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Daniel A. Farber and Suzanna Sherry, BEYOND ALL REASONS: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (Oxford University Press, 1997).

From Subject
Fran Siders <jbevill@FCG.NET> Review: BEYOND ALL REASON (Siders)
Scott Syoen <smsyoen@ILSTU.EDU> Review: Beyond All Reason
Ryan Snyder <rwsnyde@ILSTU.EDU> Review; BEYOND ALL REASON (Snyder)
Scott Berends <swberen@ilstu.edu> Berends, Farber & Sherry review
Autumn Pemble <atpembl@ilstu.edu> Beyond All Reason (Autumn Pemble)
Autumn Pemble <atpembl@ilstu.edu> Re: Berends, Farber & Sherry review

Date: Mon, 27 Apr 1998 10:23:29 -0500
From: Fran Siders <jbevill@FCG.NET>
Subject: Review: BEYOND ALL REASON (Siders)

Daniel A. Farber and Suzanna Sherry, BEYOND ALL REASONS: THE RADICAL
ASSAULT ON TRUTH IN AMERICAN LAW (Oxford University Press, 1997). Review
By: Fran Siders 4-26-98

 
Radical multiculturalists believe that western ideas and institutions are
socially constructed to serve the interests of the powerful, especially
straight, white men. Largely politically progressive, radical
multiculturalism includes adherents of a broad assortment of theories,
including radical feminism, race theory, and legal writings about gays and
lesbians, often called "gaylegal" theory, and is united by their rejection
of the aspiration to universalism and objectivity that is the result of the
European Enlightenment. As defined by Farber and Shelly, radical
multiculturalism is not a unified theory. The assumptions of radical
multiculturalism have not been laid out systematically, and if one scholar
did so, others would disagree about plenty of things. Radical
multiculturalism is perhaps best referred to as an ideology, a set of
relatively simple slogans and ideas that help hold a group together and
give it a coherent view of the world. The radical multiculturalism theory
goes by other names as well, such as, critical legal studies movement
(CLS), social constructionism, postmodernism, and deconstructionism.

Much of CLS scholarship is aimed at deconstructing the legal doctrine to
show its indeterminacy. CLS concentrates on race and gender issues, and
particularly on how the law creates or contributes to unequal power
relations. The social construction of reality is a device to reproduce and
continue the existing white male power structure and oppress minorities.
Thus, the goal of the CLS is to expose the racism, sexism, and other
pathologies of accepted legal doctrines and social practices, and to
suggest changes to help current victims. Radical multiculturalism
especially focuses on and criticizes the concepts of knowledge, reason, and
merit. These concepts claim a universal validity and are both fundamental
and seemingly unbiased, but because they involve standards of justice that
are socially constructed and culturally contingent, they are suspect.

Since the Enlightenment, or possibly even before, knowledge has been
thought of as universally accessible and objective. Objectivity is the
attempt to eliminate beliefs based on bias, personal idiosyncracy, or
careless investigation. The radical multiculturalists deny the objectivity
of knowledge because knowledge is socially constructed and is a function of
the ability of the powerful to impose their views. The scholarship of women
and people of color reflect their distinctive knowledge and should be
judged or tested according to its political effect, not by traditional
standards.

The attack on objectivity also includes an attack on the concept of merit.
According to radical multiculturalists, merit standards can never be fair
or objective and can play no role in accounting for the relative positions
of different groups in society. The conceptions of merit are invented by
the powerful to reinforce their dominant position. Judgments of merit are
based on cultural and ideological concepts; therefore, there can be no
objective standards of merit applicable to all groups within the society.
Radical multiculturalists, after raising claims about the failure of
objective merit standards, fail to offer a better method of evaluation.
Two suggested replacements consist of a standard that guarantees racial and
gender proportionality and admitting students to law school by a lottery,
with quotas for various groups, never mind hard work. The radical
multiculturalist overlooks the student who studied hard throughout their
undergraduate studies and would place them in the same position as the
student who went to parties and got drunk every weekend or even every night
and thinks that this is okay. The law schools will just draw numbers and
then let the radical multiculturalists teach them in law schools by telling
them stories.

Knowledge in law school would be communicated by telling stories that
inspire faith thereby changing the law by censoring some forms of speech,
expanding legal protections for minorities, and reworking affirmative
action. Currently, the dominant majority tells stories about the world
that are accepted as an accurate depiction of reality, but amount to little
more than the myths of the powerful and that are a powerful means for
creating and destroying mindset. Through their stories, the radicals try
to explode the dominant myths or received knowledge, disrupt the
established order, seduce the reader, and shatter complacency. Since the
goal of scholarship is transformation, when the reader experiences a flash
of recognition, that resonates with the reader’s experience, knowledge is
communicated. The focus on rhetoric rather than logic is "a magical thing"
that transforms things into their opposites and makes difficult choices
become obvious.

