Contents

• Introductory Comments by the Editors
• Truth & Law
• Merit & Social Construction
• Feminists vs. Radical Feminists
• Storytelling & Reasoning
• Pragmatic Liberalism -- The Fountainhead of Multiculturalism?
• Multiculturalism vs. Enlightenment
• Multiculturalism -- A Threat to the Republic?
• The Contributors

Introductory Comments by the Editors

A few years ago, Professors Farber and Sherry began work on a book with the projected title of On the Merits.  That book is now complete and bears the title Beyond All Reason: The Radical Assault on Truth in American Law (Oxford University Press, 1997).  The New York Times (12-7-97) picked it as one of the most notable books of 1997.

Here is a sampling of what some of the reviewers said:

Given all of this and the book's potential for "uninhibited, robust, and wide-open" discourse, we decided to invite some legal scholars to read Beyond All Reason and thereafter to prepare some questions to which the authors might reply, or begin to reply.  Our thanks to our questioners for agreeing to participate without the possibility of follow-up questions -- at least, not on this occasion.

Gladly, and in the declared spirit of their book, Professors Farber and Sherry did what most authors would not.  They kindly accepted our invitation to participate in the novel exchange that follows.  For that, we sincerely thank them.

The contributors to this exchange are: Nancy S. Marder, John O. McGinnis, John Henry Schlegel, and the editors.  Biographical statements about the contributors follow the end of the exchange.

—————————————————————————————
Truth & Law

Collins & Skover:  What does truth, as you understand it, have to do with law?  How would you respond to the claim that law is essentially beyond truth or that its existence does not depend on truth?  Are lawyers philosophers?  Should they be?

Farber & Sherry:  We're keenly aware of the dangers of the phenomenon that Mark Tushnet has called the "lawyer as astrophysicist," and we have consciously steered away from philosophical arguments for that reason.  We try to avoid a philosophical definition of truth, instead relying on a notion that we think is important to both law and policy.  We suggest that there are important differences among the following three statements:

"He slapped me."

"If you, a male observer, had been there, you probably would not have seen anything that looked like violence, but I felt exactly as if he had slapped me."

"Although I didn't feel like I had been slapped, I recognize now that the sort of event I am describing is a kind of slap in the face to women."

Any or all of these statements may be true, but a speaker who values truth would use them in quite different contexts.  Under any plausible philosophical account of "truth," these statements will retain distinct meanings.  Our definition of truth simply asks that speakers differentiate among the three statements.  Such a concept of truth is important in law, both in making legal policy and in adjudication.

Schlegel:  If the radical multiculturalists are right and the concept of truth is empty, then it must be that the concept has always been empty.   To understand what might follow from the erasure of Truth, it makes some sense to look back in time rather than speculate as to future circumstances.  So, assuming there is no Truth, what legal (doctrinal) argument could not have been made (i.e., given a reasonable normative clothing) in the Nineteenth or early Twentieth Century and so could not have carried the day in a significant legal dispute?

Farber & Sherry:  One argument that could not have been made, of course, is Justice Holmes's defense of free speech in the context of the "marketplace of ideas." In particular, the reinvigoration of the First Amendment, which began with Holmes and led to such cases as New York Times v. Sullivan (1964), Cohen v. California (1971), and Texas v. Johnson (1989) would have been unlikely.   Another example is provided by the long efforts to reform procedural and evidentiary rules to enhance the truth-finding function of trials.

Marder:  To characterize your position, you use such terms as "truth, objectivity, and merit" (p. 35) or "reason, objectivity, truth and merit" (p. 40).  These terms are linked together and others are added, such as "an objective and reasoned basis for knowledge, merit, truth, justice, and the like." (p. 33)  But it is unclear how you understand these terms to be connected to one another.   Similarly, it is unclear how you understand these terms to relate to your position (and not to other positions). 

Can you explain the connections among these terms and their relationship to your position?  Are you suggesting that such a relationship is in any sense necessary or exclusive?  Even if one might not believe in "objective" standards, can one not still believe in a role for "reason" or a search for "justice?"

Farber & Sherry:  Terms such as "objectivity" and "reason" are tremendously slippery.  In speaking of objectivity, we aren't making any metaphysical claim about the nature of reality or human knowledge.  We are simply asserting that -- whatever the nature of these concepts might be -- they can be discussed in terms that at least partially transcend the particular perspectives of various groups within our society, so that everyone in society shares the potential for making valid judgments.

