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Excerpted From: Larry Catá Backer, Measuring the Penetration of Outsider Scholarship into the Courts: Indifference, Hostility, Engagement. 33 U.C. Davis Law Review 1173 (Summer, 2000) (223 Footnote) (Full Document)


LarryCatáBackerMany people have complained lately about the increasing irrelevance of legal scholarship. More often than not, emerging schools of legal scholarship are the specific targets of these complaints. “[P]ostmodern jurisprudence is characterized by an enormous disjunction between theory and practice, between the legal academy and the judiciary.” But others, in turn, complain that these emerging schools of legal scholarship, especially the scholarship of “outsiders” is not taken seriously enough by the academic, legal and political communities in the United States. These complaints, in turn, have given rise to another area of legal scholarship, scholarship about scholarship. As a result, there seems to be much truth to the observation made recently by a student of legal scholarship that “an ongoing Kulturkampf presently exists within the legal academy regarding both the direction and meaning of legal scholarship.” only have some proclaimed that legal scholarship has been losing its power to help officers of the court and the laity understand law, but they have also announced that, in the hands of some, scholarship has become dangerously nihilistic or subversive. So labeled, such scholarship is condemned en masse. “Labeling is a big part of the criticism of all critical race scholars. The label anarchist has a political undercurrent, a not so subtle reference to the consequences of anarchy, to the fate of the political dissidents in the time before the Cold War and communism.” scholarship by traditional outsiders to the legal academy, and principally people of color and women, appears especially threatening. These writers reject cultural conformity. They reject the notion that there is such a thing as a dominant normative ideal to which people can or ought to subscribe. They understand that the notion of conformity within the dominant group is elusive and ultimately unattainable. They grasp all too well that even (and perhaps especially) liberal or progressive members of the dominant group essentialize them, decharacterize them and then judge them as unworthy. As Gwendolyn Mink has accurately observed in connection with recent changes in American welfare law: “Pegging equality to cultural conformity while withholding the tools and choice of conformity from African Americans, liberal racism marked the Black mother, worker and child as unassimilable.” the academic legal community in the United States, the result has been to either shun or demonize such writing. Richard Delgado, for example, has demonstrated how a small closed community of white male scholars monopolized elite civil rights scholarship. This closed group of scholars all resembled each other in writing, but did not appear to acknowledge scholarship other than their own or that of their circle. Especially ignored was the work of people of color within the academy. In revisiting his original work ten years later, Professor Delgado noted that:

With a few notable exceptions both the original group and the newcomers rely on a panoply of devices, ranging from the dismissive Afterthought to the wishful Translation, to muffle and tame the new voices .... Some of the resistance may be intentional, but I believe most of it results from quite ordinary forces: preference for the familiar, discomfort with impending change, and a near-universal disdain for an account or “story” that deviates too much from one upon which we have been relying to construct and order our social world. Cultural momentum tends to be preserved. All discourse marginalizes. We resist transformative thought until it has lost the power to transform us. institutional practice norms that Professor Delgado describes serve primarily to magnify the force of assimilation within the legal academy. Legal scholarship, like other spheres of public expressions of norms, is subject to the operative command of our social ordering — conform or be punished. The most utilized punishment, or mechanism for the enforcement of conformity, is shunning. The most effective means of formal shunning requires little more than that a work or author not be cited. Shunning a work or author, or citing such work or author dismissively, is itself a formal acknowledgement that this scholarship is neither an important source of information nor authority for the court. Thus, ignoring scholarship has serious repercussions in the citation obsessed American intellectual environment of the late twentieth and early twenty-first centuries. These notions have not just been borne out within the American legal academy as Richard Delgado has sought to show. Citation madness affects the judiciary as well, where we have begun to measure the influence of particular judges through studies of citation patterns. Yet outsider scholarship does seem to serve an important purpose for traditionalists.

