Critical Legal Studies

This is a guide to critical legal studies research in the Harvard Law School Library.  It is organized as follows:

1. A discussion of critical librarianship and bias in libraries.
2. Using the Harvard Library's HOLLIS library catalog.
3. A historical overview of critical legal studies. 
4. Topical overviews of areas within the discipline.

It is a common misconception that libraries and library catalogs are neutral and unbiased.  They are not.

This research guide was created to help researchers effectively navigate the Harvard Library collections for critical legal studies research.  Bibliographic indexing terms used in libraries today were made within a historically white, hegemonic information infrastructure. They may require using language that is othering, objectionable, triggering, and/or offensive to people of many backgrounds, identities, identifications, and presentations. 

Learn More:

The Harvard Library online catalog HOLLIS (https://hollis.harvard.edu) provides information about materials in the Harvard libraries' collections. There are several different types of keywords that you can use when you are searching HOLLIS:

• Author
• Title
• Publisher
• Place of Publication
• Series
• ISBN or ISSN (unique identifying number for a book or a series)

Another search field is Subject, which includes words and phrases selected by cataloging librarians from a controlled vocabulary like the Library of Congress Subject Headings (LCSH) list.  

Note: Searching by subject can be helpful in limiting results to highly relevant materials. However, as mentioned previously, many researchers will find some LCSH terms profoundly offensive and othering.  Regrettably, some HOLLIS searches listed in this guide include terms of this nature.

When you do a Keyword Anywhere search in HOLLIS, the entire record is searched, including all the fields listed above.

This guide provides links to pre-populated HOLLIS Keywhere Anywhere searches under each topic, which look like this:

These searches are meant to be very broad. To limit the results, edit the search by adding additional keywords, and/or use the filtering options on the right side of the HOLLIS search results screen.

The guide also includes links to HOLLIS searches by book series.  Academic publishers often publish like-themed books under a descriptive series name.  Book series searches in this guide look like this (where "Routledge" is the name of the publisher):

A HOLLIS user guide, created and maintained by the Harvard Library, is available at https://guides.library.harvard.edu/hollishelp.

Critical theory involves challenging the status quo through intellectual analysis. 

What do critical theorists do?

• They think about how to deal with new problems and explore emerging possibilities that "arise from changing historical circumstances." 
• They worry about societal disinclination for deep and ethical thinking
• They decry a lack of  "meaning and purpose" in modern life. 
• Through their work, they address power imbalances in the economy, in the government, or in law, as a way of reducing oppression and fostering resistance to forces that inhibit freedom for everyone.

(Source: Stephen Eric Bronner, Critical Theory: A Very Short Introduction (2017 2nd ed.))

What does it mean to refer to legal studies as "critical"?  According to Professor Lolita Buckner Inniss, a leading critical legal studies scholar:

"'Critical' in this sense refers to closely inquiring into the nature of a thing or idea, not necessarily to alter it or to undermine it, but rather to problematize it, that is, to expose vital questions and problems about a thing or concept."

Professor Buckner Inniss posits that "critical" studies feature the following characteristics:

• A problem-solving methodology that is "interdisciplinary, intersectional, (and) spectral"; 
• The non-adoption of "claims of universal validity" except where such adoption is "only to achieve a greater good for the many or to undermine structures of oppression"; and
• The rejection of "false dichotomies" and the recognition that, among multiple alternatives, there may be many "valid choices."

(Source: Lolita Buckner Inniss, "Other Spaces" in Legal Pedagogy, 28 Harv. J. Racial & Ethnic Just. 67, 68 (2012)).

In 1982, a Critical Legal Studies symposium was held at Stanford Law School.  The symposium issue published by the Stanford Law Review (Critical Legal Studies Symposium of 1982, Stanford Law Review, v. 36 (1984)) includes many articles that are often cited as fundamental works of the movement.

