Only blanket rejection of the law addresses its inherent inequalitiesKnox 12 – PhD Candidate, London School of Economics and Political Science (Robert, paper presented at the Fourth Annual Conference of the Toronto Group for the Study of International, Transnational and Comparative Law and the Towards a Radical International Law workshop, “Strategy and Tactics”) (Knox, Robert, 2012, “Strategy and Tactics, http://chicago.ssrn.com/delivery.php?ID=024094113006079092070094083080008102099074018037042059108092065004024001107088096074121060123119021098114122082010093084105127027080071064004065001091119009083110059087060119022010094115119114091030115116030067069099083005124072124028119095091029&EXT=pdf&TYPE=2, 06/26/15) JGWhat, in this context, would a strategic objective look like? Despite the¶ previously mentioned theoretical and political diversity in critical international¶ legal scholarship, the common ‘organic’ analysis of international law provides a¶ basic idea of the form such a strategic goal might assume. !ere are two obvious¶ variants of strategy here. First, there is what we might call the ‘idealist’ variant.¶ In this account the primary problem to be dealt with is that the ideas of liberal¶ legalism have a hold over policy makers and the public. Consequently, strategic¶ aim would be to recon#gure the debate in such a way that the structural critique¶ of the mainstream would be strengthened , with the eventual aim of constituting¶ it as a hegemonic understanding of international law.29 Second, there is a¶

materialist approach, which would stress that the material basis of the problems¶ outlined above. On this account, one cannot understand the structuring features¶ of the law and legal argument on their own terms, or simply as ‘ideas’. Rather,¶

they need to be understood on the basis of ‘the material conditions of existence’¶ that is to say those ‘de#nite and necessary relations of production that human¶ beings enter into independently of their will’.30 As such, it is social and economic¶ forces and relationships which generate indeterminacy, lawfare and structural¶ bias. !is means that a strategic goal would necessarily involve overcoming the¶ social relationships that give rise to the problems outlined above, involving action¶ to transform the material conditions of our existence.31¶ 0&end=25> (visited 1 August 2011) provide a similar perspective that remains critical of¶ international law’s role in international politics.¶ 29. David Kennedy puts this point very strongly arguing that the penetration of law into decision¶ making about war has led to an abandonment of responsibility. He therefore argues that ‘[t]¶ he way out will not be to tinker with doctrines of the laws of force. If there is a way forward,¶ it will require a new posture and professional sensibility among those who work in this¶ common language. Recapturing the human experience of responsibility for the violence of¶ war will require a professional style discouraged by the modern interpenetration of war and¶ law’ Kennedy, ‘Of War and Law’, supra note 22, at 170.¶ 30. Karl Marx, Preface and Introduction to A Contribution to the Critique of Political Economy¶ (Foreign Languages Press: Peking, 1976), at 3.¶ 31. China Miéville is perhaps the most consistent and strident exponent of this position, arguing¶ that: ‘To fundamentally change the dynamics of the system it would be necessary not to reform¶ the institutions but to eradicate the forms of law – which means the fundamental reformulation¶ of the political-economic system of which they are expressions. !e project to achieve this is the¶ best hope for global

emancipation, and it would mean the end of law’ Miéville, Between Equal¶ Rights, supra note 2, at 318.¶ Strategy and Tactics 205¶ In practical terms, of course, these are hardly mutually exclusive positions since¶ any materialist critique relies on convincing people of its validity.32 !e point is¶ that both of these objectives are strategic and so are not directly concerned with¶ winning arguments on the terms of liberal legalism (that is to say, whether given¶ actions would be legal or illegal) but rather aim at overturning those very terms.33¶ 3.2. We are Strategists?

Link -- Law

The law is responsible for racism and its negative impacts

Carbado 3--(Devon W., Professor of Law at the UCLA School of Law, Constitutional Criminal Procedure, Constitutional Law, Critical Race Theory, and Criminal Adjudication. The Yale Law Journal, Vol. 112, No. 7 (May, 2003), pp. 1757-1828 http://www.jstor.org/stable/3657500 , cayla_)

Robert Chang observes that the articulation of race as a social construction is "a mantra"'49 in CRT. "[F]or fun," Professor Chang sometimes has his "students say it out loud .... Nothing happens. They are not enlightened, and the world has not changed .... So why the mantra?"50 CRT's answer is that the conceptualization of race as a social construction helps to explain not only the intelligibility and currency of race as a social category (that is, the existence of race) but also the negative and positive social meanings associated with specific racial identities (that is, the existence of racial hierarchy). Several of the essays in A New Critical Race Theory illustrate this point. Consider Robert Hayman and Nancy Levit's contribution to the volume."5 Their essay performs a periodizational analysis of the social construction of race to advance the claim that race was never simply "out there" to be identified and discovered. Rather, they argue, race was invented "in a quite literal sense."52 Their analysis begins in the seventeenth century, between 1619 and 1662. They argue that, during this period, the idea of race had not yet crystallized. While European colonists were mindful of bodily differences between themselves and Africans, those differences were not a basis for the establishment of a social hierarchy. Instead, "whatever 'race'-ism may have characterized the early colonies was vague, incomplete, and far from universal."'3 We are somewhat skeptical of the claim that the colonists saw bodily differences between themselves and the Africans as differences without social or hierarchical significance. At the very least, Europeans perceived Africans to be primitive.54 Nor are we convinced that the concept of race did not exist before this period. One can argue that many of the clashes between ethnically different groups in China, Egypt, and India-among other regions-were informed by what we would today articulate as racial discourses." Still, the general point that Hayman and Levit make-that race evolved and that that evolution was a function of societal needs, politics, and economics-is well-taken.56 According to Hayman and Levit, between 1662 and 1776, the idea of race-an idea that developed to require both racial categorization and racial hierarchy-was instantiated. During this period, a variety of discourses articulated the African/European differences as differences in worth and entitlement. It is in this context that "[r]ace emerged ... as a determinant of legal status .... [T]he 'negro' was

a slave and the 'white' person was free." 57 Between 1776 and 1835, the material realities of race were further entrenched by political rationalization. Hayman and Levit reason that this rationalization was needed "to resolve the contradiction between the ideology of the revolutionary generation and the fact of chattel slavery."'58 The final period Hayman and Levit identify is "1835-?", presumably suggesting that we are still in this period. Here, politicians, academics, and scientists enlisted the rhetoric of science, and the results of "scientific studies," to prove the "truths" about race.59 Hayman and Levit's essay demonstrates that race does not exist a priori, but is instead produced by discourses. These discourses-in politics, law, and science-create, give meaning to, and organize race.60 And this process of racial

formation is unstable . The definition of race has changed, the list of racial categories has changed, and the social meaning of specific racial identities has changed. Race thus is, and historically has been, mutable61--or, to put the point in slightly different terms, race did not have to exist,62 and it certainly did not have to exist in the forms it has throughout American history.

