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The Intersection between Race and National Security

Matiangai V. S. Sirleaf, Race and National Security (2023).

The book, Race and National Security, edited by Professor Matiangai V. S. Sirleaf, of the University of Maryland Francis King Carey School of Law, offers us a historic opportunity to change our political imaginary. This book delivers on its promise to “fully excavate[] the question of how race and racism relate to national security domestically, transnationally[,] and internationally.” In the words of Walter White, Executive Secretary of the National Association for the Advancement of Colored People (NAACP) from 1929–1955:

Race discrimination threatens our national security. We can no longer afford to let the most backward sections of our population endanger our country by persisting in discriminating practices. We must meet the challenge of our neighbors, not only because discrimination is immoral, but also because it is dangerous.

Although White’s critique continues to be true today, in the context of the broader conversation on national security, it is now clear that White’s focus on discrimination provides an insufficient framework. One of the many achievements of Race and National Security is that it centers a framework not of discrimination, but rather of racial justice, one that focuses on addressing institutional racism and anti-subordination. The growing general focus on racial justice, both on a national and a global scale, coupled with the continuous resistance against established racial norms, justifies the book’s deliberate examination of these issues and serves as the driving force behind this book. The authors contributing to the volume look at national security law as complicit in furthering systemic inequality from an anti-subordination positionality. They illustrate practices and policies that, whether by intent or effect, enforce the subjugated social status of historically oppressed communities within societies across the globe under the protective umbrella of national security. Thanks to their work, we are now able to draw interesting connections among the various ways these racial injustices work.

Race and National Security also serves to fill a void in approaches to international law. Scholars like James Thuo Gathii, featured in the anthology, have been arguing for some time that race and identity have so far been “underemphasized, understudied, and undertheorized” in mainstream international law.1 Just as the institution of slavery dehumanized black communities, situating them as beyond the scope of humanity at the founding of the United States, Euro-heteropatriarchal international law has served as a tool to dehumanize indigenous and non-European populations, and, as a consequence, mark them as unworthy of self-sovereignty in the worst cases or as incapable of self-government in the best. Race and National Security displays many of the connections across historical eras and diverse geographical locations, revealing recurring and structural patterns that include policing, incarceration and border policies in the United States, extrajudicial killings in Palestine, technology of war and surveillance in Iraq and Afghanistan, and the complicity of international organizations like the International Criminal Court and the United Nations.

The first chapter—an Introduction by Sirleaf—sets the stage and argues how international law has failed to see and engage with race by obscuring the role of racism and White supremacy in national security as if “hidden in plain sight.” It contends that the reconceptualization of national security is required and demonstrates how race structures national security. This chapter also clarifies why centering subordinated groups is necessary. It maintains that a racial justice approach requires consideration of macro-structural processes that facilitate racial subordination and stratification in national security as opposed to focusing on discrete episodes of individual discrimination.

The second section of the book—“Why Race & National Security”—addresses the need to engage in a discussion about race, national security, and what the scope of that conversation should entail. Here, the authors—James Gathii, Catherine Powell, and Aziz Rana—present how the racist origin story of the United States plays out in decisions from those involving national security law and colonialism to those involving pandemic policies. In the third section of the book—“Race & The Scope of National Security”—Monica Bell, Andrea Armstrong, and Jaya Ramji-Nogales offer contributions that weave together policing of black bodies, mass incarceration, and the eternal foreignness of black and brown immigrants in the United States to answer unequivocally the question of whose national security the state is protecting.

In the fourth section of Race and National Security, and maybe my favorite—“Race & The Boomerang Effect of National and Transnational Security”— contributors Asli Bâli, Noura Erakat, and Margaret Hu contemplate how national security methods of repression developed for “over there” migrate back to the metropolis to be deployed on those othered internally. This section highlights how colonies and other subordinated territories are used as laboratories for repressive techniques and technologies that are later used against marginalized communities in the metropolis. These techniques and technologies include not only tanks and weapons now used against antiracist activists in the United States, but also biometric data gathering.

In the fifth section—“Comparative and International Perspectives on Race & National Security”— Yuvraj Joshi, Rachel Lopez and Adelle Blackett investigate what redress and remedies might entail when race and racial justice are centered in national security by turning to comparative and international perspectives. The final reflection, a conclusion by Sirleaf, considers what it would mean to reimagine national security and the reach of the security state.

Race and National Security will help set the stage for upcoming generations of activist students and lawyers to implement a different approach to national security in a way that can point towards a post-subordination future.

  1. James Thuo Gathii, Writing Race and Identity in a Global Context: What CRT and TWALL Can Learn From Each Other, 67 UCLA L. Rev. 1610, 1610 (2021).
Cite as: Sheila Vélez Martinez, The Intersection between Race and National Security, JOTWELL (February 22, 2024) (reviewing Matiangai V. S. Sirleaf, Race and National Security (2023)), https://equality.jotwell.com/the-intersection-between-race-and-national-security/.

The Perpetual Foreigners in Today’s America: How Colorblind Nationalism Produces Unequal Immigrants and Citizens

Ming Hsu Chen, Colorblind Nationalism and the Limits of Citizenship, 44 Cardozo L. Rev. 945 (2023), available at SSRN (Aug. 20, 2022).

Migrants have been crossing into U.S. borders for years in search of safety and employment. Since last year, the governors of Texas and Florida have offered “free rides” and “free flights” to send them to other cities, claiming that those who support welcoming immigrant policies should share the responsibility of caring for them. As Gaza faces a humanitarian catastrophe, former President Trump, whose Muslim ban was upheld by the Supreme Court in 20181 and overturned by President Biden in 2021, has recently vowed to expand the Muslim ban and bar Gaza refugees if he wins the presidency in 2024. The fate of the Deferred Action for Childhood Arrivals program will likely be decided for a third time by the Supreme Court, this time by a Court with a conservative super majority. As the U.S. moves into a post-pandemic phase, anti-Asian racism and violence continue to persist and spread.

Against this backdrop, many commentators blame white nationalism for xenophobia against Asians, Latinx, and Muslims, and see the granting of legal status to undocumented migrants and turning noncitizens into citizens as the key to their equality. Ming Hsu Chen, who recognized the paramount importance of access to formal citizenship for equality in her 2020 book Pursuing Citizenship in the Enforcement Era, finds this an insufficient explanation and solution to inequality. In Colorblind Nationalism and the Limits of Citizenship, she goes on to argue for the decentering of formal citizenship in the pursuit of equality, advocating for a new imagination of the relationship between race, citizenship, and membership that recognizes multi-layered membership. Bridging critical race theorists’ critique of colorblindness and critical immigration scholars’ critique of nationalism, she identifies the pivotal role of colorblind nationalism in producing inequality and shows how it “limits formal citizenship as an antidote for inequality.” (P. 950.)

Echoing the critiques of the Black/White paradigm in critical race theory, Chen centers her discussion on the inequality facing “racialized foreigners” (immigrants and citizens perceived as foreigners because of their race),2 particularly Asians, Latinx, and Muslims. The article is a timely intervention into racial and citizenship inequality in today’s America, where the talk of colorblindness prevails, especially after the Court overturned race-based affirmative action in admissions,3 dividing Asian Americans and pitting them against racial minorities. Speaking in the distinct voice of people of color, Chen – herself an American citizen born to parents of Chinese heritage who immigrated to Taiwan and then the United States – shows us what can be seen through “looking to the bottom,” a method proposed by Mari J. Matsuda.4

Three Walls, Three Pretenses, and Colorblind Nationalism

Immigrant exceptionalism is often invoked to deny equality to noncitizens, but equality is not a privilege common to all citizens. Not all citizens enjoy full membership in the United States; some of them are limited to partial citizenship, lacking substantive citizenship, that is, “the social, cultural, economic and political belonging thought to accompany the rights and benefits of formal citizenship.” (P. 947-48.) On the spectrum of noncitizens at the one end and substantive citizenship at the other, Chen identifies three walls that stand in the way of racial equality. The first wall is located at the borders, while the second and the third walls are situated beyond the borders.5

Policies and practices of immigration restrictions constitute the first wall, guarding against the entry of foreigners. The racism of the first wall is manifested in the Trump administration’s Muslim travel ban, which explicitly banned travel and refugee resettlement from seven majority-Muslim countries, and the Covid-19 pandemic measures, which barred Chinese (the Chinese ban)6 and South American asylum seekers from entering the U.S., but opened a door for Ukrainian migrants fleeing the war zone. Beyond the first wall is the second wall of racialized barriers to citizenship. Historically, racial exclusion has been enforced through a series of racial prerequisite cases that “naturalized Whiteness as the normative American identity and a requirement for citizenship.” (P. 970.) Its legacy can be found in modern naturalization practices that disproportionately delay and deny the applications of racial minorities.