Key concepts from these articles, which may be helpful as search terms for further research, include "trashing," "deconstructionism," "utopianism," and "post-realism."

in 1995, Professor Derrick Bell, the first tenured African-American faculty member at Harvard Law School, defined critical race theory as "a body of legal scholarship, the majority of whose authors are both existentially people of color and ideologically committed to the struggle against racism, particularly as institutionalized in and by law."  According to Professor Bell, there are also white critical race theory scholars, and they are "usually committed to the overthrow of their own racial privilege."

As a way of distinguishing critical race theory specifically from critical legal studies generally, Professor Bell emphasized that the former relies on giving space and power to the narratives of Black people who are oppressed by the legal system, and using those narratives to "empower and include traditionally excluded views" in order to resist "standards and institutions created by and fortifying white power."  He characterized this method as "transformative resistance strategy" that makes use of not only the critical device established by critical legal studies scholars, but also the civil rights movement's goals of resistance to and liberation from white supremacy.

(Source: Derrick A. Bell, Who's Afraid of Critical Race Theory, 1995 U. Ill. L. Rev. 893.)

Professor Bell's work laid the foundation for the scholarly discipline of critical race theory.  During his career, he worked as a lawyer for the NAACP and also served as a professor at the University of Oregon School of Law and at NYU School of Law.  He passed away in 2011.

According to Professor Francisco Valdes (University of Miami School of Law), Latina/o/x Critical Theory (LatCrit) explores the "(p)ractices and the (p)ossibilities that (are) associate(d) with Latinas/os and critical legal scholarship on race, ethnicity, and other sources of subordination in American law and society." 

The group itself, according to Professor Valdes, "a conglomeration of several peoples from varied cultures and localities(.) ... These group experiences include, but are not exclusively about, Mexican-American, Puerto Rican, and Cuban-American communities ... (representing) diverse spectrums of races, religions, genders, classes, and sexualities."

(Source: Francisco Valdes, Latina/o Ethnicities, Critical Race Theory, and Post-Identity Politics in Postmodern Legal Culture: From Practices to Possibilites: Forward, 9 La Raza L.J. 1, 8, 11 (1996) (Colloquium Proceedings).)

Asian critical theory as a legal academic discipline addresses the particular challenges related to discrimination against and marginalization of Asian Americans. 

According to Professor Robert S. Chang, who wrote the first article ever published in the Asian Law Journal (eventually renamed the Asian American Law Journal), "Asian Americans suffer from discrimination, much of which is quantitatively and qualitatively different from that suffered by other disempowered groups." 

Accordingly, critical race theory, because it does not demonstrate "how different races matter differently," is not an altogether appropriate discipline to "address fully the needs of Asian Americans."  According to Professor Chang, while Asian Americans are often viewed in American society as "the model minority," the discrimination and violence they experience have created a unique narrative that deserves its own space and research discipline.

(Source: Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 1 Asian L. J. 1 (1994).)

Critical indigenous studies explores how indigenous people are situated within national power structures in a post-colonial context.  A related discipline, critical indigenous rights studies, has also emerged, which is primarily examines how rights and freedoms for indigenous people are impacted by larger questions related to autonomy and human dignity. 

Scholars in both of these fields critically question the framing and control of indigenous culture and heritage, and how these actions create a framework of social and legal hegemony that oppresses indigenous people and communities.

Professor Barbara J. Flagg, in the Washington University Journal of Law & Policy 2013 symposium issue, Whiteness: Some Critical Perspectives, summed up as follows why critical whiteness studies, as a scholarly discipline, are necessary:

"Whiteness is a social location of power, privilege, and prestige.  It is 'an invisible package of unearned assets.' As an epistemological stance, it is sometimes an exercise in denial.  Whiteness is an identity, a culture, and an often colonizing way of life that is largely invisible to Whites, though rarely to people of color.  Whiteness also carries the authority within the larger culture it dominates to set the terms on which every aspect of race is discussed and understood."

She goes on to call whiteness a "metaprivilege," which she defines as "the ability of Whiteness to define the conceptual terrain on which race is constructed, deployed, and interrogated."  In the United States in particular, she argues, "Whiteness is a largely transparent construction that constitutes the dominant site of power and privilege."