As a corollary, judgments about truth, merit, reason, etc., aren't entirely the function of social structures and do not reflect merely the dominance of particular groups.  Thus, moves such as the following are ruled out: "You couldn't get that, it's a black thing," or "Men can't evaluate feminist scholarship," or "'Facts' are just the dominant set of stories."  Without at least this much of a commitment to the idea of "objectivity," we do not see how any reasoned discussion is possible, or how concepts such as truth, merit, or justice can be given any meaning.  But this form of objectivity is also a very modest assumption; it certainly does not commit us to any philosophical position such as the "correspondence theory of truth."  Nevertheless, the radical multiculturalist literature is rife with statements rejecting even this very modest form of objectivity.

Marder:  "Merit" need not be "objective" to be useful.  We can believe that merit is socially constructed and that questions of merit involve subjectivity, without becoming so paralyzed as to be incapable of making distinctions and reaching evaluations.  For example, multiculturalist law professors likely still grade their law students' exams, and are able to say that there are some answers that are more substantively powerful than others, and that there are some essays that are more thorough or better written than others.  We might acknowledge that there is subjectivity involved in such determinations without giving up all ability to act and to make distinctions.  Such would lead us to believe that criteria of merit are not absolute and written in stone.   Rather, they are the best we can do at any given time, and are subject to challenge and to change.

It would be helpful if you were willing to say more about your own account of merit.  If merit is noy "socially constructed," as you describe and critique the radical multiculturalists' view of merit, then what is it?  Where does it come from?

Farber & Sherry:  How we define a good lawyer, or for that matter a good concert pianist or a good basketball player, is -- of course -- socially constructed in the sense that the rules of the game are entirely of human making.  Moreover, whether we value lawyers, pianists, or basketball players most highly is also socially constructed (although both types of choices will affect how much a given society is likely to accomplish).  Nonetheless, once we have decided that a good lawyer should be able (among other things) to apply existing doctrine creatively to new situations, a good pianist should be able (among other things) to play with both technical competence and stirring emotion, and a good basketball player should be able (among other things) to shoot a ball through a hoop reliably while under pressure, merit standards are to some extent both objective and external.

Merit standards are thus socially constructed in the sense that they could be otherwise, but objective in the sense that if they were otherwise, we would be playing a different game.  John Searle uses the example of money: that a particular piece of paper is money is socially constructed, but it is nevertheless objectively true.   Merit standards can be described analogously.  We could decide that being able to hit the ball with a club is more important than shooting it through a hoop for basketball players, but then we wouldn't be playing anything we currently recognize as basketball.  We could decide that it is less important for a lawyer to be able to use legal doctrine than to tell stories about her own past victimization, but then our legal system would be very different.  Rather than arguing against merit standards in the abstract, the radical multiculturalists who want to junk the current standards ought to be explaining why a legal system that values proportional representation more than doctrinal analysis would be better than the one we have now.

Moreover, at least some radical multiculturalists seem to reject even the modest defense of merit judgments assumed in this question.  They also argue that merit standards are socially constructed in order to perpetuate a white male power hierarchy.   We think that the definition of merit standards is generally independent of race and sex, although they have often been applied in a discriminatory fashion.  We are also open to the possibility that particular standards of merit need improvement and rethinking.  What we reject is the view that the whole notion of merit is completely arbitrary and/or a deliberate attempt to subordinate particular groups.

Collins & Skover:  Your book dwells a lot on merit.  Though you grant that merit is "notoriously hard to measure" (p. 54), you nonetheless defend the "meritocratic ideal" as you define it -- "that positions in society should be based on the abilities and achievements of the individual, rather than on the characteristics such as family background, race, religion, or wealth." (p. 54)

This issue of merit is addressed in a thoughtful article by Professor Jeffrey Rosen (New Yorker, Feb. 23 & Mar. 2, 1998, p. 58).  In that article on affirmative action, Professor Rosen points out how California's Proposition 209 has drastically affected the number of African-Americans accepted into the University of California at Los Angeles and at Berkeley Law Schools.  In that context he raises two important and related questions, to which we invite your response:

(1) "Is it academically or politically acceptable to define merit in a way that excludes African-Americans from most of the selective public institutions?"

(2) "What definition of merit will prevent the resegregation of top-ranked schools in a post-affirmative action world?"

