Critical America

Lubet's Nothing But The Truth presents a novel and engaging analysis of the role of storytelling in trial advocacy. The best lawyers are storytellers, he explains, who take the raw and disjointed observations of witnesses and transform them into coherent and persuasive narratives. Critics of the adversary system, of course, have little patience for storytelling, regarding trial lawyers as flimflam artists who use sly means and cunning rhetoric to befuddle witnesses and bamboozle juries. Why not simply allow the witnesses to speak their minds, without the distorting influence of lawyers' stratagems and feints? But Lubet demonstrates that the craft of lawyer storytelling is a legitimate technique for determining the truth andnot at all coincidentallyfor providing the best defense for the attorney's client. Storytelling accomplishes three important purposes at trial. It helps to establish a "theory of the case," which is a plausible and reasonable explanation of the underlying events, presented in the light most favorable to the attorney's client. Storytelling also develops the "trial theme," which is the lawyer's way of adding moral force to the desired outcome. Most importantly, storytelling provides a coherent "story frame," which organizes all of the events, transactions, and other surrounding facts into an easily understandable narrative context. As with all powerful tools, storytelling may be misused to ill purposes. Therefore, as Lubet explains, lawyers do not have carte blanche to tell whatever stories they choose. It is a creative process to be sure, but every story must ultimately be based on "nothing but the truth." There is no room for lying. On the other hand, it is obvious that trial lawyers never tell "the whole truth," since life and experience are boundless and therefore not fully describable. No lawyer or court of law can ever get at the whole truth, but the attorney who effectively employs the techniques of storytelling will do the best job of sorting out competing claims and facts, thereby helping the court arrive at a decision that serves the goals of accuracy and justice. To illustrate the various challenges, benefits, and complexities of storytelling, Lubet elaborates the stories of six different trials. Some of the cases are real, including John Brown and Wyatt Earp, while some are fictional, including Atticus Finch and Liberty Valance. In each chapter, the emphasis is on the narrative itself, emphasizing the trial's rich context of facts and personalities. The overall conclusion, as Lubet puts it, is that "purposive storytelling provides a necessary dimension to our adversary system of justice."

Whether in the form of Christmas trees in town squares or prayer in school, fierce disputes over the separation of church and state have long bedeviled this country. Both decried and celebrated, this principle is considered by many, for right or wrong, a defining aspect of American national identity. Nearly all discussions regarding the role of religion in American life build on two dominant assumptions: first, the separation of church and state is a constitutional principle that promotes democracy and equally protects the religious freedom of all Americans, especially religious outgroups; and second, this principle emerges as a uniquely American contribution to political theory. In Please Don't Wish Me a Merry Christmas, Stephen M. Feldman challenges both these assumptions. He argues that the separation of church and state primarily manifests and reinforces Christian domination in American society. Furthermore, Feldman reveals that the separation of church and state did not first arise in the United States. Rather, it has slowly evolved as a political and religious development through western history, beginning with the initial appearance of Christianity as it contentiously separated from Judaism.In tracing the historical roots of the separation of church and state within the Western world, Feldman begins with the Roman Empire and names Augustine as the first political theorist to suggest the idea. Feldman next examines how the roles of church and state variously merged and divided throughout history, during the Crusades, the Italian Renaissance, the Protestant Reformation, the British Civil War and Restoration, the early North American colonies, nineteenth-century America, and up to the present day. In challenging the dominant story of the separation of church and state, Feldman interprets the development of Christian social power vis--vis the state and religious minorities, particularly the prototypical religious outgroup, Jews.

Questions of religious freedom continue to excite passionate public debate. Proposals involving school prayer and the posting of the Ten Commandments in schools and courtrooms perennially spur controversy. But there is also a sense that the prevailing discourse is exhausted, that no one seems to know how to think about religious freedom in a way that moves beyond our stale, counterproductive thinking on this issue. In Getting over Equality, Steven D. Smith, one of the most important voices now writing about religious liberty, provocatively contends that we must get over our presumption mistakenly believed to be rooted in the Constitution that all religions are equally true and virtuous and "authentically American." Smith puts forth an alternative view, that the courts should promote an ideal of tolerance rather than equality and neutrality. Examining such controversial examples as the animal sacrifice case, the peyote case, and the problem of aid to parochial schools, Smith delineates a way for us to tolerate and respect contrary creeds without sacrificing or diluting our own beliefs and without pretending to believe in a spurious "equality" among the variety of diverse faiths.