(Source: Barbara J. Flagg, Whiteness as Metaprivilege, 18 Wash. U. J.L. & Pol'y 1 (2005)).

Martha Albertson Fineman, the founder of a scholarly project called Feminism and Legal Theory (FLT) in 1984, states that, "as a group, feminists are concerned with the implications of historic and contemporary exploitation of women within society."  To that end, two of their primary goals are "the empowerment of women and the transformation of institutions dominated by men." 

According to Professor Fineman, feminist legal theory consists of multiple ideological approaches.  Whereas some scholars believe that law should better reflect and accommodate differences between men and women, whether they are created by biology or society, other scholars focus more on the goal of greater "equality and gender neutrality" in the law.  

Feminist legal scholars are also interested in which Professor Fineman calls the "public/private divide in law." Specifically, "most are at least skeptical about privatization as a route of first resort for serious social policy issues," primarily because the concepts of public and private "interact as ideological channels for the allocation of societal resources, including the resources of power and authority."

(Source: Martha Albertson Fineman, Feminist Legal Theory, 13 Am. U. J. Gender Soc. Pol'y & L. 13 (2005)).

The scholarly discourse on the concepts of "sex" and "gender" is very extensive, and a discussion of them that does justice to their complexity is well beyond the scope of this guide.  That said, it is generally understood that "sex" represents biological differences between men and women, whereas "gender" represents "the behavioral, cultural, psychological, and social characteristics associated with masculinity and femininity."

(Source: Definition of "Gender" in A Dictionary of Critical Theory, 2010.)

Historically, these two concepts have sometimes been referred to interchangeably. 

It is important to be mindful of sex and gender as biological and socio-cultural phenomena when engaging in critical feminist studies research.  Accordingly, researchers may want to consider the following reference works, which seek to define and clarify these concepts:

If you are doing research on critical gender studies, you may find relevant resources in several places in this guide in addition to this one, including under Queer Legal Theory and Intersectionality (both below). Because the literature on gender has evolved over the years, it can be challenging to decide under which heading certain resources should be located.

The New Oxford Companion to Law defines the term "queer" as follows:

It is with this definition in mind that the sources below were compiled.

According to British critical disabilities scholar Dan Goodley, this discipline began by "establishing the factors that led to the structural, economic and cultural exclusion of people with sensory, physical, and cognitive impairments."

Its focus then gradually shifted to "developing nuanced theoretical responses to these factors." 

Goodley several other scholarly areas as having contributed its the emergence of critical disabilities studies. These include the following:

• Marxism, which enabled "a modernist response to the socio-economic exclusion of disabled people from everyday life"
• Sociology, which offered a new lens through which to explore disability as a social phenomenon
• Intersectionality, especially through "the merging of queer and disability studies" 

An important intersectionality-related result, according to Goodley, was the development of the concept of "crips," which is a way for disabled individual queers to self-identify that has emerged. 

(Source: Dan Goodley, Dis/Entangling Critical Disability Studies, Disabilty & Society, 28:5, 631-644, DOI: https://doi.org/10.1080/09687599.2012.717884.)

Note: When relevant, a wildcard character is used so that a search with "disab*" includes disabled, disability, and disabilities.

In scholarly literature, the term "intersectionality" is used in the analysis of issues related to identifying with more than one minority group.  This phrase was first coined by Kimberle Williams Crenshaw, a law professor and HLS alumna, in a 1989 University of Chicago Legal Forum article, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrone, Feminist Theory, and Antiracist Policies.

The suggested resources and HOLLIS searches listed below cover topics that may or do impact members of multiple demographic/identity groups that are analyzed in the critical legal studies literature.

For more information about intersectionality in general, the Oxford Research Encyclopedias online database includes several articles that discuss it, an excellent example of which is Intersectional Stereotyping in Political Decision Making, by Erin C. Cassese.

Note that certain language used in these searches may be considered to be particularly offensive, especially the use of the term "illegal aliens." 

