Crossroads, Directions and a New Critical Race Theory
Journal article by Devon W. Carbado, Mitu Gulati; Yale Law Journal, Vol. 112, 2003
Journal Article Excerpt
Crossroads, Directions, and a New Critical Race Theory. by Devon W. Carbado , Mitu Gulati Crossroads, Directions, and a New Critical Race Theory. Edited by Francisco Valdes, * Jerome McCristal Culp, ** and Angela P. Harris. *** Philadelphia: Temple University Press, 2002. Pp. 528. $79.50 (cloth), $29.95 (paper). I. INTRODUCTION: TOWARDS A MICRODYNAMICS OF RACE Legal academics often perceive law and economics (L&E) and critical race theory (CRT) as oppositional discourses. Part of this has to do with the currency of the following caricatures: |
L&E is the methodological means by which conservative law
professors advance their ideological interests. The approach is
status-quo-oriented and indifferent (if not hostile) to the concerns
of people of color and the poor. Because L&E is centered on
notions of economic efficiency, it does not accommodate inquiries
into social justice and fairness. Because the models underlying
L&E proposals are characterized by assumptions about rational
actors and perfect markets, L&E policy prescriptions endorse
market-based solutions to social problems and argue against
government intervention. L&E scholarship is more concerned with
protecting institutions from legal and governmental surveillance
than with protecting people of color from racism. The political
effect of L&E is to entrench and obfuscate racial and class
hierarchies.
CRT is the methodological means by which radical faculty of color
(and especially black faculty) advance their ideological interests.
The approach is invested in finding discrimination and
characterizes even the most progressive institutional practices as
racist. Much of this literature takes the form of storytelling, and
almost all of this storytelling is bad. CRT scholars believe neither
in merit nor in truth. For them, everything--including (and perhaps
especially) scholarship--is and should be about race and politics.
Central to CRT is the notion that racism is endemic to American
society. Thus, CRT fails to take seriously notions of agency and
social responsibility. CRT is, for example, more concerned with
protecting criminals from punishment than with protecting society
from crime. The models underlying CRT's policy prescriptions are
characterized by assumptions about racial actors and racial
markets. Consequently, these proposals endorse governmental
regulation of the market and argue against free-market
mechanisms to ameliorate social problems. The political effect of
CRT is preferential treatment and social welfare programs for
people of color--particularly black people.
| It would be neither difficult nor interesting to disprove either caricature. Yet both have considerable intellectual and institutional purchase, so much so that they have helped to balkanize L&E and CRT scholarship. L&E and CRT scholars rarely pool their insights to work collaboratively. This was frustrating to the late David Charny, who felt that the inquiry into the racial dynamics of the modern workplace could benefit from combining insights from both fields. (1) Both sides are at fault. A deficiency on the L&E side is the failure of its proponents to conceptualize racial discrimination in the workplace as a dialectical process within which race both shapes, and is shaped by, workplace culture. For the most part, L&E scholars view race as an independent variable--something that is fixed, static, and easily measurable--and they pay little attention to the internal dynamics of the workplace as a determinant of race. (2) L&E scholarship on discrimination has focused more on the market--a focus, which, as David saw it, obscured the fact that much discrimination was taking place in the workplace. Central to David's thinking was the idea that in order to understand the operation of discrimination, one has to understand not only market forces as market forces, but also how those forces interact with the internal operation of the workplace. Workplaces are not structurally monolithic, and certain institutional arrangements within the workplace are more likely to produce problematic racial outcomes than others. For example, racial stereotypes may have different racial effects in a workplace where compensation is tied to output than in a workplace where compensation is based on peer or supervisor evaluations.Nor are workplace cultures static. Like the market, they change. They evolve in response to, among other things, changing commitments to, and conceptions of, race. If, for example, certain workplace structures are less conducive to the inclusion of racial minorities (and assuming that employers want diverse workforces), those structures likely will give way to institutional arrangements that are more conducive to integration. In turn, these institutional changes will shape how the employer and the employees understand race and practice racial interactions. Because L&E scholars largely treat race as preexisting and fixed, and because they focus more on markets than on workplaces, L&E scholarship does not reflect an understanding ... |
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