The many problems of story telling are pointed out by Farber and Shelly.
Many radical multiculturalists are upset because others use their stories.
Because people interpret things differently, the person using the story may
stress something as important that the story teller does not think deserved
the extra attention. This results in criticisms and accusations within the
radical multicultural community. Stories based on personal history can
blur the line between fact and fiction. By omitting a few facts, the
author can twist the story to fit their purpose. The example given in the
book starts (I am repeating only the first paragraph of the story), "I grew
up in a single-parent family in New York City public housing. My mother
was an alcoholic and a compulsive gamble who abused me physically and
emotionally. Drunk, she would make me stand in front of her for hours at a
time, berating me and cataloguing my faults, sometimes until two or three
in the morning. We had very little money, of course; I began working for
pocket money when I was eleven, and by thirteen I was buying all my own
clothes and saving for college." What the story fails to mention is that
the parents were divorced when the child was nine and the father sent
regular child support and kept in touch. The public housing was middle
income house and was not considered "the projects." The alcoholism was
confined to several cocktails and never interfered with the mothers job or
ability to function. The gambling was weekly home poker games where ten
dollars was a big loss or win. The late-night session occurred two or
three times a year and was the sum total of the abuse. The mother always
made sure there was plenty of nourishing food and sacrificed to give us
private school (most on scholarship). Work consisted of baby sitting and
clothing was not a major expense. The remainder of the story is analyzed
the same way. By leaving out a few details, the writer conveys a far worse
life than what really happened and there is no way to tell which stories
fail to put in all the details.

Any debate between the radical multiculturalists and traditionalists is
very difficult due to the fundamentally different world views of the two
sides because the very concept of truth is what is in dispute. In the case
of merit, radical multiculturalists believe it does not exist therefore it
can play no role in accounting for the success of individuals or groups.
While the current methods of determining merit are far from perfect and
hard to measure, people can and do make widely shared judgments of merit.
Michael Jordan is where he is because of talent and hard work, not because
American sports favor blacks. Denouncing the concept of merit is much more
satisfying to the radical multiculturalist than simply charging that
objective standards of merit are applied in a discriminatory fashion, as
they sometimes are. Anti-Semitism allows blacks to identify with the white
majority and provides a socially acceptable outgroup on whom they might
vent their frustrations. Another massive outbreak of anti-Semitism is just
one result if radical multiculturalism theory was carried to its logical
conclusion, according to Farber and Sherry. The dismissal of merit
standards also fails to explain the success of Jews and Asians in our
society. The economic success of these groups is accompanied by
educational attainment. The Jewish and Asian cultures emphasize many of
the values that turn out to be need in a modern society, such as education
and entrepreneurship, they are more likely to succeed in that society. But
according to the multiculturalist, these are not the reasons for success,
instead when carried to the logical conclusion, the reasons are racist or
anti-Semitic.

Jews and Asian only succeed because there is a powerful and pervasive
conspiracy behind American society. The existence of this powerful Jewish
or Asian conspiracy explains why Jews and Asians, as a group, are
successful even if success has nothing to do with merit. Conspiracy
theories are used as a powerful tool by those who wish to portray
themselves as innocent victims. Such theories have been used to justify
university quotas against Jews and Asians, the Holocaust, and the
internment of Japanese Americans during World War II. The radical
multiculturalists' reliance on postmodern notions of social constructionism
and power entangles them in support of such theories. Conspiracy theories
were used to justify increasingly harsh treatment of black slaves in order
to prevent slave revolts and, according to Farber and Sherry, this should
be reason enough to steer clear of such dangerous tools.

Jews and Asian are allowed to succeed by the powerful elite to relieve
feelings of guilt and responsibility and to corroborate the meritocratic
myth in order to quell dissent and rebellion against the meritocracy and,
of course, Jews and Asians are among the collaborators. Accusations of
being in league with the oppressor are not limited to Jews or Asians.
Shelby Steele, a black conservative, has been attacked and accused of being
"a traitor to his race" who benefits by confirming the social prejudices of
the wealthy and powerful. Black gang leaders and their friends ostracize
successful or ambitious black students because they are trying to be white,
get ahead in the white man’s world, thereby, disrespecting the rest of
them. Success for someone who is not white and gentile is worse. White
male behave in a manner that advances their group self-interest and
minorities should behave in the same way. I have heard many black people
and leaders say that they need more role models for the black community and
question why successful blacks fail to come back into the community and
this might provide an explanation. Maybe they like being in the white
community where they are viewed as an asset to their race instead of the
black community who views them as traitors or enemies.

The anti-Semitic implication of the radical multiculturalist theory can not
be regarded as trivial flaws. Even thought the implications are unintended
and do not pose any immediate risk of harm, the long history of
anti-Semitism makes it difficult to be completely hopeful about the lack of
danger and sooner or later, it might occur to someone that radical
multiculturalism provides the perfect rationale for anti-Semitic beliefs.
The anti-Semitic implications are symptomatic of other serious problems.
Radical scholars have an inclination to deny some important facts about
race and gender in favor of poorly supported stock stories and the critique
of truth helps.

One radical multiculturalist’s belief, pointed out by Farber and Sherry, is
that all statements about the world reflect the desires of their authors.
I found this belief particularly ironic since radical multiculturalists are
writing statements about their view of the world and everything is not
biased, they just desire it to be that way. Radical multiculturalists
would abandon our inherited culture in its entirety in the name of
empowering the downtrodden. They are dissatisfied with the incremental
change and attempt to overturn the foundations of American legal thought.
They fail to offer solutions to the many problems that might arise if their
ideals were instated. They offer no solutions for coping with the racism
and sexism that would result. Their plans would not eliminate racism or
sexism, they would just add fuel to the fire. The radical
multiculturalists seek to take away the one thing that minorities have
turned to in order to gain rights, the American judicial system.

