Almas Khan (University of Mississippi School of Law) has posted Reconstituting the Canon: The Rise of the Black Lives Matter Judicial Opinion on SSRN. Here is the abstract:
This article presents a critical race theory-inflected history of the U.S. judicial opinion and conceptualizes the emergence of a new form: the Black Lives Matter judicial opinion. Since the Black Lives Matter movement’s inception in 2013, legal scholars have unearthed the racist intellectual history of several doctrinal fields, but the intellectual history of the judicial opinion itself as a genre at the discipline’s core has been less scrutinized. Drawing on archival research and scholarship about the politics of legal canon formation, I argue that canonical U.S. Supreme Court opinions often fail to engage meaningfully with race. Moreover, scholarly canons tend to venerate white judges’ opinions as exemplars, and curricular canons frequently elide racial considerations. As a result, the judicial opinion remains a quintessential “white space.” With the Black Lives Matter movement’s rise, however, a critical mass of judges has sought to reconstitute the judicial opinion as a genre, and in turn to revolutionize legal canons. Judges who compose Black Lives Matter opinions use formal subversion as a method of meta-critique, revealing how flawed legal epistemologies have perpetuated racial injustices. In cases involving voting rights, fair trial rights, constitutional and “ordinary” tort-based -claims, and Fourth Amendment protections, judges have re-envisioned the judicial opinion form, drawing on insights from African American history and literature while referencing the Black Lives Matter movement. (See article for full abstract.)
Recommended.