Contextualizing the Harms Caused by Appropriation of Indians’ Intangible Cultural Property

Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of (Cultural) Appropriation, Tex. L. Rev. (forthcoming 2016), available at SSRN.

Laguna Pueblo writer and critic Paula Gunn Allen has argued that “[t]he American Indian poet is particularly bereft of listeners.” This is due to the fact that she “has difficulty locating readers/listeners who can comprehend the significance of her work, even when she is being as clear and direct as she can be, because . . . differences in experience and meaning assigned to events create an almost impossible barrier.”1 It occurred to me in reading and Angela Riley and Kristen Carpenter’s “Owning Red: A Theory of (Cultural) Appropriation,” that Indians face similar problems in telling the story of the harms caused by cultural appropriation, particularly those harms relating to intangible aspects of Native identity.

To non-Indians raised on tales of Wild West cowboy and Indian skirmishes and myths of generous Pilgrims who shared their bounty with Indians during the first Thanksgiving—and particularly to white Americans cloaked in racial privilege—fashion designers’ appropriation of Native dress and beer companies’ use of the names of deceased Indian heroes may seem innocuous—or even—as is sometimes argued—like genuine homage. Professors Carpenter and Riley provide the backstory needed to comprehend and contextualize these harms. They also offer compelling ideas for a solution. Most importantly, they show how contemporary appropriations of Native identities are part and parcel of a history of disrespect of Native property rights, including the right to cultural identity—and further that It is because of this colonial history of never-ending loss that non-Indian Americans so often fail to perceive the losses caused by appropriation. And conversely, it is precisely because of this history that the losses caused by appropriation are so devastating to Native peoples and individuals.

Riley and Carpenter use the term “owning Red” to refer to “the widespread practice by which non-Indians claim and use Indian resources for themselves, often without attribution, compensation, or permission.” (P. 110.) Tying the justice system’s lack of respect for Native property and religious rights to the legal system’s and society’s sanctioning of the appropriation of Native identity and intangible cultural property, Carpenter and Riley explain that, “with the virtually unimpeded taking of Indian lands, lives, bodies, and cultures, eventually all things Red became the property of non-Indians.”

However, their explication of the link between the law’s disrespect of Native rights and the legal system’s and society’s lack of understanding of the harms of cultural appropriation goes beyond the idea that the justice system’s lack of protection of Native property and religious rights leads to more disrespect of Indian rights—both by additional entities and individuals and with respect to additional types of rights—a point I and others have made elsewhere.2 Rather, their analysis insightfully contextualizes how the federal government’s removal of Indians from their ancestral lands, which began in full force in the 1830s, itself interfered with—and diminished–tribes’ and Indian individuals’ ability to engage in cultural practices and to maintain their cultural identities.

The confiscation of the land was not necessarily a literal appropriation of Native identity–the aspects of identity taken were not always taken to be used by non-Indians, but rather the taking of the land was often an end in itself. However, beyond the immediate and devastating losses of land that Removal and other violations of Indian real property rights effected, they concomitantly caused a disruption of cultural identity and an inability to maintain crucial lifeways. To see this is to better understand—even if the understanding of an outsider like me will always be imperfect—the harm that cultural appropriation wreaks on Native peoples. In contemporary instances of cultural appropriation, then, not only is there a taking and distortion of intensely personal, often sacred–and carefully guarded–cultural practices, but the taking is superimposed on other, earlier legally enforced takings of these very identities from Native peoples themselves. Thus, although Indians’ objections to cultural appropriation are often seen as anomalous in the freewheeling, fluid culture of mainstream America, there is more to the story, as Carpenter and Riley help us understand, than differing understandings of whether it is acceptable to borrow from other cultures. Instead, cultural appropriation of Native identities is especially devastating given the extent to which Native peoples have had to fight—often on the pain of imprisonment and even death—for the right to practice their own cultures.3

Professors Carpenter and Riley provide several examples of recent appropriations of intangible cultural property, which they divide into easy and hard cases, and they provide proposed solutions for how to address each of these problems. Their solutions vary according to the problem, and this seems quite fitting given both the diversity of types of cultural appropriation, from use of mascots in professional, college, and K through 12 schools, to fashion designers’ use of Indian regalia on the runway and pharmaceutical companies’ appropriation of Native peoples’ traditional knowledge for commercial gain on the one hand and the diversity among tribes and tribal cultures on the other.

I admired the article in not proposing a one-size-fits-all solution for these quite different types of cultural appropriation and for the fact that, even among mascots at different institutional levels, they offered a nuanced and multi-faceted analysis. One of the challenges in writing about tribes and tribal law is that there is a temptation—as well as pressure from within the academy and from the standards of academic writing—to offer broad-based analyses and solutions, but the incredible diversity of the Nation’s 566 federally recognized tribes simply does not permit this in most contexts. Carpenter and Riley acknowledge and embrace this diversity, as is evident from their analysis of Indian mascots at the college and secondary school levels. At the college level, they note the success of the National Collegiate Athletic Association’s policy of disallowing abusive racial/ethnic/national origin mascots but allowing continued use of Indian mascots and logos in cases where the team seeks and receives the consent of the relevant Indian tribe. They use Florida State University’s modifications of its mascot based on the recommendations of the Seminole Tribe of Florida—and the way that interactions among school and the Tribe about the mascot eventually fostered a deeper relationship between the two–as an example of the policy’s success. Here too, however, they do not shy away from the complexities of tribal diversity, and rightly note that the Seminole Tribe of Oklahoma—which was originally based in what is now Florida but was removed to Oklahoma by the federal government—opposes all use of Indian mascots. As the authors suggest, there are good solutions but probably no perfect solutions in such complex situations.

