Acknowledgments

I was first introduced to the “critique of rights” as a law student, more years ago than I care to admit. Before I started law school, scholars associated with the critical legal studies movement, such as Duncan Kennedy, Morton Horowitz, and Mark Tushnet, had developed a deep and sophisticated jurisprudential critique that I found (and still find) very convincing. This inspired many thoughtful and impassioned responses, of which Patricia Williams’s work is exemplary. At the same time, scholars such as Mary Ann Glendon and Amitai Etzioni developed critiques of “rights talk” from a communitarian perspective. Meanwhile, the legal scholar Frank Michelman, the political theorist Michael Walzer, and the political scientist Robert Putnam all did probing and insightful work on the origins and contemporary relevance of the civic republican tradition in American political thought—work that had profound implications for the critique of rights even if that was not its primary concern. This book borrows insights from all these lines of study and analysis—my attempt has been to temper the insights of the various critiques of rights with the most compelling responses.

What I would call a second generation of rights critique emerged later as scholars explored the unintended consequences and misfiring of specific legal entitlements. My colleague Mark Kelman was one of the first and most comprehensive of such critics—his work on antidiscrimination law was characteristically synoptic, daring, and logically airtight. Janet Halley’s work on gender and sexuality has redefined what legal critique could be and provided a model for my work on race and civil rights law. I learned a great deal from Vicki Schultz’s work on harassment law and Samuel Issacharoff’s work on age discrimination.

As always, my thoughts on race relations and legal controversies have been influenced by Randall Kennedy, who has written consistently probing and courageous work about race and the law. Robert Post’s insistence on a sociological approach to antidiscrimination law has been an indispensable theoretical foundation for my thinking about civil rights law. And I’ve profited from the work of countless others, including Kim Yurako, Julie Suk, Tristin Green, Devon Carbado, Kimberle Crenshaw, Katherine Franke, and Susan Strum.

I profited greatly from comments on and discussions about various chapters of the book in lectures and workshops at Stanford Law School, Harvard Law School, the Harvard Inequality and Social Policy Seminar Series, Yale Law School, Cornell University Law School, and the IIT Chicago-Kent College of Law.

This book is part of an ongoing series of projects about the future of civil rights law, for which I have enjoyed the generous support of an Alphonse Fletcher, Sr., Fellowship and the equally generous support and hospitality of the Fletcher family. I have also been fortunate as a Fletcher Fellow to have made the acquaintance of other Fletcher Fellows past and present, and to have had the chance to renew my acquaintance with Henry Louis Gates Jr., one of the most insightful, energetic, and personable scholars in academia.