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Author: Anita Allen

7

Normative Jurisprudence Symposium: Promise for the Normative in Critical Race Theory

I am very pleased to have been asked to participate in this online symposium event devoted to Normative Jurisprudence: An Introduction (Cambridge Press 2012) by Professor Robin West. The book examines the state of natural law, positivism, and Critical Legal Studies. West argues that certain aspects of each school represent a retreat from, or evasion of, normative theory and practice.

In mid-September, I participated in a live book-publication recognition event in honor of Robin West held at the Georgetown University Law Center. This all-day, face-to-face symposium was an opportunity for me to make new friends, and even more significant, to reconnect with former colleagues.  I now teach at Penn Law; but I taught jurisprudence at Georgetown for more than a decade (1987-1998) and served as an Associate Dean (1996-1998). I worked with Mark Tushnet, Gary Peller, Louis Michael Seidman, Dan Ernst and Gary Peller to develop an alternative 1L curriculum for Georgetown; our planning was funded by a grant from the federal government’s Fund for the Improvement of Post Secondary Education.

For the Georgetown event, whose remarks are the basis of this posting, I was asked, along with Professor Gary Peller, to speak about Professor West’s Chapter “Critical Legal Studies, The Missing Years.” My job was both to summarize and comment; Professor Peller’s job was to comment.

  1.  My unique introduction to CLS and Critical Race Theory

Although I do not identify with the Critical Legal Studies Movement (“CLS”) as such, I have a relationship to CLS and some of its famous practitioners that made my selection to comment on this chapter especially meaningful to me.

By a strange twist of fate, I happened to be present at the historic first summer meeting of the Conference of Critical Legal Studies in Santa Cruz, California. (See Mort Horowitz here.)  I was at the time a philosophy professor at Carnegie-Mellon University.  I was on a leave to help run summer seminar programs in law and medicine for the National Endowment for the Humanities (NEH) in Washington.  One of the programs was led by a Professor at Santa Cruz who was hosting the CLS “summer camp.”  I was on campus for my official NEH site visit during the CLS meeting and was invited to sit in on several of the sessions.  I was housed in the same dorm in which the Crits were housed and heard their secrets through the thin walls.

It is worth noting that my NEH job also led me to make site visits at Yale, where I sat in on a seminar directed by Robert Cover; and to Harvard where I spent a day at a seminar led by Derrick Bell that, I have recently concluded, helped create a community of race law scholars and to launch critical race theory.

When Professor Bell applied to teach an NEH funded summer seminar, there were two problems with his application.  He was a civil rights lawyer, one; and two, he was not a practitioner of the traditional humanities.   He was not a historian, not an English professor, and not a philosopher. The Endowment counted jurisprudence but not law as a branch of the humanities.   In 1980, the field of jurisprudence was defined by the discussion and debate over three specific theories of the law: natural law, legal positivism, and legal realism.  Bell wanted to teach race and racism in American law. (He wrote a pioneering textbook by that name.)

Bell and I worked together to conceptualize for a rigid bureaucracy how the scholarly study of race and racism in the law was a humanistic enterprise, an as yet neglected area of jurisprudential theorizing and analysis.  Like legal realism, Bell’s critical race enterprise sought to expose and explain values and mechanisms behind the law—social, political, moral, attitudinal, and institutional.   I am not sure my superiors at the Endowment fully understood the significance of embracing Bell’s enterprise as a “legitimate” humanistic inquiry.  Although we knew the NEH was mainly interested in finding a way to safely integrate their pool of grant recipients, Bell and I were pleased with the outcome. He got the grant.

My first introduction to the formal study of the law was thus through the lenses of CLS and Bell’s critical race theorizing, and it took place in 1980, before I enrolled in law school.  I was admitted to Harvard and Yale. I chose Harvard over Yale, because Boston, Bell and the CLS personalities seemed more lively and welcoming than New Haven, Cover, and the Yale crowd. Read More

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Configuring the Networked Self: Shared Conceptions and Critiques

Configuring the Networked Self is an intellectually exciting, engaging and challenging book. The directness and analytical clarity of the book are real virtues.  Cohen seeks to employ insights from human capabilities theory, along with the language and tools of European post-modern thought to offer a better theoretical understanding of policy options for contemporary copyright and privacy law. The book is aggressively (and I would suggest, needlessly) anti-liberal; but liberalism is not the only theoretical approach Cohen finds deficient.  In her view, feminism, law and economics, utilitarianism, and legal pragmatism are not fully adequate to meet the demands of information-age problem solving.

I have a number of concerns about the book. A global concern is that it targets a highly stripped-down “straw man” version of liberalism, reduced to three propositions.  Much of the plausibility and appeal of liberalism is in the nuanced versions put forward by thinkers far removed from Immanuel Kant, Mill, and even John Rawls.  If privacy law and policy suffers from wrong-headed liberal assumptions, this may not be the fault of the comprehensive theorists for whom revisioning classical liberalism is a most serious preoccupation.  In this symposium, I will take the opportunity to offer a few comments focused on some of Professor Cohen’s views about privacy.  First, I want to point out how congenial some of her perspectives are, even to a liberal like me.  Second, I wish to point out what I believe are some interesting mis-directions in her analysis.

  1. Congeniality

I must begin by pointing out that I am a self-professed progressively liberal feminist.  My three books on privacy (Unpopular Privacy: What Must We Hide (2011); Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability (2003); Uneasy Access, Privacy for Women in a Free Society (1988) celebrate robust freedom of thought and action, of course, but also celebrate equality, accountability, tolerance, and mutually respectful relationships.

In my 1988 book I presented privacy as a broad “umbrella” concept encompassing seclusion, solitude, secrecy, confidentiality, modesty and reserve; I advanced a definition of privacy influenced by Ruth Gavison as “the inaccessibility of persons and information about them to the senses and surveillance devices of others.”  I defended privacy as a value against feminist critics for whom privacy was synonymous with domination and subordination.  I have not prescribed a definition of privacy tailor-made for the Internet era.  However, my most recent work (the 2011 book) relates to the question of whether privacy protection should be left to individual choice, especially in light of the Internet age’s penchant for revelation.  Earlier work (the 2003 book) considered the extent to which accountability demands “outweigh” privacy demands.  Recent papers in the California Law Review (2010) and the Penn Journal of Constitutional Law (2012) concern whether privacy tort law and First Amendment privacy jurisprudence (respectively) serve progressively liberal socio-political goals relating to equality and respect for women, racial minorities, and LGBT communities. Read More