Critical Race Theory 644-651

Stephen Gaynor
Critical Race Theory

Pages 644- 651
Richard Delgado
Critical Legal Studies and the Realities of Race: Does the Fundamental Contradiction
Have a Corollary?
One structural feature of human experience separates people of color from our white
friends, accounting in large part for our differing perceptions in matters of race.
White people rarely see acts of blatant or subtle racism, while minority people
experience them all the time.
This structural feature has two consequences: one experimental and the
other political.
Experimental
The experimental consequence is that even the most sympathetic, left-leaning

whites, are constantly having to learn and relearn what racism is.
Structural
Minorities experience racial incidents much more often than whites observe them
which also has a second effect.
It colors legal and political theorizing, causing member of the two groups
to strike different balances and trade-offs.
According to Duncan Kennedy’s famous fundamental

contradiction: we both need, and fear, others. Western societies struggle to promote two
values that are in tension: community and security. It is difficult to have both.
Community
High in sharing, trust, and love; lack the formal structures that protect individuals
from one another and the state.
Security
Formal structures but risks a pinched, lonely, alienated life.
White leftist almost always resolve this dilemma on the side of community. Minorities by
contrast, would set the balance much further toward protection and formality. Minorities
principle fear is not coldness, alienation, or lack of community. Minorities have
community, of a sort in our common victimhood.
Delgado’s corollary to Kennedy’s maxim is racially divided societies, like ours, there is a
further split: members of the majority race will generally prefer informality, minorities
formality.
Charles R. Lawrence III

If He Hollers, Let Him Go: Regulating Racist Speech On Campus
Heads bowed, we are intently watching Muck, who is hunkered down on one knee so that
he can touch our toes as he calls out the rhyme.
In a moment’s time it has made me an other. In an instant it has rebuilt the wall between
my friends’ humanity and my own, the wall that I have so painstakingly disassembled.
Being good at games was the main tool I used to knock down the wall I’d found when I
came to this white school in this white town. I looked forward to recess because that was
when I could do the most damage to the wall. But now this rhyme, this word, had undone
all my labors.
I just wished Muck had used “one potato, two potato…
Paul Butler
Racially Based Jury Nullification: Black Power in the Criminal Justice System
While at the U.S Attorney’s office, I made two discoveries that profoundly changed the
way I viewed my work as a prosecutor and my responsibilities as a black person.
The first discovery, despite having persuaded a jury beyond a reasonable doubt
that the defendant was guilty, we would lose many of our cases. We would lose because
some black jurors would refuse to convict black defendants who they knew were guilty.
The second discovery, that some of my fellow African-American prosecutors

hoped that the mayor would be acquitted, even though he was obviously guilty of at least
one of the charges. These black prosecutors wanted their office to lose because they
believed that the prosecution of the mayor was racist.
Butler’s thesis is that the black community is better off when some nonviolent
lawbreakers remain in the community rather than go to prison. The decision as to what
kind of conduct by African-Americans ought to be punished is better made by African-
Americans themselves, based on the cost and benefits to their community, than by the
traditional criminal justice process, which is controlled by white lawmakers and white
law enforcers.
Criminal conduct among African-Americans is often a predictable reaction to oppression.

Sometimes it is a symptom of internalized white supremacy; other times it is a reasonable
response to the racial and economic subordination every African-American faces every
day. Punishing black people for the fruits of racism is wrong if that punishment is
premised on the idea that it is the black criminals just deserts.

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Stephen Gaynor

Critical Race Theory

The experimental consequence is that even the most sympathetic, left-leaning

According to Duncan Kennedy’s famous fundamental

Formal structures but risks a pinched, lonely, alienated life.

Charles R. Lawrence III

I just wished Muck had used “one potato, two potato…

The second discovery, that some of my fellow African-American prosecutors

Criminal conduct among African-Americans is often a predictable reaction to oppression.

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