farber and Sherry claim that critical race theory has reduced achievement by Jews to a function of illegitimate power only. Of course, critical race theory, as a body of scholarship, makes no such claim."); id. at 1605 ("Farber and Sherry make an incredible claim that critical race theorists . . . implicitly endorse racism.");
6. Nancy Levit, Critical of Race Theory: Race, Reason, Merit and Civility, 87 GEO. L.J. 795, 807 (1999) ("Farber and Sherry do not cite to any critical race, feminist, or gay legal theories actually scapegoating Asians or Jews.");
7. Richard Delgado, Rodrigo's Book of Manners: How To Conduct a Conversation on Race - Standing, Imperial Scholarship, and Beyond, 86 GEO. L.J. 1051, 1057 (1998) (anti-Semitism is "[a] curious charge, since I don't know anyone in the crit camp who would say those things . . . . Farber and Sherry put words in our mouths, then take us to task for what they think we must be saying"); id. at 1063 ("[T]o accuse us of harboring unspoken thoughts about Jews' illgotten gams is unfair."); id. at 1062 ("Farber and Sherry . . . accuse us of latent antisemitism. . . ."); Mootz, supra note 2, at 613 n.34 ("In some instances . . . they have been unfair to their targets, as when they suggest that the radicals would assert that a book denying the Holocaust is as good as a book that accurately reports the fact of the death camps.");
8. John O. Calmore, Random Notes of an Integration Warrior, 81 MINN. L. REV. 1441, 1469 (1997) [hereinafter Random Notes] ("[M]y alleged anti-Semitism apparently boils down to linking Jews to white people . . . .").
9. Not all of our critics have missed our point in this way. See Daria Roithmayr, Guerrillas in Our Midst: The Assault on Radicals in American Law, 96 MICH. L. REV. 1658, 1675 (1998) ("[T]he authors do not argue that radical theorists are engaging in Holocaust denial or advocating totalitarianism" but only "claim that the radicals' denial of objective truth can be misused in nihilistic fashion.").
10. Hills, supra note 2, at 198.
11. FARBER & SHERRY, supra note 1, at 9.
12. Calmore, Random Notes - Part 2, supra note 3, at 1606.
13. Id. at 1609.
14. Culp, supra note 3, at 1655.
15. Calmore, Random Notes - Part 2, supra note 3, at 1613.
16. Delgado, supra note 3, at 1061. Having issued this charge of opportunism through the mouth of one of his fictional alter egos, Delgado then downplays it in the next sentence. One of the great advantages of storytelling is that it allows the author to avoid full responsibility for any of the views expressed in his own works.
17. Calmore, Random Notes - Part 2, supra note 3, at 1597.
18. See Jerome McCristal Culp, Jr., Telling a Black Legal Story: Privilege, Authenticity, "Blunders," and Transformation in Outsider Narratives, 82 VA. L. REV. 69, 90 & n.72 (1996) (describing a "white male" backlash against outsider scholarship, and citing only articles by Farber, Sherry, and our colleague Jim Chen - a Taiwanese native who moved to the United States at the age of 6).
19. Robert A. Williams, Jr., Vampires Anonymous and Critical Race Practice, 95 MICH. L. REV. 741, 741 (1997). Suffice it to say that neither of us fits this stereotype, and that if we were to characterize critical race theorists in such a blatantly stereotypical way the accusations of racism would at least treble in volume.
20. Calmore, Random Notes - Part 2, supra note 3, at 1605.
21. See id. at 1617.
22. Id. at 1592.
23. Id. at 1591.
24. Calmore, Random Notes, supra note 3, at 1457.
25. Culp, supra note 3, at 1642.
26. Id. at 1643 n.13, 1659-60.
27. Calmore, Random Notes - Part 2, supra note 3, at 1608.
28. Id. at 1607.
29. See FARBER AND SHERRY, supra note 1, at 7. Our effort to find common ground with critical race theory was duly noted and attacked by some conservative reviewers. See Heather MacDonald, Storytellers, COMMENTARY, Oct. 1997, at 65;
30. Mark Miller, Professor, Tell Us a Story, NATIONAL REVIEW, Dec. 8, 1997, at 53.
31. Culp, supra note 3, at 1666, 1669.
32. Calmore, Random Notes - Part 2, supra note 3, at 1591.
33. Calmore, Random Notes, supra note 3, at 1461.
34. Calmore, Random Notes - Part 2, supra note 3, at 1611 (citations omitted, italics and parenthetical commentary supplied by Calmore).