To the practitioners of the dominant form of academic legal scholarship, this sort of scholarship serves as a warning,  the exemplar, of the types of work which are deemed “bad.” Richard Delgado's point, then, might be well taken,  if with a bit of irony: “If I am right, imperial scholarship will continue to be with us a long time.” might assume that courts, like dominant group academics, give short shrift to emerging scholars of color and to “outsider” scholarship. This Article tests the theory that current legal scholarship, and especially the “outsider” scholarship of people of color, is either shunned or demonized in the courts. This Article examines the reception of outsider scholarship in the courts, which along with the legislatures, constitute the formal institutional vehicles for “altering the existing legal landscape” in the United States. For this purpose, the Article reviews the opinions of state high courts and federal appeals courts for citations to “outsider” scholarship. To focus the examination, the article limits the survey to judicial citation of what has been chosen as a fairly representative sample of well-known scholars who epitomize major strands of critical, minority, and feminist scholarship in the legal academy. These scholars include: Harlon Dalton, Stanley Fish, Richard Delgado, Catherine McKinnon, Patricia Williams, Lani Guinier, Derrick Bell, Charles Lawrence III, Duncan Kennedy, Mari Matsuda, Gerald López, Kimberlé Crenshaw, Janet Halley, Ruthann Robeson, Jerome Culp, Gary Peller, and Neil Gotanda. To further focus the examination, the Article limits the survey to the ten-year period, from June 1989 through June 1999. This ten-year period marks the time when these scholars achieved academic success, as conventionally measured, and their scholarship achieved a fair measure of circulation in the highest organs of the dominant culture set aside for that purpose.

Part I of this Article examines the way in which courts have cited these representatives between 1989 and 1999. The initial focus is on rates of citation. Citation rates indicate the scope of the “normalization” of outsider scholarship within the process of the production of law, that is, the extent to which it has been accepted as a part of what passes as normal or conforming academic scholarship. The second focus is on the nature of the citations. The way outsider scholarship is used provides a better indication of the seriousness with which it is taken by the courts than does mere number counting. The manner of use is also a good indication of the utility of the scholarship for purposes other than for the ideas presented in the works cited. Thus, outsider scholarship is valued quite differently, depending on whether the courts engage the ideas developed in the cited pieces or whether the pieces cited were used as a boundary marker between the “normal” and everything else.

Part II then draws generalizations from the data examined in Part I. First, the Article considers the citation patterns in cultural context from the outside in, examining the reasons courts may respond to outsider scholarship as either threat or as irrelevant. Second, the Article considers the patterns from the inside out, suggesting reasons for, and the consequences of, the tense relationship between traditional and “outsider” scholarship as reflected in the courts. Finally, the Article examines the patterns in terms of the general debate over the utility and effect of federalism.

The results of the examination of the citation patterns were a bit surprising and somewhat counterintuitive. One would have expected that federal courts would be the more likely place where the sophisticated and norm challenging work of these authors would get the greatest airing as well as the most sympathetic reading. However, this study shows that more state courts, rather than federal courts, are listening, and learning.

What stands out most, however, at both the state and federal level, is the silence. Courts, even hostile courts, rarely take the time to cite, much less ridicule, demean or demonize the work of these scholars. To that extent, the ideas propounded by those scholars, for the most part, have not yet failed to become a well-established part of the dialog of formal law-making in America. pattern of judicial indifference would appear to paint a rather bleak picture of the possibilities of outsider scholarship in the courts. Yet this is not entirely the case. Thus, this study ends with an irony. The great hope for the normalization of outsider scholarship within formal lawmaking institutions lies with those very concepts of strong federalism that were championed by southern intellectuals and anti-Federalists before the American Civil War. Among the most important lessons of this study is the continued utility of the American federal system in which semi-sovereign states share power, including judicial power, with the central government. Strong states sometimes serve best the interests of outsiders. Federalism works, and has created those few places where the voices of “outsiders” can be considered, can change the legal landscape, and by so doing, provide a beacon and example for those others who would follow.

[. . .]

Citations in the opinions of courts provide an important measure of the acceptance and acceptability of the work of outsider scholars, primarily women and people of color within the formal institutional establishment for the crafting of law. A study of the rates of citation in federal and state courts among a representative sample of outsider scholars reveals that though some progress has been made, some scholars are being cited only some times, the progress is at least erratic. Engagement by courts is far less common than either hostility or, more pervasively, indifference. Yet there are bright spots that point the way to the future. The most significant of these is the growing importance of states, especially states where traditional outsiders may be becoming more integrated into the political and cultural life of the states, in the inclusion of works of traditional outsider scholars in their jurisprudence. It may well be that federalism will become an important element in the struggle by traditional outsiders for a place at the political table.

Executive Director, Tulsa Comparative & International Law Center, Professor of Law, University of Tulsa, Tulsa, Oklahoma.

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