The law fails to bring about positive racial change – it must be rejected

Chang 93 – (Robert S. Seattle University Professor of Law and Executive Director of the Fred T. Korematsu Center for Law and Equality “Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space” California Law Review, Vol. 81, No. 5 (Oct., 1993), pp. 1241+1243-1323 http://www.jstor.org/stable/3480919 , cayla_)

The Critical Legal Studies movement emerged in order to examine the ways in which the law reinforces hierarchical social relations. Critical Legal Scholars draw from several political and intellectual movements, including Marxism, Legal Realism, poststructuralism, and postmodemism. Critical Legal Scholars contend that legal doctrine is indeterminate, contradictory, and partial to privileged classes. Far from being a site of abstract and neutral reasoning, law, Critical Legal Scholars contend, is ideological and political. Critical Legal Scholars also argue that the law invokes imposing images and technical language in order to mystify its audiences and to convince them that legal arrangements are natural and inevitable. Critical Legal Scholars often target legal rights in their critiques. Critical Legal Scholars believe that rights are malleable and that they alienate individuals from one another and induce a false consciousness among oppressed people who, believing they are truly protected by rights, do not actively resist their oppression. Several, though not all, Critical Legal Scholars trash rights and argue that progressives should stress informality over the structure of rights; rights simply reify law and nurture the illusion of law's naturalness. Postmodemism leads Critical Legal Scholars to question reliance upon law as a vehicle for achieving justice. Critical Legal Scholars conclude that rights are part of an oppressive social regime and that progressive scholars should forcefully deconstruct their seemingly natural status. 85 Critical Race Theorists share Critical Legal Scholars' skepticism toward law's

purported neutrality. They accept Critical Legal Scholars' indeterminacy thesis, believe that

the law reinforces hierarchical social relations, and concur with the notion that the law is a limited, perhaps even improper, instrument for pursuing equality. Yet, Critical Race Theorists do not share the Critical Legal Scholars' desire to move beyond a rights structure. Although they concede that rights are malleable and socially constructed, they are also aware of the importance of rights in the struggle for racial justice. Several Critical Race Theorists contributed to a symposium in the Harvard Civil Rights-Civil Liberties Law Review 6 in which they criticized Critical Legal Scholars for failing to recognize the importance of rights for communities of color. Although they acknowledge the limitations of rights talk, Critical Race Theorists also believe that rights play a vital role in antiracism. Patricia Williams, for example, eloquently conveys the simultaneous mistrust of and reliance upon rights by blacks: To say that blacks never fully believed in rights is true; yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before. We held onto them, put the hope of them into our wombs, and mothered them-not just the notion of them. We nurtured rights and gave rights life. And this was not the dry process of reification, from which life is drained and reality fades as the cement of conceptual determinism hardens roundbut its opposite. This was the resurrection of life from 400-year-old ashes; the parthenogenesis of unfertilized hope.87 Critical Race Theorists, therefore, embrace both a postmodernist skepticism toward the efficacy, neutrality, and inevitability of law and a concomitant modernist reliance upon law and enlightened reasoning as sources of antiracist resistance. 88 In a thoughtful account of the divide between Critical Race Theory and Critical Legal

Studies, Angela Harris argues that the task for C ritical R ace T heorists is to "live in the conflict

between modernism and postmodernism." ' 9 Harris offers a healthy resolution to the apparent internal contradiction of Critical Race Theory. Critical Race Theorists cannot completely reject postmodernism, because " the old optimistic faith in reason, truth, blind justice, and neutrality, have not brought us to racial justice, but have rather left us 'stirring the ashes." ' 90 Nevertheless, a wholesale commitment to postmodernism (and complete rejection of modernist principles) is undesirable because "faith in reason and truth and belief in the essential freedom of rational subjects have enabled people of color to survive and resist subordination."91 Both postmodernism and modernism offer strategic advantages for antiracist theory. Rather than seeking to resolve its internal conflict, Critical Race Theory should seek to "inhabit that very tension."92

Link -- Legal Thought

The idea that voting affirmative creates positive change creates a feedback loop that eschews actual change—vote negative to reject their bankrupt epistemology Schlag 2009 (Pierre [Byron R White Prof of Law @ University of Colorado]; Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art); 97 Geo. L. J. 803 (2009); kdf)

You guys reeeeeaaaaaaaally . . . . And the reason that’s true is that American legal scholarship today is dead—totally dead, deader than at any time in the past thirty years. It is more dead, vastly and exponentially more dead, than critical legal studies was ever dead during its most dead period. Nothing’s happening. Now it’s true

that we’re producing at a vastly faster rate than ever before. More papers. More conferences. More panels. More symposia. More blogs. And faster and faster too. More and faster. Over seven thousand American legal academics3—and all of them cranking out those talks and papers as fast as possible. The speed of legal scholarship is just off the charts right now. And yet, nothing’s happening.4 How could this possibly be? The short answer is that, all around us, there is more, vastly more, of nothing happening than ever before. Now, this might seem odd, but upon reflection,

it’s not. In fact, not at all. Indeed, if anything , the accelerated culture of legal scholarship has

positive feedback effects on nothing happening: 5 Who, after all, would have the time to notice the vacancy of the enterprise? More to the point perhaps, who would be foolish enough to point it out? This would be me.6 Now, I do have enough sense not to dwell on how absolutely terrific things were twenty years ago. (Which, by the way, in a relative sense, they were.) Instead, I will dwell on how truly awful things are today. Could things be any different? On the one hand, I want to say of the dominant paradigm of legal scholarship: It is what it is—an institutionalized social practice. And as such there is no particular reason to suppose that it should be any different from what it is (or is becoming) simply because a few of us (many of us?) think it ought to be a whole lot more interesting or edifying or politically salient or whatever. It’s true that most of us generally think of law, or at least legal thought, as the kind of social practice that is responsive to serious intellectual critique and interrogation. 7 Indeed, we tend to think of serious intellectual critique and interrogation as integral to the social practice of law and legal thought . But that’s just our representation

of the thing. And if we think about it, there’s really not much reason to believe it’s right. No one has yet adduced any convincing evidence or offered any compelling argument to show that this representation is indeed true or often true or even true enough. Nor has anyone attempted to show how it might be true if true it is (which quite likely, it’s not). What do I think about this representation? Simple: I think that the relation of serious intellectual endeavor to the practice of law or legal thought is plural (many relations), contextual (in all sorts of ways), highly mutable (not temporally constant), and arguably often antithetical (an interference). All of this, of course, would make the relations of thought to practice radically indeterminate—not the sorts of things that can be known fully in advance.8 From this radical indeterminacy though, one can draw an utterly unfounded hope (which I do). As an unreconstructed optimist, I can’t help but think that it would be so easy for at least some legal academics to turn their backs on the dominant paradigm, strike out on their own—alone or in small groups—and do something intellectually edifying, politically admirable, or aesthetically enlivening.9 The way I see it, tenure is forever, the discipline is weak, and there are no real sanctions for intellectual

