Introducing ClassCrits: Rejecting Class-Blindness, A Critical Legal Analysis of Economic Inequity

In 2007, two workshops at the University at Buffalo launched a project bringing together legal scholars interested in exploring the relationship between law and economic inequality. This article provides an overview of the workshops’ key understandings and discussions. The essay suggests that these understandings, informed by critical legal scholarship, constituted a set of shared assumptions among the participants and informed the groups’ rejection of class blindness, a society-wide blindness to the existence and use of economic power. Discussing some of the functional similarities of gender, race and class blindness, the article argues that feminist and critical race scholars’ critiques of gender and color blindness, in particular, likely further informed the workshop participants’ rejection of class blindness and their intuition that class blindness aids in maintaining and perpetuating economic inequality. Although the workshop groups did not definitively define class, this essay further suggests that the participants established the directions in which the analysis might go. That is, they began the work of framing a classcrit analysis. Such an analysis employs the outlook and tools of critical thought, utilizes a relational understanding of class and economic inequality, and applies an intersectional approach. Ultimately, the consideration of class relations at the time of the discussions seemed a bit strange to some, given that class analyses in the American legal context were viewed - at best - as inapplicable to the U.S., but in any event, discredited. However, such a consideration shortly thereafter seemed far less preposterous, given the near collapse of the financial market in the middle of the 2008 U.S. Presidential election, a collapse and its aftermath that have since revealed in full relief the privileges and excesses of economic power

Reflections on Critical Race Theory in a Time of Backlash

Reviewing my article on critical race theory (CRT), written over fifteen years ago, this Article revisits CRT and its fortunes in this moment of backlash. CRT has become a principal target for erasure in a raging polit- ical campaign that seeks to suppress discussions about racial and gender justice. It does so, in part, by using law to compel the miseducation of the American populace, including its children. The campaign suggests, in the case of race, that efforts to promote racial justice, combat racism, and employ race as an analytical lens—antiracism—is racist. That is, the right- wing argument has shifted from the colorblind assertion that race is irrel- evant, to one in which consideration of race is illegitimate. It is not simply illegitimate because it is irrelevant, but because, incredulously, it is racist and racism no longer exists in America, if it ever did. I argue this miseducation campaign arose to divert attention from the demands for a racial reckoning triggered by the police murder of Mr. George Floyd. This reckoning portended consolidation of a multiracial, multiethnic democratic majority and progress in racial justice, among other changes; changes apparently perceived as threatening to the privi- leged status of whiteness in the United States’ racial hierarchy. As such, I contend, the campaign’s goals are not merely to silence the voices of those seeking justice and therefore change that includes fuller and truer accounts of American history. Rather, it seeks to control, or if necessary, destroy, the educational and other institutions that house justice voices and to re- move the people representing these voices from participation in institutions and other public spaces. I note that the campaign also supports and facilitates efforts to privatize education. In other words, in contextualizing the campaign, I suggest that it is part of a broader, larger, and multifaceted antidemocratic backlash movement that reactionary forces are advancing to limit access to voting, education, healthcare, and processes that might protect the economic interests of people of color, poor people, nonbinary people, and women, among others. In short, this broader movement seeks to undermine democracy and re-impose—dare I say—elite white male minority rule. The conservative majority on the Supreme Court, I suggest, is facilitating this effort

ClassCrits Time?: Building Institutions, Building Frameworks

This essay chronicles the development of ClassCrits, an organization of US legal scholars that seeks to ground economic analyses in progressive legal jurisprudence. Today, ClassCrits ideas may resonate with a broader audience. I attribute this institutional success partly to ClassCrits’ commitment to: an interdisciplinary “big tent” openness, safe and responsive space, and praxis and collaboration. I then explore three key topics in a selection of ClassCrits writings on class and law: (1) neoliberal entrenchment and preservation; (2) class oppression; and (3) the intersecting oppression of class and race. I argue that ClassCrits scholarship on law and neoliberalism is productively viewed through and anticipates Wendy Brown’s recent work, and that Erik Olin Wright’s approach to class analysis may add more theoretical cohesion to ClassCrits work on law and class. Finally, I suggest that Cedric Robinson’s theory of racial capitalism holds promise for ClassCrits scholarship on the intersection of race and class

The Rise, Development and Future Directions of Critical Race Theory and Related Scholarship