Farber & Sherry:  These questions confuse two issues.  One is how to define academic merit, and the other is whether universities ought to admit students solely on the basis of academic merit.  The definition of academic merit is essentially determined by what we want universities to do (just as the definition of basketball merit is determined by what we want basketball players to do, as we suggest in our previous response).  The potential political problem is not with the definition of academic merit, but with an exclusive reliance on it.  Most traditional defenders of affirmative action thus argue that because academic merit standards do exclude most African Americans from the most prestigious institutions, those institutions ought to deviate from merit standards in certain circumstances.  Our book does not take issue with that argument.  We argue only that academic merit does exist and can be measured to some extent; where to go from there is a different discussion.

As to whether disparate impact should be enough, in itself, to require changing our standards of merit, we think the answer is no.  But disparate impact may be a reason for taking a close look at whether current standards actually measure what we really want to measure (just as in Title VII law).

Collins & Skover:  Writing in the Minneapolis Star Tribune (Feb. 19, 1998), you suggest that you wished to avoid "confrontational" approaches in your work.  Mindful of that, are you concerned that some of what you say in Beyond All Reason may exacerbate whatever tensions there may be between Jews and African-Americans?

Farber & Sherry:  No.  We think such an effect is unlikely.   In any event, we do not think we should remain silent on important issues merely to protect group sensibilities.

Collins & Skover:  In the text of your book (and in the index, too), you suggest that there is a difference between feminists and radical feminists.  For example, you employ phrases such as the "radical feminist movement" (pp. 28, 88), presumably to be distinguished from the feminist movement.   You refer, critically, to Professors Robin West, Deborah Rhode, Susan H. Williams, and Ann Scales as "radical feminist[s]" (pp. 22, 23, 27, 28) and likewise to Professor Catharine MacKinnon as a "radical feminist theorist" (p. 40).   (Then again, elsewhere you label Professor MacKinnon as a "feminist theorist" (p. 5), sans any "radical" prefix.)

Do you understand there to be a difference between feminists and radical feminists?  Does the adjective "radical" add anything in your minds?   If so, what precisely differentiates feminists from radical feminists in your minds?

Farber & Sherry:  Radical feminists share with the other radical multiculturalists a social constructionist viewpoint that essentially rejects the Enlightenment.  Traditional feminists, by contrast, want equal opportunities and equal rights for women, but do not question the underlying Enlightenment paradigm.  For example, to return to a previous topic, traditional feminists want law firms to apply the same partnership standards to men and women -- which would be a change from the double standard often applied.  Radical feminists question the standard itself as socially constructed to perpetuate male power.  They often dismissively refer to traditional feminists as "liberal feminists."

Collins & Skover: Professor Jonathan Culler of Cornell University, a noted defender of contemporary literary criticism, has observed that "stories, so the argument goes, are the main way we make sense of things." [Literary Theory (1997) p. 83]  If so, it might be argued that the desire to make sense of things actually gives rise to narratives (or even to "pious frauds" designed to safeguard liberal regimes).  Put differently, the demand for a rational order may well demand narratives in law and life.  How would you respond to this?

Farber & Sherry:  We have always maintained that narratives are a useful -- even necessary -- part of legal scholarship.  Indeed, we tell stories of various kinds in Beyond All Reason.  Stories can illustrate broader points, and can bring to life points made more abstractly through traditional use of data and analysis.  Radical multiculturalists, however, misuse stories; they rely on individual stories in preference to data and analysis, even where the data and the stories are in conflict.  For example, as we point out in the book, many critical race scholars tell stories about discrimination in law school hiring and tenure.  But these stories conflict with the data from studies of actual law school hiring, which show that candidates of color are actually more likely to be hired than are white candidates.  The radicals also often fail to connect the narrative to legal arguments, which leads us to ask why such unanchored stories belong in law reviews rather than in popular magazines.  Finally, we object to the first-person narratives about victimization because they are so subject to distortion and manipulation, and are impossible to verify.

Marder:  Everyday, we use reason and our critical faculties to understand any given story.  Even when we read great literature, which might be very moving, we do not abandon our critical faculties and only respond with emotion.  Literature is far more powerful than legal stories (many of which are far more didactic and far less moving than literature).  Thus, it seems even more unlikely that we would respond to legal stories only on some emotional level, rather than through use of our reason or critical faculties.  And even when a legal story has powerful appeal, reason is still involved in how we understand and interpret stories.   Do you really mean to draw a dichotomy between storytelling and reason?