In the other contexts, the authors’ proposed solutions are similarly tailored to the individual case. For example, with respect to use of Indian headdresses—which are traditionally reserved for revered warriors in the tribes in which they are utilized–in fashion shows, Carpenter and Riley suggest that education and increased dialogue may be the answer, given that the First Amendment likely acts as an insurmountable barrier to barring all use of traditional Indian clothing by unauthorized persons and that such a law would be overly restrictive even as to Native artists who wish to provide critiques or innovations. While this solution may seem somewhat dissatisfying at first glance, it is likely the only realistic solution for this wide-ranging problem with its diverse manifestations. Finally, I was intrigued by the authors’ idea that, with respect to commercial appropriation of Indian heroes’ names, such as Hormel Brewing Company’s unauthorized but judicially sanctioned use of Crazy Horse’s name to sell liquor, the answer may be to expand the role of tribal law in such cases. Their analysis led me to wonder what it would be like if a federal law were passed requiring entities attempting to use Native individuals’ names for commercial gain to comply with tribal law—or providing for tribal jurisdiction over such disputes—and what the benefits might be both in terms of protecting indigenous property rights to identity and in fostering greater understanding of—and respect for—Native perspectives. All in all, “Owning Red: A Theory of (Cultural) Appropriation” is a rich and interesting read that does justice to the tremendous complexities of tribal cultures and the vicissitudes of appropriation of intangible cultural property.

  1. Paula Gunn Allen, Answering the Deerin Speak to Me Words: Essays on Contemporary American Indian Poetry 145 (Dean Rader & Janice Gould ed., 2003). []
  2. See, e.g, Ann E. Tweedy, Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers, 36 Seattle U.L. Rev. 129, 155 & n.134 (2012). []
  3. As Professors Carpenter and Riley acknowledge, they are building on the work on Rebecca Tsosie, Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of (Cultural) Appropriation, draft at 105, and Professor Tsosie herself recently published another excellent article on cultural appropriation. Rebecca Tsosie, Just Governance or Just War?: Native Artists, Cultural Production, and the Challenge of “Super-Diversity, 6 Cybaris 56 (2015). []
Cite as: Ann Tweedy, Contextualizing the Harms Caused by Appropriation of Indians’ Intangible Cultural Property, JOTWELL (April 5, 2016) (reviewing Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of (Cultural) Appropriation, Tex. L. Rev. (forthcoming 2016), available at SSRN),

Thinking for the Future

Katherine Gibson, Deborah Bird Rose, & Ruth Fincher, Manifesto for Living in the Anthropocene (2015).

Manifesto for Living in the Anthropocene is notable for two reasons – it is published under a creative commons license with a publisher committed to innovation, and it is an optimistic book that attempts to prefigure a world in which life and research are undertaken more sustainably. (And it contains an actual manifesto!)

The first thing to like about this book, therefore, is its publisher, in particular its business model and its ethos. Punctum texts are freely available on the internet – readers can make a donation before accessing a title, but can also access them for free. Hard copies can also be ordered. The objective of punctum books is to challenge scholarly norms – its motto is ‘spontaneous acts of scholarly combustion’ and it describes itself as ‘dedicated to radically creative modes of intellectual inquiry and writing across a whimsical para-humanities assemblage. We specialize in neo-traditional and non-conventional scholarly work that productively twists and/or ignores academic norms.’1 As academics become more critical about certain trends in traditional scholarly endeavor with its formalities and many constraints, there is a huge potential for new forms of more open-ended and innovative scholarship. Books published by punctum are short – novella length – making them ideal for conveying creative interventions succinctly, without getting bogged down in detail.

Which brings me to the Manifesto. The anthropocene is our geological era, the era in which humans actions have shaped the planet, primarily through our impact on the climate and on the earth’s ecosystems. The Manifesto is a short inspirational book which aims to encourage scholars to think and research experimentally in response to this situation in order to better understand human effects on the earth, and to minimize and even reverse them. It was inspired by the work of the late eco-feminist philosopher Val Plumwood, who wrote two significant books about the need to reconceptualise the human-nature relationship (Feminism and the Mastery of Nature 1993 and Environmental Culture 2002). The Manifesto brings together twenty-one brief essays, each around five pages long. These can be read together, but can also be experienced as short, intense, and provocative encounters with new ideas – they are all designed to make the reader think outside conventional forms, and to see new connections between human society and the physical, especially the natural, world.

The book starts with a manifesto encouraging scholars to think in a way which is (among other things), ‘curious’, ‘experimental’, ‘open’, ‘adaptive’, and ‘responsible’ (P. ii) and to tell stories which show connections and ‘reach beyond abstractions’. Research, according to the editors should ‘adopt a reparative rather than a purely critical stance towards knowing’ (P. vii.) The Manifesto directly encourages scholars who are skeptical of limited and formulaic modes of thinking and writing to experiment, innovate, and reach for new intellectual horizons. This harnesses what might be perceived as an anti-conventional energy in scholarship at present but is, more importantly, imperative to the change required for sustainable long-term living with others and with the earth.

These ideas are illustrated in the essays, which deal with a surprising range of topics. A few examples will have to suffice to give a flavor of the creative engagement of the writers with their subject matter. In ‘Conviviality as an Ethic of Care in the City,’ Ruth Fincher and Kurt Iveson write about urban spaces that enhance sociability and play, promoting ‘temporary identification with others in a shared space’ (P. 27.) In ‘Economy as Ecological Livelihood,’ JK Gibson-Graham and Ethan Miller critique mainstream notions of the economy in which it is seen as a separate sphere of human life, and instead argue for a more connected understanding of diverse economies which are more intrinsically linked to earth’s ecologies and to livelihood, not only of human beings in their separated lives but of interconnected and mutually reliant communities of living things (including humans). In ‘Flying Foxes in Sydney,’ Deborah Bird Rose explores various efforts to control and expel flying fox populations in Sydney, an effort which brings conservationists into conflict with those who experience the flying foxes as a pest. Bird’s essay reminds us that ‘in the Anthropocene there is no way out of entanglements within multi-species communities’ (P. 89) and that the ethical imperative is to find ways to co-exist rather than to insist on the purification of human spaces. Many other topics are considered, such as local food economies, graffiti, ethics, walking, and experimentation and mindfulness in research. What connects these essays is an imaginative engagement with a topic that tests or reconstructs received scholarly habits and frameworks – it is an invitation to scholars to think in new ways and make new connections.