This essay tells the story of the rise, development and future directions of critical race theory and related scholarship. In telling the story, I suggest that critical race theory (CRT) rises, in part, as a challenge to the emergence of colorblind ideology in law, a major theme of the scholarship. I also contend that conflict, as a process of intellectual and institutional growth, marks the development of critical race theory and provides concrete and experiential examples of some of its key insights and themes. These conflicts are waged in various institutional settings over the structural and discursive meanings of race and the role that race plays in society, an argument made in part, by Kimberle Crenshaw, and a story drawn in parts from her, Stephanie Phillips, and Cheryl Harris. Conflict within CRT in turn, to some extent, spurs the development of CRT-related scholarship, such as Asian American Legal Scholarship, Critical Race Feminism and specifically Latino and Latina Critical Schools (LatCrit). Though this related scholarship could be seen as fragmenting the CRT movement, I suggest, focusing primarily on LatCrit, that it has actually deepened it. However, a significant area that CRT has not adequately addressed is the issue of class and its relationship to race and other subordinating structures. I examine reasons why this is the case even though CRT scholars have repeatedly called for analyses of the relationship between race and class and propose critical class analyses or classcrits as a necessary future direction of CRT and related scholarship. Parts One through Four of this article present a narrative of the origins and development of Critical Race Theory. Part One provides an overview of CRT and related scholarship and some of its basic themes. Part Two discusses CRT\u27s intellectual antecedents. Part Three discusses a series of four sets of conflicts that I suggest have contributed to its intellectual content and institutional development, including one that partly led to the establishment of LatCrit. Part Four then lays out CRT\u27s basic tenets and methodological fingerprints. Part Five builds upon the context developed in the first four sections of the paper and applies critical theory insights and methods to an historical analysis of law and race. Part Six, summarizes a number of the key insights of related CRT scholarship with a particular focus on LatCrit. Finally, Part Seven takes up and explores an important refrain and critique of CRT: that it more systematically examine the relationship between class and race. I conclude that CRT found a classcrits forum as a future direction

Gender Equality and Women\u27s Solidarity Across Religious, Ethnic and Class Difference in the Kenyan Constitutional Review Process

This paper examines Kenyan\u27s women\u27s struggle to gain new legal authority for gender equality and women\u27s empowerment in the Kenya Constitutional Review process. Specifically it examines the efforts of the campaign to safeguard the gains of women in the Draft Constitution, a campaign launched by a coalition of four civil society organizations in Kenya after the release of a new Draft constitution in 2002. Its focus is the 2002 Draft, the Draft\u27s relationship to the current Kenyan Constitution and to recent constitutional proposals, from a gender perspective. The constitutional review process is part of a larger movement to democratize the Kenyan post-colonial state and one in which women have struggled to find a voice. In the absence of women\u27s solidarity across their differences, differences exacerbated by the nature of post-colonial state, the democracy movement threatens to leave women behind in a legal and social web of beliefs and practices that subordinate them. The paper examines the history of the Kenyan women\u27s movement, the events that led up to the formation of the campaign to safeguard the gains of women in the Draft constitution, and the campaign\u27s fight for gender equality within the constitution. It then analyzes the conflicts the campaign faced that magnified the differences among women and threatened to undermine their solidarity around the idea of gender equality. These conflicts included differences across religion in the form of disputes about the retention of Kadhi\u27s courts in the constitution, disputes across ethnicity around constitutional schemes to devolve government and decentralize executive authority, and differences across class in terms of electoral representation given the apparent divide between rural and urban women

