Race and Gender in the Law Review

Article excerpt

A number of years ago a noted historian of the American West, Patricia Limerick, addressed the plenary session of the Association of American Law Schools.1 In her speech, she described how the received history of the West consisted of a narrative in which explorers like Lewis and Clark entered and discovered a vast empty territory. This account was, of course, inaccurate; as Limerick pointed out, the West was populated before the explorers arrived, just not with folks like them. And, she noted, how much more interesting the story has become since we can now see that empty land as populated with diverse peoples.

As important, the traditional narrative obscured the bloody reality of extermination, enslavement, and domination by white settlers that placed them in a position to construct an official history.2 It deleted as well the resistance of the peoples the settlers tried to subjugate. The story has become both less noble and more complicated once contested by the perspectives of people of color.

Law review literature followed a similar pattern. When you glance back one hundred years, as we have done in preparing for this symposium, the contents of Northwestern's law review reflect a territory inhabited only by white males and their legal problems. Gradually, however, the other populations that have been there all along appear in its pages-African Americans first, then women, then people of color in whom a variety of characteristics intersect, and finally persons of differing sexual orientations. Their appearance initially was provoked by changes in the legal environment, such as the decision in Brown v. Board of Education and the passage of the Civil Rights Acts; but once they had been acknowledged as appropriate subjects for legal research, a flowering of theory and analysis ensued.

This Essay tells the story of the discovery of race and gender in the pages of the Northwestern University Law Review ("the Law Review"). It is not a story of theory leading practice. Indeed, the work of activists pursuing social change was the initial impulse for the development of theoretical work on these issues. Now, however, both race and gender are recognized as important themes in the law. The addition of these topics has profoundly affected and improved legal theory, which is today far more complex and nuanced than the men who originally established the Law Review would have dreamed.

Because of the critical, and continuing, link between real-world activism on issues of race and gender and academic writing about those issues, our discussion will be set in the historical context that led to the development of theory and, in turn, was influenced by it. We begin by discussing, in Part I, the injection of issues of race into the Law Review, against the background of the struggle for civil rights in the United States. Part II then traces the introduction of discussions of gender and sexual orientation. Part III describes the development of critical race theory and critical race feminism, highlighting their virtual absence from these pages. Critical race

theorists contested liberal notions of racial progress that dominated civil rights discourse as well as mainstream feminists' failure to see the intersection of racism and sexism in structures of power. Although the Law Review discovered the existence of diverse peoples and included articles about them, it has for the most part failed to include their uniquely critical perspective, reflected in critical race theory. This scholarly lacuna highlights the importance of going beyond the analysis of discrimination using traditional legal tools to challenge the central role legal reasoning and institutions have played in perpetuating inequality.

I. RACE

A. The First Half-Century

When the first volume (1906-1907) of what was then called the Illinois Law Review included an article on slavery, that did not signal the beginning of a trend.3 In the next half-century, the Law Review paid little attention to racial questions. …