Farber & Sherry:  The radical multiculturalists themselves draw a distinction between storytelling and reason.  They maintain that unconscious attitudes, or "mindsets," can only be altered through the emotional impact of narratives, and that reasoned arguments appealing to cognitive faculties are futile.  They label reason as a white male way of thinking, and narratives as the voice of color (and of women).  So they often deliberately eschew reasoned analysis of their stories.  And the stories themselves tend to be much simpler and lacking in the internal tensions that engage the critical literary reader.  We are not, for instance, invited to question the authority of the narrator as in much literary work.

Marder:  The act of telling stories seems to be firmly entrenched in the law.  Lawyers create hypotheticals, describe facts of a case, and try to fashion compelling presentations for a jury.  These are all forms of storytelling.  Perhaps, then, it's not storytelling that you disagree with but the use to which these storytellers are putting their stories.  Do you object to storytelling per se or to the purpose for which the stories are being used?

Farber & Sherry:  We object neither to storytelling nor to the purpose for which the stories are being used.  We object to the radicals' method of storytelling, which is quite different from other forms of storytelling.  The radical stories are often first-person narratives, unverifiable and frequently atypical.   Their stated willingness to blur fact and fiction -- on the ground that there is little or no distinction between the two -- makes us even more suspicious of stories that purport to be factual, especially in light of the distortions we have found in their recounting of things that are subject to verification (such as Supreme Court cases and historical events).  Moreover, in conventional legal storytelling, the story is connected in some way to a legal point, which is not always true of the radicals' stories.

Collins & Skover:  In The World of Benjamin Cardozo (1997), Professor Richard Polenberg writes: "[Judge Cardozo's] rulings depend on a selective reading of both the evidence and the precedents, although Cardozo had a genius for making it seem as if the results he reached were logical, inevitable, and legally unassailable."  If so, was Judge Cardozo a truly artful storyteller, one who at least at times betrayed the "rule of law and reason"?  What are your observations on this in light of what you say in Beyond All Reason?

Farber & Sherry: A somewhat different portrait is painted in Andrew Kaufman's excellent recent book, Cardozo (1998).  In any event, it would be foolish to assume that any writer can or should be "artless" in marshalling facts or arguments.  But we all recognize that even for those whose roles are defined in terms of advocacy, such as litigators, some forms of manipulation aren't permissible; there may be even stricter boundaries for those who are in the purportedly less adversary positions of judges or scholars.  Without the existence of norms about completeness, typicality, and accuracy, artful advocacy would degenerate into pure fiction.  It is those basic norms that we are trying to defend.

Marder:  You object to legal stories, but you surely don't mean to do away with them.  Legal stories may have limited appeal, but that doesn't mean they cannot offer insights and shouldn't be written.  After all, law review articles often have limited appeal (for example, estate tax articles or articles on some arcane aspects of legal history).  Clearly, we do not read every law review article that's written, but pick and choose based on our predilections.

Why not recognize and celebrate a multiplicity of genres of legal writing (a "marketplace" of legal writing forms, if you will)?  Just as there's a role for doctrinal debate, normative discussion, and interdisciplinary work, why not endorse legal stories as well, and allow readers to read such stories or not, based upon their tastes?

Farber & Sherry:  Perhaps the simplest answer is that we are all required to make judgments about the merit of various kinds of work in terms of our lives as academics, for instance in hiring or promotion.  For example, if we have a choice between hiring two tax professors, one of whom uses conventional policy analysis to advocate tax reform, and the other who uses personal stories to do so, we need to decide which approach is more intellectually worthwhile.  But the more important reason for rejecting storytelling as a primary mode of scholarship stems from the role of law in our society.  The ultimate question isn't what law reviews should publish but rather what legal institutions we should have.  We do not think that legal institutions should be designed purely on the basis of anecdotes, let alone exercises in fiction.   Ultimately, both we and the storytellers view scholarship as a way of shaping those ultimate institutional decisions, but we disagree sharply on the normative question of how those decisions should be made.

McGinnis:  In classical times legal education took place in schools of rhetoric.  Is the narrative movement in scholarship simply taking legal education back to its roots?  Certainly many lawyers are gaining fame and fortune by telling bald narratives of racial conspiracy.  Shouldn't law schools prepare students for this world?  What could be a better way to prepare them than to include multicultural narrologists (as well as theorists or doctrinalists) on the faculty?

Farber & Sherry:  This seems like a weak argument for hiring radical multiculturalists (and one we doubt they would make themselves).  If we wanted to hire people who could teach how to tell effective stories that appeal to irrational prejudices, wouldn't we do better to bring in talk-show hosts or media consultants?

