The law is key to sustaining reforms—incremental changes increase
the likelihood of wholescale upheavals and serve as victories—their
scholars make critical misunderstandings about minority needs
Richard Delgado 9, self appointed Minority scholar, Chair of Law at the University of Alabama Law School, J.D. from the University of
California, Berkeley, his books have won eight national book prizes, including six Gustavus Myers awards for outstanding book on human rights in North
America, the American Library Association’s Outstanding Academic Book, and a Pulitzer Prize nomination. Professor Delgado’s teaching and writing
focus on race, the legal profession, and social change 2009, Arguing about Law, p. 588-590
CLS critique of piecemeal reform¶ Critical scholars reject the idea of piecemeal reform.
Incremental change, they argue, merely postpones the wholesale reformation that must
occur to create a decent society. Even worse, an unfair social system survives by using
piecemeal reform to disguise and legitimize oppression. Those who control the system
weaken resistance by pointing to the occasional concession to , or¶ periodic court victory of, a
black plaintiff or worker as evidence that the system is fair and¶ just. In fact, Crits believe that teaching
2. The
the¶ common law or using the case method in law school is a disguised means of preaching incrementalism and thereby maintaining the current power
structure.“ To avoid this, CLS scholars¶ urge law professors to abandon the case method, give up the effort to find rationality and order¶ in the case
law, and teach in an unabashedly political fashion. ¶
The
CLS
critique of piecemeal reform is familiar,
imperialistic and wrong. Minorities know from bitter experience that occasional court victories do not mean the Promised
Land is at hand. The critique is imperialistic in that it tells minorities and other oppressed peoples how
they should interpret events affecting them. A court order directing a housing
authority to disburse funds for heating in subsidized housing may postpone the
revolution, or it may not. In the meantime, the order keeps a number of poor
families warm. This may mean more to them than it does to a comfortable academic
working in a warm office. lt smacks of paternalism to assert that the possibility of
revolution later outweighs the certainty of heat now,¶ unless there is evidence for that possibility. The Crits
do not offer such evidence. Indeed, some incremental changes may bring
revolutionary changes closer , not push them¶ further away. Not all small reforms induce
complacency; some may whet the appetite for further combat. The welfare family may
hold a tenants‘ union meeting in their heated living room. CLS scholars‘ critique of piecemeal
reform often misses these possibilities, and neglects the¶ question of whether total change, when it comes, will be what
we want.¶ 3. CLS Idealism ¶ The CLS program is also idealistic. CLS scholars’ idealism transforms social reality into
mental construct.“ Facts become intelligible only through the categories of thought that¶ we bring to experience. Crits argue that
the principal impediments to achieving an ideal society are intellectual. People are
imprisoned by a destructive system of mental categories that¶ blocks any vision of a better world." Liberal¶
capitalist ideology so shackles individuals that¶ they willingly accept a truncated existence and¶ believe it to be the best available. Changing the¶ world
To help break the mental chains and clear the way
for the creation of a new and better world, Crits practice "trashing"—a¶ process by
which law and social structures are¶ shown to be contingent, inconsistent and¶
irrationally supportive of the status qua without good reason.¶ CLS scholars' idealism has a familiar ring
to minority ears. We cannot help but be reminded of those fundamentalist preachers who
have assured us that our lot will only improve once we "see the light" and are
"saved."
requires primarily that we begin to think ¶ about it differently.“
The affirmative gets to weigh the world of the plan passing verses the
negative’s alternative.
A. This is grounded in the wording of the resolution making
predictable-That’s key to focused research and education.