Of course, not everybody accepts the term ‘anthropocene’, since it seems to separate humanity from the rest of the physical world and, problematically, attributes responsibility for ecosystem and climate change to our entire species. This species-level thinking elides the massive differences in power and resource consumption between human communities and perpetuates a universalist discourse in which those who have most damaged the earth can spread responsibility, even to those who have benefited the least and suffered the most from capitalist consumption. At the same time, the anthropocene is a useful term, in that it makes a powerful political point about the impact of (a subset of) human beings on the earth whose insatiable desires have exposed earth’s vulnerabilities. Planetary resilience is considerable, but not infinite.

This short book inspires us to think beyond conventional scholarship for a new way of engaging with each other and the planet. It holds the promise of paradigm change, towards styles of thinking which do not counterpose extractive human society against increasingly scarce natural resources. It asks us to think nature and culture together, and to understand that we are all ecologically connected. Although law is not specifically addressed in the book, it poses significant challenges for law, which in the West has been entirely conceptualized as an abstract product of human society. Legal scholarship can become more attentive to law’s material surrounds and more explicitly relational in orientation. This first involves understanding law as relations between human beings, a project which has been evident in legal scholarship for over two decades. Paying attention to the ecological relationships, however, also means situating law in relation to the material interconnectedness of all life systems. Law can no longer be regarded as a separate human sphere. I appreciate that these are broad statements with little explicit substance at present. Exactly how law will be understood in a fully interconnected world is a question which will be thought repeatedly in coming decades – law’s shape is yet to be worked out. Books such as this one inspire such new thinking, and while it would be easy to criticize the optimism and even utopianism of this book and others like it, the problems it is trying to address will be intractable without innovative and expansive attempts to reconceptualise humanity’s place in the world.

  1. punctum books, (last visited Jan. 16, 2016). []
Cite as: Margaret Davies, Thinking for the Future, JOTWELL (February 9, 2016) (reviewing Katherine Gibson, Deborah Bird Rose, & Ruth Fincher, Manifesto for Living in the Anthropocene (2015)),

Challenging the Academic/Activist Divide

Michal Osterweil, Rethinking Public Anthropology Through Epistemic Politics and Theoretical Practice, 28 Cultural Anthropology 598 (2013).

One intervention that has stayed with me from my first Law & Society Association meeting (Amsterdam, 1991) involved a British scholar who, midway through the conference’s feminist stream, spoke out against the assumed divide between academic and activist work. Scholarship, she commented, could be politically engaged work also. I was reminded of her words reading Michal Osterweil’s timely article on public anthropology and politics in which she explores how anthropological work might extend and enrich its political practice through both the engaged scholarship it carries out and by expanding the sites it recognises as theory-producing.

Osterweil starts by challenging the division in anthropology between activist research and cultural critique; she describes the former as working with and on behalf of marginalised communities, while the latter addresses politics in the realm of text and theory. Arguing that both are important as scholarly political practices, Osterweil challenges the presuppositions about action and politics underpinning the distinction between them. What gets counted and recognised as action or political also underlies a further, perhaps more fundamental, division, namely between academic and activist practices, as these get posited as two fundamentally different and separate spheres. As Osterweil puts it, there is a working assumption that academia comments upon the world it observes but remains steadfastly apart from. Imagining other worlds thus gets relegated to the academic sphere of intellectual imagining; outside practice, and so never able to flourish, or take hold, within it.

Osterweil explores the problems and limits endemic to these modes of dividing up practice through reflecting on her own ethnographic research with the Italian alter-globalization movement. At the heart of her account is the importance of recognising the experimental, reflexive and critical knowledge practices that contemporary activism undertakes. “Such practices pursue knowledge about the political and social context in order to arrive at better understandings of the present while also working to theorize, create, and posit alternatives to this present.” (P. 606).

Reinterpreting the activist side of the divide in this way is a crucial move. While many academics are ready to recognise the political character and traction of scholarship, there is typically more reluctance to recognise the theoretical work that activists also do. And yet, development of many bodies of ideas – from feminism, anti-racist and Marxist politics to environmentalism, anarchist, peace politics and others – come from activists. Sometimes, ideas are tied to individuals (who may work in universities although many do not); but importantly activist knowledge also emerges from the conversational and argumentative interactions that take place within movement counter-publics, circulating and developing through magazines and newsletters, meetings, and more recently social media. These collaborative processes of ideas formation are easy to miss in an academic environment where authorship is privileged; however, a great deal is lost when the complex, messy process of developing analyses and new ways of thinking are reduced to the output of named individuals.

In her exploration of what social movements do, Osterweil focuses on the relationship between contemplation, experimental innovation, and new imaginaries. Because the alter-globalization movement she is studying, known as the “Movimento dei Movimenti” (Movement of Movements, or MoM), is not simply a force operating in the “real” world, but as well a cyberspace event, a “concept, idea and aspiration”, MoM complicates conventional distinctions between observer and observed, between thinking and what is thought. In an interview accompanying her article, Osterweil comments “Their work is at the order of making visible the contours, sometimes limits, of our current episteme, and showing how new ways of knowing and registering reality could help transform the political terrain.”1

Movement engagement in epistemic politics reframes what counts as success, which Osterweil suggests depends on shaping the imagination and desire, making the revisioning of other worlds and institutions possible. Success is not necessarily about outputs and it does not depend on a simplification and closure that rules out complexity. Osterweil rejects the pervasive notion that social movements (at least in the case of MoM) disavow the need for questioning. “The theoretical practice of these Italian activists points to the emergence of a new political ethic based on a different kind of epistemology—one founded on a commitment to critical reflexivity and an open-ended, processual trajectory.” (P. 607.)