McGinnis:  You denigrate formalism and suggest you are advocates of pragmatism in philosophy and jurisprudence.  But doesn't pragmatism, with its blending of truth and utility, inevitably pave the way for the radical multicultural project of defining truth in terms of its utility for the group?

Farber & Sherry:  This is a fair question, especially since some people who are considered pragmatists -- such as Richard Rorty -- share elements of the radical multiculturalist position.  There are many interpretations of pragmatism; our version is closer to Hilary Putnam than to Rorty.  Certainly pragmatist ideas are open to misinterpretation.  But in the end, we think the pragmatist insistence on learning from experience is a powerful counterweight to radical multiculturalism.  Whatever one might say in the abstract about the "social construction of reality," we have learned from hard experience in the twentieth century that this premise is destructive of human values.  We have also learned from experience that science and technology are not the monopolies of white elites; that attempts to eliminate speech with "hateful" ideas lead to disaster; and that, in short, the traditional Enlightenment values have validity outside the scope of a single culture or group.  Thus, we think, a pragmatism that is truly open to experience provides an ample basis for rejecting radical multiculturalism.

McGinnis:  Liberals have transformed faculty hiring standards in order to obtain proportionate representation of minorities as quickly as possible.  Isn't the new subjectivist scholarship of celebrating certain groups and criticizing others a predictable consequence of these actions?  The radically subjective nature of this scholarship insulates its practitioners from traditional tenure standards which some would not have met.  And the scholarly focus on group identity makes these professors a more cohesive interest group in future academic politics -- an important objective now that liberals have undermined the traditional standards of "merit," a norm that restrained rent-seeking in academic politics. 

Thus, to what extent are the political decisions of liberal academics responsible for the creation of the radical multicultural class that holds so much sway in our law schools?

Farber & Sherry:  The two of us disagree about why radical multiculturalism has arisen and taken hold in the legal academy.  Both of us recognize that to some extent it is typical legal academic scavenging: social constructionist ideas and identity politics are in the air at universities, and it is not surprising that some law professors have latched onto them.  We also agree that when law schools continue to have small numbers of faculty of color, even in the absence of discriminatory hiring and in the presence of extensive affirmative action efforts, the claim of discrimination loses some of its explanatory power.  Those who wish to continue to blame discrimination by law schools for the small numbers of minority faculty must redefine discrimination so that it is inherent in the neutral hiring standards themselves.  Social constructionism provides a way to do so.

But one of us also believes that affirmative action itself has significantly contributed to the creation of radical multiculturalism.  This is not only for the reasons identified in this question, but also because of the cognitive dissonance inevitably caused by decades of affirmative action hiring.  When a scholar who does not really meet the "normal" standards at a particular school is nevertheless hired by that school and expected to perform, that scholar cannot help but notice that his or her performance might not be as stellar, judged by conventional standards, as that of others.  It is human nature to want to deny such a disparity, and the most satisfying way to do so is to attack the conventional standards themselves.  Thus, when some law faculty of color end up at better schools than whites with the same credentials, and when those credentials do end up accurately predicting differentials in performance (as conventionally defined) in many cases, it is almost inevitable that blame will fall on the merit standards themselves.

McGinnis:  Apparently, you consider anti-Semitism and anti-Asian racism to be among the most troubling byproducts of the multiculturalist attack on the Enlightenment.  For example, you state that "anti-Semitism is one of the first monsters produced when Reason dozes off" (p. 4), and "the anti-Semitism and (anti-Asian) racism claims may be the most serious of our charges against radical multiculturalism."  Yet, in his New Republic review essay, Seventh Circuit Court of Appeals Chief Judge Richard Posner states: "Beyond All Reason would have been an even stronger book if Farber and Sherry had not played the Jewish victim card."

How do you distinguish your argument that multicultural legal theories tend to have anti-Semitic implications from the kind of racially consequentialist arguments of the multiculturalists that you critique?  Why are you not content with simply attacking the truth of your opponents' theories?

Farber & Sherry:  It would be easy enough to attack radical multiculturalism based on conventional ideas of truth or reason, and we ourselves would have no quarrel with such attacks.  But, as the radical multiculturalists themselves point out, there is an element of circularity to such attacks.  It is hardly surprising that attacks on conventional ideas of truth or reason fail when the arguments are judged on those same conventional standards.  To escape this circularity, we wanted to show how radical multiculturalism failed not just our standards but their own.   More specifically, since the notion of truth is so highly contested, we wanted to show how their arguments clash with other notions that are not in dispute, such as some basic shared concepts about equality.  In other words, we consciously used their own intellectual tools in constructing the critique.