White by Law was published in 1996 to immense critical acclaim, and established Ian Haney López as one of the most exciting and talented young minds in the legal academy. The first book to fully explore the social and specifically legal construction of race, White by Law inspired a generation of critical race theorists and others interested in the intersection of race and law in American society. Today, it is used and cited widely by not only legal scholars but many others interested in race, ethnicity, culture, politics, gender, and similar socially fabricated facets of American society. In the first edition of White by Law, Haney López traced the reasoning employed by the courts in their efforts to justify the whiteness of some and the non-whiteness of others, and revealed the criteria that were used, often arbitrarily, to determine whiteness, and thus citizenship: skin color, facial features, national origin, language, culture, ancestry, scientific opinion, and, most importantly, popular opinion. Ten years later, Haney López revisits the legal construction of race, and argues that current race law has spawned a troubling racial ideology that perpetuates inequality under a new guise: colorblind white dominance. In a new, original essay written specifically for the 10th anniversary edition, he explores this racial paradigm and explains how it contributes to a system of white racial privilege socially and legally defended by restrictive definitions of what counts as race and as racism, and what doesn't, in the eyes of the law. The book also includes a new preface, in which Haney Lopez considers how his own personal experiences with white racial privilege helped engender White by Law.

The origins, controversial uses, and competing interpretations of Jefferson's famous remark-"wall of separation between church and state" No phrase in American letters has had a more profound influence on church-state law, policy, and discourse than Thomas Jefferson's "wall of separation between church and state," and few metaphors have provoked more passionate debate. Introduced in an 1802 letter to the Danbury, Connecticut Baptist Association, Jefferson's "wall" is accepted by many Americans as a concise description of the U.S. Constitution's church-state arrangement and conceived as a virtual rule of constitutional law. Despite the enormous influence of the "wall" metaphor, almost no scholarship has investigated the text of the Danbury letter, the context in which it was written, or Jefferson's understanding of his famous phrase. Thomas Jefferson and the Wall of Separation Between Church and State offers an in-depth examination of the origins, controversial uses, and competing interpretations of this powerful metaphor in law and public policy.

If we were to rely on what the pundits and politicians tell us, we would have to conclude that America is a deeply conservative nation. Americans, we hear constantly, detest government, demand lower taxes and the end of welfare, and favor the death penalty, prayer in school, and an absolute faith in the free market. And yet Americans believe deeply in progressive ideas. In fact, progressivism has long been a powerful force in the American psyche. Consider that a mere generation ago the struggle for environmentally sound policies, for women's rights, and for racial equality were fringe movements. Today, open opposition to these core ideals would be political suicide. Drawing on this wellspring of American progressivist tradition, John K. Wilson has penned an informal handbook for the pragmatic progressive. Wilson insists that the left must become more savvy in its rhetoric and stop preaching only to the converted. Progressives need to attack the tangible realities of the corporate welfare state, while explicitly acknowledging that "socialism is," as Wilson writes, "deader than Lenin." Rather than attacking a "right-wing conspiracy," Wilson argues that the left needs one, too. Tracing how well-funded conservative pressure groups have wielded their influence and transformed the national agenda, Wilson outlines a similar approach for the left. Along the way, he exposes the faultlines of our poll- and money-driven form of politics, explodes the myth of "the liberal media," and demands that the left explicitly change its image. Irreverent, practical, and urgently argued, How The Left Can Win Arguments and Influence People charts a way to translate progressive ideals into reality and reassert the core principles of the American left on the national stage.

The United States, and the West in general, has always organized society along bipolar lines. We are either gay or straight, male or female, white or not, disabled or not. In recent years, however, America seems increasingly aware of those who defy such easy categorization. Yet, rather than being welcomed for the challenges that they offer, people living the gap are often ostracized by all the communities to which they might belong. Bisexuals, for instance, are often blamed for spreading AIDS to the heterosexual community and are regarded with suspicion by gays and lesbians. Interracial couples are rendered invisible through monoracial recordkeeping that confronts them at school, at work, and on official documents. In “Hybrid”, Ruth Colker argues that our bipolar classification system obscures a genuine understanding of the very nature of subordination. Acknowledging that categorization is crucial and unavoidable in a world of practical problems and day-to-day conflicts, Ruth Colker shows how categories can and must be improved for the good of all.

What exactly is intelligence? Is it social achievement? Professional success? Is it common sense? Or the number on an IQ test? Interweaving engaging narratives with dramatic case studies, Robert L. Hayman, Jr., has written a history of intelligence that will forever change the way we think about who is smart and who is not. To give weight to his assertion that intelligence is not simply an inherent characteristic but rather one which reflects the interests and predispositions of those doing the measuring, Hayman traces numerous campaigns to classify human intelligence. His tour takes us through the early craniometric movement, eugenics, the development of the IQ, Spearman's "general" intelligence, and more recent works claiming a genetic basis for intelligence differences. What Hayman uncovers is the maddening irony of intelligence: that "scientific" efforts to reduce intelligence to a single, ordinal quantity have persisted, and at times captured our cultural imagination, not because of their scientific legitimacy, but because of their longstanding political appeal. The belief in a natural intellectual order was pervasive in "scientific" and "political" thought both at the founding of the Republic and throughout its nineteenth-century Reconstruction. And while we are today formally committed to the notion of equality under the law, our culture retains its central belief in the natural inequality of its members. Consequently, Hayman argues, the promise of a genuine equality can be realized only when the mythology of "intelligence" is debunked-only, that is, when we recognize the decisive role of culture in defining intelligence and creating intelligence differences. Only culture can give meaning to the statement that one person, or one group, is smarter than another. And only culture can provide our motivation for saying it. With a keen wit and a sharp eye, Hayman highlights the inescapable contradictions that arise in a society committed both to liberty and to equality and traces how the resulting tensions manifest themselves in the ways we conceive of identity, community, and merit.