But, to the extent action, including academic action with its “claims, propositions, facts and knowledge-claims” (P. 610), relies on decision, temporarily bracketing complexity and uncertainty, does action nevertheless remain better than its alternative – a critique that opposes or impedes doing stuff? Again, Osterweil rejects the distinction. She writes, “truly taking on an understanding of the epistemic as a political terrain of struggle requires shifting our understanding of what constitutes both the criteria for action, and what constitutes action.” (P. 611.) This is an important point. As Osterweil suggests, many academics in their writing and scholarship recognise the significance of non-dominant registers and sites of action. However, when they turn to engaging in political action – understood as an intervention in the “real” world, their focus and engagement shifts to conventional sites and objects, such as the state.

Here, I temporarily part company with Osterweil. For her understanding of the political terrain as complex, and her argument that we need to reimagine and reinvent political forms, does not extend to the state, which is understood, or at least gestured to, according to a dominant state framework in which it is interpreted as a “macro-political entit[y with] formal decision-making and governing powers” (P. 614.) In this account, the state appears as a bounded, implicitly unified, thing-like thing – that exists separately not only from those who act politically in relation to it but also from the ways in which it is thought. Yet, the state like other social dimensions can also be addressed differently – whether by empirically challenging or complicating this prevailing imaginary or by reconceptualising what it means to be a state in ways that make it more extensively available as a productive site of radical or progressive politics. The “micro-political terrain[] of becoming” (P. 615) does not have to be imagined as existing exclusively outside of the state. However, while I would like to see the state subjected to the lines of thought developed in this article, I strongly recommend the piece for its interesting and accessible engagement with a set of prominent and important ideas as important to politically committed legal scholarship as other fields.

  1. Interview with Michal OsterweilRethinking Public Anthropology Through Epistemic Politics and Theoretical Practice, Supplemental Materials, Cultural Anthropology (2013). []
Cite as: Davina Cooper, Challenging the Academic/Activist Divide, JOTWELL (January 13, 2016) (reviewing Michal Osterweil, Rethinking Public Anthropology Through Epistemic Politics and Theoretical Practice, 28 Cultural Anthropology 598 (2013)),

Not So Subversive After All: Gay Men’s and Lesbians’ Wills

Arguments in equality litigation, speech in parliamentary hearings, and campaigns to sway public opinion need a simple, punchy message. We’re just like you. Marriage is about love and we love too. Mariage pour tous. As I have observed elsewhere, the end of litigation and political lobbying may open space for research of a particular character. Research unconnected to an immediate political imperative such as the push for equal marriage may have the luxury of asking more questions than it answers. It may challenge or complicate assumptions about what would best deliver equality to a group. With the media spotlight aimed elsewhere, one may even acknowledge a group’s internal diversity and potential fractures – and ask how solidly it hangs together.

Sue Westwood’s lovely paper on wills by older lesbians and gay men occupies this space. With civil partnership around for more than a decade and same-sex marriage enacted in England and Wales (2013), it’s more comfortable to bracket formal equality’s discourse of sameness and ask about difference. Drawn from the wider socio-legal study of Westwood’s doctoral research, the paper presents findings from interviews with 15 older lesbians and gay men. Westwood reports difference between heterosexuals and her research participants and within the latter group. We see distinctions among participants based on class, marital status and family form, and – uncomfortably for those cleaving to the ideal of a single LGBT “community” – sex. A couple of gay respondents admit candidly that their male-centred friendship networks result from avoiding women.

Westwood uses theory to illuminate her findings. The major organizing device is Ray Pahl and Liz Spencer’s nuanced taxonomy that conjugates friends and family in six types of “personal communities” (e.g. friend-like, friend-enveloped, partner-focussed). The principal theoretical current with which Westwood engages, and against which she carefully pushes back, is the anthropological and sociological discourse of Kath Weston and others respecting gay men and lesbians’ “families of choice.” This discourse reads gay and lesbian kinship as based on friendship and voluntarism, free from obligation. With hindsight and sensitivity to the legal situation at the time, it might be fair to attribute exaggeration of gay and lesbian agency in this discourse to an understandable and urgent instinct for political resistance.

In any event, Westwood complicates this discourse. Only some of the participants’ relationship networks are friendship-based. Moreover, her participants reveal values of duty and obligation in decision-making about their estates. A sense of duty leads some to leave property to members of their legal kinship network from whom they are estranged. Moreover, they may do so while leaving nothing to close gay or lesbian friends who carry out substantial caring work. If wills demarcate “family” and familial obligation, some participants fall back on decidedly conventional definitions of family.

Westwood’s paper also participates in an important effort to integrate wills and inheritance into broader understandings of family practices and regulation. I think here of work by, for example, Angela Campbell, Gillian Douglas, Daniel Monk and Daphna Hacker. If each of us has a most-reviled doctrinal division in the law curriculum and legal knowledge that obstructs research and thought, the segregation of family law from successions may be mine. This area is rich since, at least in principle, testators have such freedom to depart from the statute’s default distribution.

Sue Westwood’s paper is a compelling invitation to look at wills as a source of evidence about kinship – taking complexities and contingencies into account. It reminds us that while some equality issues related to sexual orientation may be “solved,” many cross-cutting inequalities remain – and these may be unsusceptible to legislative reform.

Cite as: Robert Leckey, Not So Subversive After All: Gay Men’s and Lesbians’ Wills, JOTWELL (December 1, 2015) (reviewing Sue Westwood, Complicating Kinship and Inheritance: Older Lesbians’ and Gay Men’s Will-Writing in England, 23 Feminist Leg. Stud. 181 (2015)),

The Turn to Vulnerability

Maneesha Deckha, Vulnerability, Equality, and Animals, 1 Canadian Journal of Women and the Law 27, 47–70 (2015).

There’s a growing body of work that explores the contours of nonhuman animals and law. Just to illustrate, see previous Jotwell posts in Jurisprudence (here and here) and in Legal History. Maneesha Deckha’s article, “Vulnerability, Equality, and Animals”, brings that body of literature squarely into engagement with equality theory.

