Abstract

Some scholarly commentators have described Owen Fiss's landmark article "Groups and the Equal Protection Clause" as having helped to produce the intellectual framework that has distinguished Critical Race Theory. This essay finds the issue to be more complex, and the critical thrust of Fiss's article more ambivalent. Fiss's approach boldly foresakes the jurisprudential comforts of neutrality, individualism and means/ends analysis for an explicit focuson the material and dignitary circumstances of African-Americans. Yet its account of racial disadvantage is surprisingly de-contextualized: it reflects neither the contemporaneous perspectives of its African-American subjects, nor more than a fleeting sense of the agonistic political dynamics that produced it. This reified rendering yields an account of Black disadvantage that is decoupled from a corresponding account of white supremacy. This essay explores this critical ambivalence and reflects upon its causes. It also considers the implications of Fiss's ambivalence for the Court's increasingly firm embrace of one "mediating principle" in the area of equal protection.

Recommended Citation

Kathryn Abrams, " "Groups" and the Advent of Critical Race Scholarship" Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2003): Article 10.
http://www.bepress.com/ils/iss2/art10