Politics, Top Stories

Beyond All Warnings: The Radical Assault on Truth in the Law

Law is the worst of the bunch…. I had no idea how deep the corruption in law had gotten until last year. I have been talking to law students and professors, and it’s absolutely unbelievable.” Dr. Jordan Peterson, January 2018.

Dr. Jordan Peterson claims left-wing radicals are corrupting legal teaching across the Western world. At first glance, these extraordinary claims about the teaching of law seem unlikely. Jurisprudence is generally considered a dry subject of study, and the relentless application of reason and logic are the hallmark of conventional legal scholars and argumentation.

But there are a few signs that Peterson may be right, and the significant influence of ‘postmodern neo-Marxists’ on the legal academy is undeniable and pernicious.  For more than a generation, a coalition of radical scholars has been schooling students in doctrines they consider above criticism. In doing so, they have successfully smeared their enemies while perverting progressive aims of racial and sexual equality, and have replaced them with a regressive and authoritarian philosophy of power above all.

The philosophy behind this movement, known as Critical Legal Theory, has its roots in the 1970s, when postmodern neo-Marxist radicals began challenging and overturning accepted norms and standards. Officially founded in 1977 at a conference at the University of Wisconsin-Madison, the roots of critical legal theory (also known as Critical Legal Studies) extended back to the protests surrounding civil rights, animated by the ideals of Martin Luther King and the terrible injustices of the Jim Crow legal system.

The fundamental premise of critical legal theory was that the Western justice system was not a neutral or unbiased body of laws and procedures. On the contrary, the system is a tool of power, and pre-existing legal theories and structures were little more than frauds perpetrated by white male heterosexuals to consolidate their own power.

The theory is based on feminist, race and post-colonial concepts, and was pioneered by social justice legal activists within the American university system such as Kimberlé Crenshaw, Derrick Bell, Mari Matsuda and Richard Delgado.

Radical adherents believe that the logic and structure attributed to the law grow out of the power relationships of society. Thus, the law exists simply to support the interests of the dominant group and is merely a collection of beliefs and prejudices that legitimise injustice in society. 

Thus, critical legal scholars encouraged students to see the ‘bigger picture’: that law was nested within the context of society. This meant a critical legal education must involve politics, history, philosophy, sociology and culture. But society was not to be analysed primarily through the lens of the classical liberal thinkers of the Enlightenment, such as Hobbes or John Stuart Mill. Rather, critical legal theory scholars turned to Marx and Engels to explain how society worked. Their heroes were Max’s Weber and Horkheimer, Herbert Marcuse of the Frankfurt School, the Italian Marxist Antonio Gramsci, and, of course, postmodernist heroes Foucault and Derrida.

Critical legal theory steadily grew in influence in the 80s and 90s until it became integrated into many law schools and, in the words of Cornell Law School, it “permanently changed the landscape of legal theory.”

Critical Legal Theory spawned its own substrata: Critical Race Theory (CRT), Feminist Legal Theory and Queer Theory. These influential subgroups eventually came to dominate the movement, as the role of gender, race and sexuality rose in prominence. The narratives, ideology, and vocabulary have become familiar to us all: “systemic oppression”, “institutional racism”, and “white, cis-gendered, male privilege”.

Like any set of academic theories, it was once subject to the kind of lively criticism one would expect of enlightened institutions dedicated to the pursuit of the truth. But, sometime in the 1990s, its proponents hit upon a clever way of advancing their case that would place their philosophy above criticism.   When their fellow professors would point out fundamental conceptual flaws, they would simply smear them as racists, sexists and the contemporary equivalent of being alt-right. And it worked beautifully.

The treatment of law professors Daniel Farber and Suzanna Sherry demonstrated their success, even in the face of brilliant critique. In 1997 Farber and Sherry exposed what they saw as the corruption of American legal thinking by postmodernist radicals in their book, Beyond All Reason: The Radical Assault on Truth in American Law.

In terms near identical to Peterson’s evaluation twenty years later, their prescient analysis highlighted how left-wing radicals were perverting the ideals of the law as originally inspired by the Enlightenment. They demonstrated that the radicals’ postmodern theories conflicted deeply with their own laudable goals of racial justice and progressive dialogue. They showed that these theories, particularly identity politics and White Privilege, had anti-Semitic and anti-Asian implications, undermined community relations and impeded dialogue.

Moreover, they charged that radicals were hypocrites, treating discrimination against Jews, whites and Asians as unworthy of the same criticism as against blacks. Among the many problems they highlighted were the radicals’ tendency to reduce argument to the exchange and criticism of personal stories; their inability to separate disagreement with a speaker’s message from attacks on the speaker as a person; and a divisive entanglement in identity politics. Because radicals replaced a belief in objective truth with a focus on power relations, Farber and Sherry found they faced the temptation to “slide away from democratic interchange toward nihilism or authoritarianism.”

What Farber and Sherry did not contend with was that this new order was to be enforced by viciously attacking those who disagreed with the radical thesis as not only blind, but bigoted. For their efforts, the liberals Farber and Sherry were condemned in the most extreme terms. Their peers labelled them racist, sexist, white supremacist bigots, and “secret agents of a very right-wing racial project”. In perhaps the deepest barb of all, they were condemned as “conservatives”, to be treated as outcasts from the otherwise liberal-left tribe. They fought back, detailing their shocking treatment in a follow-up paper: Beyond All Criticism.

What was most stunning to Farber and Sherry was that the radicals considered their scholarship to be beyond criticism. Noticeably absent from the response of the radicals was any solid defence of the positions they originally staked out, or any cogent reply to the questions posed.

Like Peterson, Farber and Sherry repeatedly faulted radicals for politicizing scholarship, for confusing politics with truth, and for rejecting universal values in favour of an “intellectual totalitarianism that privileges the subjective preferences of whoever happens to be in power”. Law Professor Anne Coughlin noted their critique was “devastating, and, from the perspective of traditional liberal scholars, largely unanswerable.” Yet despite this “devastating” critique there was no fundamental review of the critical project and its cornerstone, privilege theory.

Fast forward twenty years and these deep conceptual flaws have still not been rationalised into the radical left analysis, and certainly not to its popular manifestation, the Wikipedia page on White Privilege.  Indeed, the opposite has happened. These ideas have now become mainstream, “institutionalised” if you like, albeit in a highly polarising manner feeding into the expanding culture wars. For instance, the 2017 US Pew Survey found nearly eight in ten Democrats and Democratic-leaning independents said white people benefited from ‘white privilege’, while the views of Republicans and Republican-leaning independents were nearly the exact opposite.

Why have these radical theories taken root in left and liberal popular culture? After all, professors and students inspired by Marxist thinking are hardly a new phenomenon. No two law schools are the same, and it would be absurd to suggest that all law schools are in hock to the radicals. The reason is that in the 1990s conservatives abandoned the US academy, leaving liberals and leftists in the ascendancy, and viewpoint diversity all but vanished.