A third wall awaits naturalized immigrants and their children and U.S.-born children of immigrants, denying them substantive citizenship. Examples of their unequal status compared with other U.S. citizens are many, of which the Japanese internment during World War II is a well-known example. The revitalization of denaturalization is another example that has not yet received much scholarly attention. Chen notes that, while denaturalization had functioned to exclude political dissidents in the early twentieth century and Mexican Americans during the Great Depression, the denaturalization provisions stayed on the books but remained relatively dormant until the Trump administration invoked them to denaturalize Muslim Americans and deport them on flimsy grounds (such as misspelled surnames). Claiming that the denaturalization cases let “nationalism prevail within the nation,” Chen concludes that “citizenship is conditioned on beliefs, race, religion, and prior legal status.” (P. 976.)

While the manifestations of inequality are sometimes purposefully and overtly racist and xenophobic, Chen draws our attention to the ways in which racist tropes are covertly invoked in the language of nationalism. White supremacy is not a necessary component of nationalism, but “the articulations of liberal national interest can downgrade the interests of other nations as nationalism seeks to guard against foreign threats to national security, public health, and national identity.” (P. 948.) She identifies three pretenses that provide facially race-neutral justifications for de facto racial exclusion: national security, public health, and economic protectionism.

The pretense of national security is evident in the cases of Muslims (racialized as “Arab terrorists”) and Asians (racialized as the Japanese “enemy race” during World War II and as “Chinese spies” in recent years). Public health concerns have served to legitimize the exclusion of Chinese (blamed for the “China virus”) and Latinx (racialized as “illegal aliens”) during the pandemic, despite the availability of Covid tests and vaccines. Asians and Latinx have also been excluded under the guise of prioritizing American economic interests and protecting the jobs of American citizens. The Trump administration’s Chinese ban during the pandemic, based on the mixed grounds of guarding public health, preserving the economy, and protecting against espionage, illustrates how the three pretenses can function together to justify racialized exclusion. Hence, “[n]ationalism becomes the ultimate pretext for racism.” (P. 1001.) Colorblind nationalism “rationalizes exclusion as an exercise of the nation’s right to sovereignty.” (P. 984.)

The Perpetual Foreigners

Asian Critical Race Theory has shed light on the “perpetual foreigner syndrome” suffered by Asian Americans when it emerged to challenge the dominant Black/White paradigm of Critical Race Theory.7 Arguing that “liberal interpretations of colorblind equality can merge foreignness with the biases of sovereignty, democratic self-governance, and social closure to reinforce inequality” (P. 961-62), Chen extends the wisdom of Asian critical race theory on foreignness to include Muslim and Latinx Americans. White immigrants follow the idealized path to first-class citizenship, enjoying “the white premium,” as exemplified by the acceptance of East European refugees after World War II and Ukrainian migrants after the outbreak of the Russian-Ukraine War. Denied the “citizenship premium” (P. 991), Asian, Latinx, and Muslim immigrants remain socially excluded as second-class citizens after naturalization. For them, “once an immigrant, always an immigrant.” (P. 990.) Perpetual foreigners they are.

Chen’s discussion of birtherism brilliantly demonstrates how foreignness is, in my words, selectively stored in the blood, blending jus sanguinis with jus soli citizenship. She offers three manifestations of birtherism, all of which are facially race neutral: (1) the attempts to abolish birthright citizenship; (2) the restrictions on birthright citizenship for the children of legal nonimmigrants, including travel restrictions for pregnant women visiting the U.S.; (3) the inconsistent exclusion of U.S.-born children of noncitizens from running for elected office. Chen’s vivid comparison of white men born outside the U.S. and non-white people born on U.S. soil in the legal test of loyalty for the presidential office is illuminating.

As the child of white parents, John McCain (born on a U.S. military base in the Panama Canal Zone) overcame the presumption of doubt. Yet, Barack Obama (born to a White American citizen mother and an international student father from Africa) and Kamala Harris (born to parents who were both non-white international students) suffer from Americans’ mistrust of foreigners, despite the fact that they were born on U.S. soil. She further points out the gender dimension of the birthers’ challenge of Obama’s eligibility for the presidency: the erasure of the citizenship of Obama’s White U.S.-born mother by her husband’s foreign nationality, which demonstrates the legacy of the marital expatriation of U.S. female citizens. (P. 986-88.) The foreign stains in Obama’s and Harris’s bloodlines are sticky with the stench of political disloyalty.

Of particular note is Chen’s watchful eye on precedents for the Court’s treatment of racialized foreigners. She sees white supremacy in United States v. Wong Kim Ark,8 a case brought by a U.S.-born Chinese that established birthright citizenship, and points to the Court’s concerns that a contrary holding would deny citizenship to people of European parentage. (P. 981 n.145.) She also sees the disparagement of Chinese Americans as “a race so different from our own that we do not permit those belonging to it to become citizens of the United States” in Plessy v. Ferguson.9 (P. 970 n.88.) Although she presents her observations in the footnotes, I find them to be excellent examples of how White supremacy was affirmed when birthright citizenship was granted to U.S.-born Chinese, and how racial discrimination against Blacks as inferior citizens and Chinese as unqualified outsiders finds manifestation in the same decision.

The Cure That Equality Laws Do Not Offer: Multi-layered Membership

Drawing from cell biology, Robert Chang and Keith Aoki have claimed that “In the same way that the cell wall or membrane serves a screening function, the border operates to exclude that which is dangerous, unwanted, undesirable.”10 Chen’s article is a valuable addition to Chang & Aoki’s thesis. It shows not only how the cell wall screens and excludes racialized foreigners, but also how foreignness and inequality penetrate through the cell wall. Yet, constitutional and statutory equality laws against discrimination based on race and national origin have failed to protect racialized foreigners from discrimination justified in the name of colorblind nationalism. Chen proposes two steps toward remedying this inequality. The first step is to recognize the harm. The second step is to move away from binary categories and toward multi-layered conceptions of membership by creating spaces for alternative sources of belonging.

Acknowledging that “[c]itizenship is necessarily a boundary drawing exercise” (P.1011), Chen advocates for migration along the citizenship spectrum to facilitate racialized foreigners’ democratic and social engagement, which in turn will boost their political, social, and economic inclusion. Her proposal calls for opportunities such as political participation and civilian services provided at the federal and state levels. Specifically, she identifies the practical role that state and local governments can play in broadening the conception of community and enabling the inclusion of marginalized groups.

On her list is noncitizen voting in local elections, which existed in fifteen cities across four states as of the time of her writing. (P.1010.) Recent legal developments on noncitizen voting present a mixed picture. New York city passed a noncitizen voting law in 2022, but it was subsequently struck down by a state supreme court. D.C.’s noncitizen voting law, also passed in 2022, is similarly facing legal challenge in court. A look at noncitizen suffrage outside the U.S. offers some hope. Noncitizens can vote in local elections in South Korea (the only Asian country that grants noncitizens the right to vote at the subnational level), Spain, Sweden, and other countries. Some of these countries have residency requirements or European Union residency requirements.

On a personal note, I was an international student at the University of Michigan Law School, Ann Arbor when 911 happened. Dearborn, one of the largest Arab American communities, was nearby. At that time, Asians were not the primary targets of hate crimes, surveillance, and deportation. Still, we knew that Yellow was closer to Brown than Black when it came to “foreign threats.” We smelled racism when being singled out for additional security checks at the airport. Some of us fulfilled the “affirmative racial duty”11 to display “patriotism” by hanging U.S. national flags on apartment windows. The feelings of mistrust, unwelcome, exclusion, and insecurity linger today. The anti-Asian hate in the midst of, and in the aftermath of, the Covid-19 pandemic revitalizes these feelings and fears.

