Law Unbound!

A Richard Delgado Reader

Richard Delgado, Adrien Katherine Wing, Jean Stefancic

• Publisher: Routledge
• Year: 2015
• Topic: Law
• eBook ISBN:
  9781317256915
• Subtopic: Legal Education
• Index: Law

This book offers the best and most influential writings of Richard Delgado, one of the founding figures of the critical race theory movement and one of the earliest scholars to address the harms of hate speech. With excerpts from his classic law review articles, conversations with his famous alter ego Rodrigo Crenshaw, and comments on the vicissitudes of academic life, this book spans topics such as hate speech, affirmative action, the war on terror, the endangered status of black men, and the place of Latino/as in the civil rights equation.

PART I

Narrative and Legal Storytelling

The selections that follow show Delgado developing one of his signature themes—legal storytelling.

In a much-cited article, “Storytelling for Oppositionists and Others,” Delgado examines the struggle over how social reality is constructed through stories and counterstories. In this excerpt he shows ways oppositionist legal storytellers can unearth bias in standards of objectivity by telling five versions of a story about why a minority candidate failed to get a job offer.

“Rodrigo’s Chronicle” introduces the fictional character Rodrigo Crenshaw. A mixed-race graduate of an Italian law school, Rodrigo seeks out “the Professor,” with whom he has a long conversation about merit, law school hiring practices, and the decline of the West.

In “Rodrigo’s Third Chronicle,” Rodrigo presents a countervision of American society in which caregiving activities, such as nursing homes, are socialized, and the productive sector governed by free-market principles. He outlines a civil rights strategy based on love in which leaders in minority communities serve as bridge people between those most in need and the dominant white society.

Rodrigo defends narrative scholarship in “Rodrigo’s Final Chronicle,” taking into account reasons why the storytelling movement meets resistance; then suddenly and mysteriously he disappears.

After an escapade in which his kidnappers release him, Rodrigo reappears in the “Eleventh Chronicle,” in which he and the Professor talk about the way empathy not only reproduces hierarchy but fails to aid law reform. Rodrigo explains how rules of evidence, pleading, and cross-examination limit civil rights plaintiffs’ abilities to tell their stories in court trials, and concludes by calling for a due process of legal storytelling.

Rodrigo, the Professor, and other characters appear in dozens of Delgado’s chronicles and four of his books, which are annotated in the bibliography at the end of this book. Responses to critiques of the legal storytelling movement appear there as well.

STORYTELLING FOR OPPOSITIONISTS AND OTHERS

A Plea for Narrative

Everyone has been writing stories these days. And I don’t just mean writing about stories or narrative theory, important as that is. I mean actual stories, as in “once-upon-a-time” type stories. Derrick Bell has been writing “Chronicles,” and in the Harvard Law Review at that. Others have been writing dialogues, stories, and metastories. Many others have been daring to become more personal in their writing, to inject narrative, perspective, and feeling—how it was for me—into their otherwise scholarly, footnoted articles and, in the case of the truly brave, into their teaching.

Many, but by no means all, who have been telling legal stories are members of groups whose marginality defines the boundaries of the mainstream, whose voice and perspective—whose consciousness—has been suppressed, devalued, and abnormalized. The attraction of stories for outgroups should come as no surprise. For stories create their own bonds, represent cohesion, shared understandings, and meanings. The cohesiveness that stories bring is part of the strength of the outgroup. An outgroup creates its own stories, which circulate within the group as a kind of counter-reality.

The dominant group creates its own stories, as well. The stories or narratives the ingroup tells remind it of its identity in relation to outgroups and provide it with a form of shared reality in which its own superior position is seen as natural.

The stories of outgroups aim to subvert that reality. In civil rights, for example, many in the majority hold that any inequality between blacks and whites is due either to cultural lag or inadequate enforcement of currently existing beneficial laws—both of which are easily correctable. For many minority persons, the principal instrument of their subordination is neither of these. Rather, it is the prevailing mindset by means of which members of the dominant group justify the world as it is, that is, with whites on top and browns and blacks at the bottom.

Stories, parables, chronicles, and narratives are powerful means for destroying mindset—the bundle of presuppositions, received wisdoms, and shared understandings against a background of which legal and political discourse takes place. These matters rarely come into focus. Like eyeglasses we have worn a long time, they are nearly invisible; we use them to scan and interpret the world, only rarely examining them for themselves. Ideology—the received wisdom—makes current social arrangements seem fair and natural. Those in power sleep well at night—their conduct does not seem to them like oppression.

