Professor Bennett Convenes Critical Race Theory Legal Scholars for Book Project

Professor Bennett Capers brought fellow legal scholars in critical race theory to Brooklyn this spring to workshop drafts of their rewritten U.S. court opinions for the forthcoming book Critical Race Judgments: Rewritten Court Opinions on Race and the Law. The book will be the latest entry in the growing endeavor of reimaging past court decisions from a different scholarly perspective.

“One of the criticisms of critical race theory is that it’s usually very oppositional, so one of the things we’re trying to imagine in the book is what would happen if the people who do critical race theory were actually in power and could control the majority of a court,” said Capers, who is one of four editors of the book.

The other editors include Professor Devon Carbado, the Honorable Harry Pregerson Professor of Law at UCLA Law School; Professor R.A. Lenhardt of Fordham Law School; and Professor Angela Onwuachi-Willig, the Charles M. and Marion J. Kierscht Professor of Law at the University of Iowa College of Law. The team has been working on the book for about a year and have conducted workshops with contributors on the West Coast as well as in Brooklyn.

Each editor is also writing an opinion for the book, which is expected to be published in 2018. Capers, an expert in Criminal Law, Criminal Procedure, and Evidence, is rewriting Katz v. U.S., a case that introduced the concept that a person only has a Fourth Amendment right to protection if they have a reasonable expectation of privacy.

“That case did not involve a minority defendant, so on its face it has nothing to do with race, but obviously ‘reasonable expectation of privacy’ has class and race consequences,” said Capers.

The exercise allows scholars to imagine what a different majority opinion would look like, rather than simply writing an imaginary dissent, he explained, adding that this is also a great teaching tool.

“We’re hoping people will use it in law schools and undergraduate programs to imagine the counterfactual—imagine what a case like Roe v. Wade or Katz v. U.S. could have said had it employed critical race theory,” Capers said. “We are really trying to convey to students not just what the law is, but what the law could be. This book is an example of imagining a different kind of law.”

Professor Cynthia Godsoe participated in a similar project last year: Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press 2016), rewriting the Court’s statutory rape in Michael M. v. Superior Court.