experimentation.10 And there have to be some legal academics who are passionate and engaged— who are not beaten down by the drone of legal discourse. People who have missed it—in the sense that they came of age in some truly dreary political/ cultural moments.11 But who have not missed it in the sense that they are still alive. They still have aura.12 Now, I’m not completely utopian, and I realize that this would not be a large group. But the upshot is that being a legal academic can still be, if one makes it such, one of the last truly great jobs on earth13—a job where one can actually decide what to think, what to write. All of this is to say that there is no compelling reason to simply emulate the reigning paradigms of legal scholarship. No compelling reason at all.14 But I guess I’m afraid that many people do follow the dominant paradigm simply because . . . well, it’s the dominant paradigm. It’s what everybody else is doing. I get the sense that for most people in the legal academy these days, there’s no elaborated conception of what legal scholarship is supposed to be or do (or any such thing).15 And there isn’t much in the way of independent research agenda—as in “I have things to say . . . and I’m going to say them.” The upshot is that legal scholarship turns out to be an exercise in imitation. Legal scholarship is whatever it is that other legal academics do. And there is not much in the way of a critical appreciation of whether “what other legal academics do” is of value or why or how. Instead, people in the academy simply presume that legal scholarship (conceived here as what other legal academics do) has some redeeming intellectual or moral or political value. As presently constituted, I’m not sure it does. This, of course, brings up the thorny question: “compared to what?” Is it better for legal academics to follow the dominant paradigm as opposed to . . . Doing nothing? Doing consulting? Doing journalism? Playing video games? My compared-to-what (for purposes of this essay) is an optimistic conviction that some (many?) legal academics could do scholarship in much more intellectually interesting or politically helpful or aesthetically enlivening ways if they abandoned the reigning paradigm. I could be flat out wrong about this: it may be, as I’ve suggested above, that the only thing we can say of legal scholarship is that it is what it is. It may be that given the present circumstances in the legal academy, we are doing just about as well as can be expected. It may even be that departing from the dominant paradigm is undesirable (things could get worse). In some ways, they very likely will. But probably not in all ways and not necessarily for everyone. And so I write this essay. I am going to be doing three things at once. (That means no three cleanly divided parts on this score.) One: I will be trying to show that the dominant paradigm is fundamentally uninteresting from an intellectual, political, and aesthetic standpoint. Two: I will be trying to briefly sketch some of the constitutive features that render this dominant paradigm (unavoidably) uninteresting. Three: I will be suggesting that following the dominant paradigm is an existentially impoverished and impoverishing thing to do. It’s not a life. It’s just a genre. And not a very good one. Now, as you can tell, this is not subtle. It’s all aimed at providing motivation to abandon the dominant paradigm. That’s my rhetorical strategy here. I’m hoping that, by the time you have finished this essay, you start to think that participating in the dominant paradigm is not really worthy of your time or effort or perhaps even respect. I’m also hoping that you start to think about writing something else—something less life impoverishing. Of course, I realize that I have no hope of convincing anyone, except maybe a very few people who are on the margins, who are vaguely dissatisfied with legal scholarship and who sense that maybe it’s not what it’s cracked up to be. The essay is aimed at those people who have begun to wonder—just what is the point? Not the grand cosmological point of it all. But a more modest existential point—as in what is the point of doing legal scholarship? My answer? You have to bring the point with you. Just as a lawyer needs to have a client in order to have a case, you need to bring something to legal scholarship to make it worthwhile. Because, unless you bring meaningful existential commitments to the practice of legal scholarship, it will have no point. Think of it as a genre. It has no more of a point (in fact quite possibly less of a point) than other genres—say, the novel or the poem. Now it is claimed by aficionados of the dominant genre that legal scholarship is aimed at the mastery or production of knowledge, the elimination of error, the promotion of the good, and so on. But those are just claims—representations. To my knowledge, no one has ever provided any convincing argument as to why participating in the dominant form of legal scholarship is, in and of itself, a morally good, intellectually respectable, politically admirable, aesthetically enlivening, or otherwise worthy thing to do with one’s life.16 No one.17 There are some people, of course, who have said that it is part of the job description and therefore one is duty-bound to do it. But that’s just wrong: Part of the job description (academic freedom and all that) is to be able to develop your own scholarly agenda.

Link – Democracy & Eqaulity

The Constitution’s models of equality are flawed – its equal protection text is standardized into limits that only serve to homogenize oppressed groups. Balkin 97 - Knight Professor of Constitutional Law and the First Amendment at Yale Law School

(Jack, "Agreements with Hell and Other Objects of Our Faith; 1/97; digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1262&context=fss_papers, issue 65, pg 1728), “LJH”

There are many examples of these boundaries on our imagination, which themselves could form the subject of another essay. But the one which weighs on my mind most heavily these days is the manner in which the concept of equal protection has been formalized into questions of fundamental right, suspect classification, substantial burden and tiers of scrutiny. These categories see inequality as a question of similarity and difference, view oppression as a question of individual animus, and measure discrimination by inquiries into discreteness, insularity and immutability. This formalism produces a doctrinal edifice worthy of a thirteenth century scholastic: It offers us a structure that is used to consider the legal treatment of both debt adjusters and homosexuals, tax abatements and Mexican-Americans. Not surprisingly, it forms a procrustean bed that fails to do justice to the sociology of groups and the construction of group identities in a culture. In the legal language of our Constitution, it is difficult to talk about caste and stigma without wrenching them from their sociological bases and restating them in five-part tests that manage utterly to miss the point of how status-based injustices are perpetrated and perpetuated. Perhaps with time our law can become more sociological. But for now the constitutional language of equality seems to be more a method of promoting social inequality, the constitutional language of rights seems to be more a means of inhibiting freedom ,

and the constitutional language of respect for democracy seems to be more a device for stifling the very possibility of self-governance for the vast majority of people in this country. Moreover, even when ideas can be expressed in the existing constitutional grammar, some are clearly unpersuasive at any given point in time, given the political and professional consensus of opinion. If our discussions are honestly to be faithful interpretations of the Constitution, we must shut out these implausible claims and considerations; we must regard them as "off-the-wall" for purposes of the constitutional discourse of fidelity.

