Summary
Blacks and other minorities should take a pragmatic or instrumentalist approach to the rule of law, avoiding the extremes of despair or optimism. Minorities should act according to their self-interest rather than on the basis of idealism and recognize that the law, like other social institutions, may not always serve their interests. In addition, seeking a convergence of interests with the dominant group may cause minority groups to reject potential leaders who seem too radical. The pessimism of critical race theorists such as Derrick Bell helps to correct false hope, but provides too little pragmatic guidance as to what should be done.
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Extract
Rodrigo's ninth chronicle: race, legal instrumentalism, and the rule of law.
INTRODUCTION
I was sitting dejectedly in the airport waiting lounge, cursing myself for having taken a winter flight that changed planes in a northern city, when I heard a familiar voice from behind me. "Professor, is it you?" I turned. "Rodrigo, for goodness sake! What are you doing here?" A foreign-educated LL.M. student at the famous university across town, Rodrigo had sought me out for career advice nearly a year ago on a return trip to the States.(1) The son of an African-American serviceman and an Italian mother, the brilliant and audacious young scholar saw the United States with new eyes. We had become friends, discussing law and economics, civil rights, essentialism, black crime, and many other subjects over the course of a year.(2) "I'm just getting back from job interviews. I think I told you I'm on the teaching market. I did four interviews in seven days."(3) "You must be exhausted," I commiserated. "Oh, it wasn't so bad," my irrepressible protege replied, "although it went by in something of a blur. I'm afraid I'll get a telephone call from Professor Jones and not remember what school he's from." "Tell him you enjoyed meeting his colleagues. He may mention a name and that'll ring a bell. The older I get the more trouble I have remembering students' names. But I don't have your excuse--I have them all term long." "Your students like you, Professor. If you forget an occasional name it doesn't matter. They know you care about them, just as I know you care about me."(4) "Enough flattery," I said. "Tell me about your trip. My flight was canceled. I've got nearly three hours before the next one.(5) I was just sitting here trying to build up courage to open my briefcase, but I'd much rather talk with you." "I've got plenty of time. I'm arriving early, having caught a standby flight in the nick of time from Chicago. Giannina's(6) not expecting me till this evening. Can I buy you a drink or cup of coffee?" "Maybe in a minute. Sit down," I said, indicating the empty seat next to me. "Tell me about your trip." "Well, as I mentioned, I interviewed at four law schools, all in the Midwest. Next week I'm hitting the Northeast--two in four days. But something interesting happened at the one I left just this morning. If you have a minute, I'd love to tell you about it." "Please do. As I've told you more than once, I get at least as much out of our conversations as you do. What happened?" "I was having one of those small group interviews. Four professors and I were meeting in the office of one of them. It was my last one before going to meet the students and the Dean. It really got me going--I've done nothing but think about it the whole flight. It's providential that I met you here. I would have called you in a day or two to talk." "Was it something that came up during your job talk?" "Only tangentially. I spoke about the relation of laissez-faire economics and the plight of the black poor, an aspect of my thesis.(7) One professor apparently got the idea that I'm interested in Critical Race Theory, which of course I am, even though my talk didn't touch on that at all. So he had this question ready for me when we met later in the office." "What was it? The usual one about affirmative action?" "No, not at all. It was about racial realism,(8) but with a pedagogical twist. You're familiar with the critique of Derrick Bell's work as being too despairing?" "I am. A number of authors have taken Bell to task for what they consider his undue pessimism, notably Alan Freeman, an otherwise friendly writer, in a review of Bell's first casebook.(9) A few of us have even questioned whether preaching gloom and doom is wise, particularly if it ends up discouraging students from going into civil rights or public interest practice.(10) How did you answer the question?" "I pointed out that Bell might well be right, and if so, there's little to be gained by holding on to false hopes. But it turned out the professor was making a much more subtle 'as if' argument, questioning whether, even if we thought the condition of Blacks and other minorities of color is unlikely to improve, that is, enjoying only periodic peaks of progress followed by regression,(11) we ought to act as though we believed the opposite. Otherwise we'd be paralyzed. There would be no reason to struggle." "That is a more powerful version," I agreed. "It reminds me of recent writing about myths and the way society organizes itself around certain beliefs and credos.(12)...See the full content of this document
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