Intersectional method that convergence praxis and scholarship is best – your author

“Huh, I think I see what you’re saying, Deidre. That’s a really provocative point – and it gestures to the complicatedness of co-authorship, even with intellectual soulmates! In this case, I’m of the opinion that the thing speaks for itself, res ipsa loquitur if you will. We use practice as method in a way that follows many scholars of color. In the book Disidentifications, for example, the late José Esteban Muñoz talks about how queers of color perform in a way that negotiates the lived realities of ideology, by both acting within and remaking scripts about race and gender.9 Munoz certainly theorizes performance but he also sees unities in thinking and doing. And feminist scholars of color like Cherríe Moraga, Gloria E. Anzaldúa, and Chela Sandoval, who contemplate radical feminist methodologies, understand embodied practice as theory.10 Perhaps,we should begin by defining what we mean by methodology and why we need it? In a completely unsurprising turn of events, it seems we may have some disciplinary differences to contend with.”

“Sure! For me, legal methodology is at least two things - research methods and analytical methods. These are related but distinct. For example, for the hashtag piece I am working on,11 I need to make sure that I identify all relevant sources of law - state statutes and jurisprudence pertaining to the rights of privacy and publicity, at a bare minimum, as well as the preeminent secondary sources engaging these - McCarthy’s treatise,12 Jennifer Rothman’s work,13 etc. Sound analytical methods are about what I do with those sources. There are various ‘rules’ about that pertaining to the value of precedent and the like. I needn’t always adhere to those rules. But, in writing for law reviews and legal audiences, I do have to acknowledge the existence of those rules and explain the value of eschewing them if I choose to do so.

“That’s an interesting way to think about method. It sounds like our legal methods class in law school, where we learned about hierarchies of legal authority. But I’ve always thought of that structuring of legal authority as about the practice of law instead of the method of law.

That’s certainly a disciplinary difference between law and ethnic studies, or even Critical Race Theory. The concept of method gets even more interesting if we talk about studying what Sandoval calls ‘oppositional consciousness’ to authority itself.14 Thinking about legal authority and oppositional consciousness at the same time is no easy task, as Richard Delgado points out so well in the ‘Imperial Scholar.’”15 In many ways, CRT is ideologically anti-hierarchical.

That’s not to say that it’s not important to think about legal authority, even he concedes that it matters. But I see questions of choosing which sources to cite and how as included in the project of understanding law as a site for the cultural negotiation of race and power.”

“Two things. First, this is where Lawrence is really instructive, right. He reminds us that teaching, scholarship, and praxis, are different aspects of one thing - the Word.16 This is fundamental to CRT and to race and IP methodology, I think, because if we are theorizing in ways that fail to attend to the very real consequences our theorizing could have in the world then we’re not doing it right.17 Ditto for teaching. One of the challenges of bringing a critical race lens to intellectual property law is that while sound legal research and analytical methods are imperative in helping clients solve problems, they are often inadequate tools for critiquing the law. When the project is critiquing the law, as it is whenever engaging with questions at the intersections of race and intellectual property, I necessarily have to branch out from the specific area of the law I am interested in critiquing to engage the larger questions. To stay with the hashtag piece example, in order to even ask this question about whether the legal concepts we ordinarily deploy when a client wants to stop the use of a name or likeness are up to the task of aiding a grieving family who has lost their child at the hands of a police officer, I have to do what Derrick Bell was suggesting in Faces at the Bottom of the Well, listen to those for whom these laws were not necessarily written and who these laws don’t often serve well.18 To do those questions justice always requires historical contextualization and an awareness of the continuing potency of race.”

“Absolutely! This is the place where we can definitely find a bridge between our two approaches. The Race Crits -- I so love that name for practitioners of Critical Race Theory -- often use methods external to law, drawn from insights gained from the Civil Rights Movement and the rise of newly institutionalized disciplines like ethnic studies and Black Studies. I start from the methodological presumption that we have to dig into the specific and situated histories, rhetorical constructions, and every day, lived implications of “the law,” a term that Rosemary Coombe pokes a bit of fun at by saying that you only ever hear people talking about it as a discrete object at humanities conferences.19 There’s so much going on culturally before, during, and after a specific law comes into being! For instance, as Mary Dudziak points out, in a now canonical study in CRT, we have to understand the Cold War and McCarthyism as a major part, if not definitive factor, in the successful passage of the Voting Rights Act.20 Similarly, intellectual property law is driven by and invested in certain kinds of racial outcomes, which we have to actively name. Studying history, language, and cultural practices can uncover how race gets baked into the IP cake, so to speak. Coombe makes this argument in The Cultural Life of Intellectual Properties, though with more emphasis on the culture part than the race part.21 When we read race scholars in conjunction with intellectual property scholars, we see that neither race nor law are fixed; both evolve over time in ways that can strengthen or weaken racial hierarchies. And, of course, as numerous race scholars have demonstrated, whiteness is an invisible norm which we have to actively work to make legible.”22

“Of course, I agree with much, if not all, of that. In thinking through how we maintain multidisciplinarity and speak to audiences in the humanities, social sciences, education, and law -- all of whom come with a range of methods understanding from their own disciplines -- part of what I am wondering is how we do exactly what you mentioned, build bridges from where they are to the types of methods we’d suggest they engage. I’ll admit that in my law teaching, I have never taught ‘methods,’ per se. I do some case synthesis in Property and some research question / thesis development in my seminars but none of that is labeled ‘methods’ for the students. Because my own context is legal teaching and practice, I am perhaps particularly attuned to the type of methods training legal readers are likely to have had. So, you’ll remember that in our Legal Methods class in law school, we didn’t address critical methodologies, at all. In fact, all I remember learning about in that class was rule synthesis through the attractive nuisance cases and Chevron.23 I remember a lot of Chevron…. In preparing for this conversation I went back and looked at the textbook that we were taught out of for that class and that edition did contain chapters on both Critical Race Theory and Feminist Jurisprudence.24 I don’t remember ever getting to those chapters. Do you?”

Anjali laughed, “I’m grateful that Chevron is just a gas station to me these days! I certainly do not remember talking at all about CRT or feminist jurisprudence. In fact, the first time I formally studied CRT was at the University of Washington during my LLM in intellectual property law! Clearly, I’ve always had some interdisciplinary tendencies, which are as much about cultivating survival skills as they are about interest. In any event, I had much more opportunity to study race in graduate school than I ever did in law school. I’ll say, though, it’s not easy to be an interdisciplinary scholar of race and law, especially in a fast moving area like intellectual property. It is incumbent upon scholars that do interdisciplinary work to keep up on their race theory as well as their case law, especially given some of the prejudices about race work not being ‘real scholarship.’.