Jonathan Haidt has demonstrated that in the 1960s US academics voted Democrat over Republican at a rate of 2 to 1. This remained the same until the 1990s, whereupon there was a rapid shift brought on by the baby boomers retiring. By 2016 the ratio was somewhere between 17 and 60 to 1 in favour of Democrats.

Haidt contends this led to an explosion in groupthink, the psychological phenomenon where group members minimise conflict and reach a consensus without critical evaluation of alternatives, and by actively suppressing dissent, all the while isolating themselves from outside influences.

This ideological echo chamber has led today to an explosion in radical left-leaning argumentation supporting identity politics, and the further integration of Critical Race, Gender and Feminist Legal Theory into legal departments. All this happened while those on the left were much less willing to risk the opprobrium that comes with critiquing the theories of fellow tribe members. This led to weak argumentation. A major unattended flaw, for example, was that gender and sex were being studied without any proper understanding of underlying biology — radical social constructionist viewpoints dominated when defining the new “social justice”.

This was a problem because law schools were, in accordance with the need to see the big picture, increasingly interdisciplinary. Warwick Law School, for example, offered its first full year undergraduate module on ‘women and the law’ in 1977, when members of the Law School helped contribute to the establishment of the Interdisciplinary Centre for the Study of Women and Gender. Law departments were now led by professors such as Catharine A. MacKinnon at Michigan, who didn’t just teach black letter law; they also taught gender studies.

Today, it is commonplace to see departments dedicated to “Law and Social Justice” while leading critical legal theorists, including Robert Gordon at Stanford, Morton Horwitz and Duncan Kennedy at Harvard, still practice at top US law schools. Critical legal theory and especially its substrata have been integrated into legal education at schools such as Harvard, Boston, Colombia, UCLA, Georgetown, Melbourne, Glasgow and Kent.

Kent University, England, is a case in point. Kent is proud to be “A Critical Law School” where the course goes way beyond mere jurisprudence. Kent’s website states:

In considering where to study law, you will notice that university law schools vary. Some are ‘black letter’ (focused only on teaching you the legal rules and principles). One of the distinctive things about Kent is that we are a ‘critical law school’…. it gets you thinking about different kinds of legal systems, about power, and about who benefits and loses from different decisions.

Kent recently hosted the Critical Legal Conference, an international leftist legal symposium, hosting speakers such as law lecturer Dr. Kathryn McNeilly of Queen’s University Belfast, who used her powers of legal insight to explain thatSex/Gender is Fluid” and that:

A critical and queer understanding of gender must be accompanied by a critical and queer understanding of rights beyond liberalism which fundamentally grasps human rights as also fluid, non-binarised and unfinished.

Jordan Peterson is not alone in highlighting concerns that the academy has become trapped in Pseud’s Corner. New Real Peer Review (@RealPeerReview) mercilessly mocks scholars through the simple expedient of promoting their absurd conclusions on Twitter.

But this is no joke. A generation of radicals committed to critical legal principles is now playing out with increasingly pernicious effect and disturbingly authoritarian implications.

Professor Janice Fiamengo of the University of Ottawa has demonstrated how core legal concepts such as the burden of proof, presumed innocence and legal certainty are under attack by critical legal theory. Fiamengo explains:

Critical Legal Theorists don’t want to reform the system to make it more fair and neutral. They don’t actually believe in the possibility of neutrality. They advocate re-making the system to advance the interests of the so-called marginalised, and oppressed women and people of color in particular. Their rationale is essentially, although they would never say so: legal and social revenge.

Radical feminist legal theory is already being applied in Canadian courts. During the trial of York University student Mustafa Ururyar for sexual assault, uniform standards of evidence between men and women to determine credibility were set aside, with the judge asserting that women’s contradictory evidence can be explained away by reference to trauma. (Ururyar’s conviction was later overturned on appeal).

As Janice Fiamengo explains:

Part of the thinking behind it all is women and people of colour are always already victims, just by being who they are, and therefore they are especially deserving of belief and compensation, whereas a privileged man…is, by definition, less deserving of belief because he has already had the experience of being thought credible just by who he is.

Indeed, Fiamengo asserts that the feminist theory of “affirmative consent”, cited many times by the judge in the Ururyar case, turns almost all types of sex into rape. It also “codifies vague and capricious rules governing student conduct, shifts the burden of proof to male students accused of sexual offenses, and creates a disturbing precedent for government regulation of consensual sex.”

Elsewhere legislation against crimes intended to protect the “oppressed”, such as “hate speech”, are poorly defined, leading to concerns about free speech since it is difficult to know what can be said. The UK’s definition of hate crime is defined as “Any incident/crime which is perceived by the victim…to be motivated by hostility or prejudice based on a person’s race or perceived race”. Yet the authorities freely admit that, since there is “no legal definition of hostility”, they use the everyday understanding of the word which includes “unfriendliness”. Despite this extremely broad definition, the British left is pushing for hate crime to be extended to misogyny, a politically loaded term which is notoriously hard to define. Meanwhile in Canada, under 16-C the law is used to compel speech.

Human Resources departments, such as those at Google, now allegedly discriminate against “oppressors”, – that is, whites and Asians – and in rejecting the case of James Damore, the lawyers at the National Labor Relations Board thought so strange the idea that biology can explain some differences between men and women that they placed the word “science” in scare quotes. All this is done in the name of “equality, diversity and inclusion”.

The radical belief that meritocracy is an illusion means that social change is to be manifested using the power of compulsion. The government is required to interfere in areas such as compelled speech, and is to be brought back into the bedroom to regulate consent.

Old-fashioned concepts such as due process are thought to be so imbued with systemic oppression that they can be safely set aside. This mindset is perhaps best exemplified in the design of the kangaroo court system created to adjudicate allegations of sexual misconduct at American universities, so-called Title IX offences.

As part of the Title IX process, the lowest possible burden of proof was adopted, and severe restrictions were placed on the ability of the accused to question the account of the accuser. Ignoring due process, many schools appointed a single staff member to act as detective, prosecutor, judge and jury.

Sexually harassing behaviour was ill-defined and embraced “any unwelcome conduct of a sexual nature”, including remarks. And in defiance of the presumption of innocence, official documents described the complainant as the victim and the accused as perpetrator.

What the story of Farber and Sherry tells us is that the conceptual problems highlighted by Title IX are not new. A generation of legal scholars has been educating students in the fundamentals of justice seen through the uncritical lens of radical postmodernism. Our focus on student revolts is, therefore, a sideshow; it is the professors and the administrations who should be the focus of concern.

