Richard Delgado - Failed Revolutions

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Failed Revolutions

New Perspectives on Law, Culture, and Society

Robert W. Gordon and Margaret Jane Radin , Series Editors

Failed Revolutions: Social Reform and the Limits
of Legal Imagination, Richard Delgado and Jean Stefancic

Property and Persuasion: Normativity and Change in
the Jurisprudence of Property, Carol M. Rose

Words That Wound: Critical Race Theory, Assaultive Speech,
and the First Amendment, Mari J. Matsuda, Charles R. Lawrence III,
Richard Delgado, and Kimberl Williams Crenshaw

Mind, Machine, and Metaphor: An Essay on Artificial Intelligence
and Legal Reasoning, Alexander E. Silverman

Rebellious Lawyering: One Chicano's Vision of Progressive
Law Practice, Gerald P. Lpez

Wittgenstein and Legal Theory,
edited by Dennis M. Patterson

Pragmatism in Law and Society,
edited by Michael Brint and William Weaver

Feminist Legal Theory: Readings in Law and Gender,
edited by Katharine T. Bartlett and Rosanne Kennedy

Forthcoming

Intellect and Craft: Writings of Justice Hans Linde,
edited by Robert F. Nagel

The Philosophy of International Law: A Human Rights Approach,
Fernando R. Tesn

Thinking Like a Lawyer, Kenneth J. Vandevelde

A Guide to Contemporary Legal Theory,
edited by Robert W. Gordon and Margaret Jane Radin

Progressive Corporate Law, edited by Lawrence E. Mitchell

Failed Revolutions

Social Reform and the Limits of Legal Imagination

Richard Delgado
and Jean Stefancic

First published 1994 by Westview Press

Published 2019 by Routledge
52 Vanderbilt Avenue, New York, NY 10017
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright 1994 by Taylor & Francis

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

Library of Congress Cataloging-in-Publication Data
Delgado, Richard.
Failed revolutions: social reform and the limits of legal
imagination / Richard Delgado and Jean Stefancic.
p. cm. (New perspectives on law, culture, and society)
Includes bibliographical references and index.
ISBN 0-8133-1806-8 (cloth) ISBN 0-8133-1807-6 (pbk.)
1. Social movementsUnited States. 2. Sociological
jurisprudence. 3. Law reformSocial aspectsUnited States.
4. RadicalismUnited States. I. Stefancic, Jean. II. Title.
HN65.D37 1994
303.48'4dc20 94-11403
CIP

ISBN 13: 978-0-367-00776-8 (hbk)

This book is dedicated to the many gallant activists, lawyers and nonlawyers alike, who have struggled over the years against great odds to bring about a more just society.

Some men see things as they are and say, why;
I dream things that never were and say, why not.

Robert F. Kennedy

Contents

1. PART ONE
   On the Difficulty of Imagining a Better Society
2. PART TWO
   On the Difficulty of Hearing What Our Prophets Are Saying
3. PART THREE
   Why We Always Embrace Moderate Solutions (or Saviors)
4. PART FOUR
   Supreme Court (and Other) Rhetoric: How the Way Powerful Institutions Talk Can Devalue and Marginalize Outsider Groups

1. PART ONE
   On the Difficulty of Imagining a Better Society
2. PART TWO
   On the Difficulty of Hearing What Our Prophets Are Saying
3. PART THREE
   Why We Always Embrace Moderate Solutions (or Saviors)
4. PART FOUR
   Supreme Court (and Other) Rhetoric: How the Way Powerful Institutions Talk Can Devalue and Marginalize Outsider Groups

1. viii

Guide

This book grew out of continuing conversations between us and many others on social reform and law. For suggestions, critique, and encouragement we thank our colleagues Derrick Bell, Robert Berring, Harriet Cummings, John Denvir, Andrea Dworkin, David Getches, Robert Gordon, Laura Lederer, Catharine MacKinnon, Robert Nagel, Robert Post, john powell, George Priest, Margaret Radin, Pierre Schlag, Charles Wilkinson, and Sharon Zukin.

Though writing a book is a solitary venture, thinking, organizing, sifting, and discarding have a communal, or interactive, dimension. They cannot occur in a vacuum. We owe large debts to each of our colleagues and undoubtedly many others who enriched our thinking about law's role in social change. In particular, we presented parts of this book at conferences, workshops, and colloquia at the University of Chicago, Stanford, Vanderbilt, Washington and Lee, Cornell, University of Colorado, and University of San Francisco law schools and at Michigan State University, CUNY-Brooklyn College, Grinnell College, and the Villa Serbelloni. We are grateful to those in attendance for their comments and criticisms.

For research assistance we thank Charles Church, Devona Futch, Liz Griffin, Bonnie Grover, Alenka Han, Susan Raitt, Kelly Robinson, Erich Schwiesow, Karl Stith, and Patricia Templar. We also thank Marjorie Brunner, Kimberly Clay, Anne Guthrie, Cynthia Shafer, and Kay Wilkie for preparing many drafts expertly and with patience and unfailing good humor. We are grateful to the University of Colorado Law School and the University of San Francisco Law School for providing encouragement and material support. Special thanks go to our editor, Spencer Carr, for offering just the right balance of encouragement and critique.

The following journals graciously granted permission to adapt material that appeared in their reviews: Cornell Law Review, Texas law Review, Stanford Law Review, University of Pennsylvania Law Review, University of Colorado Law Review, Ohio State Law Journal, Vanderbilt Law Review, and William and Mary Law Review.

And finally, we acknowledge with special gratitude the Rockefeller Foundation Bellagio Study and Conference Center for providing an idyllic setting for the completion of our project.

Richard Delgado
Jean Stefancic

We want changeor so we tell ourselves. We are troubled when we see poverty and homelessness. We are disturbed when African-American despair continues, and even deepens, two decades after the civil rights revolution of the 1960s. The environmental crisis worsens every day. People of different backgrounds, speaking in accents that sound strange and foreign to our ears, crowd our sidewalks. The sights and smells of our cities oppress. Crime increases. Our national culture, the consensus that bound us together, seems to be coming apart.

We sense that we are in trouble. We have endless discussions on television, radio, and in the national press about the need for new policies for the cities, for the environment, for education, for redirecting military spending. We try to imagine what would be better. We create task forces and national commissions, and we propose legislation.

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