The cure is storytelling (or as I shall sometimes call it, counterstorytelling). As Derrick Bell, Bruno Bettelheim, and others show, stories can shatter complacency and challenge the status quo. Stories told by underdogs are frequently ironic or satiric; a root word for “humor” is humus—bringing low, down to earth. Along with the tradition of storytelling in black culture flourishes the Spanish tradition of the picaresque novel or story, which tells of humble folk piquing the pompous or powerful and bringing them down to more human levels.

Most who write about storytelling focus on its community-building functions: stories build consensus, a common culture of shared understandings, and deeper, more vital ethics. Counterstories, which challenge the received wisdom, do that as well. They can open new windows into reality, showing us possibilities for life other than the ones we live. They enrich imagination and teach that by combining elements from the story and current reality, we may construct a new world richer than either alone. Counterstories can quicken and engage conscience. Their graphic quality can stir imagination in ways in which more conventional discourse cannot.

But stories and counterstories can serve an equally important destructive function. They can show that what we believe is ridiculous, self-serving, or cruel. They can show us the way out of the trap of unjustified exclusion. They can help us understand when it is time to reallocate power. They are the other half—the destructive half—of the creative dialectic.

Stories and counterstories, to be effective, must be or appear to be noncoercive. They invite the reader to suspend judgment, listen for their point or message, and then decide what measure of truth they contain. They are insinuative, not frontal; they offer a respite from the linear, coercive quality of much legal writing.

STORYTELLING AND COUNTERSTORYTELLING

The same object, as everyone knows, can be described in many ways. A rectangular red object on my living room floor may be a nuisance if I stub my toe on it in the dark, a doorstop if I use it for that purpose, further evidence of my lackadaisical housekeeping to my visiting mother, a toy to my young daughter, or simply a brick left over from my patio restoration project. There is no single true, or all-encompassing description. The same holds true of events. Watching an individual perform strenuous repetitive movements, we might say that he or she is exercising, discharging nervous energy, seeing to his or her health under doctor’s orders, or suffering a seizure or convulsion. Often, we will not be able to ascertain the single best description or interpretation of what we have seen. We participate in creating what we see in the very act of describing it.

Social and moral realities are just as indeterminate and subject to interpretation as single objects or events, if not more so. For example, what is the “correct” answer to the question, American Indians are—(A) a colonized people; (B) tragic victims of technological progress; (C) subjects of a suffocating, misdirected federal beneficence; (D) a minority stubbornly resistant to assimilation; or (E) ——; or (F) ——?

My premise is that much of social reality is constructed. We decide what is, and, almost simultaneously, what ought to be. Narrative habits, patterns of seeing, shape what we see and that to which we aspire. These patterns of perception become habitual, tempting us to believe that the way things are is inevitable, or the best that can be in an imperfect world. Alternative visions of reality are not explored, or, if they are, rejected as extreme or implausible.

In the area of racial reform the majority story would go something like this:

Early in our history there was slavery, which was a terrible thing. Blacks were brought to this country from Africa in chains and made to work in the fields. Some were viciously mistreated, which was, of course, an unforgivable wrong; others were treated kindly. Slavery ended with the Civil War, although many blacks remained poor, uneducated, and outside the cultural mainstream. As the country’s racial sensitivity to blacks’ plight increased, the vestiges of slavery were gradually eliminated by federal statutes and case law. Today, blacks enjoy many civil rights and receive protection from discrimination in such areas as housing, public education, employment, and voting. The gap between blacks and whites is steadily closing, although it may take some time for it to close completely. At the same time, it is important not to go too far in providing special benefits for blacks. Doing so induces dependency and welfare mentality. It can also cause a backlash among innocent white victims of reverse discrimination. Most Americans are fair-minded individuals who harbor little racial prejudice. The few who do can be punished when they act on those beliefs.

Yet, coexisting with that rather comforting tale is another story of black subordination in America, a history “gory, brutal, filled with more murder, mutilation, rape, and brutality than most of us can imagine or easily comprehend.” This other history continues into the present, implicating individuals still alive. It includes infant death rates among blacks nearly double those of whites, unemployment rates among black males nearly triple those of whites, and a gap between the races in income, wealth, and life expectancy that is the same as it was fifteen years ago, if not greater. It includes despair, crime, and drug addiction in black neighborhoods, and college and university enrollment figures for blacks that are dropping for the first time in decades. It dares to call our most prized legal doctrines and protections shams—devices enacted with great fanfare, only to be ignored, obstructed, or cut back as soon as the celebrations die down.

