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 Charles R.P. Pouncy

excerpted from:  Economics and Critical Race/latcrit Theory: the Need For a Critical "Raced" Economics , 54 Rutgers Law Review 841-852, 842-843 (Summer 2002) (50 Footnotes Omitted)

Critical race theory has made tremendous strides in deconstructing the operation of racialized power and the processes that render it invisible to the individuals at the sites at which such power is concentrated and exercised. In constructing its analyses, this critical movement has often relied on interdisciplinary sources. Critical race scholars and LatCritters have employed the teachings of psychology to inform our understanding of the operation and consequences of unconscious racism and stigma. From sociology we have gained an appreciation of microaggressions and the consequences of culture. The use of constructs from other disciplines has also contributed to our understanding the processes of subordination, both explicit and implicit.

In the midst of its continuing development as arguably the most significant jurisprudential innovation in the history of Anglo-American law, the call has come to transform critical race and LatCrit theory from primarily analytical methodologies into pathways to praxis. LatCrit and critical race theory should be operationalized to transform the nature of consensus reality, because the implementation of critical race and LatCrit perspectives will result in a dramatic change in the world view of all the individuals and organizations that are embedded in racialized cultures.

LatCrit and critical race theory have made important contributions to praxis with respect to the functioning and operation of our legal system, for example, with respect to the constitutional dimensions of the criminal justice industry. Our ability, as critical legal scholars, to formulate appropriate praxis methodologies is limited, however, by the historic conflict between the competing jurisprudential schools of critical legal studies and law and economics. Orthodox law and economics has corrupted the legal process by removing any genuine considerations of ethics and morality from its analysis and by its confusion of an optimal result with a just result. Therefore, critical race and LatCrit scholars have been appropriately skeptical of the consequences of introducing economic constructions into their analyses and prescriptions for praxis.

This creates a serious deficiency in LatCrit and critical race scholarship. Our appropriate distrust of the tools and policy instruments of economic orthodoxy have limited our ability to do what must be done to eliminate the ideologies and instrumentalities of subordination from this society. If we believe that the roots of the ideologies of subordination lie in the structures used to maintain particular distributions of assets, resources, and opportunities, i.e., in privileging certain financial claims, then we recognize that the processes by which these distributions are maintained will become the battle lines and boundaries that circumscribe and limit our ability to achieve praxis--for those boundaries protect the financial claims that flow to people with white skin as a consequence of the ideologies and white privilege and white superiority.

LatCrit and critical race theory have and will continue to alter the ways in which the contemporary instrumentalities of subordination impact subaltern lives. But standing alone the policy instruments created to date by LatCrit and critical race theory are unlikely to change the underlying distribution of assets, resources and opportunities. The beneficiaries of unearned and undeserved privilege will simply resort to alternative subordinating processes to maintain their privileges. Thus, decoupling the ideologies of subordination from the distributions of the assets, resources and opportunities that they seek to maintain will, at best, result in an ostensible equality--an equality rendered irrelevant by the continued existence of the current distribution of financial power and the new, and quite possibly, unanticipated institutions that will arise to reinforce those boundaries.

If LatCrit and critical race theory are to create lasting change reaching to the heart and roots of the subordination project they must overcome their resistance to economic analyses as a mode of interdisciplinarity. Economics and economic concerns have so thoroughly infiltrated the law that it is difficult to discuss any topic of law without a concomitant descent into considerations of efficiency, utility and rationality, goals, values, processes keyed to the conservation of the present allocation of assets, resources, and opportunities. Since these discussions cannot be avoided, they must be embraced; for unless we do so, we will be unable to engage in effective praxis around the issue of the just distribution of assets, resources and opportunities. That does not mean, however, that we must rely on the economic adjunct of political conservatism, i.e., orthodox economics as expressed in the neoclassical paradigm. Instead we must adopt an economics compatible with the goals of the eliminating unearned privileges and unjust power distributions, and the de-racializing privilege and power in this society. Although much of heterodox economic thought is compatible with the goal of critical praxis, institutional economics is well positioned to permit the development of policy instruments that can be used both to deepen our descriptive analyses and to concretize our efforts at constructing systemic policy interventions.

[a1]. Associate Professor, Temple University Beasley School of Law, B.A. 1976, Fordham University; J.D. 1979, Cornell Law School; LL.M. 1995, Temple University School of Law.

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