Over the past few weeks, Gregory Hood has made powerful arguments, at AmRen and Altright.com, about the demise of the rule of law in 21st century America. He touches on three principal themes: (1) “critical race theory” (i.e., the left-wing idea developed in American law schools in the 1970s and 80s that racial hierarchy structures legal norms and adjudication) has infected the legal profession, (2) critical race theory, despite its problems, provides a richer understanding of American law than any conservative legal theory, and (3) the rule of law is dying. I agree with Mr. Hood’s analysis, but would like to add a few notes.
Why critical race theory is right (in theory)
Two essential properties of critical race theory are that (1) the law is indeterminate, and (2) therefore race relations structure the resolution of any legal dispute in which race is an issue, particularly in criminal and constitutional law. Both of these propositions are essentially right.
As for the law’s indeterminacy, many studies have found that in most legal controversies—and virtually all of any importance—”The law runs out,” as lawyers often say. This means that the conventional methods of legal interpretation—e.g., following legal texts or judicial precedent—cannot provide clear guidelines in every factual dispute…