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Date: Thu, 30 Apr 1998 02:49:02 -0500
From: Scott Syoen <smsyoen@ILSTU.EDU>
Subject: Review: Beyond All Reason

REVIEW:

Beyond All Reason: The Radical Assault On Truth and Justice In American Law
By Daniel A. Farber and Suzanna Sherry

 
Since the Greeks first began to formalize philosophy, and present the idea
that knowledge could be sought, skepticism of one form or another has
challenged the very notion of human ability to know. With the rise of the
Enlightenment, the search for objective knowledge intensified, and became a
part of politics as well as science and philosophy; Enlightenment-inspired
political systems are in part founded on the notion that all people have an
equal ability to find truth, a right to justice, and should be judged on
individual merit rather than race or class. Historically, these concepts
have been applied unevenly (if at all) to minorities and women, but those
who adhere to Enlightenment thought usually suggest that the concepts
themselves are sound, and need only be universalized. Recently, however, a
school of legal thought broadly known as critical legal studies (CLS) has
extended the skeptical tradition. CLS has begun to challenge the very core
of the Enlightenment approach to legality, suggesting that concepts such as
merit, justice, and even truth itself are nothing more than expressions of
power on the part of the powerful, and that objectivity cannot exist at
all. Critical legal theorists also attack traditional methodology,
favoring a narrative, storytelling approach to the law over the empirical,
logic-based approach that has usually been taken.

In "Beyond All Reason: The Radical Assault on Truth and Justice In
American Law," Daniel A. Farber and Suzanna Sherry, law professors at the
University of Minnesota, undertake to criticize CLS, and more specifically
those proponents of the more extreme variations of CLS known as radical
multiculturalism. They are defenders of the traditional approach to
legality, and believe that radical multiculturalism is not only wrong but
actually harmful. They base this conclusion primarily on three assertions:
First, that radical multiculturalism leads to conclusions that even its
advocates would reject; second, that radical multiculturalism results in
"distortions and public discourse"; and third, that the consequences of
radical multiculturalism reach beyond legal studies into nearly all areas
of life, and that these consequences are such as radical multiculturalists
should reject.

Perhaps the most striking objection that Farber and Sherry raise to
radical multiculturalism is that, properly applied, it leads to racism.
The radical multiculturalists assert that in America, success is dictated
by merit, and merit is defined by those in power. Thus, minorities cannot
succeed in the current system; it is specifically geared toward different
values than those that they have. However, Farber and Sherry note that
some minorities have actually done very well under the current system:
Asians and Jews. What could account for this discrepancy without racist
implications? The authors delineate a number of possibilities, but believe
that none of them can be used by radical multiculturalists. For example,
Asians and Jews may simply share values with white American culture.
However, this implies that white values are not necessarily oppressive, as
radical multiculturalists suggest; instead of deciding whether merit is
oppressive, we are simply left to decide what conception of merit is the
least oppressive, which is exactly what Enlightenment scholars suggest.

Instead, radical multiculturalists are left with one of four options:
First, perhaps this success is the result of a conspiracy; or, perhaps Jews
and Asians are deliberately mimicking white culture, which suggests that
their success is due not to creativity or any positive traits, but simple,
parasitic imitation; Jews and Asians might also be used by majority society
to assuage majority guilt, suggesting that they are willing collaborators
in other minority oppression; finally, American culture might be dictated
by Jewish and Asian values, suggesting that whites are not to blame for
minority oppression, but instead that Jews and Asians are. However, these
options all have racist implications, and are dangerously in line with
traditional racism.

The charge of racism is especially effective when they analyze Derrick
Bell's story "The Space Traders" in this light. In the story, aliens come
to Earth and offer "untold riches" in exchange for the black population of
the planet. In the story, whites take the deal, but Jews stand up for the
blacks, opposing the bargain. However, Bell attributes less than noble
motives to the Jews; he believes they would do so in order avoid becoming
the most oppressed minority as a result of a trade. Thus, rank
selfishness, rather than humanitarianism, is attributed to the Jews, which
is very much consistent with most forms of anti-Semitism.

Next, Farber and Sherry turn to the effect that radical multiculturalism
has had and may continue to have on public discourse. To examine this,
they address the increasing popularity of storytelling in legal
scholarship. Radical multiculturalists often use narrative rather than
traditional legal approaches, relating stories that are intended to impart
their message. Many prefer this approach because they feel it forges a
more profound personal connection between the reader and victims of
discrimination. However, Farber and Sherry object to the overuse of this
approach, contending that not only can stories be misleading and
unrepresentative of true legal situations (either through omission of
important details or overemphasis and unfounded speculation on other
parts). They also fear that any criticism of stories may be taken
extremely personally, leading to a rejection of valid criticism. Indeed,
in some cases this has already happened; Derrick Bell has suggested that
criticisms of critical race theory need not be dignified with a response,
and Catherine MacKinnon has accused even other feminists of being in the
pay (or, assuming she meant it metaphorically, under the influence) of
pornographers when they have disagreed with her views on obscenity and
pornography. This, Farber and Sherry maintain, makes it difficult for even
other radical multiculturalists to offer constructive criticism, especially
because of the variety of ways in which stories can be interpreted.

"Beyond All Reason" attempts to trace the implications of radical
multiculturalism beyond simply the legal realm, however; Farber and Sherry
hope to show that the implications the theory will have on history should
be unacceptable to radical multiculturalists themselves. However, rather
than an Arthur Schlesinger-like approach in which the scholarship of these
thinkers is attacked, Farber and Sherry take a pragmatic angle, taking the
theory to its logical ends. For example, radical multiculturalists
maintain that history itself is infinitely malleable, and no objective
truth about the past can be gleaned from the available sources. Their work
of majority scholars is even more suspect; their work is best regarded as
another instrument they use to maintain power. In truth, radical
multiculturalists believe, history cannot provide truth, and all
perspectives on it are equally valid.

