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Neil Gotanda and the Critical Legal Studies Movement

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Neil Gotanda and the Critical Legal Studies Movement Neil Gotanda and The Critical Legal Studies Movement Gary Mindat In this essay, the author tells of the historical development of CriticalLegal Studies during the 1980s. It is from this backgroundthat Neil Gotanda and others developed the base for the Asian American legal studies movement. Although there is now a deeper understandingof how discrimination works within different culturalcommunities because of the concepts of 'foreigness" and "race" brought out by Gotandaand otherAsian American scholars, it is still too early to tell what the results of the Asian American legal studies movement will be. While questions remain, he concludes that Asian American scholars like Gotandahave advanceda "unique and highly significant analysis" of the race andforeigness in American law. [Confronting the Asian American in the context of legal studies requires abandoning modem legal liberalism, including many traditional catego- ries and methodologies. In this essay I am interested in examining Neil Gotanda's association with the Critical Legal Studies (CLS) movement in the early 1980s. Spe- cifically, I am interested in considering how CLS may have helped Neil and other Asian American legal scholars to launch what is now known as the Asian American Legal Studies movement. I also want to try capture what it was like before there was an Asian American Legal Studies or a Critical Race theory movement. Finally, I want to recount the history of the CLS movement because I believe that history offers important lessons for the Asian American Legal Studies movement. The story begins in the early 1980s at the CLS Summer Camp2 in Andover, Massachusetts. © 1997 Asian Law Journal t William J. Maier Jr. Visiting Professor of Law, West Virginia University College of Law; Professor of Law, Brooklyn Law School. 1. Neil Gotanda, CriticalLegal Studies, CriticalRace Theory and Asian American Studies, 21 AmERASIA J. 127, 127 (1995). 2. CLS Summer Camp was then part of the educational program informally supported by the Conference on Critical Legal Studies. CLS Summer Camp began in the summer of 1980 with a meet- ing in Santa Cruz, California. Subsequent meetings were held in Andover, Massachusetts. See John Henry Schlegel, Notes Toward an Intimate, Opinionated,and affectionate History of the Conference on CriticalLegal Studies, 36 STAN. L. REV. 391, 401, n.30 (1984). For my review of the CLS move- ASIAN LAWJOURNAL [Vol. 4:7 Neil had finished his graduate legal studies at Harvard3 and I was still a relatively new assistant professor at Brooklyn Law School. As I remem- ber it, we were both trying to develop our own ideas about law and we were very much caught up in the intellectual excitement of critical legal studies. As a graduate law student at Harvard, Neil was able to gain access to a number of important CLS scholars or "Crits." Neil's thesis advisor, Morton Horwitz, for example, was a critical legal studies historian and one of the founding fathers of CLS. Duncan Kennedy and Roberto Unger, two other important founders of CLS, were also at Harvard during Neil's graduate studies. I am reasonably certain that Neil's association with some of the CLS "heavies" at Harvard helped him to nurture a critical stance to American legal studies generally. The Conference on CLS (CCLS) then had not yet become "institutionalized A' and it was relatively easy for us to get involved and be part of the movement. It was a remarkable time; no one could have guessed that anything like the critical studies would exist in legal educa- tion during the early 1980s. By far the best way to get to know the Crits was to go to a CLS Summer Camp. CLS Summer camp was open to anyone interested in CLS. At Sum- mer camp one could live and party with the Crits for three or four days and nights (hardly anyone ever really slept since no one wanted to miss out on the late night fun). There were lots of interesting discussions about law, politics, legal educations, etc., lots of horsing around, lots of opportunities to meet really cool folks, and always the possibility of having a sudden, intuitive moment of connectedness-what "Crits" called "intersubjective Zap."5 I found CLS Summer Camp to be by far the most interesting and fun "professional" activities in the academy. When compared to the American Association of Law Schools annual profession meetings for law professors, or Law and Economics, or whatever, CLS Summer Camp was more like going to Woodstock than a law conference. It was also one of those life-changing experiences that forever altered one's perspective about law and legal education. ment in law, see GARY MINDA, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY'S END 106-27 (1995)(hereinafter POSTMODERN LEGAL MOVEMENTS). 