For racialized actual foreigners like me who have no intention of seeking U.S. citizenship, “the perpetual foreigners” syndrome remains harmful because it constitutes and reflects our status as secondary foreigners. For Taiwanese like me who wish to claim our national identity when crossing national borders and when on temporary visas in the U.S., the denial of my country’s statehood has resulted in numerous troubling instances where I have been unable to find an appropriate nationality or country box to check. This denial of statehood produces distinct harms outside the experience of many noncitizen Asians, proving Chen’s point that the Asian race is as diverse as it can be. (P. 994.)

The Taiwanese category has never been included in the U.S. census form. Whereas liberals fought against the inclusion of the citizenship question in the 2020 Census and succeeded in the court challenge to have it removed,12 Taiwanese Americans strived to make Taiwanese count and matter in and through the 2020 Census. The Census 2020 “Write in Taiwanese” Campaign seeks the acceptance of Taiwanese as members of the political community whose racial identity does not suffer misrecognition or nonrecognition. I wrote in “Taiwanese” on the 2000 census form more than two decades ago as an international student. I dream of a space for the racial belonging of Taiwanese in Chen’s aspirational future for the U.S.: “a more equal nation for those who reside in the United States, regardless of prior citizenship status or race.” (P. 1010-11.)

  1. Trump v. Hawaii, 585 U.S. ___ (2018).
  2. Chen defines the term “racialized foreigners” in the article as “immigrants and naturalized citizens who are perceived as foreign, by virtue of racial formation, despite having formal U.S. citizenship via naturalization or birthright.” (P. 947 n.5.)
  3. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).
  4. Matsuda claims that those with experiences of discrimination speak with a distinct voice and possess a perspective that critical scholars should adopt to understand injustice and pursue justice. I see Chen’s work as an exercise of looking to the bottom, although she does not claim to apply this method in this work. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987).
  5. To be precise, Chen does not specifically use the term “the first wall.” She does explicitly identify the second and the third walls. (P. 969.) Her idea of the second wall is elaborated in detail in Ming H. Chen & Zachary New, Silence and the Second Wall, 28 S. Cal. Interdisc. L.J. 549 (2019).
  6. Connecting the present to the history of Chinese exclusion, Chen wondered if the China ban should be considered Muslim ban 4.0 or Chinese exclusion 2.0. (P. 965 n.70.)
  7. In his pioneering work that laid the ground for what is now known as Asian Critical Race Theory (AsianCrit) (a strand of Critical Race Theory that emphasizes the unique racial experience of Asians in America), Robert Chang identifies the sense of “’foreignness’ that distinguishes the particular type of racism aimed at Asian American.” Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-structuralism, and Narrative Space, 81 Calif. L. Rev. 1241, 1258 (1993). Frank Wu casts the stereotyping of Asian Americans as foreigners as the “perpetual foreigner syndrome,” which can be expressed in everyday social interactions, addressed in public policy, or occur in the brutal form of hate crimes. Frank H. Wu, Where Are You Really From? Asian Americans and the Perpetual Foreigner Syndrome, 6 C.R.J. 14 (2002).
  8. United States v. Wong Kim Ark, 169 U.S. 649 (1898).
  9. Plessy v. Ferguson, 163 U.S. 537 (1896).
  10. Robert S. Chang & Keith Aoki, Centering the Immigrant in the Inter/National Imagination, 85 Calif. L. Rev. 1395, 1411 (1997).
  11. Devon W. Carbado & Mitu Gulati, Working Identity, 85 Cornell L. Rev. 1259, 1287 (2000).
  12. Department of Commerce v. New York, 588 U.S. ___ (2019).
Cite as: Chao-Ju Chen, The Perpetual Foreigners in Today’s America: How Colorblind Nationalism Produces Unequal Immigrants and Citizens, JOTWELL (January 22, 2024) (reviewing Ming Hsu Chen, Colorblind Nationalism and the Limits of Citizenship, 44 Cardozo L. Rev. 945 (2023), available at SSRN (Aug. 20, 2022)), https://equality.jotwell.com/the-perpetual-foreigners-in-todays-america-how-colorblind-nationalism-produces-unequal-immigrants-and-citizens/.

Reorienting American Real Property to its Egalitarian Goals

Jessica A. Shoemaker, Re-Placing Property, 94 Univ. Chi. L. Rev. __ (forthcoming, 2024), available at SSRN (Aug. 31, 2023).

In Re-Placing Property, Jessica A. Shoemaker demonstrates the extent to which our legal rules about property have allowed real property ownership to become, in many cases, paradoxically completely divorced from place attachment. Drawing from disciplines such as geography and sociology, Shoemaker defines “place attachment” as “a ‘sense of belonging, loyalty, or affection that a person feels for one or more places.’” (P. 15, quoting A Dictionary of Human Geography (Oxford 2013)). With real property increasingly owned by people who have little or no connection to the land itself, including absentee heirs and distant investors who often simply own shares of property through an investment fund, local communities bear the costs of these absentee owners’ choices.1 Consequently, early American ideals that, at least in theory, favored egalitarian access to ownership and that “reward[ed] productive improvement and agrarian stewardship,” (P. 4), are now being trampled to accommodate elitist ownership patterns that in some ways mirror feudalism. (Pp. 20, 60.)

Professor Shoemaker avoids romanticizing the past by highlighting the fact that “we tend to erase” Indigenous histories of land possession “in favor of a simplified story of American expansion . . . .” (P. 4.) Thus, Shoemaker is not using the past as it actually played out as a model so much as demonstrating that our traditional ideals of access to property ownership, however unevenly and unfairly applied in the past, are undermined by the modern reality that land is becoming increasingly commodified by the rich to the detriment of working-class and middle-class families and individuals, many of whom can no longer afford to buy homes or own farms because prices are being driven up—in some cases by distant investors, many of whom are foreign, and in other cases, particularly with respect to farms, because land is tied up in “hereditary family dynasties.” (P. 60.)

One example of this commodification is the fact that, over a six-year period, a billion-dollar private equity investment venture bought up 19 out of 32 homes on a single block in Nashville, Tennessee in a working-class area known for its affordability. The venture not only transformed the block into an area that middle-class buyers could not afford, but, at the same time, the venture failed as a landlord to fulfill basic maintenance requests for the tenants who rented the houses it owned. (Pp. 6-7, 35.)

Professor Shoemaker provocatively urges us to reimagine our property laws so as to facilitate more rights for those that have strong place attachment to certain areas. Using the Standing Rock Sioux Tribe’s protests against the Dakota Access Pipeline (DAPL) as an example, she argues that lack of land ownership is often unfairly used as an absolute bar to legal rights and access, even in the face of place attachment going back generations or, in this case, centuries.2

As Professor Shoemaker notes, the federal government’s strategy of using the Standing Rock Sioux Tribe’s lack of ownership of the lakebed, under which the pipeline was proposed to go (and ultimately was built), against the Tribe was particularly cruel because that land was illegally taken from them by the United States government. (P. 31.) Another devastating twist that Shoemaker highlights pertains to the peculiarities of federal property law relating to Tribes. These peculiarities allowed the federal government to issue a federal trespass notice to the protesters despite the fact that they had the permission of an individual Tribal citizen who was a co-owner of the land. (P. 32.)

Thus, even very deep place attachment and strong cultural significance did not ultimately give the Standing Rock Sioux the power to object to the pipeline. And their protest itself was unfairly cut short by the perverse injustice of federal property law with respect to Native Americans.

Another example that Professor Shoemaker discusses to illustrate property law’s failure to privilege place attachment is the way that the single-family home market is increasingly being taken over by investors, including private equity funds comprised of distant and even foreign investors. This has led not only to rising home costs but also, in at least some cases, such as the Nashville example discussed above, to poor response to maintenance requests and unfair rent hikes. (Pp. 7, 35.) She argues persuasively that “[p]roperty rules decide, as a first principle, to sanction absentee investment” and that “[i]t is a choice to design property rights such that title and possession can be decoupled without limits . . . .” (P. 35.)

