Politics in, of, and through the Legal Academy: Akbar Interviews Matsuda, Part 1

PUBLISHED

Amna Akbar (@orangebegum) is Associate Professor of Law at The Ohio State University Moritz College of Law

Mari Matsuda (@mari_matsuda) is Professor of Law at William S. Richardson School of Law at the University of Hawai'i.

PUBLISHED

Amna Akbar (@orangebegum) is Associate Professor of Law at The Ohio State University Moritz College of Law

Mari Matsuda (@mari_matsuda) is Professor of Law at William S. Richardson School of Law at the University of Hawai'i.

Note from Amna Akbar: Mari Matsuda is a central scholar within the critical traditions of legal scholarship: in particular Critical Legal Studies, Critical Race Theory, and feminist legal theory. I sat down with her virtually, on December 3, 2020, to ask some questions about her insights on where we are today, where we have been, and where we might go. The conversation has been edited for clarity and readability.

Akbar

I wanted to start by asking you to reflect on the context in which you entered the academy. What were the important debates in the academy at the time? And what was happening outside the academy that was affecting your thinking?

Matsuda

I entered the legal academy in the ‘80s. It was the era of ascendancy of right-wing economics. Along with that came support of dictators and torture and the capture of the public imagination by these false ideas that cutting taxes and otherwise helping rich people get richer would benefit everyone. Using the “free market” to justify cutting social programs was just a wrecking ball moving across the planet.

Then there were insurgent ideas that had been brewing since the 60s and 70s. The big academic debate was framed as about  “the canon”: what should we teach and how should we analyze the subjects that we were teaching? I came out of what Gary Okihiro calls the “Third World Liberation” tradition of ethnic studies: our history, our way. There were social historians and feminist historians that pushed studying “the ordinary.” What were the lives of ordinary working people like and how had they always resisted the power grabs that repeat in every era of history? Then there were the postmodernist, mostly in the English departments. They were challenging the capital T Text.

In the legal academy, Critical Legal Studies was a place that reflected this energy. Duncan Kennedy was calling legal education a place for the “reproduction of hierarchy.” And to be part of the critical movement was to think of yourself as someone who wanted to break down hierarchy. That was a community with gravitational pull.

In the academy, it was still a time of white male domination of everything. So there were very few women or people of color, and almost no women of color, in any department in any university. The universities looked like plantations: white at the top and brown people scrubbing floors and serving food. That’s the professional life I entered.

Akbar

It is easy to underappreciate the degree to which questioning the canon is itself a form of contestation, because “the canon” is often not a self-conscious thing until it is forced to justify itself. Can you say a bit more about what produced the questions around the canon? And what did it feel like to live within the dawn of neoliberalism: a moment when the long Civil Rights Movement is still alive even though it’s also being beaten back.

Matsuda

The most radical elements of movements for social change always get slammed with the worst forms of oppression. So in an earlier period—and we’re talking about in my parents’ period—there’s McCarthyism. The radical elements in the labor movement and in the professoriate and in government were just slammed. People were put in jail, blacklisted, and killed. This happened again in the 60s and 70s. You saw what happened to the Black Panthers with actual assassinations of people like Fred Hampton.

So direct repression is a given, but I think you’re pointing out something else. Even though there has been this devastation of the core of our most radical forms of fighting back, people never stopped fighting back. There was a horrible assault on labor in this period, but there was also fight back going on. The Hormel meatpackers struggle in 1985-86 in Austin, Minnesota comes to mind. And this was going on all over the world. In Great Britain, around the same time, the coal miners were defying Thatcherism while we were all watching. This was also the time of the AIDS plague. Between ACT UP (AIDS Coalition to Unleash Power) and the anti-apartheid movement, there were many people using direct action, even though it was a reactionary time.

In the university there were pockets of radical students sitting in to divest from South Africa, and to integrate the faculty. Students at Berkeley sat in the streets and got arrested just to get a person of color hired at the law school. My career is a direct result of students who did that kind of pushing.

How does this tie in to the canon debate? First of all we have to remember what kind of debate it was. It wasn’t: “Let’s replace Western thought with these insurgents.” It was: “Let’s expand the canon.” How can you function in a globalized world if you know nothing about most people and places in that world? The fact that that this was considered radical just shows how entrenched this pathetically narrow the canon was at that time.  You’re right, asking to expand the canon was incredibly threatening to the gatekeepers who thought they knew everything there was to know.

