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July 07, 2021


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LawProf John Banzhaf

If critical race theory is a theory which should be taught (or taught more widely) in law schools, it’s probably fair to ask to what extent this theory has been validated.

I don’t know the answer, so I simply raise the issue, and hope someone can provide an authoritative response.

At least in science, and generally in the STEM disciplines, theories are supposed to be tested, and the generally accepted test is the extent to which the theory is able to generate predictions which in fact come true.

Probably the best known example is that Einstein’s theories of relativity were not generally accepted and taught until the predictions which they made were observed.

As Oliver Wendell Holmes, Jr., suggested, “the law” is largely about making predictions: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

Few would doubt that what is largely taught in law schools - Doctrinal Law, as in Torts, Contracts, Trusts & Estates, Administrative Law, etc. - is useful in helping to predict the outcome of relevant cases.

For example, law students who have studied Administrative Law will almost always do better, on the average, in predicting how courts will rule in cases involving administrative agencies than students who have not studied this branch of law, and the same is almost certainly true for Torts, Contracts, etc.

In addition, adding Legal Realism by taking into account many of the individual characteristics of judges and justices - e.g., age, gender, race, legal experience prior to assuming the bench, and, probably most importantly, prior legal decisions - and applying it in addition to Doctrinal Law, is something most experienced attorneys do because they know it improves the accuracy of their predictions.

So it probably is not unreasonable to ask whether students who have studied Critical Race Theory in law school are, on the average, any better at predicting the outcome of cases in certain defined areas than those students who have never studied this theory.

Ediberto Roman

Great post, Bridget (I am not sure if we have met--appreciate all your pedagogy-related posts; I suspected this one would create interest). As someone that researches and writes in what I describe as CRT, I have always questioned how I could introduce different vantage points and perspectives in certain law classes. Some of the examples you mention are ones I need to explore further. Of course, I had my share of comments to my own CRT post---the back and forth can indeed become exhausting. I will say, I am always a bit surprised by the amount of objections that arise when someone raises the possibility of examining legal issues by looking at them through different lens, especially when those lens are race-related. Perhaps it is a function of our times, but I have not recently noticed such reactions when issues other than CRT are raised. Is it about race? Or is it about something else? Perhaps science, as some assert? These questions are of course rhetorical, though I suspect they may provoke a response or several. Nonetheless, my sole goal here is to support you and this important entry. Keep up the good work. P.S. I am always happy to formally defend CRT in another arena--just not today.

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