Much of the article is devoted to Professor Shoemaker’s very interesting explorations of the importance of place and to convincing arguments about why place should matter that build on work by scholars such as Margaret Radin, Gregory Alexander, Keith Bassos, and others. At the same time, however, Shoemaker also acknowledges that putting too much importance on place attachment can also lead to its own problems, such as hereditary family dynasties that impede newcomers’ entrance into farming as well as communities that enforce socially undesirable norms like racial exclusion or class-based exclusion in the form of protests against proposed affordable housing projects. The argument is thus for a more balanced approach to property rights in which place attachment plays an important role, not for an approach in which place attachment is the only consideration.

Ultimately, Re-Placing Property shows us that failure to privilege place attachment sufficiently in our property rules has facilitated wealth concentration to the detriment of local residents who do have such attachments. As Professor Shoemaker explains, when absentee ownership becomes the norm, “[t]he land—the landscape itself and the local people who inhabit it—is captured in a sense, controlled and used to benefit outsiders, with costs and harms left local.” (P. 52.)

While the article makes a number of important contributions, I found its elucidation of how the absence of any requirement of place attachment in our property law creates injustices for local community members and Tribes to be particularly valuable. Professor Shoemaker provides a new way to think about and define the problems with relatively novel but increasingly common practices—like foreign investors’ buying homes in well-off areas and then leaving them vacant for long periods of time or buying homes in poorer areas in order to rent them out and then raising the rents beyond what existing renters can afford.3

Professor Shoemaker offers a number of potential solutions to the problems she describes, highlighting Scottish Land Reform’s emphasis on broad public access rights as one possible approach to giving more weight to place-based attachment. Using a wider lens, she advocates more generally for alterations in our property rules to “favor[] or in some contexts . . . [to] require[e] . . . conditions that promote a place-based attachment . . . .” (P. 57.) One of the aspects of the article that makes it so engaging is Shoemaker’s exploration of her own place-based attachment to her grandparents’ land in Wisconsin and her concession that perhaps she does not need ownership to preserve and honor that attachment but only access. (P. 69.)

The article is a must-read for anyone concerned about the current levels of wealth concentration in the United States and the resulting inequities. Professor Shoemaker’s critique of the sometimes unchecked freedoms that come with ownership and her argument that we should structure our property rules differently so as to limit these freedoms in the absence of place-based attachment are incisive.

  1. One stark example provided in the article of a distant investor is Bill Gates’s being the largest landowner in Nebraska, a position he holds solely as a result of “his passive investment objectives.” (P. 5.)
  2. Accounts describe the Oceti Sakowin (also referred to as the Great Sioux Nation) as arriving in what is now South Dakota in the 1700s. See, e.g., Native American & Indigenous Studies, Rebecca Crown Library, Dominican University.
  3. See, e.g., ‘Ghost’ Foreign Investors Buying Palo Alto Homes, But Keeping Them Empty, CBS New Bay Area (Apr. 28, 2015); Sarah Buduson, Cashing in on Cleveland: How Foreign Investors Siphon Money Out of the City’s Poorest Neighborhoods: ‘All We Are is a Line on a Spreadsheet’, News 5 Cleveland (Oct. 20, 2022).
Cite as: Ann E. Tweedy, Reorienting American Real Property to its Egalitarian Goals, JOTWELL (December 13, 2023) (reviewing Jessica A. Shoemaker, Re-Placing Property, 94 Univ. Chi. L. Rev. __ (forthcoming, 2024), available at SSRN (Aug. 31, 2023)), https://equality.jotwell.com/reorienting-american-real-property-to-its-egalitarian-goals/.

Abandoning Metaphors and Reclaiming Impairment

Doron Dorfman, Disability as Metaphor in American Law, 170 Univ. Pa. L. Rev. 1757 (2022).

People use disability metaphors all the time, from complaining about a “disabled bus” to remarking on the barrier to filing a claim due to a “legal disability.” In Disability as Metaphor in American Law, Doron Dorfman disapproves of the use of disability metaphors in general, and specifically challenges what he calls “disability frame advocacy.” Disability frame advocacy is the metaphorical use of the disability discrimination concept to argue that society should address disadvantages not associated with physical or mental impairment, but instead associated with poverty or other experiences or characteristics. Dorfman defines this term as “when scholars and advocates use disability rights frameworks and disability as [a] metaphor to advocate for resources, recognition, and redress for members of oppressed groups who do not live with disabilities.” (P. 1757.)

Examples of disability frame advocacy include invoking disability as a rhetorical device to argue for accommodations to make up for disadvantages imposed by structural racial inequality or discriminatory attitudes toward transgender persons, persons who use opioids, and people who are unhoused. (Pp. 1783-84.) These forms of discrimination may be “disabilities” in a metaphorical sense, but the disadvantages imposed differ from disadvantages that stem from social conditions relating to physical or mental impairment. Dorfman acknowledges that people who are discriminated against on the basis of race, who are impoverished, or who face other disadvantages in society may have claims for positive rights to support or accommodations. He nevertheless opposes using disability frame advocacy in this context to argue for the accommodations and other remedies. He contends that the rhetorical use of disability outside the disability context obscures the unique disadvantages imposed on people who have physical or mental impairments.

Those disadvantages are not the same as those faced by members of other oppressed groups. The disadvantages of disability are unique in that they stem from the impairments themselves – physical or mental conditions – in combination with a physical and attitudinal environment that is not adapted or is outright hostile to people who have impairments. Dorfman identifies what he calls the “missing impairment problem” that occurs when writers contend that the law should regard poverty or some other conditions as disabling. Dorfman does not deny that poverty or other conditions may or do increase the risk of developing an impairment. But he contends that actually having an impairment should matter when claims are made for accommodations as a matter of fundamental social equality.

Dorfman’s exposition is extensive. He observes that disability metaphors pervade ordinary speech as well as legal discourse. Uses of disability metaphors in ordinary speech often work to signify ignorance or ineptitude, as can be seen in the expressions relating to giving a “lame” answer to a question or being “politically tone-deaf.” More important to Dorfman is the use of disability metaphors in law. Regarding legal terminology, think of the inability to file a claim because of a “legal disability” such as youth, or of courts describing the status of nonmarital children as a “disability” for inheritance purposes. Dorfman ties the loose metaphorical use of disability language to the facile adoption of a disability advocacy frame. The frame is then applied to matters other than the disadvantage that is connected to impairment. Dorfman criticizes legal literature that jumps from declaring that a form of discrimination or other harm is a disability to arguments for remedies paralleling disability accommodations. His challenge to disability frame advocacy is that it embraces an outdated approach to disability, one that ignores the impact of impairment, a key term of the definition of disability in laws such as the Americans with Disabilities Act.

The omission of impairment so broadens the disability concept that it invites backlash and ultimately threatens the legitimacy of disability rights. The lived experience of people with disabilities is that disability arises from a dynamic between social conditions (the focus of some disability frame advocacy) and impairment (the focus that disability frame advocacy overlooks). Dorfman argues that impairment is also critical to contemporary cultural conceptions of disability and the disability pride movement. Thus, disability frame advocacy, tearing disability away from impairment, works its own form of rhetorical destruction.

Frankly, trying to get people to stop using a metaphor like that of disability strikes me as, well, tilting at windmills. Language has its own logic, or lack of it. But Dorfman’s critically important contribution to the disability rights debate is that the use of the disability advocacy frame for things not connected with impairment devalues the experience of people who have disabilities and leaves out what makes disability different. Measures to remove, reduce, or compensate for social and legal barriers other than disability to further substantive equality under the law and in society need to be evaluated on their own terms, not by an advocacy frame that relies on the metaphorical use of disability language.

Cite as: Mark Weber, Abandoning Metaphors and Reclaiming Impairment, JOTWELL (November 7, 2023) (reviewing Doron Dorfman, Disability as Metaphor in American Law, 170 Univ. Pa. L. Rev. 1757 (2022)), https://equality.jotwell.com/abandoning-metaphors-and-reclaiming-impairment/.

Gender Bullies in Feminist Costumes

Chan Tov McNamarah, Cis-Woman-Protective Arguments, 123 Colum. L. Rev. 845 (2023).