Akbar

You were involved in building something called Critical Race Theory (CRT), which has had far-reaching implications in the academy and beyond for decades now. And the Trump Administration has brought CRT back into the news through its attack. I wanted to ask you how you built it, and what lessons might you offer those of us attempting to build space for more radical ideas in the legal academy, whether under the umbrella of CRT or more emergent formations.

Matsuda

Critical Race Theory was built out of necessity, loneliness, and commitment to our communities of struggle. We were the affirmative action generation. It had become embarrassing for a law school to not have any faculty of color.  This led to what Derrick Bell called the “quota of one.” We were “lonely onlys”, so we had to reach out to one another and create social spaces where we could be together, whether it was a caucus within Critical Legal Studies or The American Association of Law Schools. It was just as a matter of survival.

I hear young people of color in the legal academy now talking now about their mentors. We didn’t have mentors. We were peer mentored. We told each other how to teach, how to survive in the academy, how to get published.

One of the first gatherings of law professors of color I ever attended was maybe a dozen people—that was how few we were. I met Charles Lawrence for the first time there. He said “I write so I know I’m not crazy.” That describes the origin of our scholarship for a lot of us.

We were in the law school world, which was dominated by liberal legal thought. The counter to that was Critical Legal Studies. And in between those poles, if you’re a person of color involved in liberation movements against white supremacy, there was this discomfort. Something’s missing in the conversation. Am I the only one who feels it? Am I crazy? Being backed into that corner and writing our way out of it is how CRT developed.

I’ll give you a specific example. I was a member of something called the National Alliance Against Racism and Political Repression, which came out of the Free Angela Davis movement. I had helped organize the local chapter in Honolulu when I was still in law school. One of the platform positions of the National Alliance was “Outlaw the Klan.” The Klan was terrorizing people who tried to improve the conditions of their lives. At the time, the Klan had just killed labor organizers in Greensboro, North Carolina. “Outlaw the Klan” made a lot of sense to me. Now, liberal legal ideology says you can’t do that because of free speech absolutism. And Critical Legal Studies is challenging any use of law because of indeterminacy and the danger of reifying legal systems as good. So if you think it’s important to outlaw the Klan and to challenge the legitimacy of the legal system, these competing sets of ideas are converging on you, with both saying you can’t do what people in struggle need you to do. There’s contradiction and pressure to develop new ideas. And this is where the CRT anti-subordination analysis of “assaultive speech” came from.

That early work was part of the larger inquiry of CRT: What is the relationship of the history of white supremacy on the North American continent to the development of legal doctrine and to the possibility of using the legal system against itself?

Akbar

I’m sitting here feeling immense gratitude for all that you all did to create space around these ideas and to create pathways for faculty of color and faculty with critical analyses and connections to movements to get hired as law faculty. It’s really remarkable. Can you elaborate a bit on lessons about building kind of institutional interventions for more radical ideas within the academy?

Matsuda

One thing I like to say to people starting up their careers is to stay connected to the communities you came from and the needs and the struggles in those communities.  There is a sense that if you do that it’s a distraction from all the things you need to do to survive professionally, but I found that the opposite was true. It was my means of professional survival.

A specific example: when I was up for tenure at UCLA, the University got flooded with letters from community groups supporting my application. I didn’t solicit them! These community groups did this on their own, because I had worked with them, either directly, or symbolically because I was affiliated with the Asian American Studies Department, which had an explicit community-centered mission. Community groups thought that having someone like me at the university was important to their mission. The stack of letters made the law school nervous, because it was outside the norm of academic testimonials. The Dean said, “I don’t know if you really want all these in your file.” Her concern was that it would make me look “not scholarly.” But I said: “leave them in.” My sense of the politics of that university was they needed to know who was watching them. There had been a huge tenure struggle for Don Nakanishi, who was the leader of the Asian American studies at UCLA. He built that program into the powerhouse that it still is today: the leader in the field. He would not have gotten tenure if the community hadn’t gone into the streets and blocked traffic, shutting down Wilshire Blvd.