35. Calmore, Random Notes - Part 2, at 1611, Id.
36. See Matthew W. Finkin, QUATSCH!, 83 MINN; L. REV. 1681, 1693-1703 (1999).
37. See STEPHEN HOLMES, THE ANATOMY OF ANTILIBERALISM (1993).
38. Kathryn Abrams, How To Have a Culture War, 65 U. CHI. L. REV. 1091, 1100 (1998).
39. Delgado, supra note 3, at 1069.
40. Roithmayr, supra note 3, at 1661.
41. Delgado, supra note 3, at 1054. Matthew Finkin, on the other hand, considers our description to be a "fully fledged account," suggesting that claims of distortion are equivalent to claims that "Wagner's music really is much better than it sounds." Finkin, supra note 29, at 1682; see also Hills, supra note 2, at 186 (the book is "scrupulously honest" in its quotations).
42. Of course, given space limitations, they can only focus on a few selected quotations, leaving most of our excerpts untouched. But even as to the alleged distortions, as we show in the text, their charges are unfounded.
43. Culp, supra note 3, at 1646.
44. DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM 186-87 (1992).
45. See Culp, supra note 3, at 1647. Interestingly, John Calmore demands that we disavow at least one of the reviewers of our book as racist, although that review does not begin to approach Farrakhan's direct attacks. See Calmore, Random Notes - Part 2, supra note 3, at 1611. Farrakhan has, among other things, called Judaism a gutter religion. Our reviewer simply raises serious questions about the validity of radical multicultural arguments. Calmore apparently takes the attack personally, which is part of the problem with radical multiculturalism. See id. at 1591.
46. BELL, supra note 37, at 125, quoted in FARBER & SHERRY, supra note 1, at 44.
47. Culp, supra note 3, at 1648.
48. Id. at 1651.
49. Derrick Bell, Racial Realism, 24 CONN. L. REV. 363, 370 (1992), quoted in FARBER & SHERRY, supra note 1, at 128.
50. Culp, supra note 3, at 1649.
51. See Abrams, supra note 31, at 1107. Delgado admits that unlike some critics of radical multiculturalism, we "at least get the quotes right." Delgado, supra note 3, at 1054.
52. FARBER & SHERRY, supra note 1, at 98 (quoting Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971, 1025 (1991)).
53. Abrams, supra note 31, at 1106-07. In an earlier article, Abrams discusses Patricia Williams' story: she has "no reason to doubt that Williams's narrative . . . happened in approximately the way she relates," but ultimately it would make "little difference" if the story had been pure invention. Abrams, supra note 45, at 1026-27.
54. See Robin Wilson, A Challenge to the Veracity of a Multicultural Icon, CHRON. HIGHER EDUC., Jan. 15, 1999, at A14.
55. Wilson says that many academics plan to continue teaching Menchu's book "because they believe [her] story speaks to a greater truth about the oppression of poor people." Wilson quotes a faculty member at Wellesley as saying: "Whether her book is true or not, I don't care." Id.; see also Charles Lane, Deceiving Is Believing, NEW REPUBLIC, Mar. 8, 1999, at 36, 38 (Menchu's distorted version of events effectively silenced the Mayan victims of the struggle between a repressive regime and violent rebels).
56. Roithmayr, supra note 3, at 1680.
57. Id.
58. See, e.g., Abrams, supra note 31, at 1105; Mootz, supra note 2, at 628-29. Other commentators read the passage precisely as we do. See, e.g., Jeffrey Rosen, The Bloods and the Crits, NEW REPUBLIC, Dec. 9, 1996, at 32.
59. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 169-70 (1991), quoted in FARBER & SHERRY, supra note 1, at 96.
60. Patricia J. Williams, Through a Glass Darkly, NATION, Jan. 12/19, 1998, at 10.
61. Mootz, supra note 2, at 629.
62. Abrams, supra note 31, at 1105 n.28. The gratuitous reference to the race of the "(white) political leaders" carries an implication that the rejection of Brawlers story was tainted in some way.
63. Id. at 1105.
64. Id. at 1105 n.27.
65. Culp, at least, seems to think we are inept, claiming that the book exhibits "little comprehension and no scholarly pretensions," but is merely a "poorly researched and written diatribe." Culp, supra note 3, at 1640. Roithmayr similarly suggests that perhaps we "are just not quite able to grasp the analysis behind the radical argument." Roithmayr, supra note 3, at 1662. This dismissive attitude is no substitute for a serious analysis of our arguments.
66. Calmore, Random Notes, supra note 3, at 1468.
67. Calmore, Random Notes - Part 2, supra note 3, at 1603 n.51.
68. FARBER & SHERRY, supra note 1, at 97.
69. Abrams, supra note 31, at 1122. On this basis, would it be acceptable for an author to say she was locked out of a shop because of her race, when she really means only that she felt as unwelcome as if she had been excluded entirely? If so, what language would a writer have to use to communicate that she really was locked out?