Late last year University of Pennsylvania law professor Amy Wax was pilloried after uttering the sacrilege that values such as self-discipline and commitment to marriage should be upheld, while asserting that: “All cultures are not equal.”

No fewer than thirty-three of her fellow professors, nearly half the law faculty, condemned her publicly. Without addressing any of the substantive arguments she presented, they supported students who denounced her as being complicit in, and upholding, white supremacy. We are, as Haidt explained in his defence of Wax, “closer to a world in which academic disagreements are resolved by social force and political power, not by argumentation and persuasion.”

Last month law students at Lewis & Clark College protested Christina Hoff Sommers’ talk critiquing feminist theory. She was shouted down and called a “known fascist” by student groups. But in the end, it was not the students who shut down her talk; it was their law professor, who is also their “Diversity Dean”.

Speaking to Quillette, Daniel Farber, now a law professor at Berkeley, said that critique was not easier today than in 1997. It was harder:

I think there’s still a great deal of reluctance by outsiders to do so [be critical], lest one be enmeshed in controversy and possible accusations of racism or sexism. Sadly, both inside and outside the academy, our culture has been changing due to polarization in ways that make it harder to discuss important issues except with people who already agree with us.

Urgent attention now needs to be drawn to the practical influence of these close-minded and authoritarian practices. Enlightenment concepts of reason, free speech, truth and the meritocratic ideal must triumph over an ideology of power masquerading as “social justice”.

The tragedy is that racism, sexism and homophobia continue to be real evils but, to their shame, the left’s cry-wolf tactics have helped create their own monstrous counterpoint. Steve Bannon’s intolerant call-to-arms “Let them call you racists” is a plea to conservatives tempted by the plausibility that accusations of bigotry are increasingly politically motivated, or examples of partisan hypocrisy.

At the same time the liberal establishment is abandoning conservatives and centrists by discarding meritocracy in favour of an activist state in hock to privilege theory. In doing so they have not only corrupted the law, but also the admirable goals of the civil rights movement. They no longer wish, as Dr. King said, to live in a nation where children “will not be judged by the color of their skin, but by the content of their character”. Rather, they double down on race, gender or sex as the inviolable identity of victimhood.

Conservatives and classical liberals must unite to find a new way to end bigotry without the tribalism of extremist identity politics. The tale of Farber and Sherry is a cautionary message. Twenty years of increasing corruption in the law has passed, and we are now beyond all warnings.

 

Andrew Kelman is a writer of Scots-Canadian descent. @TheUKDemocrat

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58 Comments

  1. Grumpy Liberal says

    “This remained the same until the 1990s, whereupon there was a rapid shift brought on by the baby boomers retiring.”

    I think you mean the greatest generation retiring.

  2. Grumpy Liberal says

    “Meanwhile in Canada, under 18-C the law is used to compel speech.”

    That’s the name of a controversial section of law in Australia. Does Canada have one coincidentally with the same number?

    • Aleksander Mortensen says

      The author meant to say C-16, which is the Canadian law that, among other things, compel you to use the pronouns any trans person says you should use, under force of law.
      I only have a basic understanding it, and you should do your own further research if you are interested. And yes, faculty members has threatened other faculty members through the use of bill c-16. Check out Jordan Peterson’s youtube channel for more info, but you might have to dig a bit.

    • Dan says

      I think it is supposed to be 16-C: The Canadian (provincial?) law made famous by Jordan B Peterson.

      • Andy says

        C-16 would be a federal bill. The “C” indicates that it originated in the House of Commons, as opposed to an “S” bill, which would have been introduced in the Senate. Provincial legislatures are unicameral so their bills just have numbers.

  3. I’m sympathetic with a lot of the thrust of this article. There must be no favouritism under the law. However, the way James Damore, lately of Google, used the science he quoted was very poor.

    “The problem is, the science in Damore’s memo is still very much in play, and his analysis of its implications is at best politically naive and at worst dangerous. The memo is a species of discourse peculiar to politically polarized times: cherry-picking scientific evidence to support a preexisting point of view. It’s an exercise not in rational argument but in rhetorical point scoring. And a careful walk through the science proves it…

    The impulse to apply those theories to explain human behavior is as strong as it is misguided. Women as a group score higher on neuroticism in Schmitt’s meta-analysis, sure, but he doesn’t buy that you can predict the population-level effects of that difference. “It is unclear to me that this sex difference would play a role in success within the Google workplace (in particular, not being able to handle stresses of leadership in the workplace. That’s a huge stretch to me),” writes Schmitt. So, yes, that’s the researcher Damore cites disagreeing with Damore.”
    https://www.wired.com/story/the-pernicious-science-of-james-damores-google-memo/

    • Ugh you are severely mischaracterizing James Damoores intention…

      The memo was meant to serve as a possibility as to why there were more women than men in tech, seeing as all the other theories were based in no science whatsoever…

    • Aux says

      Do we really need to rehash this argument below every article?

      • ga gamba says

        Yes. As long as the mischaracterisations persist they had better be countered.

    • So what you are saying is that Dr. Schmitt’s opinion holds more weight than his empirical scientific research? Damore’s claim was that the women at google were as competent as the men, but that in society fewer women are interested in STEM than men, so it is not surprising that this is reflected in the numbers that work in Google.

      I work in metal machining and fabrication and can report that the percentage of MEN that have an interest is quite small, while the number of women who show interest falls somewhere between tiny and minuscule.

      Go to any event that involves cars, boats, or motorcycles and find how many women are involved in a practical hands on way–usually almost none. Or even look at women contributors to Wikipedia (about 15%.)

      Regardless of what we actually want the innate gender differences to be, at some point we have to engage with reality.

      • bczz says

        JohnA – If you add horse shoeing to metal fabrication, women have out-paced men in the last 30 years. Difference is – as fewer men thought riding was ‘macho’, women took over horse ownership and female farriers became common, then the majority in some locations.

        Pretty much the same has happened in every field men stop thinking is macho. How many female physicians did you see 30 years ago?

        If you want to know reality, talk to the women who have been in the tech field for decades. The ones that left and the ones remain, despite the constant put downs. All the rest is supposition.

        • A good friends bother is a farrier. There are precious few of them. Making horse shoes (which is not a big part of that trade) is far removed from making garbage trucks in a large factory or making bridges or working a horizontal borer or pouring castings in a stinking hot factory or maintaining a fertilizer factory.

          Women become farriers because they love horses, not because they love metalwork.

          Our family doctor 50 years ago was a woman. Woman become doctors, lawyers, and veterinarians because they want to join those professions. They are less inclined towards STEM, especially hard STEM, and are therefore less inclined to seek careers there, an if they do they are more inclined to leave or seek administrative roles.

