This Article retells the life stories of Derrick Bell, a founder of Critical Race Theory, and Herbert Wechsler, a founder of the Legal Process School, to suggest a synthesis of their often conflicting paradigms—Critical Legal Process. Critical Legal Process’s fundamental question is whether the Master’s tool, the so-called rule of law, can be considered—in the words of Wechsler’s most famous article—a genuine “neutral principle.” Can the Master’s favorite tool be repurposed to dismantle the very house it built? Can the same rule of law that was abused to build the racist Jim Crow system not only dismantle that explicitly racist system but also lessen further racism moving forward? Bell would answer “No.” Wechsler would answer with a resounding “Yes.”
Bell and Wechsler offer merging and mirror images of Critical Legal Process’s critique of the rule of law. Both famously criticized Brown v. Board of Education, the U.S. Supreme Court opinion popularly celebrated for catalyzing the dismantling of the American apartheid system. Both began their respective legal careers as insider liberal civil rights reformers. Both served as federal civil government lawyers in the U.S. Department of Justice. When asked to renounce his two-dollar membership in the National Association for the Advancement of Colored People, Bell refused and left Justice. Rejecting Bell’s uncompromising approach, Wechsler unapologetically and successfully argued Korematsu, the infamous U.S. Supreme Court case that upheld the World War II internment of Japanese-Americans.
Although Bell later renounced his insider status to become an outsider protester who rejected the rule of law, Wechsler maintained his steadfast belief in incremental, insider liberal legal reform to improve the rule of law. Bell’s own fictitious story about a lawyer named Erika Wechsler, the daughter of a liberal civil rights law professor, and her White Citizens for Black Survival organization, proposes how Critical Legal Process could synthesize Bell’s critical deconstructive and Wechsler’s transformative reconstructive legacies of the rule of law.
CU Commons Citation
"Using the Master’s Tool to Dismantle His House: Derrick Bell, Herbert Wechsler, and Critical Legal Process,"
Concordia Law Review: Vol. 3
, Article 2.
Available at: https://commons.cu-portland.edu/clr/vol3/iss1/2