I read everything Professor Deckha writes: not because I am always on board with where her analysis takes her, but because I’m always left asking questions I hadn’t thought through before. This piece is yet one more illustration of her ability to connect unexpected dots; to press on boundaries that had not been explicitly articulated before; and to draw the reader in.

Deckha’s claim is straightforward: vulnerability discourse provides a more fruitful avenue to advance non-human animals’ interests in the law because it avoids some of the conventional traps of equality discourse. In setting up the context, Deckha adeptly presents a taxonomy and summary of traditional animal equality arguments. On the one side, she presents Peter Singer’s approach which takes as a foundation equal consideration of interests. On the other hand, she points to Tom Regan who bases his position on rights that take as their foundation the presence of an exalted set of traits. These kinds of sameness arguments have obvious limits in the legal context, where legal scholars, legislators, and courts have been slow to accept (or perhaps more accurately have not accepted) claims that nonhuman animals are “equal to” their human companions.

And so begins Deckha’s turn to vulnerability as a motivating force for advancing the legal claims of non-human animals. Deckha pays due tribute to Martha Fineman’s work. Among other contributions, Deckha’s piece provides a succinct review of the bridge from vulnerability theory as applied to humans to the starting ground where it might be extended (and boundaries pressed) to include non-human animals within its analytical frame. This extension of the literature matters because it makes non-human animals meaningful subjects of legal protection; not because of their proximity to (or sameness to) humans but rather because they live vulnerable and precarious lives. Anthropomorphizing, be gone.

The thick contribution Deckha makes in the piece is to unveil an analysis of the legal landscape for animals through the lens of vulnerability and to address head on potential criticisms of that analysis. Deckha provides a case study driven from the dissenting opinion in Reece v. City of Edmonton (2011 ABCA 238, 513 AR 177). Reece focused on the well-being of an elephant, Lucy, living in the Edmonton Valley Zoo without a companion. The heart of the claim was a dispute about whether Lucy should be moved to an elephant sanctuary in Tennessee where she would have a companion. Deckha uses the Chief Justice’s dissent as a model of how insights about animal vulnerability can inform legal decision-making with the result that non-human animals, and Lucy in this particular instance, are treated as “relational being[s] in a sanctuary rather than .. visual object[s] of commercial attraction subject to an oppressive human gaze and detailed control and surveillance …” (p. 68-69).

Deckha does not shy away from the hard question: “how can real and transgressive change happen for animals through a legal system that is deeply entrenched in the liberal humanist tradition” (p. 69)? This is, of course, part of the broader inquiry into whether law offers the potential for transformation that many equality-minded (vulnerability-minded?) scholars care about.

While our answer(s) to that question remain a work-in-progress, my recommendation on this article does not. This is a piece worth reading.

Cite as: Kim Brooks, The Turn to Vulnerability, JOTWELL (November 3, 2015) (reviewing Maneesha Deckha, Vulnerability, Equality, and Animals, 1 Canadian Journal of Women and the Law 27, 47–70 (2015)),

Disability Advocacy: Strategizing a Comprehensive and Contextual Path Forward

Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527 (2014).

Constitutional Law should be harnessed in the service of disability law. That it has not been a central site for the advocacy of the disability rights movement is something that Professor Waterstone bemoans. In this Emory Law Journal article, he traces the seemingly bifurcated trajectories of the LGBT and Disability Rights movements, insofar as their use of constitutional strategy is concerned. Through a careful analysis of these moves, Prof. Waterstone concludes that the Disability Rights movement has suffered setbacks through constitutional law, but the time is ripe to recoup the use of constitutional law to advance the umbrella of disability rights. Harkening to recent victories in LGBT movements, this article seeks to lay a foundation for Disability Constitutional Law.

Prof. Waterstone acknowledges that there likely exists amongst disability rights advocates an understandable reluctance to engage constitutional law stemming from the Cleburne1 case, and its unfortunate legacy for the disability rights movement. While the holding in Cleburne2 struck down an ordinance infringing the Equal Protection rights of persons with “mental retardation,” the case has proven less progressive and unsupportive of disability rights broadly speaking. In holding that this disability classification was only entitled to rational basis scrutiny, the decision has become concretized in a way that, for practical purposes, has meant that “the most restrictive aspects” of the majority decision have “stayed frozen in time for people with disabilities.” (P. 529.) Additionally, subsequent Supreme Court decisions have stretched Cleburne’s application to include a “diverse universe of people with disabilities,” thereby casting too long a shadow of rational basis scrutiny in the disability rights arena. (P. 542.) Specifically, in holding that the decision in Cleburne on mental retardation included a vastly expanded category of “the disabled,” the Court in University of Alabama v. Garrett3 significantly expanded the reach of Cleburne in a way that has proven hard to overcome.

This legacy of constitutional opaqueness is disconcerting, especially given the ways in which LGBT advocates have successfully utilized the constitutional arena. Clearly there are opportunities to push forward a disability constitutional agenda in intentional ways.

Though there have been setbacks for the movement, Prof. Waterstone analyzes the more rapid pace and progress of the LGBT movement through carefully strategized constitutional law advocacy. He suggests that, while there are obviously differences in the movements (“LGBT and disability causes are of course different, operating in different political and legal spaces” (P. 531) disability law can and should do more to, similarly, push for fulfillment of the Constitution’s guarantees of equal protection and full citizenship. Drawing analogies to the LGBT movement, Prof. Waterstone notes both, admittedly umbrella, groups have a history of prejudice and segregation, and continue to experience stigma due to their long histories of discrimination. (P. 533.)