Legal education of women has tangible impacts – more female law
students and professors directly correlates with favorable legal
change, their academic theorizing leaves the most vulnerable women
by the wayside
Cain 97 (Patricia A. Cain, Professor of Law and Associate Dean at the University of Iowa College of Law, “The Future Of Feminist Legal Theory,”
1997 Board of Regents of the University of Wisconsin System, Wisconsin Women's Law Journal, Summer, 1997, 11 Wis. Women's L.J. 367)
Law and law schools have a long history of male domination. If one thinks of the world of law as
progressing in Hegelian-like fashion from "thesis" to "antithesis" to "synthesis," then the thesis of " male domination" remained
in full control until at least the early 1970s. There were few women law students before 1970
and even fewer wo- [*369] men law professors. n4 The decade of the 1970s lay the groundwork for the "antithesis" to male domination, as
women increased their numbers in the legal academy and in the practice of law. In 1970,
the first National Conference on Women and the law was held at New York University. n5 In 1971, the Supreme Court began
to rule in favor of sex discrimination claims pursued under the fourteenth amendment .
n6 One year later, Congress passed the Equal Rights Amendment, and within months at least 20 state
legislatures had ratified the amendment. n7 In 1972, Ruth Bader Ginsburg, the lawyer in the 1971 Supreme Court victory, and
also a law professor, helped to organize a conference, again at New York University, on The Law School Curriculum and the
Legal Rights of Women. n8 By the mid 1970s most law schools had developed courses in Women
and the Law, sometimes taught by real faculty, but often taught by adjuncts or by students themselves under the
supervision of a faculty member. These courses focused on criminal law, family law, antidiscrimination law, and reproductive rights. During this
period, feminist litigators developed cutting edge theories to help women
improve their legal status . For example, feminist lawyers argued that in determining
whether a woman killed in self-defense, the defendant's perspective as a woman in a gendered world should be taken
into account. n9 They also argued for the first time that sexual harassment was a form of sex
discrimination. n10 This focus on harms to women and on the unmasking of the gendered nature of these harms gave rise to a core of
feminist scholarship and the introduction of specialty law school courses, in addition to women and the law courses, known as "feminist jurisprudence"
or "feminist legal theory." [*370] Scholarship using the term "feminist jurisprudence" can be traced to early writings of Ann Scales and Catharine
MacKinnon. n11 The 14th National Conference on Women and the Law, held in Washington D.C. in the spring of 1983 was the first conference to
include a panel entitled "Developing a Feminist Jurisprudence." Panelists included LaDoris Hazzard Cordell, Catharine MacKinnon, Phyllis Segal, and
Nadine Taub, a panel intended to mix theory and practice. n12 But even before the term "feminist jurisprudence" was coined, the Women and the Law
Conference had panels that today would be identified as focusing on feminist jurisprudence or feminist legal theory. n13 In 1991, I published a short
essay in the Iowa Law Review, asking whether feminist legal scholarship was taken seriously by the legal academy as a whole. n14 At the time, I feared
that the subject was being marginalized, despite its prominent publication in the Harvard n15 and Chicago n16 law reviews. Subsequent developments
By 1996, every leading law school lacking an established
feminist legal theorist was clamoring for one. Articles continue to be published in leading law reviews and there are
have shown that my fears were not well founded.
several new feminist jurisprudence casebooks. n17 Nonetheless, there are serious questions about whether this recent support for feminist legal
theory or feminist jurisprudence is altogether a good thing. Specialty courses and specialty professors who teach them are still subject to
The risk of marginalization concerns me, not just because of the possible
tenure crisis for women professors who might engage in marginalized scholarship, but also because of the separation (via
marginalization even when in demand. n18
of feminist legal theory from realms of legal power outside [*371] the
academy, e.g., courts and legislatures. n19 Courts and legislatures are more likely than
the academy to produce real change in individual people's lives. And if the ultimate goal of
feminist work in the academy is to make real changes in women's lives, then feminist legal theory needs to be useful to
the practice of law in real cases. n20 No "synthesis" in male-dominated law will ever result from a feminist "antithesis" based on
ghettoization)
scholarly work alone. n21
Even if change doesn’t happen outside of this room, orienting
ourselves towards legal change is necessary to understand how
material, social, and discursive configurations organize and interpret
society.
