In
Doctrinal Dilemma, Professor Girardeau Spann describes West-Faulcon’s
argument as both analytically sound and enticingly clever. The
problem, however, is that doctrinal arguments can always be developed
that are cogent enough to support the outcomes favored by socially powerful
opponents. Indeed, Spann constructs just such an argument that
would allow one to evade West-Faulcon’s conclusion that state anti–affirmative
action laws permit race-conscious remedial admissions. In the
end, Spann argues that legal scholars seeking to promote racial justice
confront a serious dilemma: continue to make doctrinal arguments
and reinforce the legitimacy of a social system that uses law as a tool
for the continued oppression of racial minorities or stop participating
and risk losing those sporadic concession that even an oppressive social
system must occasionally make to prevent bottled-up frustrations from
ripening into serious threats of destabilizing change.
Volume 158 Issue 1 2010 Response