The Constitution of the United States, writes Bryan Fair, was a series of compromises between white male propertyholders: Southern planters and Northern merchants. At the heart of their deals was a clear race-conscious intent to place the interests of whites above those of blacks. In this provocative and important book, Fair, the eighth of ten children born to a single mother on public assistance in an Ohio ghetto, combines two histories--America's and his own- -to offer a compelling defense of affirmative action. How can it be, Fair asks, that, after hundreds of years of racial apartheid during which whites were granted 100% quotas to almost all professions, we have now convinced ourselves that, after a few decades of remedial affirmative action, the playing field is now level? Centuries of racial caste, he argues, cannot be swept aside in a few short years. Fair ambitiously surveys the most common arguments for and against affirmative action. He argues that we must distinguish between America in the pre-Civil Rights Movement era--when the law of the land was explicitly anti-black--and today's affirmative action policies--which are decidedly not anti- white. He concludes that the only just and effective way in which to account for America's racial past and to negotiate current racial quagmires is to embrace a remedial affirmative action that relies neither on quotas nor fiery rhetoric, but one which takes race into account alongside other pertinent factors. Championing the model of diversity on which the United States was purportedly founded, Fair serves up a personal and persuasive account of why race-conscious policies are the most effective way to end de facto segregation and eliminate racial caste. Table of Contents A Note to the Reader Acknowledgments Preface: Telling Stories Recasting Remedies as Diseases Color-Blind Justice The Design of This Book Pt. 1. A Personal Narrative Not White Enough Dee Black Columbus Racial Poverty Man-Child Colored Matters Coded Schools Busing Going Home Equal Opportunity The Character of Color Diversity as One Factor The Deception of Color Blindness Pt. 2. White Privilege and Black Despair: The Origins of Racial Caste in America The Declaration of Inferiority Marginal Americans Inventing American Slavery The Road to Constitutional Caste Losing Second-Class Citizenship Reconstruction and Sacrifice Separate and Unequal The Color Line Critiquing Color Blindness Pt. 3. The Constitutionality of Remedial Affirmative Action The Origins of Remedial Affirmative Action The Court of Last Resort The Invention of Reverse Discrimination The Politics of Affirmative Action: Myth or Reality? Racial Realism Eliminating Caste Afterword Notes Index

In 1925 Adolfo 'Babe' Romo, a Mexican American rancher in Tempe, Arizona, filed suit against his school district on behalf of his four young children, who were forced to attend a markedly low-quality segregated school, and won. But Romo v. Laird was just the beginning. Some sources rank Mexican Americans as one of the most poorly educated ethnic groups in the United States. Chicano Students and the Courts is a comprehensive look at this community's long-standing legal struggle for better schools and educational equality. Through the lens of critical race theory, Valencia details why and how Mexican American parents and their children have been forced to resort to legal action. Chicano Students and the Courts engages the many areas that have spurred Mexican Americans to legal battle, including school segregation, financing, special education, bilingual education, school closures, undocumented students, higher education financing, and high-stakes testing, ultimately situating these legal efforts in the broader scope of the Mexican American community's overall struggle for the right to an equal education. Extensively researched, and written by an author with firsthand experience in the courtroom as an expert witness in Mexican American education cases, this volume is the first to provide an in-depth understanding of the intersection of litigation and education vis-à-vis Mexican Americans.

It is one of the unspoken truths of the American judicial system that courts go out of their way to avoid having to decide important and controversial issues. Even the Supreme Court from which the entire nation seeks guidance frequently engages in transparent tactics to avoid difficult, politically sensitive cases. The Court's reliance on avoidance has been inconsistent and at times politically motivated. For example, liberal New Deal Justices, responding to the activism of a conservative Court, promoted deference to Congress and the presidency to protect the Court from political pressure. Likewise, as the Warren Court recognized new constitutional rights, conservative judges and critics praised avoidance as a foundational rule of judicial restraint. And as conservative Justices have constituted the majority on the Court in recent years, many liberals and moderates have urged avoidance, for fear of disagreeable verdicts. By sharing the stories of litigants who struggled unsuccessfully to raise before the Supreme Court constitutional matters of the utmost importance from the 1970s-1990s, Playing it Safe argues that judges who fail to exercise their power in hard cases in effect abdicate their constitutional responsibility when it is needed most, and in so doing betray their commitment to neutrality. Lisa Kloppenberg demonstrates how the Court often avoids socially sensitive cases, such as those involving racial and ethnic discrimination, gender inequalities, abortion restrictions, sexual orientation discrimination, and environmental abuses. In the process, the Court ducks its responsibility to check the more politically responsive branches of government when "majority rule" pushes the boundaries of constitutional law. The Court has not used these malleable doctrines evenhandedly: it has actively shielded states from liability and national oversight, and aggressively expanded standing requirements to limit the role of federal courts.