This is a fine first draft. It presents several good ideas for consideration, clearly and effectively. The best route to improvement, I think, lies in tightening the structure. The throughline of the draft is set by Duncan Kennedy's wonderful piece, which I read, in a conference draft in 1979, the summer before I started law school. (It was presented by Duncan to his comrades at the initial Critical Legal Studies Conference, at UC Santa Cruz, hosted by my mother as Dean of Humanities. That's where Duncan and I first met.) It had then the same effect on me that it's had on you; I remember that onrush of insight very well; you capture it here beautifully. Fifteen years later, when I taught 1L Property to students also in Duncan's Torts section, I watched that same process occurring (or not occurring) in an intervening generation of students.

Duncan's effort, on the page and on the stage, has always been to show that the mastery of formal method can be put to any ideological or social goal. Precisely because law presents itself as a neutral formal system, once the logic has been washed by Holmes' "cynical acid" of realism—made to answer for what it does rather than what it says — the instrument can be wielded as a weapon by any side; and once it has been subject to contextualization from any of the angles of vantage offered by our many means of knowing (historical, sociological, anthropological, psychological, etc.) it is the lawyer's theory of desired social change, rather than the demands of existing hierarchies, that can be served Demystifying that relationship—which we might take to be the object of critical legal study, a politically-activated descendant of legal realism—liberates law students to decide on practices that instantiate their principles rather than subordinating them. (As you have probably noticed over these last weeks, that's also the basic intellectual and professional point of this course.)

Kim Crenshaw's initial explication of the idea of intersectionality—like the works by Derrick Bell, Kendall Thomas, Richard Delgado, and the other comrades who created Critical Race Theory—grew from this root. Kim's point was that the formal analysis of doctrine could reveal an underlying structure of injustice, in her paradigm example, of seniority systems supposedly working to counter racial discrimination in employment when another vertical of inequality—long-standing practices discriminating against the hiring of women—meant that workers who were both Black and female faced a distinct injury aggravated by a supposed remedy. (One of the beauties of intellectual life. of course, is that great ideas like this—like the ones we call Darwin, Marx and Freud—can create worlds of their own, full of complex and inconsistent life, as happened to Kim's conecption of "intersectionality.") The generative power of this idea vindicates the promise of critical legal theory. showing how the joining of the social and ideological positions of the lawyer can turn formal analysis from a bastion of hierarchy into an instrument of alteration.

As I showed back in the first week of February, Critical Race Theory thus answers the challenge posed by Martin King in the year before his killing: to explain how the comfortable vanity and self-deception of White America stops short of actual racial justice by passing laws against racial injustice and complacently taking the existence of form as the completion of substance. Derrick Bell's frustration with that depressing and oppressive reality expressed itself, from the bottom of the well, as the inspiration for precisely the form of intellectual liberation Duncan called for. You show that connection very well in this draft, but making the intellectual history more explicit makes it stronger.

The effort to prohibit the spread of these ideas by law, with which you begin the draft, is in that sense merely a sideshow of impotence. It clarifies, however, why the ideas are worth censoring, what the danger in them really is. To lead with their opposition, to put the reaction in the second strongest place in the essay, is to divert the reader from the big to the small, from the sea to the brook—to reverse Beethoven's epigram on JS Bach— and it seems to me it would be better to start as you go on, with what matters, not what doesn't.

The same can be said of the emphasis on the teacher rather than the student. The real subject of this essay, and its real power, lies in the strength and effect of your learning on you. Whether any, all, or none of your teachers taught you what you have learned is utterly unimportant in the face of your own joyful and liberating thinking. It's certainly possible to be assigned a path through the 1L curriculum in which only one teacher is fully devoted to this form of subversion. (Indeed, to be offered the idea as fully as possible only in one elective people may very well not want to take, and which, as you see, the people who do choose it will resist vigorously and creatively.) But if you keep the focus on your own learning, taking power and pleasure from the strength of your own ideas, you do more for the reader herself, as well as the writer himself. I look forward very much to reading the next draft.

In 2020, the right “hijacked” Critical Race Theory (“CRT”) and its progeny. Opposition to CRT, an analytical approach to law and history, intensified largely because of then-President Donald Trump. Trump issued an executive order, shortly before his unsuccessful reelection bid, to challenge the fundamental principles of the theory. While the order did not explicitly name CRT, its objective was to counter what is described as “offensive and anti-American race and sex stereotyping and scapegoating.” The order cautioned against a “pernicious ideology” emanating from the margins of society and posing a threat to fundamental American institutions.