A tidal wave of anti-trans legislation is washing over the United States and across the world. The Trans Legislation Tracker reports over 566 anti-trans bills were introduced in the US in 2023 alone, with 80 passed and over 350 still active. The restrictions take the form of barriers to healthcare access, legal recognition, education, bathrooms, athletics, and openly existing as transgender in public schools. Advocates increasingly justify these measures as necessary to defend cisgender women and girls. As one example, the Preventing Violence Against Female Inmates Act of 2023, a bill introduced to the US Senate, would require that prisoners be housed based on their sex assigned at birth.1 Introduced by male senators only, Senator Tom Cotton claimed it “protects incarcerated women from rape and crimes,” since housing “men ‘identifying’ as women with females puts them at risk.” This strategy of cis men pushing legislation that purportedly shields cis women from harm now features prominently in lawmaking globally.

In their compelling essay, Cis-Woman-Protective Arguments, Chan Tov McNamarah names this rationale “cis-woman protective” (CWP) reasoning and exposes its flaws.2 McNamarah reveals the ubiquity of CWP arguments across domains, tracing their oppressive history steeped in gender inequality and paternalism, faulty logic, and actual harm to cis women through stereotyping.

One of the essay’s most valuable contributions is contextualizing CWP arguments within an extensive history of racist, xenophobic laws that cited protecting (especially white) women to justify oppression. These include labor legislation restricting women’s working hours and occupations; jury service exclusions to protect women’s delicate sensibilities; and anti-miscegenation statutes warding off Black men from “preying” on white women. Though supposedly benefiting cis women, these laws often served patriarchal and racist interests while impeding women’s progress—relying on stereotypes of weak women that need protection by strong men. McNamarah argues contemporary CWP claims echo this troubling lineage, calling it “discrimination intergroup spillover.”

McNamarah then insightfully catalogs modern CWP arguments into eight alleged threat types that transgender inclusion is portrayed as posing to cis women. These encompass threats to cis women using facilities like bathrooms and prisons, impinging cis women’s physical safety and privacy; sports participation, threatening fair competition; rehabilitation in prisons and shelters, triggering trauma by forcing interaction with persons reminiscent of previous abuse; educational institutions, disrupting the benefits of women-only spaces; statistical representativeness in datasets, losing reliability of crime, health, and other statistics by including trans women; women’s speech, risking suppression; access to political advancement by diluting scholarships, programs, and resources aimed to advance women; and liberation from patriarchy by destabilizing the notion of fixed sex categories. This taxonomy facilitates incisive examination of each argument’s logic.

The essay then continues into a rigorous and fair scrutiny of each alleged threat. This analysis exposes flawed reasoning, inconsistencies, and lack of evidence in support of the harm to cis women or in the helpfulness of the measures in fighting it. For instance, regarding prisons, McNamarah notes cis women inmates often face higher risks of guard assault than fellow prisoner assault. Yet CWP arguments irrationally single out trans women as traumatic triggers, ignoring this reality. As another example, statistics from studies investigating safety incidents contradict “bathroom safety” arguments, stereotyping trans people as prone to predation. McNamarah also meticulously tackles alleged “athletic advantages,” highlighting unpoliced impacts of factors like nutrition and training. Additionally, McNamarah notes the lack of evidence that traits like height automatically confer advantage, since they may be beneficial in some sports but detrimental in others. Importantly, McNamarah does not sidestep serious discussion of complex issues and is not dismissive of the difficult questions that may arise. For example, in meticulously examining arguments about athletic advantages, McNamarah carefully considers that performance differentials between cis women and trans women can exist in rare cases. However, the thoughtful analysis reveals how any categorical exclusion still relies on unsubstantiated assumptions. Overall, McNamarah shows how blanket measures fail to address the specific isolated cases where protections could benefit some cis women.

Beyond issues with the arguments’ logic, the methods proposed to implement CWP measures also cause harm to cis women. Scrutinizing appearances to exclude trans women from bathrooms leads to increased harassment of gender non-conforming cis women through forcible removal for being “insufficiently feminine.” Invasive “sex verification” genital exams which are used to enforce bans on trans girls in sports likewise lead to unwarranted anatomy checks of cis girls when eligibility is questioned. As with historical tactics like racial segregation and appearance policing, such flawed methods that scrutinize appearances and focus on genitalia ultimately serve male interests by objectifying women.

Their piercing analysis significantly advances understanding of how superficially distinct discrimination interconnects across identities and eras. By incisively dissecting CWP claims, this excellent essay equips not just scholars but advocates, courts, legislative bodies, and other institutions to recognize and counter flawed woman-protective reasoning that harms the very women it allegedly protects. McNamarah’s timely intervention contributes key insights to ongoing conversations on connections between feminism and transgender equality. Fundamentally, the analysis underscores how no one wins when sources of oppression are positioned as mutually exclusive rather than intersectional. Examining relationships between forms of discrimination through phenomena like “discrimination intergroup spillover” is imperative for meaningful progress.

  1. S.752 – Preventing Violence Against Female Inmates Act of 2023, 118th Cong. (2023-2024); see also the identical bill introduced in the House, H.R.1490 – Preventing Violence Against Female Inmates Act of 2023, 118th Cong. (2023-2024), introduced by Rep. Crawford, Eric A. “Rick” [R-AR-1] and 10 congressmen alongside 1 congresswoman.
  2. In so referring to this type of reasoning and policymaking, McNamarah acknowledges being inspired by Marc Spindelman’s description in his article The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part III, 81 Ohio State L.J. Online 101, 108 (2020) of this type of legislation as “protectionist.”
Cite as: Erez Aloni, Gender Bullies in Feminist Costumes, JOTWELL (October 11, 2023) (reviewing Chan Tov McNamarah, Cis-Woman-Protective Arguments, 123 Colum. L. Rev. 845 (2023)), https://equality.jotwell.com/gender-bullies-in-feminist-costumes/.

Un-Marking Rape Victims

Maybell Romero, "Ruined", 111 Geo. L.J. 237 (2022).

In her article, “Ruined”, Maybell Romero adopts an autoethnographic methodology to examine the harms judges cause by using the adjective “ruined” to describe sexual assault victims.

Romero takes us to a sentencing hearing in Utah, where she was a prosecutor for rape and sexual assault cases, and recounts how a sentencing judge referred to the rape victim as “ruined.” This experience shook her. The description of a rape victim as ruined triggered her as someone who had also experienced rape. Was she too ruined?

By explicitly centering how her personal history shaped her as a legal insider within the criminal system (prosecutor), she makes transparent what so many legal scholars try to hide—that our experiences in life shape our experiences in law. What I mean by this is who we are as people affect how we interpret the law, examine the law, advocate within it. This simple fact might be unremarkable to scholars in the humanities or other disciplines, but it is disorienting for some legal scholars who embrace the appearance of objectivity even when the substance of their work reveals subjective premises and biases that they are unwilling to confront. Professor Romero avoids this trap. Her choice to adopt an autoethnographic methodology is honest. The article openly meditates on how she personally experienced the legal phenomenon of judges’ use of the word ruined and is an example of the value of express subjectivity in scholarship. I think personal experiences can add to the expertise that one has in a subject. Transparently acknowledging that our experiences affect us as legal insiders (law professors) allows for textured legal scholarship that is informed by experience rather than fabricated from ivory towers, or even worse, rationalized and cloaked with legal doctrine when it is in fact prompted and motivated by the author’s personal biases.

But the transparency of her choice to put herself into the scholarship is not the only thing that makes this article remarkable. Romero shares her experience of rape, a crime that she describes as exceptional in experience and harm although we work in a profession marked by impersonality and performative neutrality. Her colleagues, her students, and others now know about her experience of rape. Her story of rape includes familial trauma and the exposure of personal relationships riddled with horror. Her vulnerability in this piece is laudable, but her positionality as someone who has experienced the trauma of rape makes her especially qualified to assess how a rape victim might experience judges marking them as ruined.