          Watch the Gender Paradox from Norway. It is on YouTube. Women, on average, are more interested in people, and men, on average, are more interested in things. There is a large pile of sociological and psychological research to back this up. All the wishing in the world won’t change the facts.

  4. Extremely worrying and rather bleak. A couple of years ago we were gleefully poking fun at the Big Reds and Trigglypuffs as if they were the first fruits of some weird, sick new plant. But many events show that they hang off something with very deep roots – a parasite, sure – and are expressions of something in its maturity, even its decadence.
    To where are we to fall back, knowing how gone-wrong the academy, law and even police are?

    • ga gamba says

      Agreed. The Trigglypuffs serve as a distraction from the real danger and as a way for the progs to dismiss this rot as fringe kids being kids. “Nothing to see here. Move along. When they leave campus they’ll reform themselves.”

      Yet, they don’t. One doesn’t simply drop 16 to 20-odd years of indoctrination after taking off their graduation cap and gown.

  5. Quillette now starting to show its true colours with its comical campfire stories about Marxists hiding under the bed. The playbook is exactly same as the leftist media it spends so much time berating: Choose a fringe element from your ideological opponent and cherrypick evidence to suggest that it’s a mainstream concern. The article jumps the shark when it tries to use critical legal theory as a means to dismiss the entire concept of white privilege. Are we now seriously suggesting that statistically, there are no longer any relative advantages afforded to certain ethnic groups?

    • Chris says

      You are correct that there are relative advantages afforded to certain groups, but I’m not sure if the article really bothers too much with dismissing white privilege – it actually states the exact same, just a different group. If it were, it would talk about white farmers in South Africa, countless Kangaroo court rulings, media bias towards certain religions (that suddenly become races), etc.
      Perhaps you don’t like one of the examples (someone else might not like some you strongly agree with). The nature of our comment is certainly of value to the discussion: If someone were to say that they disagree with the entire process of reasoning, because it ‘infringes on one of their pet doctrines’, the author would have obviously won the case right there.
      In the end, it does not change the overall conclusion that we have been on an unhealthy path for very long.

    • LFM says

      How is it possible nowadays to make any rational distinction between what is ‘fringe’ and what is ‘mainstream’? I used to be able to tell myself, ‘Position X sounds rather mad but it’s probaby only a fringe view’. Today, I ususally discover that the fringe view I had only just heard about is sufficiently mainstream to have been enshrined into law, like the compulsory use of invented pronouns for the ‘gender queer’.

    • Jeremy H says

      “Are we now seriously suggesting that statistically, there are no longer any relative advantages afforded to certain ethnic groups?”

      There are absolutely advantages to being the most dominant ethnic group in a society, and those historically have usually gone with privileges afforded to the same group, but advantages and privileges are not at all the same thing. Deliberate confusion between the two is the crux of white privilege theory.

      And a the social justice movement is hardly a “fringe element” in society today.

    • LukeReeshus says

      The article jumps the shark when it tries to use critical legal theory as a means to dismiss the entire concept of white privilege. Are we now seriously suggesting that statistically, there are no longer any relative advantages afforded to certain ethnic groups?

      Of course not. There are obviously advantages afforded to certain ethnic groups. The advantages differ though, in context as well as content. For example, one is now afforded an undeniable and decisive advantage when applying to a high-end university if one happens to be African-American. And, lest that last sentence be considered a dog whistle for “white privilege,” it should be noted that the “ethnic group” being most disadvantaged by this state of affairs (for there can be no advantage without disadvantage) are Asian-Americans. Funny how things work out in our modern melting pot.*

      Your comment demonstrates what many of us have come to suspect about this movement since it flared up (again) around 2013/2014: it is motivated much more by feminist and black resentment than by any principled concern for fairness under the rule of law. And—to be perfectly honest—I don’t like it.

      But, to be fair, I often try to remind myself, when I hear about the antics of post-modern neo-Marxists, “This is just a fringe movement. These wacka-doos don’t have any real political power, and their movement is bound to fizzle out as it collapses under the weight of its own inherent contradictions.” But the article above put a disturbing image into my mind. If it is accurate, and if the trends it outlines continue unabated, it is not implausible to imagine that one day, a couple generations from now, the Supreme Court will have a majority of (Democratically appointed) judges who really won’t consider “hate speech” to be free speech, or some such nonsense. And that day will be tragic. For that day will mark the end of (classical) liberalism in the U.S.*

      *I remembered, after writing most of this, that this website has an international base of readers. So I’ll explain the asterisks a little. 1.) “melting pot” is a metaphor for assimilation into American social and political life—the idea being that the “chunks” of culture that immigrants bring with them ought to remain intact, but only insofar as they don’t poison the liquid in which other “chunks” are swirling along with them. Thus our American stew can remain tasty. Yum. 2.) The Supreme Court in the U.S. is the highest level of our judiciary branch. So whatever they say, legal-wise, goes. The judges are appointed by our president, the highest figure in our executive branch, and approved by the Senate, the highest of our legislative branch. They serve life terms, so they cannot be replaced. Thus, one of the primary political powers our president has is appointing them. They (there are nine of them) determine our national law for a good decade or two before they either drop dead or retire. Which is fine. Because, for as long as I can remember, the Supreme Court in our country has been the least political and the most—for lack of a better word—judicious branch of our federal government. They interpret laws as they come to them, and they often shoot them down as technically illegal. Which is why I, as an American, find the thought of Supreme Court judges with this modern activist bent so disturbing. Could this happen? I hope not. But I have cause to worry.

      • “Your comment demonstrates what many of us have come to suspect about this movement since it flared up (again) around 2013/2014: it is motivated much more by feminist and black resentment than by any principled concern for fairness under the rule of law.”

        There is absolutely nothing reasoned about this statement. It would be comical for you to even attempt to justify it – particularly given that i am a white male.

        “it should be noted that the “ethnic group” being most disadvantaged by this state of affairs (for there can be no advantage without disadvantage) are Asian-Americans.”

        And there is nothing remotely true or relevant about this statement.
        By the way, can you Americans stop assuming that everyone should see the world through your own myopic lens?

        • Dave says

          How do you explain the title IX adjudication “courts” if all of this is fringe nonsense with no influence? It seems like you have an empowered bureaucracy operating under questionable legal standards (hence the large proportion of successful lawsuits challenging adjudicated decisions – can give you some examples if you’d like) which regularly infringe in accused students due process rights, and sometimes even using this questionable authority to attack critics like Laura Kipnis.

          Or consider the very mainstream wonk-turned-editor Ezra Klein, talking about “affirmative consent” laws: https://www.vox.com/2014/10/13/6966847/yes-means-yes-is-a-terrible-bill-and-i-completely-support-it

          “SB 697, California’s “Yes Means Yes” law, is a terrible bill. But it’s a necessary one. It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.”

