Critical Race Theory

Critical race theory (CRT) examines the interconnections between cultural, historical, political, and theoretical conceptions of race; invidious forms of racism; and the principles and practices of American jurisprudence. Having its origins in the field of law and in legal studies scholarship, CRT has evolved to become an umbrella term for a variety of theoretical and methodological orientations whose proponents seek to understand, examine, and analyze how “race” is produced and reproduced in modern society in relation to cultural, economic, historical, intellectual, political, and social forces. CRT is directly and unabashedly linked to the ways in which racial identities have been affected by the previously mentioned forces at work historically and contemporarily on an almost daily basis.

CRT began in response to the limitations of the legal advances of the modern civil rights movement in dismantling the seemingly intractable vestiges of racial discrimination as well as to the acute underdevelopment of the fledging critical legal studies movement in addressing the deep structures of racial inequality and injustice in American law and society. Beginning in the 1970s, law professors Derrick Bell and Alan Freeman, often credited as founding members of the CRT movement, began to probe the shortcomings of civil rights litigation in addressing the structural origins and continuing effects of American racial inequality and anti-Black racism while simultaneously arguing for more critical assessments of underlying liberal assumptions informing traditional conceptions of American law and politics. These two professors pioneered a new form of legal scholarship that questioned not only the underlying assumptions that dominated the interpretation of [Page 151]civil rights jurisprudence but also the formal foundations of American law. Critical race theorists urged legal scholars to take up the imperative to closely examine how the language and rhetoric of “colorblindness” mask the operations of power and privilege in promoting a vision of an egalitarian American society deeply at odds with its unequal and unjust racial reality. CRT also opened up a line of research into the socially constructed nature of race and into the phenomenon of “interest convergence” in examining the development and residual effects of particular legal decisions and remedies that address and mitigate racial discrimination and inequality. In all, critical race theorists seek to spotlight the very ordinary and everyday aspects of racial privilege and invidious forms of racial discrimination that are interwoven into the very social and political fabric of everyday life in America.

The substantive concerns of critical race theorists with uncovering the racial protocols undergirding American liberal democracy not only challenge the dominant theoretical framework of legal scholarship but also its very form. The innovative use of narrative in legal scholarship is one of the hallmarks of CRT scholarship. The use of narrative not only highlights everyday aspects of racial bias in law and society, but it also serves to test the epistemic limits of dominant narratives that frame and support traditional interpretations of law and politics in legal scholarship. Narrative theoretical strategies that engage the nexus of legal ideas and public policy issues raised in such cases as Regents of the University of California v. Bakke, 438 U.S. 265 (1978); City of Richmond v. J. A. Croson, 488 U.S. 469 (1989); and Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) enable CRT scholars to not only examine the institutional dimensions of forms of racial discrimination and the American legal process but also critically develop alternative perspectives on how these cases highlight forms of racial inequality and injustice that are eclipsed in a purely formal legal analysis. The narrative thrust of CRT has been the subject of criticism from such notable scholars as Harvard law professor Randall Kennedy and University of Chicago law professor and judge of the U.S. Court of Appeals for the Seventh Circuit Richard Posner. Criticisms of the narrative method of CRT revolve around charges of excessive subjectivism, racial essentialism, and lack of scholarly rigor. Extending the critique of the narrative dimension in CRT, Daniel Farber and Suzanna Sherry, in their 1995 California Law Review article “Is the Radical Critique of Merit Anti-Semitic?” raised the question of whether CRT's critique of merit harbored anti-Semitic sentiments.

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