And labeling someone as ruined is a marking. Ruined means “the physical destruction or disintegration of something or the state of disintegrating or being destroyed.” Ruined reflects a permanence. A complete destruction of the person. It is an irrevocable status, and when the highest authority within a courtroom – the judge – labels a victim ruined, it is a permanent marking of the person’s disintegration. Romero experienced the harm of this labeling as she sat in courtrooms listening to judges repeatedly mark rape victims ruined. She was able to identify the issues with this labelling because of her subjective position in society, and she is using the tools of the law, which include legal scholarship, to address this harm that might otherwise have gone unnoticed.

Romero argues judges should embrace non-stigmatizing language that does not reduce all rape victims to ruined women (people). While women are clearly not the only victims of rape, Romero persuasively argues that rape cases with women victims received greater law enforcement support during her investigations and prosecutions. The woman victim was the conceptualized ideal. The impulse to label rape victims as ruined illustrates the value placed on a woman’s virtue. The rapist robs a woman of her virtue by taking away the thing that makes her valuable in society. A woman’s virtue is tied to her ability to be a dutiful wife and mother. It reflects her ability to reproduce the next generation. So, from the perspective of the misogynist, a woman who has her purity taken from her is permanently destroyed. Historically, the greatest assault of a rape is not just to the woman directly but to the men around her who had some ownership interest in her sexuality.1 Historically, the woman’s sexuality belonged to her husband or father, and when the rapist took it from them, it made the woman permanently less valuable to the men around her. Within this historical framework, the raped woman truly does appear ruined. The law should not embrace this misogynistic perspective of womanhood.

As Robert Cover recognized, “A legal tradition includes not only a corpus juris, but also a language and a mythos – narratives in which the corpus juris is located by those whose wills act upon it.”2 Romero’s piece invites judges to embrace a language that rejects a narrative that reduces rape victims to the permanent status of ruination. Given the legal history of rape, the direct harm that might flow from labeling someone permanently destroyed, and Maybell’s personal account of how she experienced the use of the term, I am persuaded that judges should avoid this term. I hope others in the legal academy are similarly moved by this remarkable article.

  1. See Anna High, Sexual Dignity and Rape Law, 33 Yale J.L. & Feminism 1, 8–9 (2022) (“The harm of rape has historically been framed as an affront to (white, landholding) male dignity–by violating (trespassing on) another man’s wife or unmarried daughter (property) without his consent, the rapist undermined the patriarch’s authority and honor (sex within marriage, by definition, involved no such affront to dignity, regardless of whether the woman consented).”).
  2. Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 9 (1983).
Cite as: I. India Thusi, Un-Marking Rape Victims, JOTWELL (September 13, 2023) (reviewing Maybell Romero, "Ruined", 111 Geo. L.J. 237 (2022)), https://equality.jotwell.com/un-marking-rape-victims/.

Property, Viewed From Below

Sherally Munshi, Dispossession: An American Property Law Tradition, 110 Geo. L.J. 1021 (2022).

Property, as we have come to know and protect it, is dispossession. This is the heart of Sherally Munshi’s Dispossession: An American Property Law Tradition, a carefully researched and richly nuanced piece that’s brilliant in the simplicity and clarity of its message. As Munshi illustrates, what appears as property from a vantage point of privilege may be understood equally validly as dispossession and this implies that the injustices associated with commodification and inequitable distribution cannot be redressed except from below. Not only from the perspective of those most dispossessed, but also, quite literally, from the ground up.

“The property law canon is full of forgetting.” (P. 1031.) Munshi’s stated intent is to develop a counternarrative of dispossession utilizing what we’ve learned from critical race theory as well as studies of settler colonialism and racial capitalism. Dispossession develops this narrative beautifully, enriching both property and critical theory by incorporating equity-minded insights from contemporary Indigenous and Black activists who counter the “uplifting narrative of national progress and racial redemption” that legal discourse and education promote and perpetuate. (P. 1031.)

We tend to presume that property is simply a material reality—much as race is regularly presumed a biological fact. From there, struggles for justice are often framed in terms of property’s equitable (re)distribution. But the world looks very different if property itself is understood as the tangible manifestation of others’ dispossession.

The article is bookended by concise theoretical introductions to property law and to the formation and functions of race. Beginning with Locke, the introduction to property traces the dominant property narrative and its challengers, anchoring the discussion to come in a manner that students, particularly, will find helpful. The theory of racial formation and function wraps up the work by extending Cheryl Harris’ seminal work on whiteness as property to an analysis of whiteness as dispossession, illustrated by the anti-colonial canon of W.E.B. DuBois, Frantz Fanon, Aimé Césaire, and Albert Memmi.

Dispossession fleshes out its conceptual framework with a detailed history of the impact property law has had on claims to territory and on the construction of personhood. Munshi first tackles “Property’s Empire,” tracing the racialized history of dispossession on this continent, from the forced relocation of Indigenous peoples to the theft of Black property, both rural and urban, to the preclusion of Mexican and Asian land ownership. This, she suggests, provided the foundation for the United States’ imperial expansion.

Within the nuanced narrative Munshi provides, I am especially impressed by her ability to transform the oft-told tale of Johnson v. McIntosh into what she describes as the equivalent of far too many land acknowledgments today— “acknowledg[ing] the wrong of colonial dispossession only to place it beyond the scope of justiciability or legal redress,” thereby laying the foundation for “its great achievement: the privatization of conquest and the domestication of empire.” (Pp. 1041-42.) In turn, Munshi’s recasting of this case enables her incisive assessment of how the doctrine of preemption, with its colonizing constructs of “waste” and “improvement,” has been used to eradicate Indigenous, Black, and other “undesirable” communities throughout U.S. history.

The most creative contributions of this article may lie in the section entitled “Property and Policing.” The title evokes the frequently discussed lineage of our current carceral state, tracing the history of policing back through Jim Crow laws and Black Codes to the construction of enslaved Africans and American Indians as the personal property of their “owners.” Munshi’s critical insight here is that the “tropes of dehumanization and rehumanization fundamentally misapprehend the institution of slavery and its aftermath” because it was, in fact, an institution designed not simply to erase the humanity of enslaved persons but to maximize the exploitation of all their human capacities. (P. 1061.) To view emancipation as “rehumanization,” Munshi argues, signifies “inclusion within the project of racial capitalism, rather than its abolition.” (P. 1062.)

Forfeiture and fault were the colonial constructs that justified not only the severing of Indigenous peoples from their lands, but also the enslavement of people of African descent. Those being deprived of their resources, their agency, and even their lives, were made to forfeit their rights when they failed to fulfill obligations imposed upon them by the colonizers. As Munshi explains, it was this colonial worldview that enabled Black personhood to be defined in terms of civil death conjoined with criminal culpability—the construction of people who had been entirely stripped of their rights but nonetheless remained liable for their actions. (P. 1065.) To illustrate the extent to which this construction is still prevalent, Munshi weaves the narrative of Michael Brown’s 2014 killing in Ferguson, Missouri, into the larger tapestry of Black dispossession in metropolitan St. Louis. This story, in turn, illustrates the futility of addressing abusive policing without addressing its underlying structural drivers, most notably those involving property rights.

What I most appreciate about Dispossession is that Munshi calls out the elephant in the room—the question of whether “the charge of dispossession concede[s] the naturalness or universality of a right to possession.” (P. 1038.) She acknowledges that the discussion itself “risks obscuring or even deforming what settler colonialism has taken from Indigenous peoples—not an already-objectified property interest in land, but a relationship to the land that is not reducible to commodification or ownership.” (P. 1039.) By taking this issue seriously, Munshi frees us to move beyond solutions framed in terms created by the problem itself, to think in terms of relationships, responsibilities, and the restoration of balance in our lives and our world.

Dispossession provides a devastating critique of the origins, functions, and consequences of property law in this society, exposing a bundle of jurisprudential principles so normalized that they are almost transparent—much like whiteness. Yet Munshi does not appear discouraged by this exercise in racial realism. Somewhat counterintuitively, I found Dispossession to be an uplifting piece, perhaps because it recognizes that decolonization requires us to look beyond the constraints of the status quo to “practices that have flourished not before or outside colonial capitalism, but alongside it, in spite of it.” (P. 1093.) Munshi concludes by urging us “to reclaim from property law the question posed by colonizers: to whom does the Earth belong?” (P. 1096.) Directing us toward commonality and collectivity—principles essential to human survival—Munshi paves the way for us to consider another, perhaps even more essential question: How do we belong to the Earth?