          “Defenders of the bill argue that the lovers have nothing to worry about; the assault will never be punished, because no complaint will ever be brought. Technically, that’s true. But this is as much indictment as defense: if the best that can be said about the law is that its definition of consent will rarely be enforced, then the definition should be rethought. It is dangerous for the government to set rules it doesn’t expect will be followed.”

          This sure sounds legally questionable and kind of Orwellian! Klein himself is the one making the observation about the vagueness of the law. But how does Klein reach the conclusion it’s necessary?

          “The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.”

          “Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.”

          “The Yes Means Yes law is trying to change a culture of sexual entitlement.“

          “Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success.”

          And just in case there was any ambiguity that Klein is actively calling for overreaching Orwellian laws to “correct” men’s behavior (as interpreted by activist statistics), he writes off due process as merely protecting entitled rapists:

          “Then there’s the true nightmare scenario: completely false accusations of rape by someone who did offer consent, but now wants to take it back. I don’t want to say these kinds of false accusations never happen, because they do happen, and they’re awful. But they happen very, very rarely. Sexual assault on college campuses, by contrast, happens constantly. This is, in a way, the definition of what it means to be entitled: the rules are designed to protect you from dangers that barely exist at the expense of exposing others to constant threat.”

          Notice how he slyly goes from an individualist outlook – the falsely accused – to a group outlook where “others” are at “constant threat.”

          So a mainstream pundit has called for overbearing Orwellian laws that he himself admits can’t be reasonably enforced specifically on the basis that the unenforceable parts of the law will scare men (as a group) into behaving better, citing bullshit advocacy statistics along the way. And just to underline the point, the law won’t be able to succeed if some innocent people don’t get wrapped up in it unfairly, per Klein.

          But yeah you’re right, article is just making shit up.

          —-

          By the way, that Asians wind up hurt the most by affirmative action policies is pretty well documented. That’s not even controversial afaik. Here’s a good Wesley Yang article on the subject: http://www.tabletmag.com/jewish-news-and-politics/257250/asian-americans-racial-quota-system

        • LukeReeshus says

          And there is nothing remotely true or relevant about this statement.
          By the way, can you Americans stop assuming that everyone should see the world through your own myopic lens?

          I thought including those asterisks and the paragraph explaining them would help sidestep charges like the ones you level at me in that second sentence. But they didn’t. Oh well.

          So yes, I must admit that I am an American, and I am “myopic” in the sense that I know more about goings-on in the U.S. than about in other parts of the world. Which brings me to your first sentence—which is false. Really, it’s amazing that you would accuse someone of myopia concerning this topic, while being (obviously) unaware of the tension between diversity quotas and standardized test scores, GPAs, etc. that is currently playing out in college admission offices.

          You ought to research it.

          • Bill says

            “You ought to research it.” I’m sure they will search Mother Jones and Vox and NPR podcasts … see no talking points about it, and therefore declare that the tension and bias you mention is just conspiracy theory.

  6. Gertrude says

    “Comical campfire stories”… meaning views that are explicitly promoted by top law schools? “Are we now suggesting”… meaning something the piece doesn’t suggest or discuss, but that you’re going to pretend it does?

    Are you an idiot?

    • Chris says

      Pretend is a suitable word. “Quillette now starting to show its true colours” would imply that the comment is made by someone who is reading it for a prolonged time. If so, any snowflake should have been triggered long ago by the mere scale of logical discourse.
      However, my interpretation could be wrong here and your rather pointed question is a better approach. Although it would mean he/they is part of a marginalized group namely the ΙΔΙΩΤΕΣ that dates all the way back to the Greek, and since they were white perhaps it manifests the white male-on-male privilege.
      Oh, what I world we live in; I don’t know if I shall cry, but right now I cannot stop laughing.

    • Joe Bob says

      Gertrude- Regressive leftists have zero understanding of statistics to go along with with their profound ignorance of biology. My guess is that they likely lacked aptitude and/or simply didn’t take STEM classes.

      For them, any statistical disparity in averages between groups is prima facie evidence of prejudice and discrimination. The statistics that don’t fit their “campside stories”, for example the fact that asian americans and nigerian americans are more highly educated and earn more money than white americans, are completely ignored. White supremacy is omnipresent and all pervasive, as stated by the leftist priest Te-Nehisi Coates.

      You disagree? Just more evidence of
      white supremacy.

      • Wow Joe Bob. Have fun wrestling with that straw man. So leftists don’t understand statistics? I gather you have robust statistical evidence to support this assertion?

        • Bill says

          Leftists in the area of climate change don’t understand significant digits, so it wouldn’t be surprising they have a limited understanding of statistics. I mean, they can scaremonger a 0.2 deg. C increase in temp somehow measured from widespread temperature measuring devices with a 2 deg C accuracy.

          The study about the election that came out today in the MSM from some academes (Ohio iirc) purporting that fake news cost Hillary the election used the “20% of white women shifted, but 23% of white men did…see! proof!!!” from their sample of 536 respondents to their survey. Now, let’s assume a perfectly even distribution (they didn’t provide the raw data in the version I read), 1/2 are white (268) and 1/2 of those are each gender (oops, there are a bunch! we’ll use the biological 2) so 134 men and women. So the difference of 20% to 23% is 5 respondents in that sample, 26 women shifted, 31 men (rounding up)…what does that mean for the total population? Who knows, they didn’t provide their R scores but simply state “on faith” that their sample results apply to the population without providing the scoring detail. Of course, they use n=536 when in reality their sample for white females is closer to n=134 which changes things a bit.

          Simpson’s Paradox has been shown in the studies about gender bias in professorships. Of course, the amalgamation paradox there is used to justify “gender bias!” when correctly reducing to the departments shows no such bias exists but is merely an artifact of weighting. This was shown all the way back to studies from the 1970s but the Left promulgates those flawed statistics to this day. The Damore stink brought up the whole “gender bias in IT” debate which ignores the gender bias in nursing or auto mechanics or elementary school teaching which doesn’t play to the talking point du jour.

          Anscombe’s quartet plays out all over the place in the data dredging epidemiology studies and the twisting of definitions that is “prevents premature deaths” by equating actual deaths with risk factors.

          Does it mean that the Left is “bad” at statistics? Or perhaps, like the Berkley study, they poor at statistics because they choose puff-n-fluff areas of study which don’t teach things like Simpson and Anscombe because they are [intentionally?] omitted when studying SJW topics and Critical n Theory thesis?

        • Joe Bob says

          Thank you simon johnson who said:

          “So leftists don’t understand statistics?”

          And then provided a typical example of a (regressive?) leftist not understanding basic statistics.

          You replied to Luke Reeshus’ comment as follows:

          Luke: “Your comment demonstrates what many of us have come to suspect about this movement since it flared up (again) around 2013/2014: it is motivated much more by feminist and black resentment than by any principled concern for fairness under the rule of law”.

