Vanderbilt Law Review


Richard Delgado

First Page



It is difficult to evaluate someone who at the same time is evaluating you-putting you under the glass, dissecting your culture, laws, profession, and norms of political fairness.' The outsider's task is formidable enough: first seeing, then addressing, defects in the culture in which all of us, including the outsider, are immersed. But when one sets out, as Daniel Farber and Suzanna Sherry do in a recent article, to come to terms with outsider scholarship fairly and sympathetically, the task's difficulty increases by an order of magnitude.'

Empowered groups long ago established a host of stories, narratives, conventions, and understandings that today, through repetition, seem natural and true. Among these are criteria of judgment-the terms and categories by which we decide which things are good, valid, worthy, and true. Today, newcomers are telling their own versions, including counterstories, whose purpose is to reveal the contingency, par- tiality, and self-serving quality of the stories on which we have been relying to order our world.' These new stories naturally strike us as challenging-as indeed they often are designed to be. Some within the mainstream have dismissed the new stories as false, manipulative, "political"-or not law. More moderate critics like Farber and Sherry urge that we take the newcomers seriously, identify when their workproduct is valid and when it is not, and lay down standards for evaluating it when it is.

What both types of critics tend to overlook is that majoritarians tell stories too. But the ones they tell-about merit, causation, blame, responsibility, and racial justice-do not seem to them like stories at all, but the truth. In a series of articles, I have pointed out the difficulty confronting an outsider-one writing an abolitionist essay, for ex- ample, or a novel argument for law reform. New stories are always interpreted and judged in terms of the old. One that differs too drastically from the standard account will strike the listener as extreme, false, or unworthy of belief. Unless the storyteller is exceptionally ingenious, the scope for change through remonstrance, argument, and other verbal means is much more limited than we like to think. Jean Stefancic and I invented the term "empathic fallacy"' to describe this limitation. The difficulty it highlights confronts the reformist storyteller with a formidable task. What about the mainstream scholar who wishes to under- stand, empathize, and evaluate the outsider? As Pierre Schlag has put it, evaluation is very hard to do.

Included in

Jurisprudence Commons