In a Legal History Blog post last summer, Tomiko Brown-Nagin noted the interesting exchange between Risa Goluboff’s "
Lawyers, Law and the New Civil Rights History" in
Harvard Law Review 126:2312 (June 2013) (reviewing Ken Mack’s
Representing the Race: The Creation of the Civil Rights Lawyer), and Ken Mack’s reply, titled "
Civil Rights History Old and New." Dan Ernst wrote to “second Tomiko on the importance of this exchange,” designating it “the likely point of departure for the legal historiography of the civil rights movement for the foreseeable future.” I agree. Here is my take on the significance of this exchange, excerpted from my forthcoming essay, “Conceptions of Agency in Social Movements Scholarship,” in
Law & Social Inquiry 39:2.
“In her review of Mack’s new book, Goluboff lays out with great synthetic skill several main traditions of civil rights history scholarship in relation to which Mack’s book must be located. The first is what she calls the ‘old’ tradition, which has two strands: one a heavily court- and case-centered approach, exemplified by work such as Michael Klarman’s, and the other the perspective of social historians, which tends to give little attention to law and instead ‘focuses on the civil rights movement on the ground in particular communities.’ Goluboff then describes a third tradition, which she dubs the ‘new civil rights history.’ This approach, she explains, ‘has deliberately and self-consciously challenged the first literature by drawing on the second.’ It is, in other words, a synthesis of the two ‘old’ approaches, using ‘the sources and analytics of both legal and social history.’ Goluboff proceeds to analyze the characteristics of this new civil rights history in a summary that will surely be on the assigned reading list of many legal history seminars. At the end of her analysis, she suggests that Mack’s work fits into this ‘new’ civil rights history genre, but with some differences, such as that Mack places his lawyers mostly ‘in conversation with other lawyers and judges.’
In his response to Goluboff, Mack agrees with her contrast between the two ‘old’ schools rights historians, but argues that what Goluboff calls the ‘new’ school is today no longer so new. Instead, he argues, that approach involves criticisms that ‘most historians internalized’ long ago and have now ‘moved beyond.’ Mack sees himself as one such historian who is working in a genre that springs from newer theoretical work from the 1990s, which, he explains, expands civil rights history beyond boundaries of race, nation, and sexualities, and critiques ‘older law and society frameworks.’ Thus his work seeks to draw from ‘more recent intellectual currents’ and to respond to questions produced by ‘a globalizing world of shifting racial identities, contested sexualities, and new immigrant groups.’ Mack defines these new questions central to his book as ‘how law (in this case the legal profession) and identity (in this case, the identity of a black lawyer) help construct one another.’”
In my essay, I return to the classic identity theorists of the 1990s, such as Judith Butler, for insight into the theoretical underpinnings of Mack’s work. I argue that post-modernist identity theory does define new paths for legal civil rights historiography, and that Mack’s work is leading the way in taking these new directions. I am wondering what others think?