          Simon: “There is absolutely nothing reasoned about this statement. It would be comical for you to even attempt to justify it – particularly given that i am a white male.”

          The fact that you, as an individual white male, don’t agree with a generalizing point about a group (movement) of which you may be a member, says nothing about the generalizing point about the group- which may be true, false, or whatever.

          Me: As a group, men are taller than women.
          You: I’m shorter than my girlfriend.
          Me: Alrighty then, you proved me wrong.

          Unsurprisingly, you also show complete ignorance about privileges given to sanctified groups at the expense of non-sanctified groups. Color me shocked.

          For information on discrimination against asian americans and whites in admissions to medical and law schools in the US, see

          https://necpluribusimpar.net/scourge-white-supremacy-not-even-spare-public-services/

          For information on Oxford University which recently changed their policy to give women more time to take math exams than men, use duck duck go.

          If those aren’t examples of “privileges” granted to groups based solely on skin color and gender, I don’t know what is.

      • @ Joe Bob – It is your understanding of statistics that is poor. Asian American are around 5% of the population. Nigerian Americans – what? Less than 1% insignificant. Compare that to European Whites that make up 73% of population. If American Asian were comparable population to Whites than they would do be about the same keel or worse. Because it is tale of to halves. The one that do well do really well and given the relatively smaller numbers can cover those who fall below the poverty line. Given the overall poverty rate if Asian American were amplified to the same level, then they would do about as well as European Whites.

        “My guess is that they likely lacked aptitude and/or simply didn’t take STEM classes. ”

        I doubt you did either!

        • You do not have to be able to distinguish a varimax rotation from an orthogonal rotation (which I can do) to realize that your argument demonstrates that you know absolutely nothing about statistical distributions.

        • Joe Bob says

          @reading nomad-

          “If American Asian were comparable population to Whites than they would do be about the same keel or worse. ”

          And this is based on your claim that wealthy asians give their income to less wealthy asians, which brings everyone to highest average levels of income and education?

          And this claim is based on what, exactly?

          Based on standardized tests, east asian nations routinely produce many of the top scores in the world.

          http://www.businessinsider.com/pisa-worldwide-ranking-of-math-science-reading-skills-2016-12

          The fundamental point about the success of asian americans and nigerian americans is this:

          If “white supremacy” was as powerful and pervasive as some radical leftists claim, then those groups should not be outperforming white americans.

    • Thanks Gertrude.

      “meaning views that are explicitly promoted by top law schools”.

      This is laughable. The author uses the examples of the introduction of a “women in the law” module at one university and “Law and Social Justice” at another to suggest that this is evidence of an “explosion in radical left-leaning argumentation”, without even qualifying the academic content of these courses. However, given your reliance on childish insults rather than critical engagement, I’m not surprised you buy into these forms of slippery slope fallacy.

      “meaning something the piece doesn’t suggest or discuss, but that you’re going to pretend it does”

      It does so very clearly. Here: “These ideas have now become mainstream, “institutionalised” if you like, albeit in a highly polarising manner feeding into the expanding culture wars. For instance, the 2017 US Pew Survey found nearly eight in ten Democrats and Democratic-leaning independents said white people benefited from ‘white privilege”.

      • ga gamba says

        For instance, the 2017 US Pew Survey found nearly eight in ten Democrats and Democratic-leaning independents said white people benefited from ‘white privilege”.

        It must be true then.

        Or, to put it another way, nearly eight in ten Democrats and Democratic-leaning independents have been brainwashed. They probably believe in the gender wage gap, “the blank slate”, and yoga is cultural appropriation too.

        This is laughable. The author uses the examples of the introduction of a “women in the law” module at one university and “Law and Social Justice” at another to suggest that this is evidence of an “explosion in radical left-leaning argumentation”, without even qualifying the academic content of these courses.

        Perhaps what is laughable is you didn’t even bother to do a bit of research.

        www(dot)chronicle(dot)com/article/The-Postradical-Legal/65623

        www(dot)jstor(dot)org/stable/42893848

        www(dot)nlg(dot)org/wp-content/uploads/2016/03/Radicalizing-Curriculum.pdf

        http://digitalcommons(dot)law(dot)yale(dot)edu/cgi/viewcontent.cgi?article=1048&context=yjlh

        https://commonlaw(dot)uottawa(dot)ca/ottawa-law-review/sites/commonlaw.uottawa.ca.ottawa-law-review/files/06_18ottawalrev11986.pdf

        https://scholarlycommons(dot)law(dot)northwestern(dot)edu/cgi/viewcontent.cgi?referer=https://www.google.com.ph/&httpsredir=1&article=6810&context=jclc

        I could go on and on, but I’ve provided enough unpaid emotional labour to you.

      • ga gamba says

        For instance, the 2017 US Pew Survey found nearly eight in ten Democrats and Democratic-leaning independents said white people benefited from ‘white privilege”.

        Zoinks! It must be true then. And an Associated Press-GfK poll shows that 77 percent of American adults believe angels are real; this proves the existence of these ethereal beings.

        Or, to put it another way, nearly eight in ten Democrats and Democratic-leaning independents have been brainwashed or are easy duped. They probably believe in the gender wage gap, “the blank slate”, and yoga is cultural appropriation too.

        This is laughable. The author uses the examples of the introduction of a “women in the law” module at one university and “Law and Social Justice” at another to suggest that this is evidence of an “explosion in radical left-leaning argumentation”, without even qualifying the academic content of these courses.

        Did you want him to provide a list of all the law schools? Should he have included a syllabus? Perhaps what is laughable is you didn’t even bother to do a bit of research. There’s plenty on the subject.

        www(dot)chronicle(dot)com/article/The-Postradical-Legal/65623

        www(dot)jstor(dot)org/stable/42893848

        www(dot)nlg(dot)org/wp-content/uploads/2016/03/Radicalizing-Curriculum.pdf

        http://digitalcommons(dot)law(dot)yale(dot)edu/cgi/viewcontent.cgi?article=1048&context=yjlh

        commonlaw(dot)uottawa(dot)ca/ottawa-law-review/sites/commonlaw(dot)uottawa(dot)ca(dot)ottawa-law-review/files/06_18ottawalrev11986.pdf

        scholarlycommons(dot)law(dot)northwestern(dot)edu/cgi/viewcontent.cgi?article=6810&context=jclc

        I could go on and on, but I’ve provided enough unpaid emotional labour to you.

        • “Zoinks! It must be true then. And an Associated Press-GfK poll shows that 77 percent of American adults believe angels are real; this proves the existence of these ethereal beings.”

          What a bizarre response! What point were you trying to prove here? The author cited this study, not me. Your apparent dismissal of the study reinforces my argument, not yours.

