Chapter 1 explains what CRT is and how it began in the mid-1970s, as antiracist lawyers and legal scholars in the U.S. realized that the gains of the heady civil rights era had stalled and, in some cases, were being rolled back. New approaches were needed to deal with subtle, or latterday, racism and a newly conservative public and judiciary. Scholars offered theories of unconscious discrimination and critiqued such liberal standbys as colorblindness and the requirement that one suing for racial discrimination demonstrate intent. They engaged in revisionist history, questioning whether such vaunted decisions as Brown v. Board of Education came in response to black needs or white self-interest. Aylward sets out all this history in rich detail and with dead-on accuracy.
Subsequent chapters deal with the theory's applications.
Chapter 2, on American Critical Race Litigation, incisively analyzes the Rodney King and O.J. Simpson trials, showing how colorblindness in one and race consciousness in the other played decisive roles. Though Canadian law, in contrast to that of the U.S., prohibits discriminatory effects as well as intent, Canadian lawyers generally do not make racial arguments out of adherence to the colorblindness principle. In the final two chapters, Aylward proposes a novel approach, grounded in Critical Race Theory, for representing black clients, and addresses ethical problems that may arise in the course of such representation. Lawyers for black clients should engage in consciousness raising, Aylward writes, so as to increase their own awareness of the historical role of race in Canadian society. Whites are urged to adopt a black perspective.