When Theory Met Practice: Distributional Analysis in Critical Criminal Law Theorizing

Fordham Law Review, Apr 2015

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. 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. 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. 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.

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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 0 Thi s Symposium is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact 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 - 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)


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Aya Gruber. When Theory Met Practice: Distributional Analysis in Critical Criminal Law Theorizing, Fordham Law Review, 2015, Volume 83, Issue 6,