In recent decades, the study of race has achieved increasing prominence in the legal academy. Legal scholarship on race, including but not limited to critical race theory, has proliferated, and the number of law school courses that substantially address race-related issues has noticeably increased. A newer trend in legal education is the emergence of institutionalized programs that promote opportunities in and outside the classroom to engage issues at the intersection of race and law.
This raises the question, why? Why should law schools incorporate race as a substantial component of the curriculum? Put simply, why study race and law? Legal educators have differed on the importance of race to legal education. Skeptics, most of whom would acknowledge the relevance of race to certain topics, such as discrimination and affirmative action, question whether it should be a substantial focus of legal study, especially for lawyers who do not plan to work on civil rights issues. To emphasize race in the law school curriculum, particularly in required courses, detracts from the amount of time law students can spend developing professional skills more pertinent to their career goals.
In contrast, advocates of race and law teaching and scholarship contend that race is crucially relevant to a broad range of legal fields that extend far beyond civil rights law. Fields such as criminal law, property, health care, and even subjects as ostensibly race-neutral as contracts, corporate law, insurance and tax affect and are affected by racial considerations. They argue that more, not less, of the law school curriculum should address racial issues. Moreover, what is needed is not only specialized courses that focus on race for the benefit of students already or especially interested in those issues. Rather, race should also play a more substantial role in courses of general interest, including the standard first-year curriculum. Furthermore, outside the classroom, greater opportunities are needed for students and faculty to engage over issues at the intersection of race and law through lectures, workshops, academic panels and conferences. The creation of centers, institutes, and other structured programs to promote the study of race and law are warranted to meet this need.
My purpose in this essay is not to engage this debate comprehensively, a debate reflected in a rich and voluminous literature, but rather to propose and explain the following three observations about the study of race and law. First, as Part I explains, law can be more adequately understood and evaluated when examined through the lens of race, that is, when considered in view of the role race has had in the development, administration, or consequences of the law. Second, as explored in Part II, the assessment of the relevance of race to law is vulnerable to two distorting biases: race essentialism and race exceptionalism. Race essentialism, for purposes of this essay, refers to the tendency to overemphasize the relevance of race to the merits of laws. To essentialists, the relationship between a law and its racial origins, administration, or impact is so essential that the law's merits stand or fall on its racial implications, regardless of the law's value in serving other purposes. By race exceptionalism, I mean the contrary tendency by some to minimize the relevance of race to the merits of a law or doctrine, viewing the law's relationship to race as exceptional or aberrational, having little or nothing to say about the law's merits in general with respect to contexts or purposes unrelated to race. Third, as discussed in Part III, the most effective way to gain the benefits of studying law through race while avoiding the twin biases just mentioned is to study race in a sustained, deliberative manner that remains open to and takes seriously a diversity of views, including from the political right and left, and from the economic “top” and “bottom.” To the extent these observations are plausible, then the study of race and law, properly undertaken, would enhance significantly the law student's ability to understand and appreciate the implications of the laws, whichever they may be, by which the student as lawyer will eventually practice and by which our society lives.