Honoring Derrick Bell

Yesterday, a giant in modern legal thought passed away at the age of 80. Derrick Bell was best known as an early pioneer of critical race theory, a stream of legal thought that we have written about before in this blog. At the center of critical race theory is the rejection of objectivity. As Peggy McIntosh pointed long enough ago that Jacob complains it is too basic, white people cannot know all the privilege they possess just by virtue of being white. That is not a point about fault; rather it's a statement about our collective inability to escape our own expereince. While law is founded on "objective" principles, they are really the objective principles according to almost entirely white male judges and legislators over the centuries. Instead, critical race theory embraces narratives and a variety of perspectives, particularly those voices of color that were missing for all those years.

As an academic discipline, critical race theorists began pointing out the irony that so many of the legal academics writing about race and more generally, the academics that were even employed, were not people of color. If the fact of law being mostly written by white people was a problem, then obviously it was a problem that the legal commentary in the academy was also written by all white people. That's why I love this paragraph from the New York Times obituary:

Mr. Bell was the first tenured black professor at Harvard Law School and later the first black dean of a law school that is not historically black. But he was perhaps better known for resigning from prestigious jobs than for accepting them.

Eventually, for example, he left Harvard Law because they had not yet hired a black woman on the faculty. Because he believed that legal thought was not being shaped enough by black voices, he would not remain part of a school that used its immense influence to exacerbate the problem.

Professor Bell was also known for a very different mode of legal scholarship, focused on storytelling, rather than dry, stodgy, analytical writing. This makes sense because to reject objectivity is to accept individuality, making narratives important to the scholarship. This was a tremendous change to a legal academic culture that is at least one of the most rigid, small-c conservative academic fields in existence. (This, some might say, is a natural consequence of being written by lawyers, in which every assertion must be footnoted. Some people jokingly say about legal scholarship that if you're saying something new, you're doing it wrong.) His adoption of storytelling was definitely great scholarship, as it made very important legal points, and it was radical. It is probably what he will be most remembered for.

The most famous of his stories was "The Space Traders." From the Times article:

In the story, as Professor Bell later described it, creatures from another planet offer the United States “enough gold to retire the national debt, a magic chemical that will cleanse America’s polluted skies and waters, and a limitless source of safe energy to replace our dwindling reserves.” In exchange, the creatures ask for only one thing: America’s black population, which would be sent to outer space. The white population accepts the offer by an overwhelming margin.

The truly haunting thing about this story is its complete plausibility (once you get past the aliens in the premise). That's obviously what makes it so important as well.

I just wanted to highlight and honor the life of a great man in this space. I suggest each of you take a second to read the Times obituary in full, as well as "The Space Traders" if you haven't before. It truly changed my way of thinking about what qualifies as legal scholarship, and it's a good read.