Link – Rights Talk

The affirmative’s call for rights is lodged in bad faith in the lawKennedy 2002 (Duncan [Carter prof of general jurisprudence @ Harvard] The Critique of Rights in Critical Legal Studies; http://duncankennedy.net/documents/The%20Critique%20of%20Rights%20in%20cls.pdf; kdf)

A final parallel is that rights talk, like legal reasoning, is a discourse–a way of talking about what to do that includes a vocabulary and a whole set of presuppositions about reality. Both presuppose about themselves that they are discourses of necessity, of reason as against mere preference. And it is therefore possible to participate in each cynically or in bad faith. Cynicism means using rights talk (or legal reasoning) as no more than a way to formulate demands. They may be “righteous” demands, in the sense that one believes strongly that they

“ought” to be granted , but the cynic has no belief that the specific language of rights adds something to the language of morality or utility. When one attributes the success of an argument couched in rights language to the other person’s good-faith belief in the presuppositions of the discourse, one sees the other as mistaken, as having agreed for a bad reason, however much one rejoices in the success of a good claim. Bad faith, here and in the case of legal reasoning, means simultaneously affirming and denying to oneself the presupposed rationality of the discourse, and of the particular demand cast in its terms. It means being conscious of the critique of the whole enterprise, sensing the shiftiness of the sand beneath one’s feet, but plowing on “as if” everything were fine. Bad faith can be a stable condition, as I have argued at length elsewhere for the case of legal reasoning.14 Or it can turn out to be unstable, resolving into loss of faith or into renewed good faith.

Link – Courts

The Judicial system’s colorblindness is racist discriminationLawrence 95 – (Charles R. Professor of Law at University of Hawai'i at Mānoa Centennial “The Epidemiology of Color-Blindness: Learning to Think and Talk About Race, Again” Boston College Third World Law Journal Volume 15 | Issue 1 Article 2 1-1-1995 lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1248&context=twlj , cayla_)

It was not until well after Brown established Justice Harlan's dissent as the law of the land that color-blindness was transformed from a healing prescription into a carrier of the disease itself.16 If the equal protection clause required the disestablishment of racist meanings, practices and institutions, that disestablishment could not occur without giving affirmative attention to those meanings and practices. This is the meaning of affirmative action. One cannot desegregate a segregated school by ignoring the race of those seeking admission. 17 But affirmative action made it apparent that one could not achieve equal opportunity without some redistribution of opportunity. Of course this redistribution was resisted. The resistance took the form of antiaffirmative action politics and what became known as "reverse discrimination" litigation. 19 The transformation of color-blindness from prescriptive ideal into a condition of societal denial first appeared in these anti-affirmative action cases and in the politics that created those cases.20 The transformation is achieved by the assertion that Justice Harlan's ideal has now become real. "Our Constitution is color-blind" becomes 'We are a color-blind society."21 Such an assertion can only be believed if we engage in massive denial of what we see and hear every day . Thus when the Supreme Court struck down the Richmond Virginia minority set-aside program in Croson,22 the majority opinion found that there was "no direct evidence of race discrimination [against minority contractors] on the part of the city ... or any evidence that the city's prime contractors had discriminated against minority-owned subcontractors."23 The Court's majority blinds itself to Richmond's history of slavery and segregation.24 It refuses to see the city's still segregated neighborhoods and segregated schools. The Justices deny their own life experiences in clubs, communities and jobs where blacks are rarely seen.25 And if these realities are brought to their attention they say, "but this is not evidence,"26 or "this is economics, not race, "27 or "this is protected racist speech, not conduct,"28 or "it is not racism when white contractors hire their friends and all of their friends just happen to be white,"29 or "maybe black folks don't like contracting work. "30 And then they say to those who seek affirmative remedies for this discrimination, "You must be a racist if you don't believe we are a color-blind society. "31 These are

all forms of denial . The Justices on the Supreme Court are not its only practitioners. Denial is a pervasive symptom of contemporary American racism.

Impact - Value to Life

Law is a trivial structure that distracts us from the true proceedings of life. This forces us to create new lives devoid of meaning.Schlag ’09 -- Byron R White Prof of Law @ University of Colorado (Pierre, Legal Studies Research Paper Series, “Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art),” 97 Geo. L. J. 803 (2009), 831-835, DWB)

Last summer, I did a stint as a swamper with AZRA, a commercial outfit in the Grand Canyon.63 For many people, going down the river can be a lifechanging experience. It’s easy to understand how. The towering red and yellow walls, the intense play of light and shadow, the stark lines of the encroaching horizons, the extreme heat and the breathtaking dryness of it all conspire to put the real world in abeyance. All the little demands, requirements, schedules, preoccupations of that real world quickly begin to seem trivial. And then they fade entirely, until they are gone. Then too there is the rhythm of the river—of getting up early everyday, of going down the river, of making camp and breaking camp, and doing it every day so that each day is the same as every other day. With days like that, you can really think. You can imagine for yourself another existence. And many people do. The trip ends and they drop their jobs, partners, wives, husbands, material possessions. They fall in love with the river, with their guide, with the desert and, in some important ways, they never come back. I’m a reasonable person (as well as a law professor) so all I came back with was one really tiny insight. Not only is it tiny, but it’s not even very original. And it begins like this: There is something pervasively neurotic about the structures of contemporary life. The excruciating intricacies of everyday demands, the symbolic overinvestment of meaning in the trivial, the obsessive monitoring of everything to within an inch of its life, the constant piling on of little local meta- and infra-layers of thought—all these things are, from the perspective of the river, pervasively neurotic.64 Contemporary life ensnares us in all sorts of little maze-games that seem to matter tremendously and yet ultimately do not—except in the negative sense that they distract our attention from what does or at least could matter. Now, lots of people have had this sort of insight—the most famous perhaps being Heidegger (the “fallenness” thing).65 But my insight, and it really isn’t much of an insight at all, is about legal scholarship. I think the practices and institutions of contemporary legal scholarship (spam jurisprudence, case law journalism, rank anxiety, nothing happening, etc.) are extremely intense versions of this generalized neurotic structure. It’s as if we were all working really hard on an imaginary bus schedule. Someone writes an article saying we need to optimize the number of buses. Another person can’t resist pointing out that it might be preferable to start by optimizing the number of bus stops instead. Soon someone writes that we should reconstruct the entire schedule. Someone else will suggest that we should split the schedule along eight different parts. Someone says, the eight parts are really sixteen. Some truly original thinker says there are ten. And then, some ranker comes along and starts ranking whose law school has the best bus scheduling program going. And somebody else decides to hold a symposium on bus schedule rankings. (Remember the traveling show on Bush v. Gore?)66 And then fifty years from now, someone will write a book: How Should the Bus Schedules of 2000-Whatever Have Been Decided?67 Pretty soon, we’ve got a collective imaginary going and we’re pushing buses and bus stops all across pages of the Yale Law Journal and it all feels kind of real and pretty important. And it’s not hard to believe that it’s