          You then provide links to barely related journal articles, not curricula. Honestly, Is that really the best you can come up with?

          • ga gamba says

            I mentioned an opinion survey showing many people believe ridiculous things, which sometimes mainstream opinion is based. The author’s point is an opinion survey shows mainstream leftists have swallowed the over-egged ridiculousness of privilege theory hook, line, and sinker. Further, he states this idea is institutionalised, making it even more potent; moreso than angels that are only institutionalised by the church, an entity with little cultural capital. If we had university law schools and the judicial system embrace ethereal beings like they have embraced the phantom of white privilege this would be quite confounding if not disastrous.

            All of those articles are certainly about Critical Legal Studies (CLS) and its place in the academe. Further, some discuss classes, what’s covered, and the intent. For example, the piece published by the National Legal Guild covers:

            Intent: Critical race theorists expand the CLS critique by analyzing the role of law in legitimizing a regime of white supremacy and subordination of people of color, and seeking “not merely to understand the vexed bond between law and racial power but to change it.”

            Curriculum: Many schools create study groups that read CLS/CRT pieces and then meet to discuss the ideas and how they apply to or challenge their main coursework. Students and faculty can work
            together to choose readings, plan discussions, and create materials.
            The article includes a six semester syllabus used at Northeastern University as a template to be used at schools that don’t embrace CLS. It includes links to material, reading lists, and also a sample letter to write to administration asking for CLS.

            I’m very confident you didn’t read this or any other links because this one from the NLG is pro CLS. When I provide a list of links I include a variety of perspectives to deal with people like you who later claim the articles are “barely related.” Understand this: I gave you the advocates’ guidebook to create CLS and you didn’t recognise it.

            If you want different entire curriculum not from Northeastern you may contact another university law school. Georgetown has an alternate track for its law students called “Curriculum B, Section 3” which is based on Critical Law Theory. I’m sure they’ll be happy to provide you all that you want if you ask politely. And then you may not read that too.

  7. Mike Casdi says

    ‘Andrew Kelman is a writer of Scots-Canadian descent.’ Were you afraid that Kelman might be thought to be a Jewish name?

    • ga gamba says

      You certainly thought it. What does that say about you?

  8. Hmm, maybe(/certainly) I’m missing some context here, and I plan to make-up for that by further study, but superficially (that is, without layering-in all the leftism-vs-rightism partisanship/politics, which gets blood boiling too fast) I don’t see how anyone could disagree with such basic propositions (expressed above in this stream) as: (i) “Law is the worst of the bunch…. I had no idea how deep the corruption in law had gotten until last year. I have been talking to law students and professors, and it’s absolutely unbelievable.” (ii) “I’m sympathetic with a lot of the thrust of this article. There must be no favouritism under the law.”

    Case-in-point: On my website, I document a CURRENTLY ACTIVE case (my own) that demonstrates/proves beyond any shadow of doubt the pernicious corruption of the Federal Judiciary (1st Cir.). Which, despite being known to (literally) hundreds of members of the Legal Establishment (judges, lawyers, law profs, legal journalists/bloggers, etc.), all have IGNORED. As opposed to what the Legal Establishment SHOULD HAVE DONE, namely, shed “Brandeis Sunlight” (a.k.a. PUBLIC SCRUTINY) on the subject — which is, DENIAL OF THE RIGHT-TO-BE-HEARD.

    That is: the WHOLE LEGAL ESTABLISHMENT is “the worst of the bunch … it’s absolutely unbelievable.”

    IF YOU happen to be a member of the Legal Establishment (as currently instantiated in contemporary America), and can refute the claim I’ve just made (about the Legal Establishment silently accepting DENIAL OF THE RIGHT-TO-BE-HEARD without objection), please post your refutation here. (Hint: You can’t.)

    Otherwise: Accept it: You (the Legal Establishment) are a Part Of The Problem.

    — Walter Tuvell (PhD, MIT & U.Chicago, Math & CompSci — hence, “not-a-crank”)
    http://JudicialMisconduct.US (esp., …/CaseStudies/WETvIBM#smokinggun and environs)
    *** Contact me, publicly or privately (walt.tuvell@gmail.com). “Ask Me Anything.” ***

  9. With Held for Obvious Reasons says

    The Canadian judicial application form, which is available online, now has an ‘optional’ section on the first page that permits the applicant to identify themselves as one of the many preferred identity groups for applicants. (Needless to say, able-bodied white Christian male is not on the list.) Looking at the judicial appointments since the new application has come out, the government is going a great distance to promote the identity qualifications of our new judges. There is lots of copy on their ‘community organizing’ but little on their reputation as dull old lawyers.

    We also have a secretive judge’s school at which judges are taught the correct way to think, and a disciplinary tribinual to bring them into line, if they should err in thinking that ‘judicial independence’ means that they are independent enough to think on their own.

    Yes, Canada has developed the world’s most sophisticated judicial tyranny under the influence of Critical Legal Theory. And it’s grip on the nation is slowly tightening.

    I have practiced law before the courts in Canada for 30 years. I have seen it develop, incrementally but persistently. It is real.

  10. Tony says

    “Steve Bannon’s intolerant call-to-arms “Let them call you racists” is a plea to conservatives tempted by the plausibility that accusations of bigotry are increasingly politically motivated, or examples of partisan hypocrisy.”

    Personally, I was very grateful to Steve Bannon for saying that.

    The fear of being called a racist in public is paralyzing. There is no punishment or disadvantage for those who falsely label others racists.

    It leads one to self-censor. One does not question “white privilege” or the claim that people who are white need to be punished.

    I didn’t see a way for it to get better in the future, until I heard Bannon say that, and realized that voters are sick of it too, and Trump won partly because of that. The tide is turning, silently.

    There is much to dislike about Trump, but he’s fighting against the assault described in this article, and he’s appointing Supreme Court judges who will shape American law for decades to come.

    So there is hope for America.

    Unfortunately, it seems likely that Canada will show the world how awfully things go wrong when the postmodern neo-Marxists win.

    • SarahJ says

      Thank you, Tony. I was thinking the same thing. Name calling just shuts down discussion.

    • You seem like a thoroughly unpleasant person, like the writer of this article. Curious how a “classical liberal” rag like quillette attracts so many reactionaries.

    • augustine says

      Reality is often unpleasant, even more unpleasant than Trump himself. Those who accept this fact may reflect it in their personality and can seem to be “unpleasant” to utopian liberal types who are afraid their egalitarian narrative might be threatened if such “reactionaries” came out in force.

      I think many more traditionalists and conservatives will find themselves defending Classical Liberalism as it is increasingly savaged by the Left.

  11. AC Harper says

    If anyone should believe that they can’t be guilty of hate speech because they don’t use it then they should be aware that they could be the victim of ‘hate listening’. If some activist puts some wild interpretation on the most innocent phrase then your social and legal status is at risk.

