Subject unrest.

• Author: Culp, Jr., Jerome McCristal
• Position: Symposium on 'Pervasive Prejudice?' by Ian Ayres and 'Crossroads, Directions, and a New Critical Race Theory' by Francisco Valdes, Jerome McCristal Culp and Angela P. Harris

PERVASIVE PREJUDICE? UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION. By Ian Ayres. ** Chicago: University of Chicago Press, 2001. 433 pp. + xi.

CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY. Edited by Francisco Valdes, ([dagger]) Jerome McCristal Culp ([double dagger]) & Angela P. Harris. ([section]) Philadelphia: Temple University Press, 2002. 414 pp. + xxi.

1. THE PROBLEM OF THE SUBJECT: AN "OBJECTIVE" PERSPECTIVE

   More than a decade ago--as the project of critical race theory was getting underway--Pierre Schlag remarked,

   Sometimes it seems as if there is only one story in American legal thought and only one problem. The story is the story of formalism and the problem is the problem of the subject. The story of formalism is that it never deals with the problem of the subject. The problem of the subject is that it's never been part of the story. (2) Considered together, our books and the four reviews of them collected here call attention to four aspects of the notorious problem of the subject--a problem that remains in not-so-quiet dispute in the legal academy. They also attest to the powerful lure of what Schlag calls the story of formalism, and whose analysis we alter to examine a prevalent form of liberalism.

   By "subject unrest," we first mean to mark the struggle between accounts of subordination that first brought critical race theory into being. What is the proper subject of analysis--"discrimination" or "subordination?" Professor Ian Ayres, whose book is, despite its depth, intellectual breadth, and clarity, very much in the vein of traditional law and economics, takes "discrimination" as its object; our book concerns the subject of subordination.

   Much of economic theory is driven by the conviction that discrimination is impossible in the long run. Ayres, however, is not blinded by the normative imperatives of economic theory; he allows the facts to carry him wherever they will. As a result, his book represents the part of law and economics that is most politically progressive--a progressivity with a hard-edged passion for justice. Indeed, there is much agreement between Ayres and the critical race theory presented in our volume. Both are dissatisfied with traditional models of discrimination, finding them wanting in descriptions of the reality of American life. Yet, Ayres cannot quite join critical race theory in changing the subject from discrimination to subordination. He accepts the structure of the market as a given--outside our control and therefore not part of the analysis. Critical race theory, in contrast, is founded on the proposition that white supremacy pervades society, that it is intertwined with the very institutions of family, market, and state that shape social life. Ayres's "discrimination" is ultimately separable from "the market"; critical race theory's "subordination" is integral to it. As we will suggest later, this difference ultimately separates critical race theory from the liberal antidiscrimination project.

   By "subject unrest," we mean to refer, secondly, to the tension between first-person and third-person accounts of the world--between the "objective" and the "subjective." The subject of Ayres's book is the traditional disinterested neutral observer, a scientist outside the vagaries of racial, gender, class, and sexual subordination. The questions presented by scientific observation are not dependent on who is doing the observing. For critical race theory, however--as the essays in our volume by Farley, Ortiz and Elrod, Monture-Angus, Ross, and Montoya suggest--questions, perceptions, and priorities change drastically in the realm of subordination as we shift in perspective from observer to observed. (3) These essays and others illustrate the passion, insight, and theoretical moves enabled by taking a subject position that is implicated in, rather than distanced from, the subject of analysis.

   To acknowledge one's participation in systems of subordination is to recognize the story of the subject as a story of subjection. The traditional liberal model of discrimination, even the progressive version put forward by Ian Ayres, requires that the people subject to subordination buy into the system's goals and its assumptions. Critical race theory, by recognizing this demand for obedience, simultaneously suggests that it is possible for a subject to reject that demand. Certainly Professor Ayres pauses to ask whether he might learn something from the subjects of discrimination, but he cannot change his (or his coauthor's) role as outside observer. In this sense, though perhaps as a reluctant monarch, Ayres remains sovereign over his analysis.