70. See Anne M. Coughlin, C'est Moi, 83 MINN. L. REV. 1619, 1630-36 (1999). Coughlin's critique is not wholly warranted. While she fairly attacks the interpretation we place on the historical facts, the main point of the two stories was to illustrate how personal narratives can mislead the reader as to the historical facts themselves by omitting critical aspects of the context. Moreover, Coughlin may be wrong to equate the narrator's refusal to "name herself a victim" when she might arguably be one, with other narrators' attempts to portray themselves as victims even if they were not. Id. at 1635. Victimhood may be a status one can decline, even if one cannot unilaterally bestow it on oneself.
71. Roithmayr, supra note 3, at 1663 (quoting Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE L.J. 705, 733.
72. FARBER & SHERRY, supra note 1, at 31.
73. Roithmayr, supra note 3, at 1664.
74. See JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY (1995).
75. Roithmayr, supra note 3, at 1667.
76. Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 85 CAL. L. REV. 1449, 1492-93 (1997).
77. Roithmayr contends, for example, that law school admissions standards such as the LSAT were originally designed to exclude women and minorities. See id. at 1486-91. But as many a first-year student has learned to his or her detriment, reading comprehension and logical thinking - which make up a substantial portion of the aptitudes tested by the LSAT - are vitally necessary to legal analysis. (We have recently found that our own students confront this most sharply when they turn to such tasks as parsing the supplemental jurisdiction statute, 28 U.S.C. § 1367, or understanding the Rule Against Perpetuities.) Thus, whatever the provenance of the LSAT, it does seem to identify some skills that are especially useful in law school.
78. Interestingly, the radicals' rather casual view of linguistic precision might extend to our writing as well as theirs. At least one critic believes that we can't possibly mean what we say. Roithmayr writes: Farber and Sherry cannot really mean that nothing of knowledge value is contributed when Patricia Williams points out, in a voice that betrays her personal anger and frustration, that as of 1991 Harvard had yet to hire permanently a woman of color for a tenuretrack position. Roithmayr, supra note 3, at 1672. Well, actually, we do mean that. We knew before Williams wrote that that the Harvard Law School had no women of color on its faculty. Have we learned anything useful when we are told that this fact frustrates a prominent black female academic - at the the teaching at the University of Wisconsin Law School - who might herself have ambitions to greater things? We've learned about as much when Culp charges that Richard Posner ignores "important" scholarship by people of color - and then includes his own work in the list of slighted important scholarship. Culp, supra note 3, at 1659, 1661, 1670.
79. For a description of an incident involving the latter term, see Finkin, supra note 29, at 1702-03 & n.85.
80. Marc M. Arkin, Radical Moderation, NEW CRITERION, May 1998, at 65, 67. The same reviewer, incidentally, says that the most serious flaw in the book is that it is "too moderate, that it makes too much of an effort to meet its subject more than halfway." Id. at 690.
81. Abrams, supra note 31, at 1111, 1113 n.38; see also Levit, supra note 3, at 807-08 (describing the "structure of [our] argument" as perspectivist because it asks "Is this theory good for the Jews?"); Deborah C. Malamud, The Jew Taboo: Jewish Difference and the Affirmative Action Debate, 59 OHIO ST. L.J. 915, 917 (1998) (accusing us of speaking "as Jews" and "claiming a privileged Jewish perspective").
82. Richard A. Posner, The Skin Trade, NEW REPUBLIC, Oct. 13, 1997, at 40, 43.
83. Mootz, supra note 2, at 629; see also Abrams, supra note 31, at 1099 ("Farber and Sherry propose to assess multicultural scholarship in a purely consequentialist manner - according to the world it is likely to create."); Steven G. Gey, Why Rubbish Matters: The Neoconservative Underpinnings of Social Constructionist Theory, 83 MINN. L. REV. 1707, 1708 (1999) (describing ours as a "consequentialist approach" although not criticizing it).
84. Mootz, supra note 2, at 629 n.95.
85. FARBER & SHERRY, supra note 1, at 139.
86. Id. at 140.
87. Id. a t52.
88. We collect many of these statements in FARBER & SHERRY, supra note 1, at 31-32. We discuss the charge of distortion more fully in Part I, supra.
89. Delgado, supra note 3, at 1062.
90. Abrams, supra note 31, at 1113 n.39.
91. As Judge Kozinski points out, it seems particularly insensitive for Bell to make "the symbol of Jewish hypocrisy the little girl who perished in the Holocaust." Alex Kozinski, Bending the Law, N.Y. TIMES, Nov. 2, 1997, § 7, at 2.
