When Theory Met Practice: Distributional Analysis in Critical Criminal Law Theorizing
Issue
W hen Theor y Met Practice: Distributional Analysis in Critical Criminal Law Theor izing
Aya Gruber 0 1
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1 University of Colorado Law School , USA
Recommended Citation Aya Gruber, When Th eory Met Practice: Distributional Analysis in Critical Criminal Law Th eorizing, 83 Fordham L. Rev. 3211 (2015). Available at: http://ir.lawnet.fordham.edu/flr/vol83/iss6/13
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Article 13
Aya Gruber*
INTRODUCTION
Modern critical race theorists, at least in the legal realm, often find
themselves torn between two venerable, but inconsistent, traditions. On the
one side is the critical legal studies paradigm, which incorporates an acute
skepticism of law, legal formalism, and rights constructs and instead seeks
to expose the deep structures (institutional, discursive, and social) of racial
and other hierarchies.1 On the other side is the civil rights framework,
which views racial justice through a lens of equal rights and the legal
frameworks erected to achieve them.2 The tensions between formalism and
anti-formalism, individualism and structuralism, and liberalism and
socialism manifest frequently in critical race theorizing.3 For example,
while critical race theory embraces identity-based rights frames, when such
frames prove constraining to substantive racial justice, theorists are eager to
open up the notion of identity to intersectional and identity performance
analyses.4 The same tensions play out more openly in feminist legal theory,
* Professor of Law, University of Colorado Law School. I would like to thank Mario
Barnes, Paul Butler, Ming Chen, Amy Cohen, Paul Gowder, Jennifer Hendricks, Marcus
Hunter, Angela Onwuachi-Willig, and Ahmed White for their helpful input. Special
gratitude is due to Kimani Paul-Emile for inviting me to collaborate in this important
symposium entitled Critical Race Theory and Empirical Methods Conference held at
Fordham University School of Law. For an overview of the symposium, see Kimani
PaulEmile, Foreword: Critical Race Theory and Empirical Methods Conference, 83 FORDHAM
L. REV. 2953 (2015).
where liberal feminism battles non-liberal feminisms, like cultural and
dominance feminism, over which camp has adequately captured the grand
narrative of women’s oppression.5 When considering the topic of this
symposium—how to incorporate empirical methodology into critical race
theory—one must bear in mind that critical race theory, itself, is
ideologically contested. Before resolving how empiricism might fit into the
critical race project, one must engage the issue of the fundamental nature of
critical race methodology itself. If the project is solely a liberal one,
empiricists should devote efforts to generating data useful in the context of
civil rights actions. If the project is a critical one, empiricists should
concentrate on demonstrating that the civil rights regime has failed to
produce substantive justice.
Focusing on criminal law and procedure in particular, this Article seeks
to expose various tensions in critical race theorizing and progressive
theorizing more broadly, offer some suggestions for a unifying
methodology of critical criminal law analysis, and discuss where empirical
study might fit into this new program. Progressive (critical race and
feminist) theorizing on criminal law is not only subject to the competing
frames of critique and formalism, it also exists within an overarching
American criminal law culture that can eclipse both concerns over rights
violations and structural injustice. The U.S penal system has become a
“peculiar institution” and a defining governance structure of the American
state.6 It boasts specific features, such as being driven by spectacular
publicized criminal acts, its massive size, its strong racial skew, and its
unrelenting political popularity.7 Criminal law theorizing in the United
States is also peculiar. Much of criminal law discourse, it seems, is subject
to a type of ideological capture in which it is natural and typical to assume
that criminalization is a valid, if not preferred, solution to social
dysfunction.8 Thus, while there are a diversity of theories about just
criminal liability and punishment, most U.S. criminal legal scholarship is
about identifying what is and is not a wrong and proposing ways to address
those wrongs through punitive measures.
5. See, e.g., Catharine A. MacKinnon, Difference and Dominance: On Sex
Discrimination, in CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON
LIFE AND LAW 32–33 (1987); see also Aya Gruber, Neofeminism, 50 HOUS. L. REV. 1325,
1331–44 (2013).
6. “Peculiar institution” is a term developed to describe the uniqueness of the American
institution of slavery. In recent times, (...truncated)