   Our third suggested meaning for "subject unrest" is the problem of identity. What is the being that is subjected, and what would it mean to end its subjection? Race and gender identities are just givens in Ayres's world and in much of traditional legal scholarship. Ayres's book looks at the role of gender and race in constructing some market discrimination, but Ayres does not problematize identity as such. Critical race theory, in contrast, draws from a poststructuralist tradition that takes identity itself as a subject, and from a series of political movements that have sought to create new subjects.

   At least two kinds of theoretical objections have been raised to the project of "identity politics." One, usually identified with the political right, is that racial, gendered, and queer identities are inferior to the identity of the universal, unmarked individual. (4) In this view, such subjected identities are an impediment to the universal equality that we all are entitled to and seek. (5) Recently, scholars on the political left have made a different attack on marked identities. Drawing on Nietzsche, they argue that the dangerous lure of "identity politics" is the foreclosure of the subject's own freedom--"its impulse to inscribe in the law and in other political registers its historical and present pain rather than conjure an imagined future of power to make itself." (6) In this view, the desire for justice is an illegitimate effort to take "the moralizing revenge of the powerless"; (7) this desire and the effort to satiate it with governmental action must therefore be viewed with at least a certain amount of trepidation. From both right and left, then, politicized identities are problematic because they offer impediments to the project of transcendence.

   Critical race theory, at its best, attempts to resist the right's and left's demands that the subject transcend the conditions of its making while simultaneously resisting the desire, present within some versions of identity politics, to slip off the yoke of subjection and stand revealed as an authentic and pure self. This is subject unrest at the most basic level: the struggle against what William Connolly calls "the drive to evil installed in the imagination of wholeness," whether that wholeness represents authenticity or transcendence. (8) Critical race theory's understanding of the subject resists the ideal of wholeness; it also refuses to disclaim engagement with the state and other institutional sites of power, problematic though that power may be.

   Finally, as Moran, Case, and Freshman note in their reviews, our book and Ayres's raise the questions: How does the subject of subordination understand when discrimination has occurred, and what is to be done about it? (9) For critical race theory, this fourth aspect of the problem of the subject involves us with the micropolitics of subjection, the problem of subjectivity, and the speaking I. This problem is our next subject.

2. THE PROBLEM OF THE SUBJECT: A "SUBJECTIVE" PERSPECTIVE

   "They're trying to kill me," Yossarian told him calmly. "No one's trying to kill you," Clevinger cried. "Then why are they shooting at me?" Yossarian asked. "They're shooting at everyone," Clevinger answered. "They're trying to kill everyone." "Who's they?" he wanted to know. "Who, specifically do you think is trying to murder you?" "Every one of them," Yossarian told him. "Every one of whom?" "Every one of whom do you think?" "I haven't any idea." "Then how do you know they aren't?" Yossarian had proof, because strangers he didn't know shot at him with cannons every time he flew up into the air to drop bombs on them.... (10) I (Jerome) am a dialysis patient. I am the subject at stake in the medical treatments I face every week. The medical literature describes my condition as End Stage Renal Disease (ESRD). If I had lived in the first half of the last century instead of the first half of this one, I would now be dead. (11) As an ESRD patient, I am a too-frequent consumer of medical services (too frequent both for me and for the insurance companies who would like to have all ESRD patients eliminated). In the first year after being diagnosed as an ESRD patient, for example, I had fourteen operations (primarily outpatient procedures). (12) When a panel was scheduled for the Law and Society Association's annual meeting in Vancouver in late spring 2002 to discuss the reviews of our books, I was not sure I would be there; I had hoped to be off the transplant list and recuperating from a kidney transplant rather than talking about Ian Ayres's examination of prejudice in transplant rules. It was strange to be in the transplantation process as we objectively spoke of prejudice in the process of kidney transplants.

   I bore you with the petty details of my medical history for a reason. How do I, the subject of the decisions, decide whether my treatment is fair and unaffected by my race or income? One would hope that the law and legal scholarship of antidiscrimination might by now provide an answer; that it does not is one of the chief failures of the modern legal system. Yet, evidence suggests that racial disparities in health care treatment are rampant. For example, a recent summary of the evidence of discrimination in medical care made...