Toward a Black Legal Scholarship: Race and Original Understandings

TOWARD A BLACK LEGAL SCHOLARSHIP: RACE AND ORIGINAL UNDERSTANDINGS JEROME MCCRISTAL CULP, JR.* PROLOGUE [FIRST WHITE PROFESSIONAL]: I mean-I didn't want to be like Ernie Banks. I wanted to be Ernie Banks. [SECOND WHITE PROFESSIONAL]: Mr. Cub. [FIRST WHITE PROFESSIONAL]: And, it never really dawned on me that he was black you know? [SECOND WHITE PROFESSIONAL]: Wrist hitter. [FIRST WHITE PROFESSIONAL]: I was, you know, seven years old. And he was just Ernie Banks. He was my hero. [SECOND WHITE PROFESSIONAL]: All in the wrists. [FIRST WHITE PROFESSIONAL]: There weren't any black people in my town. At least I don't think there were. [SECOND WHITE PROFESSIONAL]: Mister Cub. [FIRST WHITE PROFESSIONAL]: Is it eight o'clock? Jeez, will you look at that. This is really something, huh? Wander in here off the street. I mean if people would just sit down and talk like this more often. [SECOND WHITE PROFESSIONAL]: Communication. That's what it's all about. [BROTHER FROM ANOTHER PLANET: No response.] * Professor of Law and Director of the John M. Olin Program in Law and Economics, Duke University School of Law. A version of this Article was prepared while I was the MacArthur Distinguished Scholar at the Joint Center for Political Studies, Washington, D.C., and is part of J. Culp, Rights Due Respect: The Economics of the Legal Regulation of Employment Decisions (unpublished manuscript). The opinions expressed are my own and do not necessarily represent the views of the Joint Center or the MacArthur Foundation which provided support for this research. This Article was presented to the Midwest Law Professors of Color on February 10, 1990, and I benefited from the comments made at that conference on this paper by Norman Amaker, Robin Baird, Linda Greene, Jim Jones, Joe Knight, Beverly Moran, and Leland Ware. I also would like to thank my colleagues for their helpful comments-particularly Kate Bartlett, Walter Dellinger, David Lange, H. Jefferson Powell, Christopher Schroeder, and John Weistart. In addition, in the Fall of 1989 I taught a course entitled "Black Legal Scholarship" as a Visiting Professor of Law at the University of Michigan School of Law and this Article is better due to criticism of some of the ideas in that forum. Finally, I would like to dedicate this Article to the memory of Clarence Clyde Ferguson whose example as scholar, diplomat, and teacher has been an inspiration to me. Thanks also to my research assistants, Gretchen Carr6 Nelli, Erika Keller, Ben Reiss, and Jason Kopelow. DUKE LAW JOURNAL [Vol. 1991:39 Conversation of two white professionals lost in Harlem with a black mute alien from another planet.' I. INTRODUCTION: AN AFRICAN-AMERICAN MOMENT IN THE LEGAL ACADEMY There are moments when obscure events and chance historical eddies come together for an instant, with startling and important results. Such a moment occurred when thirteen insignificant colonies sent unknown farmers and businessmen to Philadelphia-delegates who impu- dently signed a declaration of independence. Ever since that time the world has had to live with the innocence, arrogance, and the efforts of those people. Fannie Lou Hamer's refusal on behalf of the Mississippi Freedom Democratic Party to take token black seats at the Democratic National Convention in 1964, even though all the black people of Mississippi were tired and needed rest, is another of those occasions. For the legal academy, this is such a moment in history, an African-American Moment, when different and blacker voices will speak new words and remake old legal doctrines. 2 Black scholars will demand justice with 1. BROTHER FROM ANOTHER PLANET (John Sayles, A-Train Films 1983) (The tale of a black mute alien from another planet who lands on Ellis Island and tries to survive in New York City. He discovers love and the power of brotherhood and observes the condition of black people in a racist society.). This Article is about opening a dialogue between white and black colleagues. The Prologue suggests some of the difficulties that need to be avoided if such a dialogue is to take place. In contrast, the Epilogue is an example of a positive form of dialogue. 2. I should describe at the beginning of this Article the relationship between Black Legal Scholarship and Critical Race Theory. A small but growing number of scholars of color have started to criticize and develop a perspective on the law that is conscious of racial and gender concerns. I have learned much from scholars of color in this group. To name just a few people from whom I have learned: Derrick Bell, John Calmore, Paulette Caldwell, Kimberl6 Crenshaw, Harlon Dalton, Peggy Davis, Richard Delgado, Linda Greene, Neil Gotanda, Lani Guinier, Angela Harris, Charles Lawrence, Mari Matsuda, john powell, Gerald Torres, Patricia Williams, and Robert Williams. I consciously chose the notion of "Black Legal Scholarship" to focus on issues of being black in American law and society that are different from, if often similar to, the problems that are faced by other people of color in society and sometimes by women. I did not mean to preclude the discussion of nonblack people of color or to presume to claim some priority of status in the world of color for black people, but I did mean to emphasize-in a way that many often do not-that being black is different from other ways of being in our society and legal system. I hope this Article will spur the growth and development of scholarship of color, of critical race theory in its broadest terms, and any and all attempts to look at race and color in their broadest senses by white scholars and scholars of color. I believe there are at least some important lessons to be learned from doing so by not simply treating all people of color the same. In particular, the notion of "other" embedded in the concept of the "minority" permits the definition of nonwhite in white terms. It is this account of "other" that I reject by claiming to be black. See ANTHONY BARTHELEMY, BLACK FACE, MALIGNED RACE (1987) (noting that the notion of color has a broad meaning in English literary settings; for example, the term "moor" is used in English literature to mean anyone who was not Christian, European, or Jewish and includes Asians, Native Americans, Africans, Arabs, and all muslims-accordingly a moor is "not a European Christian." Id. at 7, 10-17). Vol. 1991:39] TOWARD A BLACK LEGAL SCHOLARSHIP 41 equality and nonblack scholars will understand. Such moments, whether mere seconds or whole decades, sweep away the unprepared and the recalcitrant with the necessity of the instant. Those in the legal academy who cannot speak the language of understanding will be relegated to the status of historical lepers alongside of Tory Americans and Old South Democrats. Legal scholarship remains one of the last vestiges of white supremacy in civilized intellectual circles. Literature, art, and occasion- ally even politics have been changed significantly by leg (...truncated)