Perm do both- we can use the tools of biopower to challenge
oppression, the alt allows the worst forms of violence
Deranty, 2004 (Jean-Phillipe, Professor of French and German Philosophy at Macquarie University, “Agamben’s Challnege to Normative
Theories of Modern Rights”, Boderlands E-Journal, 3:1, http://www.borderlandsejournal.adelaide.edu.au/vol3nol_2004/derantv agambnschall.html)
48. One can acknowledge the descriptive appeal of the biopower hypothesis without renouncing the antagonistic definition of politics. As Ranciere
remarks, Foucault's late hypothesis is more about power than it is about politics (Ranciere 2002). This is quite clear in the 1976 lectures (Society must
when the "biopower" hypothesis
is transformed into a "biopolitical" thesis, the Very possibility of politics becomes
problematic. There is a way of articulating modern disciplinary power and the imperative of politics that is not disjunctive. The power
that subjects and excludes socially can also empower politically simply because the
exclusion is already a form of address which unwittingly provides implicit recognition. Power includes by excluding,
but in a way that might be different from a ban. This insight is precisely the One that Foucault was
developing in his last Writings, in his definition of freedom as "agonism" (Foucault 1983: 208-228): "Power is exercised only over
free subjects, and only insofar as they are free" (221). The hierarchical, exclusionary essence of SOCJal
structures demands as a condition of its possibility an equivalent implicit recognition of
all, even in the mode of exclusion. It is on the basis of this recognition that politics can sometimes
arise as the vindication of equality and the challenge to exclusion. 49. This proposal rests on a logic that
be defended) where the term that is mostly used is that of "biopower". As Ranciere suggests,
challenges Agamben's reduction of the overcoming of the classical conceptualisation of potentiality and actuality to the single Heideggerian alternative.
Instead of collapsing or dualistically separating potentiality and actuality, one would find in Hegel's modal logic a way to articulate their negative, or
reflexive, unity, in the notion of contingency. Contingency is precisely the potential as existing, a potential that exists yet does not exclude the
possibility of its opposite (Hegel 1969: 541-554). Hegel can lead the way towards an ontology of contingency that recognises the place of contingency at
the core of necessity, instead of opposing them. The fact that the impossible became real vindicates Hegel's claim that the impossible should not be
opposed to the actual. Instead, the possible and the impossible are only reflected images of each other and, as actual, are both simply the contingent.
Auschwitz should not be called absolute necessity (Agamben 1999a: 148), but absolute
contingency. The absolute historical necessity of Auschwitz is not "the radical negation" of contingency, which, if true, would indeed
necessitate a flight out of history to conjure up its threat. Its absolute necessity in fact harbours an indelible Core of contingency,
the locus where political intervention could have changed things, where politics can happen .
Zygmunt Bauman's theory of modernity and his theory about the place and relevance of the Holocaust in modernity have given sociological and
contemporary relevance to this alternative historical-political logic of contingency (Bauman 1989). 50. In the social and historical fields, politics is only
An ontology of contingency provides the
model with which to think together both the possibility, and the possibility of the repetition of,
Catastrophe, as the one heritage of modernity, and the contingency of catastrophe as logically entailing the possibility of its
the name of the contingency that strikes at the heart of systemic necessity.
Opposite. Modernity IS ambiguous because it provides the normative resources to
combat the apparent necessity of possible systemic Catastrophes. Politics is the name of
the Struggle drawing On those resources. 51. This ontology enables us also to rethink the relationship of modem subjects
to rights. Modern subjects are able to consider themselves autonomous subjects because legal recognition signals to them that they are recognised as
This account of rights in modernity is
precious because it provides an adequate framework to understand real political
struggles, as fights for rights. We can see now how this account needs to be complemented by the notion
of contingency that undermines the apparent necessity of the progress of modernity. Modern subjects
know that their rights are granted only contingently, that the possibility of the impossible is always actual. This is why rights should
not be taken for granted. But this does not imply that they should be rejected as illusion,
on the grounds that they were disclosed as contingent in the horrors of the 20th
century. Instead, their contingency should be the reason for constant political vigilance.
full members of the community, endowed with the full capacity to judge.
