The Volokh Conspiracy
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Lawless II: Critical Theory Returns with a Vengeance
You can’t have legal education dominated by an ideology that denies the law’s legitimacy.
Yesterday I laid out my how my personal experience led me to "do the work" and write Lawless. That research uncovered some disturbing differences from when I was in law school in the early 2000s. Back then, critical theory was a spent force. But now "the crits" are back, even stronger, and not just in literature and sociology departments.
Critical legal studies (CLS), which developed in the 1970s, teaches that laws enshrine biases against marginalized groups and thus preserve the status quo. CLS scholars also criticize formalism, which they see as overly focused on analyzing the logic of doctrines, principles, and texts without considering broader social and political implications. From their perspective, the law is simply the codification of the cultural and political preferences of those in power.
In 1973, Derrick Bell, the first black tenured professor at Harvard Law School, wrote that racism was a permanent feature of American life that couldn't be remedied under existing legal structures. After he left Harvard to become dean at the University of Oregon, students began protesting their law school's lack of diversity. The Harvard Law Review invited Bell to write the prestigious foreword to its 1984 Supreme Court volume, allowing him to dispense with academic rigor and instead present his theories of racial grievance as allegorical narratives. Those establishmentarian career-builders thus helped mainstream the ideas that would become CRT.
In 1989, Kimberlé W. Crenshaw, a disciple of Bell who would become a law professor at UCLA and Columbia, organized a workshop in his honor that established the new academic framework of CRT, a term she is credited with coining. Crenshaw is also known for introducing and developing the study of "intersectionality," meaning how various social identities overlap and relate to systems of discrimination and oppression.
CRT scholars have built on Bell and Crenshaw's work to replace the traditional American belief in equality (of legal status and opportunity) with the newer idea of equity (equality of outcome). They reject the ideas of nondiscrimination, free speech, meritocracy, and private property because they are tools in the systemic oppression of racial minorities. They prefer race-conscious systems that provide "oppressed" groups positive rights and benefits.
But the CLS/CRT wave crested and seemed to wash away. Baby Boomer liberals who dominated faculties in the late 1990s and 2000s frowned at both the crits' lack of intellectual rigor and their preference for activism over scholarship. My law school cohort encountered CRT as a fringe theory that had faded into the academic background. And there it remained until the mid-2010s, when two developments pushed identity-focused approaches back to the fore, where they would be joined by changes to how children were raised, leading to perversions of cognitive behavioral therapy becoming embedded in higher-ed structures.
The first was the August 2014 shooting of Michael Brown in Ferguson, Missouri, which launched the current era of social-justice activism. Although investigations disproved the "Hands up, don't shoot" narrative that blamed police for shooting an unarmed black man, fear of public retribution for ordinary law enforcement led to a police pullback. Meanwhile, law schools hosted panels, lectures, and conferences, integrating conversations about race into unrelated classes.
At the same time, as documented by Greg Lukianoff and Jonathan Haidt in The Coddling of the American Mind, the advent of "trigger warnings" and "safe spaces," was having a negative effect on students. "Safetyism" had become a "sacred value" such that so there's now a system of belief in which people can't process other practical and moral concerns. Any ideas that challenge preconceived notions or make someone feel slightly uncomfortable are to be banished.
An early manifestation of this dynamic came in 2015 to Nicholas and Erika Christakis, co-masters of a Yale residential college. They were pilloried for their response to an email recommending that students avoid Halloween costumes that were "culturally insensitive." The Christakises encouraged students to engage in open dialogue and tolerate offense; students accused them of placing the burden of confrontation and education on racial minorities. A few days later, 1,000 students who were immune to irony participated in a "March of Resilience" against what one protester described as an "inhospitable climate for people of color."
Similar incidents followed around the country. All this sort of thing—the systemic cancellation of professors and disruption of guest speakers for "controversial" opinions—is a fairly recent phenomenon. As Lukianoff and Haidt documented, students are "no longer as reliably pro–free speech as [they] were before 2013–2014." Combine that trend with the bureaucratic growth in DEI that I'll discuss tomorrow, and you've got the perfect illiberal storm, operationalizing structural critiques in the interest of "inclusion" and to help students feel "safe."
As this renewed CRT made its way through classrooms and social media, the college students who were encouraged in their activism in the late 2010s became law students. In summer 2021, Columbia president Lee Bollinger said that CRT was "urgent and necessary." In 2022, Georgetown Law started requiring students to study "importance of questioning the law's neutrality through its differential effects on subordinated groups." Other law schools followed along, ones as diverse—pun intended—as USC, UC Irvine, Cardozo, and Boston College.
Law school officials at Santa Clara University sent out an email calling the acquittal of Kyle Rittenhouse "further evidence of the persistent racial injustice and systemic racism within our criminal justice system." UC Irvine's chief DEI officer emailed that the acquittal conveyed the message that black lives don't matter to the legal system. Professors have come forward saying they're afraid to teach cases in which race, sexual violence, or the police play a role.
Nadine Strossen, the first women to head the ACLU and professor emerita at New York Law School, has been open about how she self-censors, likening it to teaching law from inside a panopticon. Harvard law professor Randall Kennedy, who had long said that the fear that law schools were becoming illiberal was overblown, in December 2020 admitted to changing his mind. Another Harvard law professor commented that students have told him that they have refused to participate in class because they face "social death" if they step out of ideological line. When a Boston College law professor asked his students if any of them thought that we should not scrap the Constitution, not a single student raised their hand.
In 2020, 176 law school deans petitioned the American Bar Association to require that "every law school provide training and education around bias, cultural competence, and anti-racism." And so on February 14, 2022, the ABA issued a Valentine mandating just that. The professional-responsibility class that all law graduates have to take must now teach would-be lawyers that they have an Ibram Kendi-like duty to eliminate racism.
And so we come full circle, turning legitimate legal inquiry into social-justice advocacy and, when promulgated by official bodies, indoctrination. Instead of using the law to protect individual rights and freedoms, CRT (and more broadly DEI) recasts entire categories of people as inherently victimized beyond any instances of actual harm.
In this view, reinforcing legal rights isn't the goal; justice and equity are. Justice normally refers to equal treatment under the law or the prevailing of truth on behalf of those who've been injured. But that's not enough for those who believe that the very structures that are supposed to deliver these moral goods are corrupt. And so there are demands to "burn it all down" or at least "fundamentally transform" society. It's a call to revolution—one run by bureaucrats.