Prof. Waterstone believes a rejuvenated constitutional law strategy for disability rights might correct a central error in Cleburne by creating a space for Equal Protection Clause jurisprudence that is uncoupled from pity and benevolence, and which is instead moored to historical oppression and a commitment to “contextualized Equal Protection review for state laws that facially discriminate against people with disabilities.” (P. 533.) While Cleburne is far from perfect (i.e. the majority stated, “while racial minorities and women are all monolithic for purposes of state classification, people with mental retardation are not ‘cut from the same pattern.’” (P. 538.) and the majority opinion has been interpreted as assuming mentally retarded people to “be a class of naturally inferior people.” (P. 541.) and has proven to be challenging precedent for disability rights advocates, proponents of marriage equality have faired better at harnessing the power of this precedent. LGBT activists “have mobilized more effectively and done more with Cleburne and the Equal Protection Clause in both federal and state courts.” (P. 564.) As such, Prof. Waterstone urges that “[t]heir campaigns offer important lessons for disability advocates.” (P. 564.)4

Prof. Waterstone surfaces several examples of statutes that facially discriminate, particularly in the areas of “family law, voting, commitment proceedings [] the provision of benefits,” bars to professional licensing, and of course employment and public accommodation. (P. 548–55.) As daunting as it might seem, and despite the majority decision in Cleburne, there remains a glimmer of hope not just from the progressive vision articulated in Cleburne by the respective concurrences and dissents of Justices Marshall and Blackmun, who preferred heightened scrutiny of state action on the basis of disability, but also because of the compelling dissent of Justice Breyer in Garrett, which “demonstrated an amenability to a more nuanced consideration of the constitutional dimension of state discrimination on the basis of disability.”5

Thus Prof. Waterstone’s piece sheds light on a more comprehensive and contextual path for disability rights advocacy, one that recognizes the constitutional building blocks in a similar way as have “LGBT advocates [] proven particularly adept at showing what is possible under state law [by using] Cleburne to help secure heightened scrutiny for marriage laws that discriminate on the basis of sexual orientation.” To demonstrate this potential, Prof. Waterstone highlights a promising Connecticut case.

In Kerrigan v. Commissioner of Public Health,6 a marriage equality case, the Supreme Court of Connecticut recognized its authority to evolve the Connecticut constitution as “an instrument of progress, [] intended to stand for a great length of time and [] not [to…] interpret[] [it] too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.”7  In so doing, the Connecticut court acknowledged its “greater latitude” to weigh additional factors beyond the more narrow Supreme Court focus on the history of invidious discrimination and whether the distinguishing characteristic relates to one’s ability to contribute to society, but­ also to consider immutability and political powerlessness. (P. 573–74.) Using Justice Marshall’s concurrence and dissent in Cleburne as a roadmap, the Connecticut court interpreted the Equal Protection Clause by focusing on “the social and cultural isolation of the excluded group.” (P. 574.) Importantly, the court also took the view that protective legislation acknowledged, and did not indicate the end of, intentional discrimination. (P. 574.) Together with a few other cases,8 Prof. Waterstone holds the Kerrigan case up for disability rights activists – its embrace of four constitutional factors, instead of just two, offers a more robust analysis which he interprets as boding well for disabled individuals. I hope he is right.

  1. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). []
  2. Id. []
  3. 531 U.S. 356 (2001) finding that, “[s]tates are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational.” [Emphasis added] []
  4. See pp. 564–73, noting, “The application of Windsor to disability rights cases is inexact but, I would suggest promising. In striking down section 3 of DOMA, the Court considered the nature of the right (marriage), the severe impact on same-sex couples and their families, and the intentional nature of the law.” []
  5. University of Alabama v. Garrett, 531 U.S. 356, 376-77 (2001). []
  6. 957 A.2d 407, 411 (Conn. 2008). []
  7. Id. 421, quoted at P. 573. []
  8. See Daly v. DelPonte, 624 A. 2d 876 (Conn. 1993); Breen v. Carlsbad Municipal Schools, 2005-NMSC-028, S 1, 138 N.M. 331, 130 P. 3d 413; People v. Green, 561 N.Y. 2d. 130, 131 (Westchester Cnty. Ct. 1990). []
Cite as: Camille Nelson, Disability Advocacy: Strategizing a Comprehensive and Contextual Path Forward, JOTWELL (October 12, 2015) (reviewing Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527 (2014)),

Cree Lawfulness and Unlawfulness

Tracey Lindberg, Birdie (2015).

I have thought about Tracey Lindberg’s novel, Birdie every day since I read it.1 The novel is an irreverent, evocative, funny, and hard-hitting book that causes me to think and ask questions about Indigenous law in recent history and today through the lives of the women unflinchingly drawn by Lindberg. I propose that Birdie be approached as a Cree law text—as a performance of law with difficult questions expressed and examined through narrative. This jot is an invitation to readers to join me in discerning law through one of the forms of Indigenous pedagogy and precedent, the narrative or story. I propose a brief legal analysis of Birdie based on the Cree law research completed by Hadley Friedland2 with the Indigenous Law Research Unit, Faculty of Law, University of Victoria.

Cree elder and storyteller, Louie Bird explains that in Cree society, the tasks of both telling and listening to stories are highly intellectual and demanding processes, beyond entertainment.3 He invites readers to attend to the stories by looking for questions, explanations, and subjects. He constantly challenges the reader to keep thinking by interrupting a story to ask, “So … why does the story say that?”4 Or, to ask whether a central character was using power properly.5 Bird’s comment on one story was, “So that is the mystery put into this story to make you think.”6

Cases are law stories about something that has happened and that are publicly recorded in a particular way to be recalled in future collaborative legal reasoning through specific problems. In the same way, Birdie is a Cree law story placed in northern Alberta (near fictitious Little Loon First Nation) about a woman whose life is a personal chronicle of colonial law and history. But it is far more than this. It is also about Cree law that is undermined by colonization, but which has not disappeared, and it is represented by Bernice (Birdie) herself and by the women around her. Cree law is also represented by the concept of pimatisewin (the good life) and through the metaphor of a tree of life called the Kohkom (grandmother) Tree. The Kohkom Tree appears to be dying; it is at once disrespected by non-Indigenous peoples and honoured by Indigenous peoples who search for it. Throughout the narrative, Bernice and the other women gather eclectic ingredients (everything from muskeg, lemon, oolichan grease, cumin, and moose intestine to cheezies and more) for the creation a final healing feast for both the Kohkom Tree and Bernice.