52. By questioning the rejection of modern rights, one is undoubtedly unfaithful to the letter of Benjamin. Yet, if one accepts that one of the great
weaknesses of the Marxist philosophy of revolution was its inability to constructively engage with the question of rights and the State, then it might be
politics that define themselves as the articulation of demands born in the
struggles against injustice are better able to bear witness to the "tradition of the
oppressed" than their messianic counterparts.
the case that the
State programs can be powerful, even if reforms fail
Naples ’13 (Nancy- Director; Board of Trustees Distinguished Professor of WGSS & Sociology @ Uof Conn) “Sustaining Democracy:
Localization, Globalization, and Feminist Praxis” (xo1)
others who have been the most marginalized or
regulated by social and economic policies are especially cognizant of the limits and
contradictions of the state for empowerment and expansion of democratic participation (see, e.g., Naples 1998). A powerful, albeit
Poor women, women of color, indigenous women, and
short-lived, government experiment in empowering local residents to address community problems is found in the Economic Opportunity Act (EOA), a
key legislative initiative passed during the War on Poverty, which was signed into law by President Lyndon B. Johnson in 1964. Along with other
initiatives, the EOA established Community Action Programs (CAPS) that would be “developed and conducted with the maximum feasible participation
of residents of the areas and members of the groups” served. As CAPs began to challenge the inequalities and inadequacies of city agencies to serve
poor communities, mayors successfully petitioned Washington to curtail and then to dismantle the community action component of the legislation
The War on Poverty's investment in empowerment of the poor could be viewed
as a success in that it legitimated the activism of those who were already engaged
actively within their communities and mobilized others through the CAPs. However, many
state actors were unprepared for the challenges these empowered activists posed to
the state. Sharma (2008) describes a similar “paradox” in a multisited study of a feminist-initiated project in rural India that was successfully
(Naples 1998).
incorporated into the state. Her reflexive methodology allowed her to analyze the complex intermingling of depoliticization and “subaltern political
the “tutelage” in state-sponsored empowerment programs had the effect
of constructing subaltern women “as proper citizens,” the women in the villages incorporated into the state
develop expectations of the state that can lead to protests against insensitive and ineffective state officials and programs. As Sharma explains,
“[t]he alternative envisionings of governance, development, personhood, belonging,
and a just society put forth by subaltern women's politics and protest are, perhaps,
unintended and empowering fallouts of government programs” (p. 198).
activism” (p. xxi). While
Purely negative and micro-politics are co-opted and undermine
larger forms of resistance
Best and Kellner 1 (Steven, Associate Professor of Philosophy and Humanities – University of Texas and Douglas,
Philosophy of Education Chair – UCLA, “Postmodern Politics and the Battle for the Future,” Illuminations,
http://www.uta.edu/huma/illuminations/kell28.htm)
The emphasis on local struggles and micropower, cultural politics which redefine the political, and attempts to develop political forms relevant to the
there are also certain limitations to the dominant
forms of postmodern politics. While an emphasis on micropolitics and local struggles can be a healthy substitute for excessively
utopian and ambitious political projects, one should not lose sight that key sources of political power and oppression are
precisely the big targets aimed at by modern theory, including capital, the state, imperialism, and
patriarchy. Taking on such major targets involves coalitions and multi-front struggle, often
requiring a politics of alliance and solidarity that cuts across group identifications to mobilize
sufficient power to struggle against, say, the evils of capitalism or the state. Thus, while today we need the expansion of localized
cultural practices, they attain their real significance only within the struggle for the
transformation of society as a whole. Without this systemic emphasis, cultural and identity
politics remain confined to the margins of society and are in danger of degenerating
into narcissism, hedonism, aestheticism , or personal therapy, where they pose no danger
and are immediately coopted by the culture industries. In such cases, the political is merely the personal, and
problems and developments of the contemporary age is extremely valuable, but
the original intentions of the 1960s goal to broaden the political field are inverted and perverted. Just as economic and political demands have their
referent in subjectivity in everyday life, so these cultural and existential issues find their ultimate meaning in the demand for a new society and mode of
production. Yet we would insist that it is not a question of micro vs macropolitics, as if it were an either/or proposition, but rather both dimensions are
we need to combine the most
affirmative and negative perspectives, embodying Marcuse's declaration that critical social theory should be both more
important for the struggles of the present and future.[15] Likewise, we would argue that
negative and utopian in reference to the status quo.[16] There are certainly many things to be depressed about is in the negative and cynical
without a positive political vision merely citing the negative
might lead to apathy and depression that only benefits the existing order. For a dialectical
postmodernism of a Baudrillard, yet
politics, however, positive vision of what could be is articulated in conjunction with critical analysis of what is in a multioptic perspective that focuses
on the forces of domination as well as possibilities of emancipation.