Collins & Skover:  Some of the central themes in your book -- e.g., the dangers of relativism and the demise of merit-based standards -- echo what the late Allan Bloom wrote in The Closing of the American Mind (1987).  Unlike you, however, Professor Bloom was not very sanguine about the promises of the Enlightenment, especially when it came to the political and moral well-being of a society.  In Part III of Closing, for example, Professor Bloom was quite critical of the Enlightenment's formula for using reason, be it in science or law, to feed a citizenry's self-interest.  In fact, both Bloom and his teacher, Leo Strauss, held that Enlightenment rationalism leads to excesses, to nihilism, to secularism, and ultimately to the Holocaust -- some of the very things from which you claim Enlightenment thinking can save us.  (With respect to the Bloom-Strauss view, you might consider Shadia Drury, Leo Strauss & the American Right (1997) p. 14.)

The two of you are very upbeat about the European Enlightenment.  How would you respond to Bloom and the like who share your concerns about moral and intellectual relativism, but who reject your faith in the Enlightenment?

Farber & Sherry:  It's fair to say that we are more upbeat about modern society than Bloom and others.  We are unabashedly of the view that liberal democracies are the best known way of organizing society; that increasing scientific knowledge is a good thing; and that the world is a better place now than it was in 1600, let alone the days of Pericles.  The much more complicated question, which we are probably not in a position to discuss in any intelligent way at this point, is the precise role of the historical phenomenon of the European Enlightenment in these developments.  In our laudatory references to the "Enlightenment" or "Enlightenment values," we are not attempting any such historical judgment.   Instead, we are trying to refer in a shorthand way to a cluster of widely shared values about the "open society" and liberal democracy -- the kinds of values that were widely celebrated across much of Eastern Europe with the fall of the Berlin Wall.  The extent to which Leo Strauss shared these values seems to be a matter of dispute between Stephen Holmes and his critics.  (By the way, we appreciate the cite to the Drury book, which may be very helpful in our next project.)

Collins & Skover:  To what extent, if any, can some of the legal, ethical, and ontological "problems" you discuss in your book be attributed to the Enlightenment, to an unending inquiry, or to what you refer to as "probing intellectual analysis"? 

Put another way: Contemporary defenders of the Enlightenment seem to discount the destabilizing potential of reason.  That is, there seems to be an unstated assumption in liberal humanist circles that unrelenting analysis is welcome provided it actually illuminates texts (including legal texts) in ways that produce logical and acceptable meanings.  Sort of like the patient who agrees to a physical on the condition that no cancer is discovered.  How would you respond to this?

Farber & Sherry:  As in our previous reply, we'd prefer to pass on the question of how best to interpret the historical phenomenon of the European Enlightenment, since we're not intellectual historians.  But the basic point you raise is a significant one.  Modernist thought is sometimes associated with the ambition to subject everything to the "acid bath" of skepticism and abstract logic.  To an extent, postmodernism is simply a hypertrophied form of this impulse, attempting to take "reason" to the point where it deconstructs itself.  But our own view is that this modernist impulse is itself in need of checking.  (See, for instance, James Scott's recent book, Seeing Like a State (1998).)   Skepticism and analysis are Good Things.  So is cleanliness.  But obsessive handwashing is pathological, and so is obsessive deconstruction.

Collins & Skover:  Your critique might be understood as suggesting that our essential choices are twofold: Either we accept relativism and the nihilistic horrors to which it leads, or we accept some kind of universal norms and thereby begin to develop a more just, lawful, humane, and truthful society.  Please comment.

Farber & Sherry:  That's a fair statement of our position -- bearing in mind that (as discussed above) our definition of the "universal norms" is relatively modest.  But yes, we think that some core commitments on matters such as democracy, individual freedom, racism, and anti-Semitism should be universal, and that without them, the chances for societal improvement are slim.

Collins & Skover:  You describe the approach in your book as a "normative critique" of radical multiculturalism, demonstrating that its ideology "doesn't work" because "[i]t fails to keep its promises." (p. 9)  Apparently, the radical multiculturalists are doing much the same with respect to the Enlightenment.  For example, in her noted book, Censorship (1991) at p. 10, Professor Sue Curry Jansen contends that "the Enlightenment made more promises than it could keep." 