important. For one thing people are getting real rewards—prestige jobs, chairs, program fund- ing—for imaginary bus schedule breakthroughs. And adding to the increasing reality of the thing is the undeniable fact that we can’t just dismiss buses or bus schedules as unreal. (If everything else fails, by the way, this is your takeaway: Buses are real.) But the thing of it is, our legal academic bus schedule remains imaginary. Even if it looks a lot like the real thing, it’s still imaginary. When we put out our bus schedule, no buses run. Word. And no Rapid Transit District (RTD) that I know of is going to change its schedule just because some new bus stop entries have been introduced in the pages of the Yale Law Journal or wherever. Not going to happen. So here we are, legal academics working on our collective imaginary bus schedule. And one of the things that troubles me about this is that the imaginary bus schedule is in some important ways not at all like the RTD’s bus schedule. The RTD faces real stakes. We legal academics don’t. Our reality principle—to the extent we have one at all—is decidedly indeterminate: get tenure/avoid showing cause. So if we want to construct a bus schedule with stops every ten yards (all in the name of rigor or precision) then we can have at it. And realize, please, that I’m not being extreme here. It’s not like this hasn’t been done. Over and over again.68 And then there’s the normativity thing. I once read an article that purported to elaborate about what the Constitution should be. Now what struck me as odd was that the author really did want to free himself (and his reader) from any official pronouncements of what the Constitution is. This struck me as incredibly weird. What an odd thing to do. If the question “What should the Constitution be?” is not anchored in what the Constitution is (whatever that might be), then why not go for broke: I say let’s have a constitution that guarantees universal health care, tastes a lot like Ben & Jerry’s ice cream, and is laugh-outloud funny. You leave it to me? I say: Go big. Is this flip? Well, of course, it is. But hey, I’m not the one who invented this practice of normative legal thought. I’m just pointing it out. In fact, that’s what I do these days. Check that: It’s what I used to do. I used to have a pretty good job as a satirist. Good working conditions. Not much competition. I’m out of business now: Legal thought satirizes itself. For me now, it’s all just point and shoot. There’s something gratuitous about legal scholarship. No one, of course, writes that the constitution should be like Ben & Jerry’s ice cream. But just what is it that precludes anyone from suggesting that the Constitution should guarantee universal health care. (I’d be in favor—I really would.) The answer: there are constraints on what we argue. Sure there are.69 And who generates . . . the constraints? Well, in part, we do.70 So what we have is an imaginary legal thought shaped by imaginary collective constraints, one of which is the injunction that we should follow those constraints with great rigor. My question: Is this a neurotic structure? Yes, it is. Straight out—full-flower. It has to be because without the neurosis, there would be nothing there. No constraints at all. Now please understand: As a matter of form, I have nothing against collective imaginaries. My only problem is this: if we law professors have to work so hard (and so painfully) on our collective imaginaries, couldn’t we pick something more interesting, or important, or aesthetically enlivening, or morally salient, or politically relevant than bus schedules? I mean, couldn’t we? Uh, no. Which raises perhaps my final point. It’s not very nice, but someone’s got to say it, and apparently it’s going to be me. As mentioned earlier, our people are not cognitively challenged. They are, bell curve and all, very intelligent. It is easy then for people like you and I, when we look at the extreme intricacy of the work produced by these very intelligent people, to associate the intricacy of their work with their manifest intelligence. Indeed, we are likely to think of the relation in reciprocal terms: Because they are intelligent, their work is intricate, and because their work is intricate, it shows great intelligence.71 But the thing I want to suggest as a possibility here is that all this intricacy of legal scholarship is less a function of intelligence than it is a manifestation of neurosis in the face of intractable conflicts. What conflicts? Consider the prototypical needs of the legal academic: A need to display great intelligence in a discourse (law) that will ultimately not bear it. A need to contribute to disciplinary knowledge in a discourse which is not really about knowledge or truth in any profound sense of those terms. A need to say something intellectually respectable within a disciplinary paradigm that we know, on some level, is intellectually compromised. A need to display control over social, political, and economic

transactions that are in important senses not subject to control. A need to activate moral and political virtue in a discourse that uses both largely as window dressing. A need to make one’s thought seem real and consequential in a discourse that is neither. I want to suggest then, and this is perhaps the unkindest cut of all, that within the dominant paradigm of legal scholarship, it may be that there is very little of enduring value to be said. In the main it’s the rehearsal of a form, a genre—and not a self-evidently good one.72 I have a cheery ending and a not so cheery ending The cheery ending is that it has not always been like this. And, maybe it doesn’t have to be like this now. The non-cheery ending goes like this: It’s going to get worse in many ways. The forces are in play—the rankings, the administrators who want to enhance the reps of their schools, the status insecurities of young (and old) faculty members, the pervasive triumph of pomo (ahem, ahem, told you so)73—all these forces will converge to produce ever more spam jurisprudence. And then something else will happen.

Bureaucracy objectify and control human lives – that destroys value to lifeFrug 97 - Louis D. Brandeis Professor of Law at Harvard Law School

(Gerald, “THE IDEOLOGY OF BUREAUCRACY IN AMERICAN LAW”, 97 Harv. L. Rev 1276, pg 1317), “LJH”

These stances represent ways to define ourselves in terms of the formalist vision. But these forms of self-definition, like the model itself, are tolerable only as long as there is some space (at home, in the voting booth) where we can express our subjectivity - our sense of self - without its being infected by the bureaucracies we have created. The dangerous supplement analysis should help us see how such a protection of the self is unattainable. Because the experience of subjectivity cannot be disentangled from the structures in which people live, no realm of subjectivity can be protected from the attempt to objectify bureaucratic life. There are no "shareholders" or "citizens" in the world who are

not simultaneously subordinates within bureaucratic structures. The attempt to objectify human life

within bureaucracie s threatens to affect people in their lives as a whole -

it shapes their way of dealing with the world even in their "free" activities as citizens or

shareholders . Thus, the inability to divide people into components means that

bureaucratic objectivity invades and transforms the subjective experience of the

very people who are supposed to control - and take responsibility for - bureaucratic objectivity. Everyone is in danger of becoming "One Dimensional Man,"122 a human being who has lost the ability to sense the rich possibilities of human existence by reducing life to the terms of instrumental rationality. Because all human existence is affected by bureaucratic structures, the formalist model's attempt to rob some aspects of life of "personal" qualities threatens the life experience itself. Max Weber articulated this fear by imagining the cloak of rationality becoming in the end man's iron cage: No one knows who will live in this -cage in the future, or whether at the end of this tremendous development entirely new prophets will arise, or there will be a great rebirth of old ideas and ideals, or, if neither, mechanized petrification, embellished with a sort of convulsive self-importance. For of the last stage of this cultural development, it

might well be truly said: "Specialists without spirit, sensualists without heart; this nullity imagines that it has attained a level of civilization never before achieved." 123

1NC K

The belief in democracy and equality is a racist one that obscures and further promotes white privilegeLopez, 2003 (Gerardo [Professor of Political Science], "The (Racially Neutral) Politics of Education: A Critical Race Theory Perspective", Educational Administration Quarterly Vol. 39, No. 1 (February 2003) 68-94, 6/28, eaq.sagepub.com/content/39/1/68.full.pdf) // cjh

