Saturday, December 04, 2021

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 Abstract

Excerpted From: Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-structuralism, and Narrative Space, 81 California Law Review 1241 (October, 1993) (424 Footnotes) (Full Document)

 

As Asian Americans join the legal academy in growing numbers, they change the face of the academy and challenge its traditional legal doctrines. The author announces an “Asian American Moment” in the legal academy and an opportunity to reverse the pattern of discrimination against Asian Americans. Traditional civil rights work and current critical race scholarship fail to address the unique issues for Asian Americans, including nativistic racism and the model minority myth. Space must be made in the legal academy for an Asian American Legal Scholarship and the narratives of Asian Americans. The author states that the rational-empirical mode is inadequate as a justification for narrative scholarship and argues for a post-structural basis for Asian American Legal Scholarship. He gives a few historical examples of how narrative can be used to effect social change. Finally, the author offers a framework for constructing an Asian American Legal Scholarship which acknowledges the tremendous diversity among the disempowered but which also recognizes that it is through solidarity that Asian Americans will gain the freedom to express their diversity.

Prelude

I am a second generation Korean American without any achievements in life and I have no education. What is it you want to hear from me? My life is not worth telling to anyone.

You know, it seems to me there's no use in me telling you all this! I was just a simple worker, a farmworker around here. My story is not going to interest anybody.

Of the different voices in which I speak, I have been most comfortable with the one called silence. Silence allowed me to escape notice when I was a child. I could become invisible, and hence safe.

Yet now I find myself leaving the safety of my silence. I wonder if this is wise. I teach legal writing; I want to teach substantive law. I have been told that engaging in nontraditional legal scholarship may hurt my job prospects, that I should write a piece on intellectual property, where my training as a molecular biologist will lend me credibility.

I try to follow this advice, but my mind wanders. I think about the American border guard who stopped me when I tried to return to the United States after a brief visit to Canada. My valid Ohio driver's license was not good enough to let me return to my country. He asked me where my passport was. I told him that I did not have one and that it was my understanding that I did not need one, that a driver's license was sufficient. He told me that a driver's license is not proof of citizenship. We were at an impasse. I asked him what was going to happen. He said that he might have to detain me. I looked away. I imagined the phone call that I would have to make, the embarrassment I would feel as I told my law firm in Seattle that I would not be at work the next day, or maybe even the day after that—until I could prove that I belonged. I thought about my naturalization papers which were with my parents in Ohio. I thought about how proud I had been when I had become a citizen.

Before then, I had been an alien. Being a citizen meant that I belonged, that I had the same rights as every other American. At least, that is what I used to believe. Things have happened since then that have changed my mind. Like the time I was driving in the South and was refused service at a service station. Or the time I was stopped in New Jersey for suspicion of possessing a stolen vehicle. At first, it was just two cops. Then another squad car came. Four big (white) policemen for one small (Asian) man, in a deserted parking lot—no witnesses if it came to that. Perhaps they were afraid that I might know martial arts, which I do, but I am careful never to let them know. When my license and registration checked out, they handed back my papers and left without a word. They could not even say that one word, “Sorry,” which would have allowed me to leave that incident behind. I might have forgotten it as a mistake, one of those unpleasant things that happen. Instead, I have to carry it with me because of the anger I feel, and because of the fear— fear of the power that certain people are able to exercise over me because of this (contingent) feature that makes me different. No matter how hard I scrub, it does not come clean. No matter how hard I try, and I do try, I can never be as good as everyone else. I can never be white.

These are the thoughts that intrude when I think about intellectual property. I try to push them away; I try to silence them. But I am tired of silence.

And so, I raise my voice.

Professor Jerome Culp raised his voice when he proclaimed boldly to the legal academy that it was in “an African-American Moment,” a time “when different and blacker voices will speak new words and remake old legal doctrines.” He also cautioned that “ t hose in the legal academy who cannot speak the language of understanding will be relegated to the status of historical lepers alongside of Tory Americans and Old South Democrats.” It remains to be seen whether his prophecy will come true. The mainstream legal academy has largely ignored his proclamation and the work of other critical race scholars, if frequency of citation is to be taken as a measure of attention, and some legal scholars have condemned the methods of critical race scholarship.

Nevertheless, the time has come to announce another such moment, an Asian American Moment. This Moment is marked by the increasing presence of Asian Americans in the legal academy who are beginning to raise their voices to “speak new words and remake old legal doctrines.” This Moment brings new responsibilities for Asian American legal scholars. This Moment brings new challenges. This Moment also brings us hope.

Introduction: Mapping the Terrain

Asian Americans suffer from discrimination, much of which is quantitatively and qualitatively different from that suffered by other disempowered groups. The qualitative difference, in that Asian Americans suffer as Asian Americans and not just generically as persons of color, has certain implications for the study of Asian Americans and the law. One implication is that traditional civil rights work, with its focus on color blindness or denial of substantial difference, even when done in the context of securing rights for Asian Americans, is inadequate to address fully the needs of Asian Americans. Another implication is that critical race theory, which claims that race matters but which has not yet shown how different races matter differently, is also inadequate to address fully the needs of Asian Americans. To help complete the picture, there must be an Asian American Legal Scholarship. This Asian American Legal Scholarship will provide a framework that will encompass and mediate between the notions of liberalism underlying Asian American civil rights work and the critical perspectives contained within critical race theory.

