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Critical Legal Studies and Critical Race Theory Research: Background

Critical Race Theory - A Definition

According to Richard Delgado and Jean Stefancic,

The critical race theory (CRT) movement is a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power. The movement considers many of the same issues that conventional civil rights and ethnic studies discourses take up but places them in a broader perspective ... .Unlike traditional civil rights discourse, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.

Critical Race Theory: An Introduction 4th ed. at 3 (2023).

See Derrick A. Bell, Who's Afraid of Critical Race Theory, 1995 U. Ill. L. Rev. 893 for a discussion of how CRT is distinct from CLS.

 

  • Critical Race Theory is an academic, analytical framework, not a social or political philosophy

  • It examines the way race is embedded in the structure of society, its laws, and institutions 

  • It emphasizes intersectionality It is interdisciplinary; it draws on other academic disciplines, including history, sociology, anthropology, education, African-American Studies, American Studies, Women's and Gender Studies, philosophy, religion and more 

  • CRT is particularly associated with a number of specific legal topics, including 

    • voting rights 

    • police and prison abolition 

    • social justice 

    • environmental 

    • justice education

Critical Legal Studies and Critical Legal Research

Very briefly, Critical Legal Studies (CLS) holds that law is necessarily intertwined with social conditions and has inherent social biases. Critical scholars believe that law supports the interests of those who create it, perpetuating a power dynamic which favors the historically privileged and disadvantages the historically underprivileged. Many in the CLS movement seek to overturn the hierarchical structures of modern society and focus on the law as a tool in achieving that goal. (See LII, Critical Legal Theory, Overview).

Conference on Critical Legal Studies, Wisconsin Law School 1977 often cited as the major intellectual milestone of the CLS movement.

CLS has its roots in Legal Realism (1930’s), which posits that law is a product of the society in which it develops, not abstract, objective truth. It both reflects and influences the social forces that create it.

CLS critiques the ways in which law upholds societal power structures and codifies biases against marginalized groups.

CLS is also shaped by the civil rights movement and the social activism of the 1960’s and the idea of law as an instrument for social change.

Different strands of CLS, e.g., Critical Race Theory, Feminist Legal Theory, focus on different social conditions and their relationship to and impact on law.

 

Interdisciplinary – draws on many areas of scholarship, including politics, history, sociology, economics, literary theory.  The language, especially, is borrowed from linguistics and literary theory.

 

Critical Legal Research – applies the insights of CLS about the influence of social conditions and cultural biases to the processes and tools of legal research.   

Intersectionality

Intersectionality plays a significant role in analysis. This is an analytical approach to understanding how different social identities (race, gender, class, sexuality, disability, etc.) interact and overlap to form a complex system of discrimination and privilege. 

The term comes from Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Policies, 1989 University of Chicago Legal Forum 139 (1989).

Some Background Reading on Critical Legal Studies and Critical Legal Research

Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Dilemma, 42 Stanford L. Rev. 207 (1989).

 

Mark Tushnet, Critical Legal Studies: A Political History, 100  Yale L. J. 1515 (1991).

 

Mark Tushnet, Critical Legal Theory, in The Blackwell Guide to the Philosphy of Law and Legal Theory (Martin P. Golding & William A. Edmundson, eds. 2005).

 

Richard Delgado & Jean Stefancic, Why Do We Ask the Same Questions? The Triple Helix Dilemma Revisited, 99 L. Libr. J. 307 (2007).

 

Yasmin Sokkar Harker, Critical Legal Information Literacy: Legal Information as a Social Construct, in Information Literacy and Social Justice: Radical Professional Praxis (Lua Gregory & Shana Higgins eds., 2013).

 

Nicholas Mignanelli, Critical Legal Research: Who Needs It? (An Essay on Artificial Intelligence and the Future of Legal Innovation), 112 L. Libr. J. 327 (2020).

 

Nicholas F. Sump, Critical Legal Research and Contemporary Crises: Climate Change, COVID-19, and the Mass Black Lives Matter Uprising, Unbound: Harvard J. Legal Left (Forthcoming) (available from SSRN).

 

Richard Delgado & Jean Stefancic, Rodrigo’s Reappraisal, 101 B.U. L. Rev. Online 48 (2021).

Critical Legal Research: The Next Wave (Symposium, BU Law Review).