How can such divergent stories circulate? Why do they not combine? Is it simply that members of the dominant group see the same glass as half full, blacks as half empty? I believe more than this is at work; there is a war between stories. To see how the dialectic of competition and rejection works and the normative implications of adopting one story rather than another, consider the following series of accounts, each describing the same event.

A Standard Event and a Stock Story That Explains It

A black lawyer interviews for a teaching position at a major law school (school X), and is rejected. Any other race-tinged event could have served equally well. This particular event was chosen because it occurs on familiar ground—most readers of this essay are past or present members of a law school community who have heard about or participated in events like the one described.

The Stock Story

Setting. A professor and student are talking in the professor’s office. Both are white. The professor, Blas Vernier, is tenured, in mid-career, and well regarded by his colleagues and students. The student, Judith Rogers, is a member of the student advisory appointments committee.

Rogers: Professor Vernier, what happened with the black candidate, John Henry? I heard the faculty voted him down yesterday. The students on my committee liked him a lot.

Vernier: It was a difficult decision, Judith. We discussed him for over two hours. I can’t tell you the final vote, of course, but it wasn’t particularly close. Even some of my colleagues who were initially for his appointment voted against him when the full record came out.

Rogers: But we have no minority professors at all, except for Professor Chen, who is untenured, and Professor Tompkins, who teaches Trial Practice on loan from the district attorney’s office once a year.

Vernier: Don’t forget Mary Foster, the Assistant Dean.

Rogers: But she doesn’t teach, just handles admissions and the placement office.

Vernier: And does those things very well. But I understand your disappointment. Henry was a strong candidate, one of the stronger blacks we’ve interviewed recently. But ultimately he didn’t measure up. We didn’t think he wanted to teach for the right reasons. He was vague and diffuse about his research interests. All he could say was that he wanted to write about equality and civil rights, but so far as we could tell, he had nothing new to say about those areas. What’s more, we had some problems with his teaching interests. He wanted to teach peripheral courses, in areas where we already have enough people. And we had the sense that he wouldn’t be really rigorous in those areas, either.

Rogers: But we need courses in employment discrimination and civil rights. And he’s had a long career with the NAACP Legal Defense Fund and really seemed to know his stuff.

Vernier: It’s true we could stand to add a course or two of that nature, although as you know our main needs are in Commercial Law and Corporations. But I think our need is not as acute as you say. Many of the topics you’re interested in are covered in the second half of the Constitutional Law course taught by Professor White, who has a national reputation for his work in civil liberties and freedom of speech.

Rogers: But Henry could have taught those topics from a black perspective. And he would have been a wonderful role model for our minority students.

Vernier: Those things are true, and we gave them considerable weight. But when it came right down to it, we felt we couldn’t take that risk. Henry wasn’t on the law review at school, as you are, Judith, and has never written a line in a legal journal. Some of us doubted he ever would. And then, what would happen five years from now when he came up for tenure? It wouldn’t be fair to him. He’d just have to pick up his career and start over if he didn’t produce.

Rogers: With all due respect, Professor, that’s paternalistic. I think Henry should have been given the chance. He might have surprised us.

Vernier: So I thought, too, until I heard my colleagues’ discussion, which I’m afraid, given the demands of confidentiality, I can’t share with you. Just let me say that we examined his case long and hard and, I am convinced, fairly. The decision, while painful, was correct.

Rogers: So another year is going to go by without a minority candidate or professor?

Vernier: These things take time. I was on the appointments committee last year, chaired it in fact. And I can tell you we would love nothing better than to find a qualified black. Every year, we call the Supreme Court to check on current clerks, telephone our colleagues at other leading law schools, and place ads in black newspapers and journals. But the pool is so small. And the few good ones have many opportunities. We can’t pay nearly as much as private practice, you know.

[Rogers, who would like to be a legal services attorney, but is attracted to the higher salaries of corporate practice, nods glumly.]

Vernier: It may be that we’ll have to wait another few years, until the current crop of black and minority law students graduates and gets some experience. We have some excellent prospects, including some members of your very class.

Rogers: [Thinks: I’ve heard that one before, but says] Well, thanks, Professor. I know the students will be disappointed. But maybe when the committee considers ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Introduction
• PART I. NARRATIVE AND LEGAL STORYTELLING
• PART II. CRITICAL THEORY
• PART III. LAW, LEGAL EDUCATION, AND THE LEGAL PROFESSION
• PART IV. HATE SPEECH
• PART V. LAW REFORM
• PART VI. LATINOS AND OTHER NONBLACK MINORITIES
• PART VII. POLITICS AND CRITIQUE
• PART VIII. AFFIRMATIVE ACTION
• Annotated Bibliography
• Index
• About the Author and Editors