Abstract

Excerpted From: Almas Khan, Reconstituting the Canon: the Rise of the Black Lives Matter Judicial Opinion, 17 Washington University Jurisprudence Review 247 (2025) (364 Footnotes) (Full Document)

In 2020, protests for racial justice erupted worldwide, with approximately twenty-six million people participating in over two thousand demonstrations associated with the Black Lives Matter movement. Since its founding by three Black women in 2013, the movement has sought to expose and remedy racial injustices while celebrating Black lives. In the U.S. activists have characterized the Black Lives Matter era as the Third Reconstruction, reflecting the movement's aim to rebuild the nation's decayed legal, political, and social infrastructure. California Supreme Court Justice Goodwin Liu underscored the need for professional and societal introspection to actualize the words “Equal Justice Under Law” engraved on the U.S. Supreme Court building's façade when concurring in a case involving the death of a Black man under circumstances similar to George Floyd's murder, which helped catalyze the 2020 protests. Legal scholars have in this vein published landmark scholarship revealing the racist intellectual history of several doctrinal fields, as evidenced in casebooks that often reproduce racism. By contrast, the recent Critical Race Judgments anthology seeks to counter the “representational structures” that literary historian Saidiya Hartman has associated with Black death by rewriting judicial opinions from a critical race theory perspective.

Amidst the present period of racial retrenchment, such opinions may seem unimaginable in reality, but this article is the first to identify the emergence of a new judicial opinion form over the past decade: the Black Lives Matter opinion. Opinions in this nascent form align substantively with the goals of the Black Lives Matter movement, but equally importantly, they provide meta-critiques of the legal system through formal subversion. The opinions impel readers to question the process through which judicial opinions become canonical in common law systems, including whose voices are represented in ostensibly classic opinions. By interrogating “deep canonicity,” which encompasses “characteristic forms of legal argument, characteristic approaches to problems, underlying narrative structures, unconscious forms of categorization, and the use of canonical examples,” Lives Matter opinions also suggest how legal epistemology can be re-formed to promote racial justice. The rise of the opinions epitomizes Lani Guinier and Gerald Torres's theory of “demosprudence,” which posits a synergistic interplay between social movements and judicial decisions “expand[ing] 'the constitutional canon.”D’ For Black Lives Matter opinions, this canonical expansion has arisen, in part, through engagement with the AfricanAmerican literary tradition, which has powerfully reimagined law since the antebellum era. The opinions delineate what Saidiya Hartman has termed the “afterlives of slavery,” including AfricanAmericans' “skewed life chances, limited access to health and education, premature death, incarceration, and impoverishment,” while reconstructing the judicial opinion genre to transform legal education, scholarship, and practice.

Part I of this article will use the prism of canonicity to analyze how racism has been endemic to the construction of law as a discipline in the U.S. Although canonical texts and ideas are typically conceived of as deriving from objective criteria of value, critical theorists have illuminated how canons emerge from fraught intellectual and political processes. After considering the significance of legal canons for establishing disciplinary boundaries, the section will demonstrate how judicial opinions have often been “white spaces” in multiple senses. Racist rhetoric and doctrine permeate opinions in the canon (or anti-canon and peer pressure has at times led racially egalitarian judges to suppress racial dimensions of cases in their opinions. Scholarly and pedagogical canons moreover marginalize judicial opinions involving race as well as opinions authored by judges of color. Traditional criteria for canonicity undervalue opinions by “movement judges,” whose opinions may be existentially challenging in deconstructing the form itself.

Despite headwinds, Black Lives Matter judicial opinions have flourished, and Part II will conceptualize the form and evaluate illustrative cases across a range of doctrinal fields: voting rights, fair trial rights, and constitutional torts (i.e. Section 1983 claims The opinions span courts (federal and state, as well as trial and appellate levels types (majority opinions, concurrences, and dissents), and geographic areas, in addition to being authored by judges of diverse races and genders. By “breaking the fourth wall,” the opinions collectively instigate readers to re-envision: (1) legal epistemology, drawing on insights from critical legal research and other disciplines; (2) the foundations of the U.S. common law system; (3) the purposes of judicial opinions as a quintessential legal genre; (4) the role of legal education in molding future lawyers and shaping the law; and (5) the legal system's interaction with social movements. The opinions move beyond what Thomas Stoddard termed the “rule-shifting” function of lawmaking to its “culture-shifting” capacity, arguably democratizing the judicial opinion form.

Part III will discuss implications of Black Lives Matter judicial opinions' ascendance, including how centering the opinions in scholarship and teaching can promote canonical justice. A critical mass of such opinions also has important ramifications for attorneys, signaling increased judicial receptivity to creative legal writing that advances racial equality. Relatedly, recognition of this trend can embolden other judges to innovate formally for racial justice, as is evidenced through citation practices. Several of the opinions have resonated with the broader public as well, suggesting that the opinions may influence social perceptions and actions. While generally commending Black Lives Matter opinions, the section will consider ethical and other objections to the form, which evoke debates dating back at least half a century to the growth of law faculty and judges of color in the U.S. The opinions' potency ultimately arises from encouraging readers “to ask[] not simply which script makes the story of the law the most coherent story it can be, but which script speaks most clearly of and to the kind of society we hope to become.”,

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If law is primarily about the exercise of power, it behooves us to examine on all levels how that power is attained, how it manifests itself, and perhaps most importantly, how it is maintained and can be subverted within the complex intricacies of its operation as discursive subjectivity.

-Alison Diduck,

Alison Diduck's call for feminist legal scholars resonates with the purpose of Black Lives Matter opinions, which embrace critical canonicity in and beyond the judiciary. The opinions instigate reflection on how race has shaped the history of the U.S. judicial opinion as a form and how judges influenced by social movement activists have remade the genre to promote racial justice. If the judicial opinion has, in Saidiya Hartman's terms, historically been a “representational structure continu[ing] to produce black death, or death as the only horizon for black life,” Lives Matter opinions attest to Black resiliency in a society riven with racial inequalities. As jurisdictions have sought to suppress diversity discussions, Lives Matter opinions have also become an official means of resistance complementing unofficial activism.

While this article has focused on conceptualizing the Black Lives Matter judicial opinion as an emerging form, future scholarship analyzing other countries, time periods, identities, and genres could enrich understandings of how social movements impact the development of legal forms. At heart, these movements' efforts at reconstituting legal canons speak to who is included in a disciplinary or political community, “which in turn influences which necessities will be felt and which will go unheard.” Integrating Black Lives Matter opinions into legal canons can ultimately help forge a more equitable world.

Assistant Professor of Law, University of Mississippi School of Law. Ph.D. University of Virginia; J.D. with honors, University of Chicago Law School; M.A. with thesis distinction, University of California, Irvine; B.A. with distinction and Phi Beta Kappa honors, Stanford University.