Cite as: Natsu Taylor Saito, Property, Viewed From Below, JOTWELL (August 1, 2023) (reviewing Sherally Munshi, Dispossession: An American Property Law Tradition, 110 Geo. L.J. 1021 (2022)), https://equality.jotwell.com/property-viewed-from-below/.

Fast Food for Thought

How did fast food become Black – and at what cost? Naa Oyo A. Kwate’s fascinating first book, Burgers in Blackface, introduced readers to the racist restaurants that dot the American landscape. Richard’s Restaurant and Slave Market, Mammy’s Cupboard, Coon Chicken Inn, and Sambo’s profited by providing safe spaces for white people to wax nostalgic about their ancestors’ history as enslavers. Some of these businesses continue to thrive after changes to their names and business models–or no changes at all. In her powerful second book, White Burgers, Black Cash: Fast Food from Black Exclusion to Exploitation, Kwate takes a deep dive into the intersection of racism and consumption, incorporating analyses of civil rights, corporate culture, health, marketing, law, and politics.

Kwate’s starting point is fast food’s origin story. As the most American of foods, fast food began as an institution created by and for white people. Modern associations between fast food and Blackness, symbolized by rappers and food swamps, where unhealthy food is plentiful but nutritious food is scarce, have overshadowed the industry’s racial history. The first fast food restaurants featured all-white serving staff catering to an exclusively white consumer base at “white utopias.” When fast food restaurants followed their white patrons to suburbs and sundown towns, which imposed curfews on Black people, their whiteness solidified. Yet, eventually, societal and market pressure to expand into Black neighborhoods forced an about-face on the industry. Now, most people think of fast food as the epitome of poor choice, not the apex of clean, wholesome food.

Kwate applies a critical race theory (“CRT”) lens to the evolution of fast-food marketing and the harms it inflicts on the consumers it targets. White Burgers’ CRT analysis underscores the importance of the call in Poole, Grier, Thomas, Sobande, et al’s seminal work, Operationalizing Critical Race Theory in the Marketplace,1 by providing a stunning exposé of racism’s role in fast food corporations’ profit-seeking strategies. Fast food’s reluctant entrée into Black media progressed from complete exclusion to using Black models in ads in mainstream white media to precision marketing across a multitude of platforms.

Civil rights activists’ focus on fast food as a site of equality, documented at length in Marcia Chatelain’s Franchise, set the stage for policies that promised progress through the expansion of Black capitalism. Throughout White Burgers, Kwate highlights how law and policy catapulted fast food from occupying a peripheral place in Black lives to becoming central to discourse about Black health today. Concerns about the U.S.’ international reputation, residential redlining, crime, labor issues, civil unrest, police brutality, and federal funding for fast food franchises in the name of Black empowerment all played key roles in fast food’s eventual, inevitable full embrace of Blackness.

Simultaneously, fast food has remained unbearably white. Trump was the quintessential Fast-Food President, publicly consuming burgers and fries and flaunting his obsession by serving McDonald’s, Burger King, Wendy’s, and Domino’s to national football champions, the Clemson Tigers, at the White House.2 This stunt embodied the duality of fast-food racism. Trump’s gesture insulted the team while championing his relatability to the everyday Joe, the common white man. But Trump was not exceptional in perpetuating an association between fast food and Black taste. Kwate points out that even the Obamas, who implemented health-forward policies, blamed Black people for their food choices, embracing an individualistic, “healthist” understanding of nutrition instead of a structural one. Then, after scolding Black Americans for feeding their children Popeye’s for breakfast, President Obama failed to act any differently at his inaugural luncheon. While treating the adult guests to a sumptuous smorgasbord of seafood stew, pheasant, and duck, Obama offered the children in attendance a banquet of hot dogs, cheeseburgers, French fries, and cheese pizza. (P. 341.)

A stunning collection of images documenting the industry’s evolving architecture, advertising, geography, and decor supports Kwate’s comprehensive narratives of fast food’s history in Detroit, St. Louis, Chicago, and Cincinnati. Through explorations of popular culture and political conflicts, White Burgers provides social and historical context for the current racialized health crisis. Kwate highlights Black resistance to fast food’s regulatory capture while acknowledging how racism distracts from the harms inflicted by the industry. “As the symbolic meanings of fast food shifted over its long history from all-American meal to fattening pollutant, Black people who consumed its meals became the fact of moral turpitude.” (P. 305.) White Burgers, Black Cash is a stunning contribution to the growing literature on race and food that should be required reading for all consumers.

  1. Sonja Martin Poole et al., Operationalizing Critical Race Theory in the Marketplace, 40 J. of Pub. Pol’y and Mktg. 126 (2021).
  2. Rebecca Jennings, The Controversy Around Trump’s Fast-Food Football Feast, Explained, Vox (Jan. 30, 2019).
Cite as: Andrea Freeman, Fast Food for Thought, JOTWELL (July 4, 2023) (reviewing Naa Oyo A. Kwate, White Burgers, Black Cash: Fast Food from Black Exclusion to Exploitation (2023)), https://equality.jotwell.com/fast-food-for-thought/.

Excluding Animals: A Rule of Law Violation

John Adenitire, The Rule of Law for All Sentient Animals, 35 Can. J.L. & Juris. 1 (2022).

Those wanting to brush up on “the rule of law,” recall the differences amongst leading rule of law theorists, or consider the equality implications of classic definitions of what the rule of law is and is said to protect, need only consult John Adenitire’s The Rule of Law for All Sentient Animals published last year in the Canadian Journal of Law & Jurisprudence. In it, Adenitire argues that prevailing accounts of the rule of law are exclusionary of beings with “lesser” rational capacities (both human and nonhuman), and he charts a more inclusive path. Through these contributions, Adenitire also convinces his reader as to the need for any rule of law theory to explicitly protect animals.

In a single article, Adenitire concisely illuminates key rule of law theories—formal, procedural, substantive—through focusing on their exposition by influential proponents. Adenitire takes Lon Fuller, Jeremy Waldron, and T.R.S. Allan as illustrative theorists of the formal, procedural, and substantive iterations respectively. Adenitire’s intent is to show how each excludes animals from their purview by privileging what he terms “active legal subjects” (P. 1), understood as those able to apprehend and adhere to the law and those who can be sanctioned for any violations.

Adenitire notes that such privileging relates to how the rule of law is conceptualized to begin with, typically as an undercurrent to a legal system where human subjects are able to be guided by the law in their actions. A primary catalyst of such conceptualizations is the moral desire to protect human dignity. (Pp. 7, 10-11.) Yet, this preferred conceptualization forgets about “passive legal subjects” (P. 3), those who aren’t able to grasp what the law says or follow its dictates at the requisite presumed rational level. Both humans with as yet undeveloped or atypical cognitive abilities and non-human animals fall into this category.

Adenitire claims that an exclusion of passive legal subjects cannot be justified if we agree that the central preoccupation of the rule of law is (1) to curb arbitrary power (whether exercised by public or private actors), which certainly burdens the lives of animals, and (2) to help the victims of such power, a status for which sentient animals clearly qualify. (P. 2.) He explains that the benefit of the rule of law in the human realm, no matter if theorized through the formal, procedural, or substantive account, is not compromised by framing the rule of law through this “arbitrary power” axis and thus extending its protective remit to nonhuman animals. To the contrary, including animals would better respect rule of law ideals that object to arbitrary power no matter which convention version (formal, procedural, substantive) is preferred. (P. 4.) Adenitire proficiently summarizes each account to show how their principal terms can feasibly apply to “passive legal subjects,” including non-human animals.

Adenitire’s argument connects with current debates about whether human rights and equality are imperilled if courts or legislatures recognize animal rights. Some believe that human dignity is compromised by seeing dignity in nonhuman others or otherwise valuing such beings to a greater extent than the law current does. This “dehumanization of humans by elevating animals” concern is a misguided view that has nonetheless vexed fundamental rights litigation for animals, as Adenitire discusses.1 (Pp. 17-18.)

