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Saturday Morning Coffee Break | Main | Saturday Gardening and Puttering Thread, December 5, 2020 [KT]
December 05, 2020

Critical Legal Theory and Seattle [KT]


Remember CHAZ/CHOP?

Critical Race Theory has received a lot of attention recently, especially with the President's executive orders aimed at ending its promotion in the federal government, in the military and among federal contractors. The opposition to Critical Race Theory Training may have really gotten started in Seattle, though. It was there that Christopher Rufo pointed out that this training entailed government-sponsored segregation.

But before Critical Race Theory, there was Critical Legal Theory. Again, Christopher Rufo provides a recent example from Seattle:

In October, the Seattle City Council floated legislation to provide an exemption from prosecution for misdemeanor crimes for any citizen who suffers from poverty, homelessness, addiction, or mental illness.

Under the proposed ordinance, courts would have to dismiss all so-called "crimes of poverty" -- which, according to the city's former public-safety advisor, would cover more than 90 percent of all misdemeanor cases citywide. In effect, the legislation would create a new class of "untouchables," protected from consequences by the city's powerbrokers.

This is the latest and most brazen effort in the city's campaign to establish what might be called a "reverse hierarchy of oppression." The underlying theory is that society has condemned the lower class to a life of poverty and stigma, which leads to addiction, madness, and indigence.

The poor, in the logic of Seattle's progressive elites, are thus forced to commit crimes -- including violent crimes -- to secure their very existence. Therefore, as society is the perpetrator of this inequality, the crimes of the poor must be forgiven. The crimes are transformed into an expression of social justice.

This is almost unbelievable:

Lisa Herbold, the city councilwoman who proposed the legislation, must have known that it would be controversial. Though she chairs the council's Public Safety Committee, she attempted to launder the ordinance through the budgetary process, under the justification that it would reduce the cost of court proceedings and jail usage. During a five-minute presentation buried in an hours-long budget hearing, Herbold framed her argument in social justice terms . . . Neither questions from other councilmembers nor public comment was permitted.

Fortunately, a local watchdog organization flagged the proposal and raised an alarm in the media. . .

This proposal would probably save the city money when businesses and residents left, too.

Andrew Kelman raised an earlier alarm about where Critical Race Theory was taking us in a 2018 piece in Quillette, Beyond All Warnings: The Radical Assault on Truth in the Law. After the summer riots, CHAZ/CHOP and now the proposed changes in treatment of misdemeanors in Seattle, this piece seemed especially applicable to the city.

"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.

This piece covers a lot of territory, and I think it is worth careful consideration. A few short excerpts:

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. . .
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. . . .

You may recognize the stories of some of the brave, embattled people who have pushed back, highlighted in this piece. There is one dig at Steve Bannon for saying, "Let them call you racists".

The piece ends:

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.

Are there enough conservatives and classical liberals left to do this?

You can compare Kelman's piece with the Wiki on critical legal studies, which is criticized for being short on citations.

Quillette also published a reply to Kelman's piece in which the author notes that there is more variation in the theories of proponents of Critical Legal Theory than Kelman suggests, and that:

The challenge of legal indeterminancy didn't actually originate in critical legal theory. Legal realists such as Justices Oliver Wendell Holmes and Jerome Frank noted that "the life of the law is not logic: it is experience."

I am not sure this helps the people of Seattle much.

UPDATE: In November, the King County Council approved a different, but related, plan: Instead of facing a judge, juveniles and adults accused of a first-time, non-violent felony offense will be offered an alternative where a non-profit community panel will decide how the accused person can be held accountable for their crime.

Wonder if their deliberations will be secret?

You might want read from the top of the thread where I found this, too.


What happened to Seattle?

OK, something seasonal:

Hope you have a good weekend.

This is the Thread before the Gardening Thread

Serving your mid-day open thread needs

digg this
posted by Open Blogger at 11:20 AM

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