If the radical multiculturalists are mounting a normative critique on the ideology of the Enlightenment by challenging its intellectual premises and assumptions (e.g., the distinction between public censorship and private marketplace censorship, or the myth of the "marketplace of ideas"), is it enough for you simply to answer back with a normative critique of the multiculturalist ideology?  Can this duel of normative critiques satisfactorily shore up the beleaguered Enlightenment realms of Reason, Truth, and Merit?  Or do you need to answer the radical multiculturalist critique more directly, and to demonstrate how the Enlightenment's promises have been and will continue to be realized?

Farber & Sherry:  The task of defending, reformulating, and extending the heritage of the Enlightenment has been ongoing for over two centuries.   Much of the best of American constitutional history, not to mention the work of many philosophers and other scholars, can be understood in terms of this task.  So can some of our other work, outside of the context of our debate with the radical multiculturalists.

One question is, who has the burden of proof?  We think it's fairly self-evident that societies that foster liberal Enlightenment values are better places for human beings than societies that do not.  Despite Richard Delgado's advice for people of color "to flee Enlightenment democracies," our preference seems to be shared by just about anyone who has a choice about what kind of society to inhabit.  The radical multiculturalist critique doesn't come close to putting that position in serious question.

Schlegel:  I am particularly bewildered by the notion that the writings of a group of scholars that cannot account for substantially more than two hundred people -- a tenfold increase from the number of authors regularly cited in your book -- can be so threatening to the Republic that all the heavy artillery that you deploy is necessary or appropriate to the topic.  It is in this spirit that I ask my questions.

If the beliefs of the radical multiculturalists are so obviously untrue, what makes the existence of such beliefs any more serious than the existence of persons espousing atheism to a liberal Presbyterian?  Why shouldn't a liberal American simply shrug off the challenge and go about his or her merry way, confident that radical multiculturalism, like atheism, is an empty threat?

Farber & Sherry:  Influence isn't measured by numbers.   (Consider, for instance, the number of "law and economics" professors twenty years ago.)  The radical multiculturalists are being hired by the top law schools and published in the top law reviews.  Their arguments about affirmative action, hate speech, the meaning of discrimination, and so forth, are taken seriously at faculty meetings -- and in university policy-making committees.  They also sway the views of students.  Indeed, a forthcoming review of Beyond All Reason by Professor Kathryn Abrams, entitled "How to Have a Culture War," 65 University of Chicago Law Review 1091 (1998), argues that radical multiculturalist ideas have taken such a stronghold in the legal academy that we ourselves unconsciously write in the very radical multiculturalist mode we attack.

We wrote Beyond All Reason primarily for our fellow liberal law professors who might have been unaware of exactly how misguided the radical multiculturalist ideas are.  We were concerned that many of them were embracing radical multiculturalism without examining it closely.  Forewarned is forearmed, and perhaps the legal academy will now be able to shrug off the challenge.

Schlegel:  Academic philosophy departments tolerate such incommensurable moral theories such as neo-kantianism and utilitarianism; academic social science departments tolerate such incommensurable methodological approaches such as behaviorism and ethnography.  Why is it that law cannot tolerate the incommensurable theories of liberalism and multiculturalism?  If the answer turns on the effect of these theories in the world, explain what evidence there is that policy makers, who by definition are outside the academy, are actually listening to the theories of the multiculturalists.

Farber & Sherry:  We think that the difference between liberalism and radical multiculturalism is far more than fundamental than the academic divisions you mention.  For instance, only among radical multiculturalists can one find any defense whatsoever for the position that deliberately misrepresenting factual matters in scholarship could ever be defensible.  In any event, in most areas there is vigorous, often heated debate between proponents of different schools.  No one thinks that proponents of Kantianism should merely politely ignore the existence of utilitarianism; much of the work of philosophers is devoted to conflicts between contesting schools.   Our book is an argument that radical multiculturalist ideas are wrong on their own terms, and if we are right, the advocates of those ideas should take heed and modify their positions.  Or, perhaps more realistically, those who are not committed in advance to their views should reject those views and look elsewhere.

The second portion of your question raises another issue: is radical multiculturalism significant enough, in societal terms, to be worth worrying about?  In informal conversations we have had with law professors and others, the most common criticism of the book seems to be that the radical multiculturalists are an insignificant fringe whose views are not worth serious discussion.  We continue to believe, however, that ideas do matter, and that radical multiculturalist ideas are sufficiently widespread in the legal academy to deserve serious attention.

—————————————————————————————
The Contributors

Professors Daniel A. Farber and Suzanna Sherry are on the law faculty of the University of Minnesota.