Yet under such a theory, Farber and Sherry note, such destructive and
ill-supported historical theories as Holocaust revisionism cannot be
validly condemned; they must be accepted as simply another perspective.
Further, even the stories that radical multiculturalists favor can be bent
under this theory, and the interpretation of personal history can lead to
wildly different accounts of events. Often, this could be used to fight
the oppose the very courses of action the radical multiculturalists favor.

Farber and Sherry convincingly tie together the various tenets of radical
multiculturalism, making a strong case against its acceptance. It should
be stressed that they admire the motives of the radical multiculturalists,
but simply believe that the methods they employ will not allow them to
achieve the goals they seek. Further, they believe that radical
multiculturalists rely on the very concepts they decry in their own
theories; they deny the objectivity of fairness and justice in order to
achieve what they believe will be a fair and just system. Since they also
deny the existence of objective truth, one is led to wonder: why should
anyone adhere to radical multiculturalism? In particular, why shouldn't the
powerful simply use their power to crush dissent, since no objective basis
exists from which to condemn such a use of power?

The answer, Farber and Sherry believe, is to alter traditional legal theory
to guarantee justice and fairness for all groups; after all, if we abandon
truth, we cannot advance our own claims and maintain consistency. Thus,
they attack radical multiculturalism on the grounds that it undercuts
itself fatally. This is a tried and true tactic of the opponents of
postmodern theory (of which radical multiculturalism is a variety), and
rings particularly true in this context.

"Beyond All Reason" is a careful, original examination of radical
multiculturalism, but has its problems. The most glaring of these is the
small snippets of radical multiculturalist quotes that ; one cannot help
but wonder whether these quotes were always presented in context, and more
detail would have been appreciated. Additionally, despite their stated
intention of avoiding an analysis of the more philosophical aspects of
radical multiculturalism, such an examination would be completely
appropriate, and would hardly have stretched the book beyond a tolerable
length.

Yet especially for those readers coming from an Enlightenment background,
Farber and Sherry's criticisms are valid on a philosophical level, although
the authors intend them to be more practical than theoretical. In the end,
however, the tacit philosophical criticism of extreme forms of
postmodernism is what is most striking; the practical elements often
follow. And, they make it a point to stress that they do, in fact,
appreciate that the motives of the radical multiculturalists are laudable,
even stating that they agree with much of what less radical proponents of
critical legal studies have to say. One cannot help but hope moderation
wins out in the future.

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Date: Fri, 1 May 1998 00:16:53 -0500
From: Ryan Snyder <rwsnyde@ODIN.CMP.ILSTU.EDU>
Subject: Review; BEYOND ALL REASON (Snyder)

Daniel Farber and
Suzanna Sherry BEYOND ALL REASON (Oxford University Press, 1997)
Review by: Ryan Snyder; rwsnyde@odin.cmp.ilstu.edu
 

In Derrick Bell's allegory, "The Space Traders", aliens offer the United
States "untold treasure" in return for surrendering all blacks to the
aliens. The American public votes to accept the deal by an overwhelming
margin. As the story develops, there is opposition to the deal, especially
among the Jewish leadership. They condemn the trade as genocidal and
organize the Anne Frank Committee to oppose it. However, as Bell points
out, their high-minded proclamation leaves out the true motivation of many
Jews, a fear that "in the absence of blacks, Jews could become the
scapegoats." The moral of the story is that Jews don't really desire black
equality, they want to keep blacks around as convenient targets to deflect
white gentile anger. Derrick Bell believes that the blacks are at the
bottom of the totem pole in American's society, with the Jews slightly
above them. He feels that if the blacks were not around, the Jews would
receive the racism and discrimination that the blacks usually face in
society.

In this story, it is obvious that Bell fails to recognize anti-Semitism
when he sees it. Also, this story illustrates a widely shared theory that
standards of merit are socially constructed to favor the powerful. This
theory is often called social constructionism. This book by Daniel Farber
and Suzanna Sherry exposes the theories of social constructionism and the
risks of social constructionism to our intellectual and political community.

Over the past few years, a group of legal academics has been making
startling claims about the nature of reality and its implications for law.
These scholars are social constructionists, however not all social
constructionists make such radical claims as Derrick Bell. Farber and
Sherry labels this group as radical multiculturalists, a group that is
largely politically progressive. Radical multiculturalism includes
adherents of a broad assortment of theories, including critical race
theory, radical feminism, and legal writing about gays and lesbians. As
Bell's story illustrates, the thesis of radical multiculturalists is that
western ideas and institutions are socially constructed to serve the
interests of the powerful, white men.

This group is united by their rejection of the aspiration to universalism
and objectivity. Reality, they suggest, is subjective and socially
constructed. Daniel Farber and Suzanna Sherry examines the legal and
societal implications of radical multiculturalist legal theories. In
particular, they explore whether their beliefs serve or undermine the
radicals' own progressive goals of increasing both social justice and
individual freedom and improving the quality of public discourse. They
contend that the radicals' attachment to social constructionism and related
doctrines hinders rather than furthers attainment of all these goals.

