I want to talk about Amna Akbar's new article "Law's Exposure: The Movement and the Legal Academy," which deals with the legal ideas of the Black Lives Matter movement. Cribbing now from her abstract:
This Essay sketches out the Movement for Black Lives' claims about law, argues that law faculty should be paying close attention to the movement's challenges to core empirical and methodological assumptions in our teaching and scholarship, and offers pedagogical techniques to welcome these challenges into our classrooms.
The movement's empirical claim is that law does not function as is often imagined, the imagination of law’s functioning being central to the legitimacy we invest in our system of government. This claim has many dimensions worth exploring, but here I point to two central applications: police killings and the disjuncture between procedural rights and substantive justice.
The movement's methodological claim challenges conventional wisdom about how law changes and the role of law in social change. Organizers have refused to work within the traditional confines of legal process or to celebrate law as the end of their struggle. Instead, they have lifted up disruption and contestation as tactics, and relied on law only as a tool for incremental change in a broader campaign for a radical restructuring. In the process, they have shed light on law’s operation, recast law’s morality, and questioned its relationship to haunting social problems.
The movement exposes to the mainstream what black communities have argued — and black freedom struggles have organized against — for centuries: Law is not fair, it does not treat people equally, and its violence is lethal and routine. Law is constituted by power and the powerful, and it changes for the benefit of the marginalized only when it is made to.
The movement's critiques may make us uncomfortable, and taking them on in the classroom may require risks — but we need to get uncomfortable. For too long, too many of us have looked the other way, even when we know better. It is time to look at the law beyond our conventional ways of seeing. It is time to bring in the people who for too long have been outside the classroom, and yet are so central to law’s operations.
A bunch of things interest me about this paper -- including the observation that courts are no longer at the forefront of the movement for social change. (Change in law, as well as attitudes, I take it continues to be central -- though the changes in "law" are to police practices and to prosecutions and incarceration.) I agree that BLM's critique of "law" has deep roots in African American thought -- from the Black Power literature back to the work of the pre-Civil War era, including David Walker's Appeal. And certainly, as the veterans who took a stand to stop a lynching that resulted in the Tulsa riot of 1921 remind us, some people in the African American community have been taking strenuous efforts to protect lives for generations now. Moreover, this makes me think again -- as I wrote in the context of Karl Llewellyn's foreword to the NAACP brief arguing that lynchers should be prosecuted -- that the tool kit of protesters contains some common themes. Protesters often strive to de-legitimize the present by revealing that distributions of property and political power are grounded in past injustice and pointing out that "law" isn't neutral and fair. In this regard, the arguments of Black Lives Matter seem to parallel a lot of what we've seen before.
The illustration is the "Hanging Tree Road" up in Southampton County, Virginia. (This is a modern street name; it's not the place where Nat Turner was executed.)