92. See FARBER & SHERRY, supra note 1, at 4.
93. Id. at 58.
94. Id. at 44.
95. See Culp, supra note 3, at 1646.
96. Abrams, supra note 31, at 1109-10 n.36.
97. Id.
98. Culp, supra note 3, at 1647.
99. Abrams, supra note 31, at 1109 n.36. These are all fair points. Indeed, if we had called Bell anti-Semitic, these would be convincing rebuttals. But in fact, we did not make this charge. What we actually did say was the following: It would be convenient if we could simply condemn Bell's lapses as symptoms of an insensitivity to anti-Semitism. Unfortunately, we believe the problem is deeper. Bell's difficulty with the Jewish question is no aberration. Instead, it is a corollary of his widely shared theory that standards of merit are socially constructed to favor the powerful. FARBER & SHERRY, supra note 1, at 4.
100. Abrams, supra note 31, at 1126. In a footnote, Abrams suggests that various "isms" might be defined differently, "depending on their virulence, history, and the social position of their targets in a particular society." Id. at 1126 n.66. The suggestion seems to be that anti-Semitism is simply not very serious in American society, as compared with racism, so it should be defined narrowly. But this is utterly circular. Until we define something, how can we assess its seriousness as a social problem? Moreover, the implications seem odd: under Abrams' approach, Bell's book might be wholly commendable in the United States but blatantly anti-Semitic if reprinted in a country-such as Russia - with a more pervasive and longstanding problem with anti-Semitism and few blacks.
101. Id. at 1125.
102. Culp, supra note 3, at 1659. Calmore also calls Posner's negative assessment of critical race theory "goofy." Calmore, Random Notes - Part 2, supra note 3, at 1612.
103. Calmore, Random Notes, supra note 3, at 1467.
104. Calmore, Random Notes - Part 2, supra note 3, at 1603 n.51.
105. See Malamud, supra note 73, at 923-38.
106. See id. at 967-68.
107. See id. at 968.
108. See FARBER & SHERRY, supra note 1, at 58.
109. Another effort to explain the problem is made in Roithmayr, supra note 3, at 1669. As Matthew Finkin explains, however, this explanation is equally unavailing. See Finkin, supra note 29, at 1690-91 & n.31.
110. Coughlin, supra note 62, at 1621.
111. Finkin, supra note 29, at 1700.
112. Gey, supra note 75, at 1729-30.
113. See David M. Rabban, Can Academic Freedom Survive Postmodernism?, 86 CAL. L. REV. 1377, 1378 (1998).
114. FARBER & SHERRY, supra note 1, at 88 (quoting DAPHNE PATAI & NORETTA KOERTGE, PROFESSING FEMINISM: CAUTIONARY TALES FROM THE STRANGE WORLD OF WOMEN'S STUDIES 118 (1994)). Frederick Mootz, although he is critical of our work on other grounds, agrees with us here: [A]ny tendency by the radicals to be dismissive toward traditional scholars who lack access to the unique voice available only to minority radicals certainly would be disappointing. . . . Dismissive refusals to engage others in dialogue by remaining silent or launching attacks, especially when issued from the loftiest heights in academia, represent the worst forms of pseudo-objectivism that the radicals profess to eradicate. Mootz, supra note 2, at 634.
115. Calmore, Random Notes - Part 2, supra note 3, at 1591.
116. Culp, supra note 3, at 1640.
117. Derrick A. Bell, Who's Afraid of Critical Race Theory?, 1995 U. ILL. L. REV. 893, 910, quoted in FARBER & SHERRY, supra note 1, at 88.
118. Calmore, Random Notes - Part 2, supra note 3, at 1616.
119. Abrams, supra note 31, at 1118.
120. Id. at 1120-21.
121. See id. at 1125-26.
122. See Delgado, supra note 3, at 1065.
123. Culp, supra note 3, at 1668.
124. Derrick A. Bell, Jr., California's Proposition 209: A Temporary Diversion on the Road to Racial Disaster, 30 LOY. L.A. L. REV. 1447, 1448 (1997). The moral of the story, Bell says, is "both simple and irrefutable: This society is always willing to sacrifice the rights of black people to protect or further important economic or political interests." Indeed, he adds, racial injustices are only remedied when "such remedies further interests of importance to whites, or some of them." Id. at 1449.
125. We do not claim that majority rule is a sufficient safeguard to minority rights. But the idea that majorities are universally hostile to minority rights is equally unsupportable. Consider, for example, the bevy of civil rights statutes passed since 1964.
126. Roithmayr, supra note 3, at 1680.
127. Id. at 1681.
128. Id. at 1682.
129. Id. at 1683.
130. For expressions of such skepticism since publication of Beyond All Reason, see, for example, Calmore, Random Notes - Part 2, supra note 3, at 1595-96, and Delgado, supra note 3, at 1069.
131. Mootz, supra note 2, at 616.
132. See id.
133. Posner, supra note 74, at 43.
134. See Richard Delgado & Jean Stefancic, Critical Race Theory: Past, Present, and Future, 51 CURRENT LEGAL PROBLEMS 467, 490-91 (M.D.A. Freeman ed., 1998).
135. Admittedly, as Arthur Austin suggests, this forecast may be too.