In the first part of the book, they explore the tenets of radical
multiculturalism. They define who the main scholars are and relate their
views to the law. The second part of the book, they give a critique of
radical multiculturalism. The third part of the book, Farber and Sherry
present the consequences of the radical multiculturalist attack on the
concept of objective truth. Finally, in the last chapter, they show how
the various tenets of radical multiculturalism fit together and reinforce
each other. They also explore the mechanisms that allow the radicals to
abandon common sense and adhere to a set of basically implausible beliefs.

An approach that Farber and Sherry takes is to show that the ideology
doesn't work becasue it fails to keep its promises. According to them, it
fails on its own terms because it cannot support the kind of world that it
seeks to create or maintain. For example, they argue that although radical
multiculturalism attempts to promote equality, its conception of equality
is fatally flawed because of its inherently anti-Semitic and racist
implications.

Radical multiculturalists focus especially on and criticize such concepts
as knowledge, reason, and merit. These concepts are both fundamental and
seemingly unbiased, they claim a universal validity. All of them involve
standards of judgment, which according to the radicals are socially
constructed and culturally contingent, and, therefore, suspect.

The wholesale condemnation of purportedly objective standards stems from
the radicals' rejection of the very notion of objectivity. Objectivity
itself is a sham, perpetrated by the powerful. We can have no universal or
common standards of judgment. Anything that masquerades as universal is
merely "a mask for the will to political power of dominant hegemonic
groups." Rationality, objectivity, accuracy, and standards of intellectual
quality and merit masks of oppression that is designed to convince the
oppressed that subordination is justice. One radical multiculturalist
writes that there is no objective reference point, separate from culture
and politics, that is available to distinguish truth from ideology, fact
from opinion, or representation from interpretation.

Objectivity of knowledge is another concept that the radical
multiculturalists deny. Objectivity is the aspiration to eliminate beliefs
based on bias, personal idiosyncracy, fiat, or careless investigation.
Since the Enlightenment, knowledge has been thought of as universally
accessible and objective. According to Farber and Sherry, knowledge is
objective in the sense that it reflects something beyond fiat or a
parochial viewpoint. However, the radical multiculturalists disagree that
knowledge is objective. One radical feminist states that "knowledge is
socially constructed rather than objectively determined." For radical
multiculturalists, knowledge is intensely personal. Like everything else,
knowledge is also political in the sense that it is a method of maintaining
established hierarchies. Knowledge thus cannot be evaluated apart from the
social roles, and, in particular, the race and gender of those who claim to
know. As a result of the scholarship of women and people of color reflects
their distinctive knowledge, the radical multiculturalists argue, it cannot
be judged or tested by traditional standards. Instead, they imply, it
should be judged according to its political effect. It should be judged in
terms of its ability to further the interests of the outside community.

The attack on objectivity also encompasses an attack on the concept of
merit. Radical multiculturalists deny that merit standards can ever be
fair or objective. They argue that merit can play no role in accounting
for the relative positions of different groups in society, rather,
conceptions of merit are invented by the powerful to reinforce their
dominant position.
Daniel Farber and Suzanna Sherry points out that the problem of this
argument is the question of how to conduct evaluations in the absence of
some concept of objective merit standards. Most radicals tend not to
address this question, they condemn the current standards of evaluation but
offer no substitute. Like other "objective" criteria, merit standards are
created by the powerful to perpetuate their own power. A fundamental tenet
of radical multiculturalism is that all of reality is socially constructed
to create and maintain power and the only way to succeed is to demand more
power.

According to the new radicals, the Enlightenment-inspired ideas that have
previously structured our world, especially the legal and academic parts of
it, are a fraud perpetrated and perpetuated by white males to consolidate
their own power. Those who disagree are bigoted and blind. The
Enlightenment's goal of an objective and reasoned bias for knowledge,
merit, truth, justice, is an impossibility, objectivity in the sense of
standards of judgment that transcend individual perspectives, does not
exist. Reason is based on the views of the privileged. The Enlightenment
itself replaced one socially constructed view of reality with another,
mistaking power for knowledge.

In their book, Daniel Farber and Suzanna Sherry challenges the views of
radical multiculturalists and their ideology. They examine the views of
Derrick Bell, Catherine MacKinnon, Patricia Williams, and Duncan Kennedy.
They also examine the arguments of Critical Legal Study advocates and how
they are transforming law schools and the consequences it has on the
education of law students. This was a very thought-provoking and original
examination of radical multiculturalism which leaves the readers scarcely
anything left to argue. Their usage of numerous quotes from theorists,
such as Derrick Bell, was very useful for the reader to better understand
the viewpoints of CLS advocates and radical multiculturalists, however,
there are questions of whether these quotes are taken out of context.
Farber and Sherry thoroughly discredits the ideology of radical
multiculturism and, therfore, obtaining their goal.


 

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Date: Sat, 17 Apr 1999 18:24:56 -0500
From: Scott Berends <swberen@ilstu.edu>
Subject: Berends, Farber & Sherry review

Daniel A. Farber and Suzanna Sherry; Beyond All Reason: The Radical Assault
on Truth in American Law; New York, Oxford University Press, 1997; ISBN
0-19-510717-9

Reviewed By:
Scott Berends
Illinois State University
 

The past twenty or so years have seen a radical development in the
understanding of American law; the Critical Studies Tradition. This
tradition, begun in the forties by white law professors, challenges the
foundation of American law. Prior to the development of the critical
tradition law was widely held as a near-objective, fair standard that was
created by the people for the sole purpose of serving those people’s
interests. This did not mean that the law worked against some people’s
interests from time to time, but those people who were ill-affected by the
law were either criminals or else they were acceptable casualties of the
ideal of justice. When the critical legal tradition developed it
challenged both the objectivity and fairness of the law, the tradition was
centered around one simple question, applied nearly across the board; why
was the law formed the way it was? This question came in many forms but
essentially all of the critical tradition’s various questions stemmed from
the one goal of discovering why.

