Ball Never Lies: How Guaranteed Contracts Provide NBA Players More Security than NFL Players to Advocate for Social Justice

Introduction In 2013, Colin Kaepernick led the San Francisco 49ers to the National Football League (NFL) Super Bowl.[1] That same year, LeBron James dominated the National Basketball Association (NBA) Finals to secure a second-straight title for the Miami Heat.[2] In 2016, Kaepernick took a knee during the national anthem to bring attention to systemic racism and police brutality.[3] Meanwhile, James delivered a speech at the 2016 Excellence in Sports Performance Yearly (ESPY) Awards where he stated “Black lives matter” in support of the movement of Continue reading →

Is Title VII an “Anti-Discrimination” Law?

PDF: Anuj C. Desai,[1] Is Title VII an “Anti-Discrimination” Law? Title VII of the Civil Rights Act of 1964 is commonly referred to as an “anti-discrimination” statute. At its core, we are told, it prohibits something called “discrimination.” But does it? Startlingly, the answer is no—not really. Instead, Title VII prohibits certain acts done for certain reasons. True, the reasons are precisely what everyone has long understood them to be—”because of . . . race, color, religion, sex, or national origin . . . .”[2] But the law’s prohibited acts do not Continue reading →

Introduction to the Symposium: The Stakes for Critical Legal Theory

On September 17, 2020, Donald Trump spoke at the so-called “White House Conference on American History.”[1] The conference mission, Trump explained, was to “clear away the twisted web of lies” propagated by “the left.” As Trump saw it, the problem wasn’t only that “left-wing mobs have torn down statutes of our founders, desecrated our memorials, and carried out a campaign of violence and anarchy.”[2] The challenge for historians was deeper, since “the left has warped, distorted, and defiled the American story with deceptions, falsehoods, and Continue reading →

Reloading the Canon: Thoughts on Critical Legal Pedagogy

On the first day of the first-year contracts class that I teach, I preview for the students both the general contours of the “blackletter law”[1] that we will be learning throughout the course, and some of the perspectives that I will incorporate in developing our critical thinking and analysis of the law. My aim is to impress upon the students that their understanding of the blackletter law––the technical training that many law students think of as constituting the bulk of their educational mission––varies positively with Continue reading →

The Critique and Praxis of Rights

The critique of rights has played a crowning role in critical philosophy. From Hegel to Marx, to Foucault and beyond—Duncan Kennedy, Christoph Menke, the contributors to this Symposium—the critique of rights has always represented an essential and inescapable step in the critique of modern Western society.[1] The reason is plain: conceptions of natural rights, human rights, and civil rights have been central to the founding of modern political thought (from Hobbes, Locke, and Wollstonecraft forward), to the birth and flourishing of legal and political liberalism Continue reading →

The Pure Theory of Law is a Hole in the Ozone Layer

Star date 2‌/7‌/2020. Author’s log. I received an email from our Co-Editor, the double barrels of Desautels-Stein, relating to the now-virtual symposium, What Should Critical Legal Theory Become?[1] The electronic epistle, which lists the team of intrepid intellectuals contributing to the project begins: Friends and Colleagues, We are writing with regard to our upcoming symposium with the Colorado Law Review, What Should Legal Theory Become? PDF: Goodrich,* Hole in the Ozone Layer. Sans critique. The word “critical” omitted. Where better to start than with a slip? Undoubtedly a Continue reading →

Critique, Ideology, and Aesthetics

Perhaps it is appropriate that critical legal theory—a genre of thought fascinated with contradictions and dedicated to unsettling orthodoxies—is itself in a contradictory and unsettled state today. Some of the most radical and challenging ideas advanced by critical legal theorists have become mainstream, almost mundane. For instance, the claim that legal reasoning is unavoidably ideological, that to a great extent law is politics by other means, was once a heresy so reviled it ended careers.[1] Now, in the wake of Amy Coney Barrett’s confirmation to Continue reading →

From Promise to Threat in Language and Law

An art of speaking which does not seize hold of truth, does not exist and never will. –Phaedrus (260e) I feel I have slipped into this Symposium Issue to address its original question, “What should critical legal theory become?” under false pretenses, because I have no idea what critical legal theory should become, nor would I presume to tell those who write in its name what to do. I am grateful for the invitation from the University of Colorado’s new Center for Critical Thought to Continue reading →

Critical Legal Thought: The Case for a Jurisprudence of Distribution

Critique is the standard model of legal scholarship. The typical article or book circumscribes an aspect of the legal order, redescribes it as policy, criticizes the policy according to efficiency or axiological criteria, and proposes some minor or moderate improvement to it.[1] This critical ethos is not surprising—the modern mind is restive. PDF: Barrozo,* Jurisprudence of Distribution. Attaining Critical Legal Thought This standard model of legal critique and improvement is politically stabilizing, practically effective, and intelligible only because it is set within a powerful paradigm of law Continue reading →

L x A=W: On the Weight of Legal Norms

The Critical Legal Studies movement and the emerging Law and Political Economy Project both emphasize the way that legal rules and doctrines help both to constitute and to legitimize an unjust social and political order. Critical Legal Studies (CLS), which I have been closest to for over forty years, started out with many tendencies—Marxist and neo-Marxist, legal realist with a more leftist political bite, antiformalist with both progressive policy-oriented and deconstruction-based wings, and also with a critique of social alienation that emphasized the distortions in Continue reading →