I sketch the outlines of this scholarship with several goals in mind. An Asian American Legal Scholarship will recognize that Asian Americans are differently situated historically with respect to other disempowered groups. But it will also acknowledge that, in spite of these historical differences, the commonality found in shared oppression can bring different disempowered groups together to participate in each others' struggles. An Asian American Legal Scholarship will argue that the exclusion of Asian Americans from the political and legal processes has led to an impoverished notion of politics and law that furthers the oppression of Asian Americans. It will offer the inclusion of Asian American voices in the form of narrative, personal and otherwise, in the practice of legal scholarship as a powerful method to combat the effects of exclusion. Finally, by including narratives in law review articles, briefs, and law teaching, this legal scholarship will more effectively persuade decision-makers, practitioners, law professors, and students.

My primary objective in outlining these goals is to correct what I perceive as a problem in the current discourse on race and the law. This discourse is circumscribed insofar as certain perspectives have been excluded from the conversation. A natural solution to this problem is to include the narratives of the excluded. Therefore, I address two corollary questions: why narrative should count and how narrative counts. I also lay out a theoretical framework to support further work in Asian American Legal Scholarship.

Before examining the role of narrative in legal scholarship, I explore in Part I the need for an Asian American Legal Scholarship. I discuss some of the ways in which Asian American history and the Asian American experience are unique and different from the history and experiences of other disempowered groups. I also briefly discuss how traditional civil rights work and critical race scholarship have not adequately addressed these differences. In Part II, I give a brief, semi-historical account of the use of personal narrative in academic discourse, and I discuss epistemology, because our epistemological stance or theory of knowledge will determine what role narrative can and should play. Part III provides a narrative account of the exclusion and marginalization of Asian Americans from the legal and political spheres. I also show how narrative has been used effectively to address some of the problems facing Asian Americans. Finally, in Part IV, I sketch a framework for Asian American Legal Scholarship and its goal of redressing oppression.

[. . .]

The question becomes whether Asian American Legal Scholarship can survive this post-structural deconstruction of the category “Asian American.” If a full post-structural critique deconstructs all categories, including race, then once the category “Asian American” is deconstructed, so the question goes, how can it any longer serve as a useful category? This critique misunderstands deconstruction. Part of the problem lies in the word “deconstruction” which implies a breaking down or breaking apart. Deconstruction does no such thing. It reveals things to be historically situated and socially constructed, but this realization in no way changes the current construction of the category except to remove any foundational claims. Deconstruction simply reveals the potential for change; a category could be constructed differently in the future, or perhaps our present could be reconstructed differently by revising or reinterpreting our past. To reiterate, in no way does deconstructing the category “Asian American” change the fact that I am an Asian American. My context has constructed me as Asian American.

This understanding of contextual situatedness enables Post-structural Asian American Legal Scholarship to use multiple consciousness as a method to understand and participate in Stages One, Two, and Three without inconsistency. It is able to do this because it understands law as a contextual practice that has certain rules. Even while it criticizes and tries to undermine those rules, it can engage in civil rights struggles because it understands that removal of oppression is beneficial, even if it must come in stages. Mari Matsuda's article, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, is an example of multiple consciousness at work. She says at the end of her article, “I have written to persuade readers of good will to adopt legal rules and ethical positions that promote linguistic pluralism. I have used existing legal doctrine, traditional liberal theory, and new critical theories in this effort.” She recognizes the inherent contradictions, the internal inconsistencies of doing all three, yet she is able to do it because an Asian American Legal Scholarship has a pragmatic face. It has a multiple consciousness that can assume various guises. It assumes these guises with a final goal in mind: liberation.

Tremendous diversity exists within the category “Asian American.” And tremendous diversity exists among the disempowered. We must remember, though, that it is only through solidarity that we will one day be free to express our diversity.

Coda

As I look back on what I have written, I realize that I have done the easy part. The real work remains to be done. I think about my mother who is an artist. She begins her work by putting together a frame. She stretches the canvas, tightly so that the surface will be smooth. Then her work begins in earnest. She looks at the broad expanse of canvas. She looks at that empty space. She looks. And then, from somewhere within, she calls up her vision and fills the void. I think of the framework that I have constructed. I think of that broad expanse of canvas that waits to be filled. I wonder how my mother does it. And I wonder if the legal academy is ready for this Asian American Moment, whether it is ready for an Asian American Legal Scholarship. Then I remember Mari Matsuda's words, spoken in a different context but equally applicable here:

[W]e cannot listen to those who say, “it's not yet time.” We know it's time, our time, and we will make it so.

And so, let us raise our voices. Let us make it so.


Visiting Assistant Professor, Golden Gate University School of Law. A.B. 1988, Princeton University; M.A., J.D. 1992, Duke University.


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