Taken holistically, CRT posits that beliefs in neutrality, democracy, objectivity,¶

and equality “are not just unattainable ideals, they are harmful fictions¶ that obscure the

normative supremacy of whiteness in American law and¶ society ” (Valdes et al., 2002, p. 3). Notwithstanding, White Americans continue¶ to believe in these ideals, because a racial reality is, perhaps, too difficult¶ to digest. For example, if I were to argue that what we study within the¶ politics of education is entirely racist, most scholars in the field—conservative¶ and liberal alike—would be greatly offended, finding such statements¶

preposterous and absurd. Although some would agree there might be certain¶ institutional practices (such as power) that limit the political participation of¶ nonmainstream groups, or perhaps a handful of truly racist individuals whose¶ values and beliefs create policies that negatively affect people of color, most¶ of us would believe that our knowledge base is not largely affected by racism.¶ To the contrary, most of us would tend to believe that what we study actually¶ highlights the processes by which people of color are marginalized on a¶ daily basis and how they can challenge and change the political spectrum¶ through voting, grassroots organizing, mass mobilization, and the election of¶ minority officials and representatives. In other words, the belief that the politics¶ of

education actively supports a racist agenda does not fit our prevailing¶ and espoused beliefs

about the nature of the field .¶ The role of CRT is to highlight the fact that such beliefs only serve to¶ maintain racism in place—relegating racism to overt/blatant and unmistakable¶ acts of hatred, as opposed to highlighting the ways in which our beliefs,¶ practices, knowledge, and apparatuses reproduce a system of racial hierarchy¶ and social inequality. Rarely do we question our own values and knowledge¶ base and how those beliefs emerge from—and help sustain—the notion of a¶ racially neutral and democratic social order that works for all people. In other¶ words, within the field, we have a tendency to think that social problems¶ (such as racism) will be resolved if more people get involved in the political¶ arena and “do something” about it. The belief in democracy and “justice for¶ all” is protected—as is the belief that the vehicles to ascertain social justice¶ are racially neutral. It is a cheery and simplistic take on how

racism actually¶ functions in society, as well as a naïve understanding how it can be resolved¶ and remedied.

The belief in democracy and equality is a racist one that obscures and further promotes white privilegeLopez, 2003 (Gerardo [Professor of Political Science], "The (Racially Neutral) Politics of Education: A Critical Race Theory Perspective", Educational Administration Quarterly Vol. 39, No. 1 (February 2003) 68-94, 6/28, eaq.sagepub.com/content/39/1/68.full.pdf) // cjh

Taken holistically, CRT posits that beliefs in neutrality, democracy, objectivity,¶

and equality “are not just unattainable ideals, they are harmful fictions¶ that obscure the

normative supremacy of whiteness in American law and¶ society ” (Valdes et al., 2002, p. 3). Notwithstanding, White Americans continue¶ to believe in these ideals, because a racial reality is, perhaps, too difficult¶ to digest. For example, if I were to argue that what we study within the¶ politics of education is entirely racist, most scholars in the field—conservative¶ and liberal alike—would be greatly offended, finding such statements¶

preposterous and absurd. Although some would agree there might be certain¶ institutional practices (such as power) that limit the political participation of¶ nonmainstream groups, or perhaps a handful of truly racist individuals whose¶ values and beliefs create policies that negatively affect people of color, most¶ of us would believe that our knowledge base is not largely affected by racism.¶ To the contrary, most of us would tend to believe that what we study actually¶ highlights the processes by which people of color are marginalized on a¶ daily basis and how they can challenge and change the political spectrum¶ through voting, grassroots organizing, mass mobilization, and the election of¶ minority officials and representatives. In other words, the belief that the politics¶ of

education actively supports a racist agenda does not fit our prevailing¶ and espoused beliefs

about the nature of the field .¶ The role of CRT is to highlight the fact that such beliefs only serve to¶ maintain racism in place—relegating racism to overt/blatant and unmistakable¶ acts of hatred, as opposed to highlighting the ways in which our beliefs,¶ practices, knowledge, and apparatuses reproduce a system of racial hierarchy¶ and social inequality. Rarely do we question our own values and knowledge¶ base and how those beliefs emerge from—and help sustain—the notion of a¶ racially neutral and democratic social order that works for all people. In other¶ words, within the field, we have a tendency to think that social problems¶ (such as racism) will be resolved if more people get involved in the political¶ arena and “do something” about it. The belief in democracy and “justice for¶ all” is protected—as is the belief that the vehicles to ascertain social justice¶ are racially neutral. It is a cheery and simplistic take on how

racism actually¶ functions in society, as well as a naïve understanding how it can be resolved¶ and remedied.

Link of Omission

Whiteness flourishes in totalizing epistemologies and silenceCalderon 6—(Dolores, University of Utah assistant professor in the Department of Education, Culture, and Society and the Ethnic Studies Program “One-Dimensionality and Whiteness” USA Policy Futures in Education, Volume 4, Number 1, 2006 http://pfe.sagepub.com/content/4/1/73.full.pdf+html , cayla_)

Whiteness represents what I call a flat epistemology [2] in which the organization of knowledge is hierarchical, unidirectional, and reductive. A flattened epistemology is totalizing, assuming a singular way of knowing that

precludes critical interventions and it is not derived from an organic community . Rather, a flattened epistemology is one-dimensional because it is predetermined and disseminated in order to reproduce whiteness. Marcuse’s (1991) analysis in One-Dimensional Man provides a framework with which to further define this flat epistemology. The flat epistemic nature of whiteness is attributed to the unidirectional mode of capitalist relations, which always progress towards the reproduction of capital and disallow critical engagement of the system. Marcuse (1991) explains that modern society’s technological rationalism operates as an apparatus that ‘imposes its economic and political requirements for defense and expansion on the labor time and free time, on the material and intellectual culture. By virtue of the way it has organized its technological base, contemporary industrial society tends to be totalitarian’ (1991, pp. 2-3). These increasing economic and political requirements demand a flattened culture which flows singularly from the Establishment. In essence, the totalitarian or flattened rationalism is ideologically produced in the onedimensional epistemology of whiteness. Individuals come to understand themselves, for the most part, only in relation to the universal or totalitarian notion of whiteness. Whiteness appears to be commonsensical, universal and value-neutral. George Lipsizt (1998) points out that ‘whiteness is everywhere in U.S. culture, but it is very hard to see’ (Lipsitz, 1998, p. 1). Whiteness represents the normative practices and

discourses upon which everything is measured, but this measurement

is not an explicit act. Rather, it remains an unseen, or invisible measure . ‘As the unmarked category against which difference is constructed, whiteness never has to speak its name, never has to acknowledge its role as an organizing principle in social and cultural relations’ (1998, p. 1). Whiteness silently pervades all sectors of life, both public and private.