The reign of the critical legal scholar yielded one fundamentally important
discovery, the law need not have come from some objective, a priori
standard; it was possible to have a fully functioning law that stemmed
solely from the subjective needs and desires of a few important people.
This discovery prompted the offshoot of the critical legal tradition that
Farber and Sherry focus on; the critical race scholar.

Like critical legal theory, critical race theory challenges the objective
standard of law, but the critical race theorist makes their challenge along
racial lines. They claim that the standards with which both the law and
society make their determinations are merely established by the powerful
elite for the sole purpose of maintaining their power. Thus when a person
goes before a judge and attempts to argue a case, that person must use a
language sanctioned by the legal community, a language that is alien to
most minorities but second-hand to most whites. Similar claims are made
about the seemingly objective merit standard, the standard that, ideally,
would be employed in job assignments and the partitioning of societal
awards. The critical race theorist claims that because what constitutes
merit is socially determined, merit may be used to maintain the white
power-structure, while holding minorities on a second-class rung. This is
the idea that Farber and Sherry challenge. They claim that the critical
race theory is unable to explain the success of Jews and Asians in America
without either lumping them with the white power-structure or defaulting to
existing Jewish and Asian stereotypes. For this reason, they claim that
critical race theory is essentially anti- Jewish and Asian. They also
claim that the way critical race theory works is detrimental to its goal of
societal equality.

Of the two criticisms raised by Farber and Sherry the anti- Semitic/Asian
claim is the least plausible, because it rests on a foundation of bad
logic. At the base of their argument is the assumption that both Jews and
Asians are minorities, in the same way Blacks, Hispanics and women are.
Once armed with this assumption Farber and Sherry search the literature of
critical race theory for a way to account for the success of Jews and
Asians without including them in the class of power-elite. Their belief is
that because critical race theory maintains that white males are the power
elite and because the power elite form and maintain laws and standards that
only benefit themselves, the established standards must work against both
Jews and Asians as well as against Blacks, Hispanics and women. Because
Jews and Asians have enjoyed relative success in America the authors
maintain that critical race theory must be anti-Semitic and anti-Asian for
if Jews and Asians are successful than they must either be helping to set
the standards that hold blacks and other minorities down (clearly anti-
Semitic and Asian) or their success must be explained through the old
Jewish and Asian stereotypes.

The logic of critical race theory is easy to understand, minorities will
not truly advance in America because the standards for making value
judgements in society are not racially neutral. The fact that Jews and
Asians have been able to advance in America does not conflict with this
logic, it simply means that both Jews and Asians are able to provide
services and goods that the power structure deems worthwhile.

The authors cite the large numbers of Jewish professors in the various
top-tier American universities as one bit of evidence for the success of
Jews in America. While this may be true, the authors do not state that
Jewish people have a long history in America. While it is certainly true
that Jews have suffered many of the same abuses as other minorities, these
abuses have generally moved from mainstream American thought to the realm
of ‘dangerous fringe’ thought. Thus, apart from the relative few militia
members and anti-Jewish hate mongers, most people do not believe that there
is a Zionist Occupied Government, nor do most people believe that Jews are
manipulating the American system (in a bad way). Jewish success is largely
attributed to hard work and diligence in school and if this is a stereotype
it is certainly not a bad one. The abundance of Jewish professors may be
explained in one of two ways, neither of which are essentially anti-Jewish;
either Jewish professors are out-competing their non-Jewish counterparts,
thus fulfilling one of the standards the white power elite maintains, good
schools for their children, or those successful Jews are raised in an
environment where hard work and diligence are maintained as virtues,
neither of these possible explanations are anti-Jewish. Furthermore, while
it is possible to readily determine whether a person is black or not, it is
not so easy to determine whether a person is Jewish. Thus Jews may be able
to slip into the white power structure primarily because they are white
people.

The success of Asians may be a little more difficult to explain but it is
certainly not impossible. If one maintains that white people will
encourage those things that maintain white power one has no problem
understanding the success of Asians in America; they are essential to the
maintenance of the white power structure. Though I am not entirely
certain, I believe that the electronics and math-sciences industries have,
in recent years, become dominated by Asians (though not by all Asians), if
this is the case then all one needs to understand to realize that critical
race theory is not anti-Asian is that, while they have made significant
headway in the realm of technical worker, there are very few Asian-American
corporate heads, and those few that are, are not American citizens.
Critical race theory realizes that poor white people are held back by the
subjective standards of American society almost as much as black people
are. If the power elite desire certain goods they are going to procure
those goods in the most efficient and cheap manner possible, because the
Asian market was able to make better quality goods at a cheaper price they
were able to undercut their American competitors which led to the various
mergers and buyouts of the eighties. When two companies merge or when one
company buys another company out the corporate heads are rarely fired, and
if they are then they are released through retirement, thus earning them a
great severance package. The people who do suffer are the low-class
workers the wage slaves. Critical race theory has no problem accounting
for this phenomenon, as the power elite are only interested in maintaining
their power, not the power of their whole race. Thus if a number of Asians
are employed because they are cheaper and their technology is better, so
what, this does not mean that critical race theory is anti-Asian, merely
that white society valued good technology better than white technology.

