It is difficult enough identifying areas within a current field of scholarship that are underdeveloped and in need of further attention. In science, one thinks of missing elements in the periodic table or planets in a solar system that our calculations tell us must be there but that our telescopes have not yet spotted. In civil-rights law, one thinks of such areas as women's sports or the problems of intersectional groups, such as women of color or gay black men. One also thinks of issues that current events are constantly thrusting forward, such as discrimination against Arabs or execution of children or the mentally retarded. What of challenges that do not come readily to mind because they lie outside the current paradigm-problems that we do not readily think of as civil-rights issues at all, or that are so radically unlike those we do recognize that they require a leap of the imagination to see them as such? Here, we lack a template-a periodic table. We cannot easily make the link between the familiar and the unknown. The new issue does not lie on the same plane as those we know, so that mental extrapolation and interpolation do not readily lead us to it. Issues of this kind require us to expand our conceptual repertory and learn to think in different ways. They require us to listen for "the dog that doesn't bark"-to flip a structure such as conventional civil-rights law and look at it sideways. They require us to look at that structure as a whole and consider what might be missing.
The Current Landscape of Race: Old Targets, New Opportunities,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol104/iss6/2