Valuing Difference, Exercising Care in Oz: The Shaggy Man\u27s Welcome

“…and he sighed with contentment to realize that he could now be finely dressed and still be the shaggy man.” One cannot say that the people of Oz valued difference or valued the diversity of its people. Because in Oz, difference and diversity simply was; difference in OZ simply existed. Rather, it might be more accurate to say that the people in the Fairy Land of Oz had a practice of difference in which different people or beings of all sorts were simply accepted and embraced. Not just accepted, as in tolerated in the way someone from Kansas or the greater United States might understand it, but difference in Oz was inherent in the place, it was expected -- respected -- promoted -- taken for granted -- embraced -- sometimes celebrated -- but rarely condemned or rejected. This practice of difference informed and was informed by a theory. But the theory was not a theory about the value of difference or the value of a diverse society. Rather, this practice was informed by a theory, philosophy and ethic of care; care for all sentient beings. In the United States, by contrast, the rhetoric of diversity is everywhere. This essay briefly examines the story of the Shaggy Man’s Welcome in L. Frank Baum’s series of fairytales about the Wonderful Wizard and the Marvelous Land of Oz. It argues, through an analysis of Justice O’Connor’s opinion in Grutter v. Bollinger and against the background of the debates and practices of diversity in the United States, that the people of Oz sincerely value difference and diversity, even though they do not engage the rhetoric of diversity. They instead value difference through an ethic of care, a moral philosophy developed by feminist long after the story was imagined. The essay suggests that, like the Shaggy Man, racial difference may have value for peoples of color and society at large. Thus it argues, consistent with Ozian ethics of care that society should recognize, respect, respond to and -- provide for -- differences in a manner that enables participation. This vision is in contrast to Justice O’Connor’s vision of the future in which she ultimately promotes the non-recognition of race while others seek its replacement with class

An Exegesis of the Meaning of \u3cem\u3eDobbs\u3c/em\u3e: Despotism, Servitude, & Forced Birth

The Dobbs decision has been leaked. Gathered outside of New York City\u27s St. Patrick\u27s Old Cathedral, pro-choice protesters chant: Not the church, not the state, the people must decide their fate. A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: l am the people, l am the people, l am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you\u27re having my baby. Despicable but not unexpected,³ this man\u27s comments provide insight into the meaning of the Supreme Court\u27s decision in Dobbs v. Jackson Women\u27s Health Organization and the conditions it creates for women, girls, and others capable of pregnancy. Despite the Supreme Court\u27s assertions that it is returning the decision of abortion back to the people, a disingenuous assertion from the start, American society currently finds itself facing judicial opinions about whether pregnant people are even allowed to access modern medicine – the abortion medication (mifepristone) - to exercise control over their own bodies and lives. This Article is an exegesis of the statements of this man pontificating on the Cathedral steps. His statements and the instincts that support them tell us a great deal about the condition of U.S. society, the state of our democracy, and the relationship of both to the concrete meaning of Dobbs and its theory of life. ⁷ The Dobbs decision facilitates conditions that encompass the forced continuation of a pregnancy, forced birth, involuntary servitude, disturbing outcomes of permissive rape, and the false idolatry of adoption. These conditions have real consequences for women, girls, and others who are capable of pregnancy, including trans and gender-diverse people. They are eerily reminiscent of the reproductive subjugation imposed on enslaved Black women. While these conditions admittedly do not mark the chattel slavery of the past they are part of a broader notion of slavery, of involuntary servitude. And, these conditions of servitude no longer apply to just a single group of women but now extend to all those capable of pregnancy. Postscript: Alabama Supreme Court recently ruled that frozen embryos are children thus jeopardizing invitro fertilization practices generally and families’ control over their frozen embryos, in particular

Framing Elite Consensus, Ideology and Theory and a ClassCrits Response

This short paper, really a thought piece, builds upon the examination begun in the Foreword of the ClassCrits VI Symposium which sought to outline a ClassCrits critique of neoclassical economic principles. It argues that neoliberal practices, theory and ideology, built on the scaffold of neoclassical economic ideas, frame an elite consensus that makes elites feel good but which are ethically, intellectually, and structurally problematic for the social well-being of most Americans. It does so, in part, by chronicling a number of recent practices of large corporations, including for example, the practice of inversion. Again, this paper takes as its specific target neoclassical economic theory and outlines in plain language a tentative ClassCrits response to it. Part I of this paper discusses the relationship between neoliberalism and neoclassical economic theory, suggesting they present feel-good ideas for elites that potentially inform their consensus. Part II examines a number of business practices that make visible the current elite consensus. It does so by chronicling the recent behavior and practices of large corporations on issues such as regulation, taxes, wages, production, job creation, outsourcing and government largess. Part III summarizes, in stylized fashion, neoclassical economic theory on how the market works; a story which, I believe, under-girds neoliberal practice and much of the described behavior of business elites. This part then takes a stab at outlining, in plain language, a basic ClassCrits response to this story. Part IV tests some of these ideas against the changes in airline travel as recently chronicled in a popular New Yorker piece by Tim Wu, in an effort to stimulate critical thinking and challenges to these hegemonic economic ideas (and practices) by examining them through everyday experience