Nancy S. Marder is an associate professor of law at the University of Southern California.

John O. McGinnis is on the law faculty at Yeshiva University, Benjamin N. Cardozo School of Law.

Professor John Henry Schlegel is the author of American Legal Realism & Empirical Social Science (1995) and a member of the law faculty at the State University of New York at Buffalo.

Ronald K.L. Collins and David M. Skover (Seattle University School of Law) are the editors of Books-on-Law and the co-authors of The Death of Discourse (1996).

Where you have the last word...

For an especially thoughtful and telling review of this book, I recommend Kathryn Abrams, "How to Have a Culture War", 65 U. Chi. L.Rev. 1091 (1998).

Peter M. Shane
University of Pittsburgh School of Law

—————————————————————————————
The Farber-Sherry book is a good one. But its critique of radical multiculturalism is incomplete. I suspect that the fundamental problem with radical multiculturalism -- "RM" -- is that it is a contemporary variant of the thesis that there exist "German phsyics," "Russian physics," and so on. A genuine critique of the RM epistemology was not provided in the Farber-Sherry book. That's too bad. Farber & Sherry were in a position to provide such a critique; they seem to be familiar with the RM literature. My own guess is that most RM practitioners base their "analyses" on a naive (and unpersuasive) version of the theory-depenedence thesis -- the thesis that an observer's view of facts and evidence always depends exclusively on the observer's presuppositions, her pre-existing conceptual framework. That's my guess about the epistemology of RM. But I cannot say with any reasonable degree of assurance that my guess is correct; I no longer have the patience to wade through the tu! rgid tracts written by RM people. (Though I do not have the patience to *study* RM literature, I have examined the RM literature carefully enough to satisfy myself that it is turgid.) I hope that Farber & Sherry will provide us with an epistemological postscript to their little expose. RM must be made to look *incorrect* as well as evil.

[name withheld by request]

—————————————————————————————
Sherry and Farber suggest that people may devalue CRT and narrative of cognitive dissonance: if some hires do not fit current definitions of merit, then any question of those standards can be diagnosed as "cognitive dissonance." ("[There is] . . . cognitive dissonance inevitably caused by decades of affirmative action hiring. When a scholar who does not really meet the "normal" standards at a particular school is nevertheless hired by that school and expected to perform, that scholar cannot help but notice that his or her performance might not be as stellar, judged by conventional standards, as that of others. It is human nature to want to deny such a disparity, and the most satisfying way to do so is to attack the conventional standards themselves. Thus, when some law faculty of color end up at better schools than whites with the same credentials, and when those credentials do end up accurately predicting differentials in performance (as conventionally defined) in many cases, it is almost inevitable that blame will fall on the merit standards themselves.")

What is so shameless about Sherry and Farber's psychobabble is that it seems not to cross their mind that the assumption that the old standards, i.e, the standard under which they are hired, may be attractive to them for precisely the same phenomena of cognitive dissonance, i.e., the standards applaud them, ergo, the standards are just. I have seen the same dismissive attitude in other scholars who insist that the theories of others must be products of the Other's idiosyncratic experience, but that their own pet theories must somehow have a purer lineage. Indeed, since Farber and Sherry have opened the door to psychologizing, I'd bet that any competent psychologist would quickly suspect that their willingness to find cognitive dissonance in others is a projection of their own fears about the value of their own work.

Finally, it is outrageous that Sherry and Farber try to paint themselves as martyrs for speaking the "truth" about Critical Race Theory. There is nothing courageous about congratulating those hired under old standards that (1) they are more worthy than other scholars and (2) genuinely "liberal" and (3) need not bother reading the work of other scholars anyway. As Plato put in Menexens, "There is no difficulty in a man's winning applause when he is contending for fame among the persons who are being praised."

Clark Freshman
University of Miami School of Law

—————————————————————————————
JURIST would like to hear your own reaction to our reviews:

© Ronald K.L. Collins and David Skover, 1998. —————————————————————————————
JURIST: The Law Professors' Network™ is directed by Professor Bernard J. Hibbitts, Associate Dean for Communications & Information Technology, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA, in consultation with an international Advisory Board. E-mail JURIST at JURIST@law.pitt.edu.

© Bernard J. Hibbitts, 1998. All rights reserved. These pages may not be copied, reposted, or republished, in whole or in part, electronically or in print, without express written permission.

NOTICE
JURIST regrets that it cannot provide legal advice. For assistance with specific legal problems, please consult a licensed attorney in your jurisdiction.
—————————————————————————————