I first encountered CRT in Legal Methods at Columbia Law School (“CLS”). I was then introduced to Duncan Kennedy’s essay: Legal Education as Training for Hierarchy, where he deconstructs the complacent notion of the law’s neutrality. He discusses how law school suppresses genuine convictions, framing discussions as clashes between “pedagogical conservatism” and moderate “disintegrated liberalism.” To be clear, past and present generations of Black law students are confronted with a deliberate neutral baseline understanding of racial subordination. And how the insistence on neutrality in legal frameworks is purportedly intended to be impartial but ends up serving as a veneer that obfuscates the workings of racial power entitlements. He posits that legal education, notably in the first-year of law school, functions to indoctrinate students into adherents of a hierarchical worldview. The heavy emphasis on case law and precedent exemplifies this, as it instills in students a disposition to defer to authority and uphold entrenched baseline social orders. Indeed, the uninterrogated past remains embedded in law school courses and the doctrinal pedagogy professors prioritize.

Perhaps, most troublingly, my first-semester at CLS led me to the pits of what Kennedy coined the state of “false consciousness.” In large part, the first-year curriculum engenders this notion within students, leading them to perceive the law as impartial, rather than recognizing its role as a tool wielded to uphold the hegemony of the ruling elite. As it goes, students find themselves echoing the perspectives of their professors--during what feels like forced pseudoparticipation--who draw their material from legal cases primarily authored by white men. To that end, a deep-seated influence of historical biases within legal education exists where the voices of marginalized groups are silenced altogether. This skewed perception is reinforced by the intentional exclusion of critical legal theories, including CRT, feminist and disability theories.

The vast majority of theoretical approaches in law school do not interrogate the historical significance of whiteness as a benchmark for defining racial equality. Kennedy calls this “mystification.” The idea is that law school imparts a “mystifying” portrayal of the law, obscuring its fundamental nature as a mechanism of power and domination. Students are expected to memorize doctrinal rules that are often cloaked in white supremacy. By focusing on rote memorization, students are discouraged from critically examining the underlying principles and assumptions of the law, including its historical context and the ways in which it has been weaponized against certain groups.

While I cannot catalog all instances where courts (and professors) have ignored the race of the plaintiff, consider Johnson v. Jamaica Hospital, a case taught in tort law. Here, a Black woman pursued legal action against Jamaica Hospital for negligent infliction of emotional distress following the abduction of her infant daughter from the hospital. The court ruled in favor of the hospital, rendering that emotional and psychological damages could only be sought if the plaintiff was in the immediate zone of danger and that to hold otherwise would “[i]nvite [...] boundless liability for indirect emotional injury.” In discussions about the case, the plaintiff’s race is often overlooked, as are the complex interplays within the community and the hospital, which are described as impoverished and dilapidated.

Seemingly, but yet unsurprisingly, the opinion makes no mention of the plaintiff’s race or where the hospital is located. This is known as reading the case through a white normative baseline. In this pedagogical approach, professors frame doctrinal material involving minorities according to standards set by white counterparts, disregarding distinct racial realities. Here, however, I am not suggesting that students should—as Kemberle Crenshaw coins—give “minority testimony” (a form of subjectification). But rather the curriculum should recognize the perspectives and interests of minority students who are often unrecognized. Minority students are frequently urged to set aside their racial identities at the entrance to the law school. However, in practice, professors unexpectedly spotlight these identities in the classroom, either to serve as illustrative examples or to prompt performative engagements typically aimed at grounding policy discussions rather than doctrinal analysis.

As Crenshaw argues, rather than inquiring about the subjective experience of police harassment or the stigma associated with affirmative action, it may be more pertinent to examine how the lack of oversight on police discretion perpetuates mistreatment of racial minorities or to consider how prevailing notions of meritocracy favor traits valued by the dominant group. I believe first-year professors should uproot the normative baseline of legal frameworks and provide opportunities for the inclusion of minority perspectives, shedding light on the racial implications of the law. Dominant perspectives are often shielded by their perceived objectivity, while minority perspectives are unfairly characterized as subjective and biased. This proposed shift would reassess the perceived burdens of minority experiences, recognizing them as potential sources of knowledge that could enrich and inform legal pedagogy.

CRT did not solely emerge from a philosophical critique of prevailing paradigms of racial power; it originated from activists’ engagement with the practical outcomes of liberal reform. CRT can be viewed as a product of the post-Civil Rights Movement to examine the law through a critical lens motivated by an oppositional stance toward racial power and equity. The goal was to have institutions reexamine and revise their notions of race neutrality. In this context, law schools should reconsider and adjust their concepts of race neutrality. This approach would create space and context for marginalized groups to voice their perspectives and address sensitive topics that are often avoided.