Refusing to acknowledge race as a defining factor in society protects the white supremacy – Silence is a ‘link’Lopez, 2003 (Gerardo [Professor of Political Science], "The (Racially Neutral) Politics of Education: A Critical Race Theory Perspective", Educational Administration Quarterly Vol. 39, No. 1 (February 2003) 68-94, 6/28, eaq.sagepub.com/content/39/1/68.full.pdf) // cjh

Our understanding of events, as told by Schattschneider and others, suggests¶ that the incident was not in any way a race riot. Such negation not only¶ suggests the riot had nothing to do with racism but altogether disregards the¶ pent-up frustration and rage of the African American community. The reason¶ for this mislabeling, in my opinion, has to do with a constricted understanding¶ of what constitutes a race riot. For Schattschneider (1960), the event in¶ question failed to meet this definition because “most of the shops looted and¶ 80 Educational Administration Quarterly¶ Downloaded from eaq.sagepub.com at UNIV CALIFORNIA BERKELEY LIB on June 26, 2015¶ the property destroyed by the Negro mob belonged to Negroes” (p. 2). For¶ Mayor La Guardia and Congressman Powell, the event was not a race riot¶ because there was no “physical violence between Blacks and Whites”¶ (Capeci, 1977). In essence, a race riot, according to these definitions, can¶ only occur if there are objective facts or discernable evidence of violence¶ between two groups. Anything short of direct contact or aggression fails to be¶ included in this definition.¶ By refusing to label the 1943 incident a race riot, individuals not only strip¶ the event of its racial underpinnings but render its social and

political significance¶ meaningless. The riot becomes a mere conflict, where chaos and¶ destruction ruled for a short period of time. In effect, such reasoning leads us¶ to believe that the public boiling-over of African Americans had little to do¶ with racism or the reality of being Black in a White society. Instead, it¶ becomes an unfortunate and isolated incident that simply got out of hand.¶ Moreover, because individuals failed to identify racism as a key element¶ of

the riot, White power and privilege were protected and reified. Because¶ Blacks were not “rioting” against a White power structure, there was no need¶ to fundamentally change the social and living conditions for African Americans¶ in Harlem. Although the riots did open the possibility for increased¶ political representation for Black Americans, there was little fundamental¶ change in social and economic power relations between Blacks and Whites.¶ As such, the overall event and public protest did little to substantially alter the¶ gross social and economic inequities in New York City during this particular¶ period in history.¶ How could Schattschneider—along with other key political figures,¶ researchers, and scholars—not see racism as an underlying cause of this riot?¶ Why was this incident not labeled a race riot, despite the fact that the collective¶ anger of African Americans was targeted mainly at

symbols of White¶ power such as the New York Police Department? How could Schattschneider¶ use an example that describes blatant racial conflict without highlighting¶ issues of White supremacy and social power? Answers to these questions¶ rest, in part, on the fact that racism and its effects are rarely discussed or¶ acknowledged in society (Omi & Winant, 1986; Tatum, 1997; West, 1993a).¶ There is a problematic silence that surrounds

issues of racism —a silence that¶ is difficult to broach. In fact, most people would rather not discuss racism¶ whatsoever because the topic itself is uncomfortable and unpleasant¶ (Anzaldúa, 1990; Tatum, 1997; West, 1993a, 1993b).¶ As a result of this disquieting silence, most individuals fail to identify its¶ magnitude and breadth and limit its scope to superficial manifestations like¶ prejudice, discrimination, and blatant intolerance (Delgado & Stefancic,¶ 1995, 2001; Matsuda, 1996; Tatum, 1997). In fact, most people view racism¶ as the enactment of overt racial acts—for example, name calling, burning¶ crosses, hate crimes, and so forth—while ignoring the deeper, often invisible,¶ and more insidious forms of racism that occur on a daily basis (Parker, 1998;¶

Scheurich & Young, 1997; Tyson, 1998).¶ In addition, when discussions of racism do occur, people overwhelmingly¶ focus on explicit acts, believing that racism is perpetrated by “bad people”¶ who dislike others because of something as arbitrary and innocuous as their¶ skin color. Although this type of blatant racism certainly does occur, such a¶ belief incorrectly assumes that it is only found at this surface level and does¶ not penetrate our institutions, organizations, or ways of thinking (Bell,¶

1995b; Delgado, 1995a; Omi & Winant, 1986; Parker, Deyhle, & Villenas,¶

1999; Scheurich & Young, 1997; Tatum, 1997; Williams, 1995a, 1995b).¶

This limited perspective, therefore, only protects White privilege by highlighting¶ racism’s blatant and conspicuous aspects, while ignoring or¶

downplaying its hidden and structural facets (Harris, 1995; Scheurich &¶

Young, 1997; Tyson, 1998).¶ Needless to say, most individuals do not discuss the

topic of racism at all¶ (Fine, Powell, Weis, & Mun Wong, 1997; Frankenberg, 1993; Sleeter, 1996).¶ They ignore it because they believe the topic is too unpleasant (Anzaldúa,¶ 1990 ), because they feel that racism is a thing of the past (Bell, 1995b),¶ because they do not see themselves as “raced” individuals (Fine et al., 1997;¶ Frankenberg, 1993; Haney López, 1995a, 1995b), or because they feel that¶ the race problem is not theirs to solve (Tatum, 1997). Others feel that because¶ they, as individuals, do not hold racist beliefs, then the topic is somewhat¶ external and impertinent in their daily lives (Frankenberg, 1993). In all of¶ these cases, such beliefs—individually and collectively—domesticate and¶ minimize the role of race and racism in the larger social order

The law serves to protect and benefit white privilege while ignoring racial difference Lopez, 2003 (Gerardo [Professor of Political Science], "The (Racially Neutral) Politics of Education: A Critical Race Theory Perspective", Educational Administration Quarterly Vol. 39, No. 1 (February 2003) 68-94, 6/28, eaq.sagepub.com/content/39/1/68.full.pdf) // cjh