3. Neil Gotanda, Origins of Racial Categorization in Colonial Virginia: 1705-1919(1980) (unpublished LLM thesis, Harvard Law School) (on file with author). This was an early example of Neil's work on the nature of racial classifications. The essay's thesis was an early example of the race-consciousness critique subsequently developed by critical race scholars and subsequently ex- panded by Asian American legal theorists. The essay was written under the direction of Professor Morton Horwitz, a leading Critical legal studies historian at Harvard. 4. The effects of institutionalization are discussed in Duncan Kennedy, Psycho-Social CLS: Comment on the Cardozo Symposium, 6 CARDOZO L. RE. 1013 (1985). 5. See Peter Gabel & Duncan Kennedy, Roll Over Beethoven, 36 STAN. L. REV. 1, 4, (1984). "'Intersubjective Zap' is a sudden, intuitive movement of connectedness. It is a vitalizing moment of energy (hence 'Zap') when the barriers between the self and the other are in some sense suddenly dis- solved. Reflective understanding of another person is not what is meant by the phrase." Id. at 54 (emphasis added). 1997] NEIL GOTANDA This is not to suggest that CLS Summer camp was all fun. Indeed, there were some rather painful and uncomfortable moments at CLS Sum- mer Camp. Issues of race, gender, and politics were always on the agenda of Summer Camp discussions and these issues provoked many heated de- bates. These discussions sought to expose how law justified domination and privilege through an abstract professional discourse, which claimed neutrality in process and outcome. Individuals at Summer Camp were en- couraged to report on their own experiences of discrimination they had confronted in their workplaces. The discussions were personal, framed by the individual's particular background and history, and they helped to bring out the differences between people and to help frame a race and gen- der consciousness within CLS. MAKING THE KETTLE BOIL The central importance of "difference" enabled Crits to make the "kettle boil." "Making the kettle boil" was a popular CLS metaphor for the "aim, or project, of good politics to generate certain feelings and atti- tudes in a group; to move a group of people from a state of just sitting around, or inertia (water sitting in a kettle), to one of energy and action (boiling water)."6 Feminists in CLS, the Fem-Crits, keep the kettle boiling even further by reminding us about the central importance of gender in framing our analysis of law. African-Americans, in turn, brought to the surface the im- portance of race consciousness in framing how the law dealt with race is- sues. The affinity between CLS and the legal feminist and critical race theory movements arose from the fact that these movements shared an "outsider status" defined by the personal observation on what it was like to be "outsider." Neil participated in these debates, and I could tell from the first time I heard him speak about race and the law that he was developing new ideas about race based on what it was like to be a Japanese-American in a legal system that categorized on the basis of a "Black" and "White" racial clas- sification. I remember that it was Neil who invariably challenged the "Black" versus "White" type of thinking by showing how those categories excluded Asian American and other racial groups. These discussions helped me to understand how privileged I really was as a white male. As someone who once worked in an automobile as- sembly plant in Detroit, graduated from a non-elite law school in Detroit (Wayne State University), and grew up in a middle class home in the city, I had always thought of myself as being anything but "privileged." How- ever, I, unlike Neil, could pass myself off as an insider. As white and male, I obviously had advantages of color (and gender) that made it a lot 6. Gabel & Kennedy, supra note 5,at 54. ASIAN LAWJOURNVAL [Vol. 4:7 easier to survive in white elite legal culture. Of course, for Neil, it was a whole different ball game. He could not hide his outsider status like I could, and he had the additional problem of dealing with the issue of boarders-as a Japanese-American he was always identified with another country and another culture. In bringing attention to the way race was framed to define "borders" that failed to take into account race and na- tionality, Neil helped all of us at CLS Summer Camp to better understand how racial classifications framed how we viewed the world and the law. CLS Summer Camp thus offered us an opportunity to link up with a diverse network of progressive and radical people in the law to learn from our "outsider status." CLS Summer Camp was a place where outsiders in the lefal academy could find what Mark Tushnet called a "political loca- tion." CLS was a "location" where we could meet to make sense of our cultural experiences and to figure out how we might use those experiences to develop a critique of the conservative culture of legal education and law practice.
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