Crossroads, Directions, and a New Critical Race Theory.

• Author: Carbado, Devon W.
• Position: Book Review

Crossroads, Directions, and a New Critical Race Theory. Edited by Francisco Valdes, * Jerome McCristal Culp, ** and Angela P. Harris. *** Philadelphia: Temple University Press, 2002. Pp. 528. $79.50 (cloth), $29.95 (paper).

1. INTRODUCTION: TOWARDS A MICRODYNAMICS OF RACE

   Legal academics often perceive law and economics (L&E) and critical race theory (CRT) as oppositional discourses. Part of this has to do with the currency of the following caricatures:

   L&E is the methodological means by which conservative law professors advance their ideological interests. The approach is status-quo-oriented and indifferent (if not hostile) to the concerns of people of color and the poor. Because L&E is centered on notions of economic efficiency, it does not accommodate inquiries into social justice and fairness. Because the models underlying L&E proposals are characterized by assumptions about rational actors and perfect markets, L&E policy prescriptions endorse market-based solutions to social problems and argue against government intervention. L&E scholarship is more concerned with protecting institutions from legal and governmental surveillance than with protecting people of color from racism. The political effect of L&E is to entrench and obfuscate racial and class hierarchies. CRT is the methodological means by which radical faculty of color (and especially black faculty) advance their ideological interests. The approach is invested in finding discrimination and characterizes even the most progressive institutional practices as racist. Much of this literature takes the form of storytelling, and almost all of this storytelling is bad. CRT scholars believe neither in merit nor in truth. For them, everything--including (and perhaps especially) scholarship--is and should be about race and politics. Central to CRT is the notion that racism is endemic to American society. Thus, CRT fails to take seriously notions of agency and social responsibility. CRT is, for example, more concerned with protecting criminals from punishment than with protecting society from crime. The models underlying CRT's policy prescriptions are characterized by assumptions about racial actors and racial markets. Consequently, these proposals endorse governmental regulation of the market and argue against free-market mechanisms to ameliorate social problems. The political effect of CRT is preferential treatment and social welfare programs for people of color--particularly black people. It would be neither difficult nor interesting to disprove either caricature. Yet both have considerable intellectual and institutional purchase, so much so that they have helped to balkanize L&E and CRT scholarship. L&E and CRT scholars rarely pool their insights to work collaboratively. This was frustrating to the late David Charny, who felt that the inquiry into the racial dynamics of the modern workplace could benefit from combining insights from both fields. (1)

   Both sides are at fault. A deficiency on the L&E side is the failure of its proponents to conceptualize racial discrimination in the workplace as a dialectical process within which race both shapes, and is shaped by, workplace culture. For the most part, L&E scholars view race as an independent variable--something that is fixed, static, and easily measurable--and they pay little attention to the internal dynamics of the workplace as a determinant of race. (2) L&E scholarship on discrimination has focused more on the market--a focus, which, as David saw it, obscured the fact that much discrimination was taking place in the workplace. Central to David's thinking was the idea that in order to understand the operation of discrimination, one has to understand not only market forces as market forces, but also how those forces interact with the internal operation of the workplace. Workplaces are not structurally monolithic, and certain institutional arrangements within the workplace are more likely to produce problematic racial outcomes than others. For example, racial stereotypes may have different racial effects in a workplace where compensation is tied to output than in a workplace where compensation is based on peer or supervisor evaluations.

   Nor are workplace cultures static. Like the market, they change. They evolve in response to, among other things, changing commitments to, and conceptions of, race. If, for example, certain workplace structures are less conducive to the inclusion of racial minorities (and assuming that employers want diverse workforces), those structures likely will give way to institutional arrangements that are more conducive to integration. In turn, these institutional changes will shape how the employer and the employees understand race and practice racial interactions. Because L&E scholars largely treat race as preexisting and fixed, and because they focus more on markets than on workplaces, L&E scholarship does not reflect an understanding of the dialectic between racial identity and workplace culture. As we will show, understanding this relationship is critical to grappling with the complexities of contemporary workplace discrimination.

   On CRT's side, the deficiency is twofold. First, while CRT is committed to the idea of race as a social construction--that is, the idea that race evolves as a function of historical, social, political, and economic contexts (3)--the literature has paid little attention to the workplace as a site of racial construction. In part, this is because much of CRT's effort to combat racial discrimination in the workplace has focused on eliminating formal and informal racial barriers to entry. Given the particular history of race discrimination in America, this is not surprising. Blacks experienced the politics of racial segregation as a "closed door" to much of the labor market (and especially the professional labor market). Thus, civil rights efforts--in both practice and theory--focused on opening that door. There was no need to think about the operation of race within professional workplaces because so few nonwhites had access to professional jobs.

   Things have changed. As a matter of formal law, blacks and other people of color are no longer barred from professional jobs. Evolving laws and social norms have opened the door, particularly for "qualified people of color." (4) How widely this door has opened is the subject of debate. But for present purposes, it is enough to observe that, over the past thirty years, changes in our laws and norms have increased the representation of people of color in professional workplaces. Central to our Review is the idea that the diversification of the professional workplace renders these workplaces important "social contexts" for thinking about racial formation--that is to say, the social construction of race.

   A second deficiency is that CRT articulates its conception of race as a social construction at the macro level, focusing primarily on legal and sociopolitical processes. (5) It has not paid attention to the interpersonal ways in which race is produced. (6) That is, CRT often ignores the racial productivity of the "choices" people of color make about how to present themselves as racialized persons. (7) As a general matter, CRT's race-as-asocial-construction thesis does not include an analysis of the race-producing practices reflected in the daily negotiations people of color perform in an attempt to shape how (especially white) people interpret their nonwhite identities. (8) For example, a Latina may decide not to speak Spanish at work, she may decide to "hold her tongue," or she may refrain from socializing with other Latina workers. (9) These are all race-constructing choices: How a Latina exercises them will inform how her employer and fellow employees experience her as a Latina.

   A CRT/L&E engagement helps to cure some of the deficiencies in both fields. For example, CRT's notion of race as a social construction can help L&E scholars move to a dynamic conception of race, and L&E's focus on the incentive effects of legal and institutional (norm-based) constraints can help CRT scholars analyze the ways in which the pressures and constraints of the workplace shape both employer and employee behavior. In short, a CRT/L&E joint venture could advance our thinking about how, in the shadow of law, workplace structures and norms affect racial identity--and vice versa.

   The argument for a collaboration between economics and CRT (and feminist theory and gay and lesbian legal studies) was made with force in a 1996 essay by Ed Rubin. (10) Rubin argued that the common critical approach to institutional analysis shared by L&E and CRT--both fields reject claims about the neutrality and objectivity of legal rules, albeit for different reasons--would, if combined, produce not only an exciting new methodology for legal inquiry, but one with potential to succeed the Legal Process school as a unifying discourse in legal academia. In the six years since the piece was published, however, there has been little collaborative work between CRT and L&E. (11) If anything, there has been increased antagonism. (12)

   This makes little sense. Like Rubin, we believe that L&E and CRT should engage each other and that the results of this engagement would be fruitful. Rubin demonstrated the benefits of an L&E/CRT collaboration by performing a meta-synthesis of the theoretical commitments and intellectual histories of both schools of thought. (13) We take a different tack, identifying a specific problem that can function as a site for L&E/CRT collaboration. Articulated in the form of a question, the problem is this: How are modern employers and employees likely to "manage" workplace racial diversity? Part of the answer has to do with assimilation, a central theme in CRT; and part of the answer has to do with efficiency, a central theme in L&E. Both ideas--assimilation and efficiency--combine to tell a story about workplace discrimination...