Unfortunately, racism is as powerful today as it was in the past; it has¶ merely assumed a normality, and thus an invisibility, in our daily lives. In¶ other words, “ Time has made past racial practices and assumptions invisible¶

to modern eyes” (Lazos Vargas, in press). We often fail to recognize racism¶

because we do not see it beyond its most blatant manifestations (Delgado &¶

Stefancic, 2001). By necessitating tangible documentation of its existence,¶

legal and juridical apparatuses have, in effect, dealt with racism’s most obvious¶ forms but have perpetuated its existence at deeper and more invisible¶ levels.¶ In addition, racism has now been turned on its head, as allegations of¶ reverse racism and calls for equal protection are increasingly used by Whites¶ to prove discrimination or racial harm against them (Delgado & Stefancic,¶ 2001). This is particularly true in affirmative action cases (Hopwood v. Texas,¶ 1996; Regents of the University of California v. Bakke, 1978), where Whites¶ have sued their organizations using the same legal statutes designed to protect¶ African Americans and other marginalized groups (Parker, in press; Taylor,¶ 1999). Indeed, racism has

taken on a new twist, as Whites reclaim their¶ positionality and power in society by using

the courts as their vehicle . The¶ staying power of case law only institutionalizes the current power relationships¶ between Whites and non-Whites while protecting the material and¶ symbolic property interest of White individuals (Harris, 1995).¶ In response to these growing concerns, a new area of legal scholarship¶ known as CRT has emerged to analyze the pervasiveness of racism in society¶ (Crenshaw et al., 1995; Delgado, 1995a; Delgado & Stefancic, 2001;¶ Matsuda, 1996; Matsuda et al., 1993; Valdes et al., 2002; Williams, 1995b).¶ As an outgrowth of the Civil Rights movement and the Critical Legal Studies¶ movement, CRT’s premise is to critically interrogate how the

law reproduces,¶ reifies, and normalizes racism in society. Rather than subscribe to the belief¶ that racism is an abnormal or unusual concept, critical race theorists begin¶ with the premise that racism is a normal and endemic component of our¶ social fabric (see also Banks, 1993; Collins, 1991; Gordon, 1990; LadsonBillings¶ & Tate, 1995; Scheurich & Young, 1997; Tatum, 1997; Tyson,¶ 1998). CRT scholars suggest that the reason why society fails to see racism is¶ because it is such a common/everyday experience that it is often taken for¶ granted. In other words, racism is part of our everyday reality. It is part of our¶ social fabric and embedded in our organizations, practices, and structures¶ (Scheurich & Young,

1997; Tyson, 1998)—it is the usual way “society does¶ business” (Delgado & Stefancic, 2001, p. 7).

Alternative

Alt – Abandon Legal Reasoning

The affirmative’s reliance on legal theories doesn’t undermine the law, but calcifies it- only abandoning legal reasoning is it possible to solveKennedy 2003 (Duncan [Carter prof of general jurisprudence @ Harvard]; SYMPOSIUM: BEYOND RIGHT AND REASON: PIERRE SCHLAG, THE CRITIQUE OF NORMATIVITY, AND THE ENCHANTMENT OF REASON: Pierre Schlag's The Enchantment of Reason; 57 U. Miami L. Rev. 513; kdf)

The third meaning of enchantment is the doing of law by humble practitioners, judges, and professors, and the theorizing of law by highly "presumptuous" n50 professors, as if reason were not vulnerable and unreliable, and as if reason could therefore rule in law. It is not a question of a personified reason with ineradicable ambitions that are not severable. We are dealing with "American legal culture," and, as Pierre explains, with Rawls, Dworkin, and then in great and admirable and convincing detail, with the "false modesty" of neo-pragmatists and Wittgenstinians named Radin, Grey, Sunstein, Minow, Spelman, Posner, Farber, Sherry, Patterson, and Priest. As he says, in italics, of these peoples' theories: "They are all in their own way invitations to go to sleep. They are all invitations to forget the predicaments of reason." n51 Moreover, Pierre does not generally attribute to "reason" the denial of reason's predicaments. Quite the contrary, his normal strategy is to [*527] characterize this denial as itself "an attempt to deify reason, to fortify reason by transforming it into a seemingly more stable kind of belief--something on the order of faith." n52 As will be seen, the very vulnerability of reason leads to attempts to fortify reason by eradicating its tensions, its paradoxes, its contradictory movements--in short, its vulnerable situation... . But this sort of response to the vulnerabilities of reason is precisely what leads to the transformation of reason into its traditional enemies: faith, dogma, prejudice, and company. n53 As with the first "overestimation" and second "rulership" senses of enchantment, there exist strong innocent and guilty motives to deny or disregard the vulnerability of reason. On the discrediting or guilty side, Pierre provides an excellent condensed summary, one corresponding exactly to critical legal studies (cls) dogma if one just substitutes the word law for the word reason: Given reason's unstable identity (its difficulty recognizing itself) it can easily be drafted into the service of even the most dubious and most dogmatic of programs. Sometimes, reason will simply be hijacked to aid a political or normative program. It is easy to see why "reason" should be such an appealing target for political or intellectual hijacking. To the extent that reason, as suggested, lays claim to rule other beliefs, the capture of reason for this or that political or intellectual project is a tempting prospect. The capture of reason becomes in effect the capture of a mechanism that claims to exercise (and perhaps to some extent does exercise) central command over the selection, monitoring, and replacement of other beliefs. We should not think of the "hijacking" of reason so much in terms of strategic or deliberate action, but rather as the flow of the normal course of events. Thus, it is to be expected that the dominant forms of social life--whether we are talking about commodity production, technology, science, religious practice--should inscribe their own logics within reason itself. To borrow from Marx, it should not surprise if the things of logic should bear the marks of the logic of things. n54 This is all very well, but what about the more innocent motives that participants in legal culture might have for denying, and that legal theorists might have for trying in some way to overcome, reason's predicaments as manifested in law? We have left over from the earlier chapters of the book two very strong innocent motives for denial. [*528] The first of these is that the liberal political theoretical icon of the rule of law seems to rely in a big way on our belief that reason rules in law. If judges are

to protect us from our fellows and from executive and legislative actors by interpretation of constitutional, statutory, and common law materials, without getting into "who guards the guardians?" problems, reason must guarantee interpretation against Pierre's lists of "self-interest, vengeance, hate, love," and "power, interest, prejudice, ... and personal proclivities," and "arbitrariness, emotion, self-interest, politics, power, and force." n55 "In legal analysis, any time that reason is perceived to break down, the rule of law is immediately threatened." n56 According to Pierre, a second major reason for hanging onto the rule of reason, at the cost of turning it into its opposite, namely, faith, dogma, prejudice, and company, is that reason as ruler constitutes the grid of law, so that "there is a great deal at stake: for the partisans of reason, it is reason itself that serves as the overarching organization of the world they inhabit. For them, reason is the web of intelligibility. And that is not something to be given up lightly." n57 It occurs to one that the meaning of the Delphic phrase, "it is not unequivocally a defect" that reason's ineradicable and unseverable ambition is to rule, might be that the ambition is necessary to maintain the credibility of the rule of law and the intelligibility of the grid. But then we need to ask, "credibility for who?"; "intelligibility for who?" Why can't we insist on "reason as modesty" and then adopt the attitude that the rule of law is a lot less effective and reassuring than our high school civics class presented it as being, and that law is a lot less intelligible than our first year law school teachers tried to claim it was? Before we take this up, it is time to add the fourth sense of the enchantment of reason, and two further innocent motives for denying the predicaments of reason.