We should engage in these debates regarding institutional reforms
within the system rather than radical alternatives
J. Harvie Wilkinson 14, judge serving on the United States Court of Appeals for the Fourth Circuit, former Associate professor at the
University of Virginia School of Law, formerly had a position in the Civil Rights Division of the U.S. Department of Justice, June, “In Defense of American,
Criminal Justice”, Vanderbilt Law Review, http://www.vanderbiltlawreview.org/content/articles/2014/06/In-Defense-of-American-Criminal-Justice.pdf
Can we truly call a system democratic when a very large section
of the citizenry—African-Americans—feel oppressed by or excluded from it? Is this a reason to
discredit American criminal justice? The reaction to the verdict in the George Zimmerman
trial in July 2013—in parts angry, reflective, and resigned—reminded us that many African-Americans feel as
though the criminal justice system does not work for them. Washington Post columnist Eugene Robinson argued,
One final count in the indictment remains.
"Our society considers young black men to be dangerous, interchangeable, expendable, guilty until proven innocent.” 362 Manhattan Institute scholar and New Republic
contributor John McWhorter argued that, for African-Americans, “the poisonous relationship between young black men and law enforcement is the prime manifestation of
racism in modern America.” 363 And President Obama noted that “the African American community is looking at this issue through a set of experiences and history that doesn’t
There is something to these
criticisms. Americans have tried to address them over the years by requiring objective, race-neutral
justifications for government actions within the criminal justice system. We have, for example, required that the jury venire be
go away,” one wrapped up in “a history of racial disparities in the application of our criminal law.” 364¶
composed of a fair cross-section of the community, and in Batson v. Kentucky, the
Supreme Court outlawed the use of peremptory challenges of jurors based upon their
race. We can insist that objective criteria support stop and frisks. And we can focus on
racial discrepancies in criminal-law enforcement—which may lead, for example, to
four times as many marijuana arrests for black Americans as white Americans, despite
similar rates of use.367¶ But efforts such as these won’t solve our problems altogether. This is because the story is more complicated than simply a criminal
justice system that has failed to win the trust and confidence of many in the African-American community. The problem of racial equality and criminal justice is one of “painful
We can acknowledge that we have not yet reached our goal of race neutrality
in the dispensation of justice while acknowledging also that this alone does not
account for the racial makeup of our prisons and halfway houses. Then–New York Mayor Michael Bloomberg
complexity.” 368
stated, “Ninety percent of all people killed in our city—and 90 percent of all those who commit the murders and other violent crimes—are black and Hispanic.” 369 That is the
great double-edged sword. It understandably leads to more stops and more arrests in high-crime areas. It understandably leads to more convictions of those of whatever race
who commit the crimes. But it also leads to understandable anger and resentment on the part of disadvantaged young black males who want to make a decent go of American
The solution to the problem of race and
criminal justice is not a total overhaul of the system. That just renders the
criminal justice system the scapegoat for a much larger set of social problems. The criminal justice system
feels the effects of those problems; it does not cause them. Drug and gun crimes are
not any less a blight upon society because of the racial makeup of the offenders ; indeed, as
Robinson noted, “[N]owhere will you find citizens more supportive of tough law-and-order
policies than in poor, high-crime neighborhoods.” 370 Our criminal justice system rightly
aims to reduce dangerous behavior, and the beneficiaries of success in that endeavor
may be those less advantaged citizens for whom basic safety will make for greater
opportunity, not to mention better prospects for a brighter life. ¶ To cast ceaseless
blame on America’s criminal justice system is to ignore the enormity of the
problems it has been asked to solve. It only diverts attention from the larger
ways in which America has failed its underclass. As Michael Gerson recently noted, “The problem of African American boys and
life, only to find themselves the object of recurrent false suspicion and repeated frisks.¶