    You could be found guilty of someone else’s preconceptions. The modern version of the early modern period witch trials, with all too many people electing themselves to be witch finders.

  12. The Student says

    “Are we now seriously suggesting that statistically, there are no longer any relative advantages afforded to certain ethnic groups?”

    How can it be proven that ethnicity is the source of the advantages? Looking at outcomes isn’t going to do it. There are simply too many variables to narrow it down to something like ethnicity.

    For example, what if race, gender, sexual orientation, or any other misc. intersectional category are correlated to life outcomes, but not determinant? What if the primary determining factors are the cumulative decisions made by individuals throughout their lives?

    If that’s the case, then one could then say that individuals have advantages/privileges that come with being provided a superior foundation for making decisions that lead to better outcomes, but it would also provide for a framework that makes good outcomes available to anyone who makes proper decisions.

    If it is decided that some people have advantages in life, what should a society/government do with that information? If someone has the advantage of growing up in a loving, 2 parent home, with high expectations, discipline, and also happens to be tall and good looking, should they be handicapped in order to “even things out” with others who have none of these things?

  13. This is the inquisition, Salem, the red guard and the satanic child abuse cases of the late 20th century all rolled up in one. Let’s not forget the new original sin of being born white male hetero. Soon they’ll be killing them in the cradle.

  14. Yeah, so following my earlier reading/comment (yesterday), I’ve done the back-filling/research I committed to doing, and filled-in the context I (admitted I) was missing. In particular (for others who may be in my situation), this stream is predicated on the previous Kelman/Peterson interview, at http://quillette.com/2018/01/27/walking-tightrope-chaos-order-interview-jordan-b-peterson/ (would’ve been nice if that interview had been cited in this stream).

    Anyway, I now see that this stream/forum is more interested in “theory” (or what some may call “mental masturbation,” though I wouldn’t), as opposed to “practice” (such as the actual/live case of mine that I referenced).

    This is not meant as a put-down, at all! For, after all, I can follow the discussion adequately, now having tracked-down the background you-all have that I didn’t yesterday. Rather, I’m now simply saying that I now understand that this stream/forum is more interested in a higher-plane of social intercourse than I first expected. But now I “get it.” Which is to say, I see now that my interjection of my real/live case-study is probably not a totally appropriate addition to this discussion.

    And so I apologize. I just wanted to clear this up. Now that I see I was missing context, I wanted to make it clear that I retract my attempt to inject my real-world example, seeing that it doesn’t fit well here. In other words: I want you to know I wasn’t intentionally “trolling,” it was just an accidental/temporary misunderstanding.

    So … carry on …

    — Walter Tuvell (PhD, MIT & U.Chicago, Math & CompSci — hence, “not-a-crank”)
    http://JudicialMisconduct.US (esp., …/CaseStudies/WETvIBM#smokinggun and environs)
    *** Contact me, publicly or privately (walt.tuvell@gmail.com). “Ask Me Anything.” ***

  15. Bill says

    While I agree with the lunacy that is Critical Legal Theory, I stipulate that there is a problem. The problem isn’t that laws are created to keep everyone down except for the white man….the distilled theme of the SJW/CLT crowd. My hypothesis is that the problem stems from valuation. Bear with me:

    The current stock market places valuation on revenue and no longer on profit. The result is companies taking losses year over year but stock price soars. CEOs choose actions based upon revenue generation to the point that companies will spend $100 to bring in $1 because that $1 of income has greater worth on how they are valued: stock price. No company/board/shareholders are going to fire a CEO so long as the stock price keeps going up even if it means that eventually it has to crash. Numerous examples out there.

    This applies to the judicial branch because too many positions are “valued” by conviction rate/arrest rate. Police officers get promoted to more lucrative positions on Drug/DUI task forces based upon DUI arrests, so they take advantage of the “they slurred and had glassy eyes” justification for arrest or the “any reason to stop so you can find MJ residue” which leads to profiling. Prosecutors are valued by conviction rates — and not necessarily conviction for the true crime. The result is they stack tons of charges and run up legal bills to get plea bargains for nuisance value. Again, you see this a lot in DUI cases where a very large # of DUI arrests are plead out to some reckless driving type charge. Why? Because it’s cheaper to plea to that than go to court for trial ($1500-2500 to plea out vs $5000 minimum to go to trial). So why is there a disparity in outcome, more minorities in prison or with records? Because they are more likely to just plea out. Not many can afford $25,000+ to be found innocent of DUI should they fight it like that Atlanta Hawks coach did. That is also why you have officials pleading out guilty to innocuous little charges in the Mueller investigation — 30 days and 20k fine vs being bankrupt when done being found not guilty (or still being bankrupt and having the 30 days and 20k fine if judged guilty).

    This still means CLT is bogus. Worse, it deflects legal minds from really looking at data and understanding the underlying problem to affect meaningful change. CLT proponents may shift from drug arrests to arrests of some other type (speeding? jaywalking? all those “arrest streams” of the 1960s) and the prosecutors to something else as well but that won’t substantially shift the % of minorities facing arrest or prison if the true root, that these are the valuations and the reason for the bias is population clustering.

  16. Michael Robb says

    In the first part of a lengthy comment, earlier on, by Luke It was stated that US Court justices serve for life. This is not correct.

    They can and must be removed upon impeachment for bad behavior.

    The suggestion that the Court is the least political of any of the three branches is not the same as saying the Court is not political.

    In fact the Court has a long historical record of acting to expand the reach and power of the central govt at the expense of the State and the the People.

  17. Simon says

    The “Commies” won a long time ago. The 1980s was the last period when Classical Liberalism still held sway in the Academy & the broader culture to any appreciable extent. Reading “Critical Legal Studies” texts from the 1980s, from before the victory of ‘Political Correctness’, you can see them plotting, but it was a better world then. The victory of evil in the 1990s was essentially complete, and we have only been spiralling downwards since then.

    Presumably the wheel will turn again one day, Political Correctness will lose power too one day, but there is no particular reason to believe the culture will then return to anything like the Enlightenment era of free enquiry and risk-free argument. They have taken us into a dark age.

  18. Lawprof says

    This would be more convincing if the author understood that the dominant school of thought in US legal academia over the last 40 years has been Law and Economics. Critical Legal Studies had some influence, but it’s dwarfed by L-and-E. To insist otherwise is to display deep ignorance of American law schools.

  19. Kurt says

    Derrick Bell, mentor of Barack Obama. But it’s Trump’s ideas we need to worry about.

  20. Debbie says

    Proponents of CLT use criticism of CLT as existential proof of the things they believe in.

    (That sentence could stand-in for about 1/3 of the article)

Comments are closed.