Beyond All Reason: The Radical Assault on Truth in American Law
by Daniel A. Farber and Suzanna Sherry
Oxford. 195 pp. $25.00

Dipping into a law review these days is an eye-opening experience. Next to a shrinking number of articles on such matters as regulating the Internet and expanding Fourth Amendment protections, one is likely to find all manner of strange stuff: a feminist law professor recounting in grisly detail her own reproductive experiences, another scholar telling about being treated impolitely at Benetton’s, and yet another advising racial minorities “to flee Enlightenment-based democracies like mad.”

What is going on here? For the past decade, our law schools have been the scene of a full-scale attack on Anglo-American law by a new generation of minority and female professors. These proponents of “critical-race studies” and feminist jurisprudence charge the legal tradition with endemic racism and sexism. As Daniel A. Farber and Suzanna Sherry, professors of law at the University Minnesota, show in their new book, this movement is not just another expression of grievance politics. Rather, it is a campaign against the very ideas that make possible the rule of law. However grotesquely, the movement has achieved a position of influence and even dominance within any number of the country’s most prestigious universities.

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The prime target of the critics, as Farber and Sherry document, is the notion that law’s defining virtue is rational argument and decision-making. For the race-and-gender theorists, rationality is a mere tool of white, male oppression, designed to silence and subordinate minorities and women. Rationality, on this view, provides the patina of legitimacy that “patriarchy” needs in order to maintain its rule.

The most heinous pretense of such rational neutrality, the new critics believe, can be found in our society’s vaunted standards of merit. In their eyes, merit as such does not exist; it is everywhere and always an artificial construct, devised by the powerful to preserve their status. Farber and Sherry quote Richard Delgado of the University of Colorado, for whom standards of merit are merely the way white people keep “their own deficiencies neatly hidden while assuring only people like them get in.”

To combat the domination of white, male reason, the critical race-and-gender theorists call on their colleagues to reject traditional case analysis and instead start telling “stories.” These are autobiographical and/or fictional accounts of encounters with discrimination, purporting to unmask the insidious aims lurking beneath the rational surface of the law. As a mode of discourse, storytelling is also frankly designed, as one advocate puts it, to advance the interests of “the outsider community,” and hence it is not open to criticism by members of the privileged class.

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As farber and Sherry note, among the more alarming qualities of storytelling is its breezy indifference to questions of fact. Patricia Williams of Columbia University, for example, has written that it does not matter whether, in a notorious incident from the late 1980’s, Tawana Brawley was actually raped by six white men outside Poughkeepsie, New York, or, as it subsequently emerged, she just made up the incident: either way, according to this professor of law, Brawley remains the “victim of some unspeakable crime.”

In addition to the assault this sort of thinking represents on the very basis of law, Farber and Sherry are alarmed by the anti-Semitic and anti-Asian implications of the attack on merit. As they observe, Jews and Asians are present in disproportionate numbers in universities and at the highest reaches of the economy, a fact for which critics who reject the notion of individual merit have no benign explanation. Storytelling hardly helps matters, with its insular, paranoid mode of thought and its resistance to rational criticism. Taken to its logical conclusion, the work of the critics leads to suggestions of conspiracy, an especially dangerous tendency, write Farber and Sherry, “given the prevalence of anti-Semitism in some minority communities.”

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And yet, powerful as is their case against the movement and its epigones, Farber and Sherry cannot, in the end, bring themselves to denounce it root and branch. To the contrary, even as they lay bare the outrages committed by race-and-gender studies, they offer inexplicable praise for its practitioners. Patricia Williams, perhaps the movement’s most incompetent writer and thinker, is characterized by them as “one of the most engaging and consistently interesting of the legal storytellers.” A gay legal scholar’s tales of “flamboyant sexuality” in the military are said to illustrate “the transformative power of narratives.” And they extol feminists and critical-race scholars for making “rich and interesting” contributions to the debate over affirmative action.

These judgments—impossible to square with the evidence presented by the authors themselves—inadvertently help to reveal just how it is that critical race-and-gender studies have gained their scandalous position of prominence in our universities. With their accommodationist reflexes honed by years of conditioning, Farber and Sherry have rendered themselves incapable of following the logic of their own analysis. Thus, even as they rightly contend that charges of widespread societal discrimination ring “increasingly hollow,” they feel compelled to declare that blacks need to “continue battling” widespread societal discrimination. While worrying over the attack on meritocracy, they dutifully register their objections to a “blind adherence to . . . merit.”

No less schizophrenic is their portrait of the contemporary university. Even as they document the myriad ways in which reason has been banished from the academy, they go on lauding universities as “enclaves of reason” committed to the “pursuit of truth.” Faithful liberals to the last, Farber and Sherry have yet to learn what defenders of the university’s traditional mission might have told them a generation ago: that in education, as in law, there is no midpoint between the claims of dispassionate reason and the demand for social upheaval.

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