young men is a complex mix of lingering racial prejudice, urban economic dislocation, collapsing family structure, failing schools and sick, atomized communities.” 371 To
chastise criminal justice when many levers of upward mobility are so compromised is an inversion of priorities. A complete “fix” of what the critics allege ails criminal justice will
do nothing to restore shattered family structures, improve failing schools, impart necessary job skills, restore religious and community support groups, or provide meaningful
alternatives in deprived neighborhoods to the gangs and drug rings that steer young people toward lifelong addictions and lives of crime. Society doesn’t create opportunity by
improvements in communities and institutions will only
take root in the kind of safe environment that, at its best, a strong criminal justice
system can provide. And when we provide opportunity, we in turn reduce the
pressure on the criminal justice system and lessen the monumental task that lack of
opportunity for the poorest Americans has left it to perform.¶ How a society chooses to balance justice and safety
sacrificing the basic social need for order. To the contrary,
with rights and liberties will invariably be the subject of vigorous debate. Our criminal justice system is no exception. Many good and intelligent people will disagree passionately
We should not grow complacent in the face of
particular problems, both for the sake of individual defendants and for the rule of law
itself. ¶ But instead of engaging in a constructive debate about the American
approach to criminal justice, legal elites largely have condemned the entire
enterprise. The system, we are told, is broken, and only sweeping reforms imposed from on high can save it. But the
rhetoric that fuels the wholesale assault upon the system not only will fail to
achieve any meaningful change, it obscures the many strengths of our
institutions. By focusing so much on what is wrong, we inevitably forget what is right.¶ The terms of engagement must change. My call is not for scholars to
whitewash our system’s failings but to realize the picture is far more nuanced and complex than they have presented it. Given the volume of
about the contours of our criminal law. That is all to the good.
matters it is asked to address and immensity of the task it is asked to perform, our
criminal justice system functions rather well. It is both unrealistic and uncharitable to
portray the system as an engine of oppression and injustice. Ironically, many of the
features that critics claim operate one-sidedly against defendants often work to their
benefit. The American criminal justice system strikes a valuable front-end note. It
strikes difficult balances between protecting the innocent and convicting the guilty,
between procedural protections and administrative realities. It rightly allows these
contestable choices to be made democratically, but only to a point. Such qualities
are hardly the hallmarks of a failed system .¶ Indeed, those who have been
among the most persistent critics of the criminal justice system were among the first
to call for its utilization in the aftermath of the September 11th terrorist attacks.372 And since that
time, the refrain has often been that acts of terrorism are crimes that should be dealt
with in the customary way through enforcement of federal criminal law. 373 I recognize that this plea
for criminal trials does not constitute an acknowledgment of the system’s perfection, but it does indicate that the system imparts a
legitimacy for the deprivation of liberty that other routes of trying suspected terrorists may lack. This is no place to explore the complicated question of whether
alleged terrorism is more aptly regarded as a criminal offense or as an act of war. Separation of powers concerns and the need for action to prevent mass casualties make the
I note only the irony that many who reject the considerable
virtues of the American criminal justice system are at least prepared to look upon it as
a preferred solution when the values of liberty and security are in epochal tension. ¶ To be
sure, there is plenty of room for reform, and all parts of the legal profession should
head for the front lines. But let us not forget our system’s virtues as we seek to correct
its vices. Otherwise, any legitimate concerns will be lost in the din of diatribe.
question an exceptionally complicated one.
We have gone too long without a degree of balance or moderation in our assessment of the American criminal justice system. It is time we gave our institutions a fair trial.