As a child, Bernice experiences the love of powerful women including her mother, the complex Maggie. These women are linked by “an absolute reliance on only themselves”, and are hurt by the too familiar and relentless colonial encounters of violence, racism, alcohol and drugs, and poverty. Lindberg describes the women as being weighed down by the over-responsibility of carrying the load dropped by men who left – to work or not, to cities, to prison, or to just disappear. And, “Bernice wonders how far back, how many generations ago, it was that women took on children, family, home and provisioning”. These women are not perfect. They are flawed and scarred in the way that survivors often are, and they fail to protect Bernice from her uncles who sexually assault her from the age of eleven. Bernice survives by retreating into herself and into silence, and she internalizes the violence wrought upon her.

The women disappear from her life, and Maggie leaves for the infamous (for Indigenous women anyway) downtown eastside of Vancouver. Bernice ends up in Edmonton, living with her aunt (at Pecker Palace), in foster homes, and on the street—in a city where an Indigenous woman was set on fire in a dumpster. She is bullied and ridiculed for being fat, being poor, being a girl/woman, and for being Indigenous. When she returns to visit home, her Uncle Larry tries to assault her again and this time she is able to defend herself. He suffers a heart attack, she refuses to help him, and in desperation she sets a fire and is terribly burned in her escape.

She becomes anisinowin (lost, the act of losing one’s way or being lost) and is scraped off the streets to be placed in a sanatorium for a year. She makes her way to Gibsons, BC following a curious lifeline in the form of a childhood love for Jesse, the young Indigenous man in the TV series, the Beachcombers. She works as a baker for Lola’s Little Slice of Heaven, the forges a friendship and love across difference. Lola does not seem to notice or mind Bernice’s silence. But Bernice continues to retreat deeper into herself where she travels, dreams, searches for meaning and connections, and finally reaches the memory of Uncle Larry and the fire. Her Auntie Val and sister/cousin Freda arrive and with Lola, they try to retrieve her from what appears to be her death bed. They perform ceremony represented by working together to mix and measure, sift and sieve, whip and pour, stir and simmer, chop and dice—to prepare a feast for either Bernice’s imminent death or her recovery.

As with any law case, what one learns from stories or law cases depends on the question asked. There are many ways one could go with Birdie—into same sex relationships, into who can reside on reserve, into missing and murdered Indigenous women and girls, into family law or child protection, into mental health or homeless issues, into displacement from land—the book has all this richness and potential. What I want to ask about is Bernice’s role in the death of her uncle Larry. Would she be found guilty or not guilty according to Cree law? The facts are mostly set out above with the exception of the complicit role played by the women in Bernice’s life who suspected or knew about her abuse.

So what are the legal processes in Cree legal traditions? First, who would the authoritative decision-makers be for Bernice? Cree law has four decision-making groups (i.e., medicine people, elders, family, and community group) depending on the problem to be resolved, their particular role (e.g., persuasive or directive) is determined by the nature of the problem.7 Here, it appears that Bernice’s family members would be responsible to act and to remedy harm, and prevent future harm. But, if the harm of child sexual abuse and sexual assault is identified as affecting the safety of the community, then the community would have to be involved in the decision-making. Given the sexual abuse of Freda and likely others, this could be framed as a community safety issue with ongoing potential danger thereby both the family and community would likely be identified as possible decision-makers.8

Second, what are the necessary procedural steps to determine a legal response? The immediate steps in Bernice’s case are: (i) observing and collecting corroborative evidence, (ii) identifying the appropriate decision-makers to deliberate, determine, and implement a response, and (iii) seeking guidance from those with relevant understanding and expertise. The other steps of recognizing warning signals, warning others, and taking safety precautions would seem to apply to a larger framing of child sexual assault and its prevention as a community issue, and so could also be considered as part of the legal response in Bernice’s case. The corroborating evidence would include the failure of the other adults to protect Bernice and their failure in recognizing the harm to her, and the repeated sexual assaults by Larry and others. At the time Larry’s final assault on Bernice, she protected Freda (whom Larry had also assaulted) who was with her by urging her to run. Alone Bernice defended herself and Larry had a heart attack, falling to the floor. She refused to save Larry and instead set the house on fire while he was still alive. She suffered terribly from burns and trauma compounded by years of abuse, retreating into silence and becoming more vulnerable as a result.

There are a number of possible legal responses and resolutions in Cree law including healing (the predominant and preferred response), avoidance or separation, having Bernice acknowledge responsibility, her reintegration, allowing natural or spiritual consequences, or finally, incapacitation (in the case of severe ongoing danger to the community). I would argue that the first response to Bernice under Cree law would be healing, but with ongoing support and monitoring for possible future dangerous behaviour, mainly to herself. The Cree stories (precedent case law) support this response and she would be treated not as a faceless danger, but as a family member.9

Bernice and the people around her would have a number of legal obligations including the responsibility to help when asked, to prevent future harms, and to warn others once they are aware of risks and dangers.10 Bernice’s obligation would be to give back once she received help.11 Bernice would have a number of substantive rights namely the right to safety and protection, and the right to be helped when incapable or vulnerable. She would also have procedural rights including the right to have her case corroborated by evidence and observation before any action is taken, the right to be heard, and the right to a decision made through an open, collective deliberation guided by appropriate consultation.12 The overall deliberation would be guided by general legal principles of contextualizing responses, valuing and acknowledging relationships, and reciprocity and interdependence.13

Through the book, we can see Bernice’s Auntie Val and Sister/Cousin Freda, along with Lola fulfilling the Cree legal processes, determined the legal response of healing, and being guided by Cree legal principles. They fulfilled their legal obligations and they recognized Bernice’s substantive and procedural rights. All of this is in Birdie—told a way that is lyrical with a punch. It is completely Cree in humour and is funnier than one would think possible, and it employs the story form to cause thinking, questioning, and responding to real life issues. Bernice’s experiences are real, lived everyday across Canada.