The criticism that really strikes a blow to critical race theory is that,
because critical race theory accounts for the subjective experiences (the
voice) of an author when making a determination of that author’s arguments,
it intertwines authors and literature in a way that makes any criticism of
the literature a criticism of the author, a practice that is not conducive
to rational discourse. Furthermore, critical race theory’s reliance on
‘voice’ as a fundamental property of an argument fragments that theory,
halting all discussion at the moment of criticism. The authors contend,
and I agree, that a theory that results in the viscous fragmentation of its
followers is not a good theory, especially when that theory seeks social
change. If critical race theory is correct then things such as merit and
intelligence are determined by the people in power. One of the fundamental
aspects of group power is group cohesion, thus any theory that fragments
its followers rather than unifying them under a common banner, will not
achieve the requisite numbers to gain power. This is a serious criticism
because it challenges the effectiveness of the theory rather than the
theory’s logical structure. Critical race theory has the potential to
become a powerful theory with significant social applications, but unless
its proponents can cease fighting among themselves (which does not seem
possible given the theory’s current trends) the theory will never move
beyond the realm of ‘ivory tower discourse’.

One final criticism implied by the authors, but never fully expressed or
developed, is that the very nature of ‘voice-centered’ discourse serves to
silence the very people that discourse is designed to uplift; those without
power. In the beginning of their book the authors relate a story that
followed Congress’s rejection of Robert Bork. A former colleague of Bork’s
claimed that Bork, though extreme, would never be able to get his old
teaching position back, because he was too moderate. From this anecdote
the authors begin their assault on the radical shift in legal theory. If
this is true and the vast majority of legal scholars have moved toward the
radical left (the side of critical race theory) and the radical left is in
a position to silence all criticism on the grounds that such criticism
“misses the point” or “is unable to relate” then any untenured professors
who attempt to criticize critical race theory and its volumes of literature
are risking their careers. Every tenure-track professor I have ever spoken
to has told me that the time before receiving tenure are truly tenuous
times, for the professor does not want to risk their career by taking
stances in opposition to their university. One of critical race theory’s
main points is that minorities are unable to exercise their voices in
scholarly discourse because they must conform to the standards established
by the power structure. By fragmenting its followers, critical race theory
jeopardizes the voices of those who disagree, thus visiting the same
frustrating silence on the very people most able to strengthen the theory
itself; the dissenters.

This is an excellent book, but one that is not meant for people unfamiliar
with critical race theory and its theoretic predecessors. I was fortunate
in that I am relatively familiar with the discourse surrounding critical
race scholarship so I was able to understand much of what the authors were
writing about. But a person unfamiliar with such discourse would have
significant trouble understanding the book’s focus. This problem might be
overcome if the authors would increase the number of citations in their
work, they promise to cite numerous authors to strengthen their arguments,
but fall far short of fulfilling that promise. Critical race theory is not
a household idea, thus I can only conclude that the book was written not
for the layman but rather for a person both interested in and familiar with
the theory itself, if this is the case than I can see no stylistic reason
for failing to include more citations. In short though, apart from a few
minor criticisms, and a disagreement with one of the main points, I was
very impressed with the book; it was a beacon of rationality in a sea of
misunderstanding and hurt feelings.

Scott Berends
Illinois State University
swberen@mail.ilstu.edu

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Date: Tue, 27 Apr 1999 22:57:10 -0700
From: Autumn Pemble <atpembl@ilstu.edu>
Subject: Beyond All Reason (Autumn Pemble)

Farber, Daniel and Sherry, Suzanne. Beyond All Reason: The Radical
Assault on
Truth in American Law. New York: 1997.

Reviewed by, Autumn Pemble
 

Beyond All Reason is a book that presents different criticisms of radical
multiculturalists' ideology. The book is not meant to pin-point a certain
scholar, and his or her works. However, it points out the flaws of the
ideology associated with radical multiculturalists. Not all radical
multicutralists may agree with all of the ideas behind their ideology. While
the authors realize that radical multiculturalists wish to fix the injustices
in our society, they feel they are going about it in the wrong way. Thus,
their ideas are interfering with justice. Farber and Sherry maintain that
racism and anti-Semitics are being displayed through such theories. Even
though the same goals may be shared by the authors and radical
multiculturalists, the visibility of such goals are hidden. Farber and Sherry
wish to increase "both social justice and individual freedom and improving the
quality of public discourse."

The first part of the book tells characteristics of radical multiculturalism.
According to the book, a principal of radical multiculturalism is the
desire to
change what is meant by truth, merit, and the law. One idea is that laws are
made by and for people in power who wish to stay in power. For example,
Derrick Bell felt that the Brown v. Board of Education decision would only
protect blacks at the mercy of the whites.

Another idea of radical multiculturalism, is that reality is socially
constructed to benefit those already in power. Richard Delgado spoke of
racism
as a normal part of society that benefits all.

A third idea asserts that knowledge, reason, and merit are socially
constructed. Justice is also on the same level as these ideas. For example,
Derrick Bell's book The Space Traders talks about aliens who make a deal with
the whites. The deal consists of taking all of the black Americans. Bell
insisted that the Jews would side with the blacks. However, Jews only take
their sides in hope of benefiting themselves. They fear that if blacks leave,
they will be the burdens. Therefore, objectivity is flawed and only inflicted
through powerful individuals.