In 2016, the Library of Congress announced its intention to stop using this language in the Library of Congress Subject Headings.  This decision was made in response to feedback from Melissa Padilla, a student at Dartmouth College who noticed the phrase come up repeatedly in the library catalog while researching a paper on immigration. 

The Republican-controlled Congress, however, included a provision in the 2017 appropriations bill that prevented the Library of Congress from making this change.  Therefore, the subject term "illegal aliens" is still used in many library catalogs, although the Harvard Library's preferred subject term for this concept is "undocumented immigrants."  Since HOLLIS searches import records from other catalogs, links to both of those search options are included in the list below. 

Critical discourse analysis, which is also called "critical linguistics," is an area of social science research that is concerned with the social use of language, or "sociolinguistics."  Specifically, it involves analysis of what is known in linguistics as "discourse," which represents the culturally-influenced use of language and non-verbal elements by people to communicate.

Critical discourse analysis can take place in many different contexts, including "intertextuality, interdiscursivity, social semiotics, and the social, political, and historical context of language in use[.]"  Approaches to critical discourse analysis may "criticize various forms of discursively constituted power abuse and hegemonic social structures that lead to injustice and social discrimination," and be "concerned with making transparent opaque, contradictory, power-related, manipulative relationships among language and society or social structures."

(Source: Martin Reisigl, Critical Discourse Analysis, in The Oxford Handbook of Sociolinguistics, 2013.)

Because the use of language is a significant element of the study and practice of law, critical legal studies researchers may want to also consider the critical discourse analysis literature.  Below are some HOLLIS library catalog searches that can be helpful in finding these materials in the Harvard Library collections.

Critical legal history scholars explore the ways in which legal systems are functionalist, in that they provide functional responses to social needs.  Within the discipline, there are two broad schools of thought: (1) formalism, which focuses on the historical development of legal doctrine as a phenomenon separate from the meeting of social needs, and (2) realism, which explores how law is used to develop social and political policy, and in which law and society are bound.  These principles are illustrated in detail by the legal historian Robert W. Gordon in his article in the 1984 Stanford Law Review, Critical Legal Histories.

The resources listed below do not fall under a particular category of critical legal studies, but are more general in nature and may include some content that would be of interest to critical legal studies researchers.

Additionally, critical legal studies researchers might find the resources listed in the HLS Library's Law and Society research guide to be of interest.

On May 29, 2019, Professor Ibram X. Kendi of American University published An Antiracist Reading List in the New York Times. 

Links to the HOLLIS records for each of the titles in this list are provided below.

• Fatal Invention: How Scientists, Politics, and Big Business Re-Create Race in the Twenty-First Century, by Dorothy Roberts (2011)
• West Indian Immigrants: A Black Success Story?, by Suzanne Model (2008)
• The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, by Khalil Gibran Muhammad (2010)
• Their Eyes Were Watching God, by Zora Neale Hurston (1937)
• The Negro Artist and the Racial Mountain, by Langston Hughes (1926)
• The Bluest Eye, by Toni Morrison (1970)
• The Blacker the Berry, by Wallace Thurman (1929)
• The Autobiography of Malcolm X, by Malcolm X and Alex Haley (1965)
• Dying of Whiteness: How the Politics of Racial Resentment is Killing America's Heartland, by Jonathan M. Metzl (2019)
• Locking Up Our Own: Crime and Punishment in Black America, by James Forman Jr. (2017)
• Black Marxism: The Making of the Black Radical Tradition, by Cecil J. Robinson (1983)
• Waiting 'Til the Midnight Hour: A Narrative History of Black Power in America, by Peniel E. Joseph (2006)
• How We Get Free: Black Feminism and the Combahee River Collective, edited by Keeanga Yamahtta Taylor (2017)
• Well-Read Black Girl: Finding Our Stories, Discovering Ourselves, edited by Glory Edim (2018)
• Redefining Realness: My Path to Womanhood, Identity, Love & So Much More, by Janet Mock (2014)
• Sister Outsider: Essays and Speeches, by Audre Lorde (1984)

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Thank you to Jennifer Allison for her work on the initial version of this guide.

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