If you are in solidarity with subordinated communities, you learn about concerns that have never been paid attention to by mainstream scholars. If you are paying attention to the margins, you’re going to think about things that no one in your fancy university has ever thought about before.

When I was a young assistant professor. I got drafted by a small storefront immigrant legal rights outfit in my hometown to do a brief and oral argument before the Ninth Circuit in an accent discrimination case. I didn’t have tenure. It was not an opportune time for that kind of all-in, community-centered work—the kind where the legal strategy is secondary to the community education/political strategy. We were part of a struggle around language rights and accent discrimination. Neo-fascists were pushing an English Only movement, getting English-only ordinances passed. What I learned in that struggle ended up in an article that got published in a fancy journal. It’s cited by judges. No one had ever written about accent discrimination, no one had used socio-linguistics together with CRT in the development of legal analysis and legal theory, so the piece got notice.

Akbar

Let me ask you about the solidarity question but broadening it from your scholarship to the relationship between CRT and social movements around the time that CRT was formed and then through the years. As you know, I’ve been working on an article, titled Movement Law, with Jocelyn Simonson and Sameer Ashar, about how scholars can work in solidarity with today’s movements. We trace this tradition within CRT and feminist legal studies and beyond of writing in solidarity with social movements, starting with Derrick Bell in Serving Two Masters. The relationship between CRT and social movements tends go relatively unnamed now—CRT is thought of as relating to insights about race, inequality, law, and narrative; less directly about social movements. Can you talk a bit more about how CRT’s relationship to social movements?

Matsuda

When I think about my own intellectual development, my teachers were not, for the most part, people standing in the front of classrooms behind a lectern. My teachers were people with actual experience in struggle. You can see this in the footnotes. There are literally thousands of them in my work citing, both for factual claims and theoretical analysis, people in on-the-ground struggles fighting structural racism.

You can see the same thing in Derrick Bell’s analysis of the failures of what he called the First Reconstruction and the Second Reconstruction. Everything leading up to the 13th and 14th amendments was about abolitionists—actual people in the struggle—who fought and died and thought and wrote pages and pages about the material reality of how white supremacy plays out on human bodies.

Same thing with the development of intersectionality, which would not have been possible without the women’s movement and particularly Black women feminists–the Combahee River Collective, for example – who pushed us to always include Black women in our analysis of race, gender, class. I don’t think you can read our work and not see that influence. We cite to it.

I think it’s evident in the work, but maybe we should have been more didactic about origins.

Akbar

Hearing you talk now, I think you’re absolutely right. Even the most profoundly important articles often get remembered for one thing, and then you go back and you read them and there’s often so much more going on. Even though I’ve engaged with CRT for years I didn’t see that connection between movements and CRT as clearly as when I re-read these articles looking for it.

I want to take your article “Looking to the Bottom” as a case study. I’ve read it many times over at different points in my career and always find new things. And yet it feels to me that the call it made was never quite worked out or centered or even debated totally. There was an early Devon Carbado piece, but the debate never really went anywhere. So I wanted to ask you what you think that article did, how it was received at the time, and how you think about questions it raises now.

Matsuda

Very little has changed for me in my personal need to always look at the material conditions of the least advantaged people on the planet to understand what we need to do to get out of the mess that we’re in.

How was that received? Well, it was read at the time, which was kind of amazing to me as an assistant professor. Many, many people told me it influenced their thinking, including people affiliated with CLS.

Yet some people experienced it as a threat. I was entering a conversation within CLS and I don’t think I understood how dear that conversation was to some people and how marginalized they felt. Remember, there were people at that time, like Paul Carrington, arguing that you should not teach in a law school if you write CLS.  That external assault made some people wary of what I thought was a friendly expansion of an internal conversation. It’s just the natural life cycle of marginalized intellectual formations that you build this space that feels safe to you and then people come in that space and they want to criticize and you lose some of the energy for forward movement.

But despite the tension, there was also actually a lot of solidarity built that I still feel toward some of the most influential writers in CLS. Duncan Kennedy helped me with my tenure.  He wrote a letter and he solicited letters from other people in my first round, when I was an assistant professor at the tiny William S Richardson School of Law in the middle of the Pacific Ocean. So, those little intellectual communities that we built were important for professional survival. I am deeply grateful for the support I received.

Part Two of this interview will be published tomorrow.

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