The objectivity of knowledge is not believed by radical multicuturalists.
Therefore, knowledge tends to benefit the powerful since they designed it.
Accordingly, merit produces racism because the powerful is defining it, also.
Farber and Sherry do not like this point that radical multiculturalists have
because they offer no solutions to fix the problems associated with merit. If
one is against the "socially constructed" philosophies behind justice, merit,
knowledge, and reason, he or she might be labeled a racist or bigot.

Because of such ideas, legal multiculturalists encounter problems with the
legal system. According to legal multiculturalists, legal reasoning and
speech do not effect outcomes of cases. Rather, the outcome is affected by the person in charge and the amount of power he or she has. The desire to maintain that power, also makes a difference. This is what determines how the judge will rule or how the legal system will conclude.

Due to these ideas, one must wonder if radical multiculturalists want what is
best for society. The attack on merit is necessary because anti-Semitic and
racist attitudes are showing through radical multiculturalists philosophies.
Farber and Sherry maintain that merit does exist unlike radical
multiculturalists. If merit does not exist, then how would we account for
Michael Jordan and Michael Jackson. They became famous because of their
talents, not their skin colors. Farber and Sherry make a valid point. Merit
does exist no matter what radical multiculturalists think. If there is no
such
thing as merit, why do Asians exceed whites in certain situations? By what
radical multiculturalists' ideas are concerning merit, racist and anti-Semitic
feelings are only being perpetuated. According to radical multiculturalists,
there are four ideas about why Jews and Asians are successful despite the
concept of merit.

One idea is that the two groups are packing together and turning against the
U.S. Another reason for their success rates focus on an integration process
that leaves the groups culture less. Thus, making the two groups "copy cats"
of mainstream society. A third reason suggests that Jews and Asians can
achieve more because the whites in power are "letting" them. The last idea
regarding why Jews and Asians are successful, despite meritocracy, suggests
that the American way of life allows certain Asian and Jewish cultures to
exist. For example, the two cultures would be "acceptable" to a certain
degree. If radical multiculturalists believe in these four ideas, then how
would other minority and religious groups fit into these categories? At the
same time, how can Jews be contrasted so easily with Asians. Jews are
discriminated against because of their beliefs not their skin color. It is
hard to put Asians and Jews in the same category.

Another point Farber and Sherry make, suggests that radical multiculturalists
have trouble conveying their ideas about their ideology because of the manner
in which they display them. For example, storytelling is a common way to
stress certain ideas. However, stories can be interpreted and told in many
ways. Radical multiculturalists exploit many issues through storytelling.
Sexual assault, racism, and affirmative action are only a few ideas in which
these scholars debate over. The book mentions stories told by radicals
focusing on merit. All three of the stories mentioned described how
minorities
are filtered out from law school employment. For example, Bell tells a story
of how a minority does not get hired because too many are already in place.
The minority who did not get hired was the best qualified person for the job.
Therefore, Farber and Sherry believe that these types of stories emphasize the
downside of merit. Worst of all, these stories are often not accounted for.

Another pitfall, is the way radical multiculturalists get their messages
across. The message is not what they focus on. Instead, they focus on the
messenger interpreting ideas targeted at certain groups. In fact, the
messages should be aimed at all groups! Otherwise, the critical race theory would be
undermined.

Another part of the book, deals with radical multiculturalists' perceptions
about truth and memory. According to Farber and Sherry, the truth is not
always being told. For example, Tawana Brawley's story is often shared by
radical multiculturalists. However, the story is unfounded. Tawana Brawley
claimed she had been raped by a group of white men. The grand jury did not
indict and no evidence was found regarding Brawley's story. Yet, this
story is used to show how black females are viewed in our criminal justice system.
These kind of stories cause many people to suffer. The stigma that the
alleged white men faced was enormous. I agree with Farber and Sherry, storytelling of
this nature only undermines the group's ideology.

This book sends out a message that radical multiculturalists are kept down
because of their beliefs that only the powerful (whites) prevail. In
actuality, the oppressed are only being oppressed by their own beliefs.
Certain views are flawed and they are effecting our society. People from all
groups need to heal society. With one group thinking, as Farber and Sherry
pointed out, that merit is unrealistic the healing process would take forever.

One problem with this book is the assumption that the reader is familiar with
the critical race theory. Farber and Sherry point our many flaws, but their
arguments are not well-supported because they did not give the reader much
background information and explanations of the ideologies. They lack evidence
because the book seems like general statements and could be interpreted in
different ways. Many authors are mentioned throughout the book. The
criticisms seem empty without knowing anything about the authors. Some prior
knowledge about these authors and theories would have been useful.


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Date: Tue, 27 Apr 1999 23:45:57 -0700
From: Autumn Pemble <atpembl@ilstu.edu>
Subject: Re: Berends, Farber & Sherry review

Scott,

You did an excellent job describing the book we read. I found it hard to
present the problems with it because of information the book did not
provide. However, the background information that you had impressed me. I
agreed with you about the categories of Jews and Asians. They are quite
different. I was surprised that you like the book as much as you do. I
thought the book was too short and vague. Also, many of Farber and
Sherry's ideas were just opinions. People can interpret different meanings
from the radical multiculturalist's ideas. I guess the book did not
interest me. However, if I was more knowledgeable in this area it would
have.

Autumn
 
 

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