Using Rewritten Judicial Opinions to Teach CRT While Reinforcing Doctrinal Lessons

These are certainly interesting times to teach and write about critical race theory. As CRT becomes the new political scapegoat, US law schools are (finally) beginning to explore how to teach students law while also teaching them about the racism (and misogyny and homophobia) embedded in the law.

The question, of course, is always how to integrate CRT. Standalone courses are great, but they reach only a handful of students. And law professors often feel like they cannot add lengthy critical scholarship readings to already overpacked doctrinal courses.

One answer to the dilemma is to use rewritten judicial opinions. The Feminist Judgments series offers opinions that look like “real” judicial opinions but include critical race reasoning (as well as other critical legal perspectives). These rewritten opinions are shorter than most scholarly articles and can be a quick and effective way to incorporate CRT into your class. Because they are relatively short, they can be assigned ahead of time along with the original opinion or can be read as part of an in-class exercise as described by Bridget Crawford in this book chapter.

Teaching sexual harassment law? Dean Angela Onwuachi-Willig’s rewritten opinion in Meritor Savings Bank v. Vinson uncovers the racial dynamics of sexual harassment that were obscured in the original opinion. Or maybe you are teaching employer appearance codes in your employment law class. Consider assigning Professor Wendy Greene’s rewrite of EEOC v. Catastrophe Management Solutions, in which she reveals the racism and misogyny underlying what US law considers professional or appropriate for the workplace.

Teaching battery in Torts and want to stimulate a critical discussion of the bias inherent in determinations of intent or damages? Consider Professor Alena Allen’s rewrite of Robinson v. Cutchin, in which she criticizes the argument that an African American woman subjected to an unwanted tubal ligation during her C-section had suffered “no additional physical pain, injury or illness.” Professor Allen’s opinion is the perfect vehicle to teach students about the dangers of an ahistorical approach to doctrine because it places the concept of informed consent in the context of the history of involuntary sterilization of poor African American women in the United States.

These are just a few examples. Others include Professor Marley Weiss’s rewrite of Ricci v. Distefano in the Employment Discrimination volume, Professor Jennifer Wriggins and Professor Sara Cressey’s rewrite of G.M.M. v. Kimpson in Torts, Professor David Brennen’s rewrite of Bob Jones University v. United States in the Tax volume, and Dean Browne Lewis’ rewrite of O’Neal v. Wilkes in the Trusts & Estates volume, and Professor Teri McMurtry-Chubb’s rewrite of Loving v. Virginia in the Supreme Court volume, to name just a few. Go to the Feminist Judgments website for resources about how to teach using alternative judgments.

The best part is that if your library subscribes to the electronic versions of the volumes on Cambridge Core, students and faculty can read and download individual opinions via their library websites with no extra charge. Right now, Cambridge University Press is running a promotion where readers can access free chapters and libraries (and others) can get a discount on purchases of volumes in the series.

If we are going to be criticized for teaching CRT anyway, we might as well run with it.

-Kathryn M. Stanchi

Comments

[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.