In challenging the taken-for-granted premise that the rule of law is tethered to human agency, responsibility, and dignity, Adenitire asks us to rethink our commitment to human rights like equality and dignity in more inclusive ways. (Pp. 17-18.) Instead of continuing to valorize active legal subjects and tolerate human passive legal subjects on the basis of the latter’s human dignity, Adenitire offers sentience as a better “foundation” for the type of being the rule of law should protect. (P. 18.) Sentience (or “the capacity to subjectively experience reality and, consequently, the capacity to experience things as beneficial or harmful” [P. 13]) is what qualifies (sentient) animals to advance justice-based claims vis-à-vis humans and to matter morally to us.

Although not part of his central argument regarding the need to create “an inclusive rule of law” (P. 18), Adenitire observes that a substantive vision of the rule of law will help animals the most. (Pp. 3, 23, 26, 29.) It is this account that would call for the invalidation of food systems and other industries predicated on animals as tradeable and killable commodities. Adenitire refrains from advocating for one vision over another, but emphasizes that those who promote substantive accounts of the rule of law—including all substantive equality advocates and most readers here—cannot continue to ignore animals if they see animals as “subjects of morality and justice.” (P. 13.)

It is no answer to counter that animals do not presently qualify as legal subjects, Adenitire notes. Subjecthood for animals, Adenitire believes, is properly based on existing legal recognition of animal sentience (however symbolic or weak) and in the identification of certain anti-cruelty protections as rights-conferring for animals (again, despite how weak and distant from fundamental rights to life and bodily integrity anti-cruelty protections are). (Pp. 15-16.)

It is not clear that Adenitire has to prove animals’ existing legal subjecthood to make the rule of law extension to animals compelling, especially on a substantive account. One could also question Adenitire’s exclusion of non-sentient animals and probe his acknowledgement that humans and animals ultimately do not need equal treatment even after anthropocentric premises are removed from rule of law accounts. (Pp. 13, 18.) Whether such baselines for the argument enact their own unjustified exclusions and limit our vision for what the rule of law protects is an open question. We can also, of course, wonder about the further valorization of the rule of law for animals or anyone, given the concept’s colonial entrenchment.

But these are all (important) questions for another day. The immense value in Adenitire’s work lies in how it shows us a sustainable connection between the foundational concept of the rule of law and questions of animal justice. Readers will be enriched by how he reviews the leading accounts of the concept of the rule of law, highlighting their exclusionary reason-based premises, and through his compelling alternative for each account, where he details the level of legal protection that would flow under each account. With this work, Adenitire also constructively adds to the growing number of pathways that scholars and advocates are pursuing to create legal systems that are much more responsive to animals.

Amidst catastrophic animal-based food systems and other industries occasioning unfathomable suffering and biodiversity loss, Adenitire gives us a very helpful nutshell with the conceptual tools to understand for ourselves and explain to others why “a legal system cannot be indifferent to the well-being of non-human animals” (P. 4)—if we believe in the rule of law.

  1. As I have recently argued, it was the downfall of the Nonhuman Rights Project’s recent milestone hearing at the New York Court of Appeals concerning Happy, a female elephant living by herself at the Bronx Zoo.
Cite as: Maneesha Deckha, Excluding Animals: A Rule of Law Violation, JOTWELL (June 1, 2023) (reviewing John Adenitire, The Rule of Law for All Sentient Animals, 35 Can. J.L. & Juris. 1 (2022)), https://equality.jotwell.com/excluding-animals-a-rule-of-law-violation/.

Revenge Porn Laws and Gay Sex Exceptionalism

Andrew Gilden, The Queer Limits of Revenge Porn, 64 B.C. L. Rev. __ (forthcoming, 2023), available at SSRN (Sept. 21, 2022 draft).

The law has a strange relationship with gay sex. Courts and legislators often manage simultaneously to ignore the realities of gay sexual expression, on the one hand, yet treat it differently from heterosexual sex on the other. Even when striking down the Texas sodomy law and expanding constitutional protection to same-sex, nonmarital sexual relations in Lawrence v. Texas, the Supreme Court constructed a narrative of a deep emotional bond between the couple at the heart of the case when in reality, the couple was not in a longstanding romantic relationship. As a few scholars pointed out, the Court seems to ignore the possibility that it was simply a hook-up, which nevertheless deserves as much protection as consensual sex in a committed relationship does. When presenting the court with the marriage equality cases, United States v. Windsor and Obergefell v. Hodges, lawyers went to great lengths to desexualize same sex relationships, making them easier for the court to swallow. And as I have recently showed empirically, in both the law and the public’s eye, gay sex with preventive measures against HIV is still deemed more dangerous than unprotected heterosexual sex is.

In his fabulously queer and highly significant article The Queer Limits of Revenge Porn, Andrew Gilden provides yet another example of such gay sex exceptionalism in the legal realm. Gilden exposes how even the feminist project to legally protect sexual privacy misses the mark when it comes to sexual norms in the LGBTQ community. Revenge porn, referring to the nonconsensual distribution of sexual images, has become a household term in the age of social media. Twenty-nine states now have criminal legislation prohibiting revenge porn. These laws, however, explicitly exclude images of voluntary nudity or sexual expression in “public” and “commercial” settings. (P. 21.)

As Gilden skillfully points out, the meaning of what is a public (as opposed to private) setting in which one can engage in a sexual expression is distinct when talking about the LGBTQ community. Fearing prosecution, queer people historically had to carve out for themselves spaces in which they could express themselves sexually. These include dating and hookup apps, parades, nude beaches, street fairs, and commercial websites like OnlyFans. The virtual spaces replace the physical “cruising” spots and bathhouses of the twentieth century in providing “not just ‘sleazy’ places that happen to cater to sexual interests shared by the queer people who frequent them; they are also constitutive of queer community, politics, and identities.” (P. 29.) Yet, the field of privacy law has routinely excluded queer people often on the basis of the perceived publicness of their activity.

As Gilden notes, under current revenge porn law, “if you sexually express yourself in a place accessible to more than just a few trusted people, then documentation of your sexual expression becomes fair game for the entire world: your boss, your mother, your sheriff, and anyone on the internet who wants to see it.” (P. 23.) And while one could object to such exclusion from legal protection on account of “personal responsibility” (i.e., if one is concerned about their boss seeing their naked body, then they should take responsibility for ensuring no untrusted third parties have the opportunity to surveille them), one should recall that the same logic goes to the heart of the protection of women from revenge porn and “slut shaming.” Indeed, it seems that same-sex sexual expression is regarded as different in the eyes of the law.

When it comes to commercial settings, Gilden claims that such exclusions disproportionately affect queer people because (1) sex work can be one of the few available avenues for economic survival for marginalized members of the LGBTQ community, especially trans women and trans women of color; (2) queer sexual norms are often much more accepting of commercial sex work than mainstream culture; (3) commercial sex sites serve as a unique educational function for young queer people, particularly in the absence of formal sex education and a pervasive stigma around the issue. (Pp. 37-38.) As Gilden and other scholars note, “If one of the justifications for revenge porn laws is that it is wrong to intentionally harass someone for engaging in consensual, pleasurable sexual expression, then this justification can absolutely extend to commercial settings.” (P. 39.)

At the end of his piece, Gilden reflects on whether the criminalization of revenge porn as it relates to queer people is the appropriate solution. This is because law enforcement has a problematic relationship with the LGBTQ community: “surveilling, arresting, and harassing queer people under the guise of protecting vulnerable populations from sexual abuses.” (P. 45.) By considering the pros and cons of civil remedies and criminalization of revenge porn, this article opens itself up not only to scholars who call on the law to be more sex positive when it comes to queer people, but also to timely conversations around abolition and the role of criminal law in society.

Gilden’s article (and his work in general) helps shed light on the way law treats queer life beyond more heteronormative aspects (such as marriage and childbearing). It brings us one step closer to envisioning a world that accepts a complete and whole way of being queer.

Cite as: Doron Dorfman, Revenge Porn Laws and Gay Sex Exceptionalism, JOTWELL (May 3, 2023) (reviewing Andrew Gilden, The Queer Limits of Revenge Porn, 64 B.C. L. Rev. __ (forthcoming, 2023), available at SSRN (Sept. 21, 2022 draft)), https://equality.jotwell.com/revenge-porn-laws-and-gay-sex-exceptionalism/.