Birdie portrays Cree lawlessness through the breakdown and suffering of Bernice at the hands of her uncles and in the non-response of her family and community, by her abandonment. It portrays the women coming together, through their hardships to rebuild Cree lawfulness by taking responsibility for Bernice and healing her, and ultimately integrating her back into their lives. They invite the rest of her relatives to the feast and in doing so, they bring the collective together around Bernice.

I went to Tracey Lindberg’s reading when the book was released. One of the questions was about Larry and whether Lindberg had factored in the likely abuse that he would have suffered. Lindberg responded that she had also experienced abuse, but that she has not abused anyone else. If Larry had lived in the story, whether he was abused is a different legal question and would have to be dealt with as a separately in Cree law. If Larry had not died, his abuse of Bernice could also be framed in Cree law and reasoned through in order to determine a legal response for his actions.14

I urge all to read Birdie and to seriously engage with its complexity, to enjoy the humor (it is called darkly comic on the inside front cover), and to be provoked into asking questions and into complex conversations.

  1. I am a member of Saulteau First Nation. I am also the Law Foundation Chair of Aboriginal Justice and Governance and the Director of the Indigenous Law Research Unit at the Faculty of Law, University of Victoria. []
  2. Hadley Friedland, Cree Legal Traditions Report (2013). A summary version of the report is available online. [Cree Legal Traditions Report]. []
  3. Louis Bird, The Spirit Lives in the Mind: Omushkego Stories, Lives, and Dreams (2007). The entertaining or harsh subjects are mnemonic devices intended to create memory and capture imaginations. []
  4. Id. at 34. []
  5. Id. at 48. []
  6. Id. at 16. []
  7. Cree Legal Traditions Report, supra note 2 at 12. []
  8. This is not to blindly idealize the family and community, if both are unhealthy, it is possible to identify broader kinship networks. See for example, Val Napoleon, Living Together: Gitksan Legal Reasoning as a Foundation for Consent, in Challenges of Consent: Consent as the Foundation of Political Community in Indigenous/Non-Indigenous Contexts (Jeremy Webber & Colin McLeod, eds., 2009). []
  9. Id. at 27-29. []
  10. Id. at 28. []
  11. Id. []
  12. Id. at 47. []
  13. Id. at 51. []
  14. For a discussion on rules of force in Indigenous law, see Val Napoleon and Hadley Friedland, From Roots to Renaissance, in Oxford Handbook of Criminal Law (Markus Dubber, ed., 2015). []
Cite as: Val Napoleon, Cree Lawfulness and Unlawfulness, JOTWELL (September 3, 2015) (reviewing Tracey Lindberg, Birdie (2015)),

When Information Wields Power: The Inequalities of Credit Reporting in Abusive Relationships

Escaping Battered Credit: A Proposal for Repairing Credit Reports Damaged by Domestic Violence expands and develops Angela ccccccc’s pioneering work on “coerced debt” within violent and abusive relationships. Littwin’s first study on this topic, Coerced Debt: The Role of Consumer Credit in Domestic Violence, offers a preliminary account of various ways in which “coerced debt” occurs, how it is experienced and its potentially devastating consequences for abused women. Escaping Battered Credit considers potential legal responses to the problem in the context of abusive relationships, and takes on the challenge of crafting a partial remedy that fits within the institutional structure of US consumer credit markets.

Littwin describes coerced debt as occurring “when the abuser in a violent relationship obtains credit in the victim’s name via fraud or duress” (P. 365), and defaults on the debt. Typical practices range from basic identity theft, as when the abuser applies for a credit in his partner’s name without telling her, through resort to physical and psychological violence to coerce abused women to apply for credit or release equity in their homes, to abusers structuring loan transactions to ensure that they enjoy the benefits of credit and the women they have abused are left with the debt liabilities. Coerced debt is related to the well-documented problems of “sexually transmitted debt” in which so-called “surety wives” guarantee loans to their businessmen spouses under circumstances of duress, fraud, or misinformation; and coercive microcredit which occurs when gender specific peer-lending programs expose poor women to the risks of being coerced into borrowing on behalf of their spouses. All three instances subject abused women to risks of liabilities to creditors to which they did not freely consent and against which law offers little protection, illustrating how market relations of credit and debt may constitute specific instruments of oppression within familial and intimate relationships, particularly, although by no means only, as those relationships fail.

The distinctive aspect of Littwin’s work, and the importance of her contribution, is its departure from the conventional focus on (the limits of the) law’s capacity to protect coerced debtors against creditors’ claims. Escaping Battered Credit instead examines the implications for coerced debtors of the role of credit reporting intermediaries in consumer finance markets. The paper shows that how the interaction of the familial and market relations that constitute coerced debt has pernicious consequences for abused women because of the range of service providers and market actors who make use of the information held by credit reporting agencies. Because access to the most basic and essential sites of social provisioning, including tenancies, utilities, and in the United States apparently jobs, are now mediated by credit reporting agencies, an abused woman saddled with a credit record damaged by coerced debt may be unable to secure shelter or work and as such lack the means to establish a household independently of the abuser.

This problem is not easy to address because of how consumer credit markets are currently constituted. Credit reporting has become integral to the mass delivery of consumer credit because it appears to respond to what is perceived to be the definitive failure in consumer finance, that is, an information asymmetry that potentially enables borrowers strategically to take advantage of lenders limited information about borrowers’ capacities and inclinations to repay loans. Information theory holds that by providing creditors with low cost access to information about borrowers’ past performance on credit transactions, credit reporting agencies help lenders to screen out unreliable borrowers, deter opportunistic debtors from defaulting on loans and enable responsible lenders to see when a borrower may not be able to service a requested loan.1

These purported benefits of screening and sanctioning are based on an assumption that the information held about each individual accurately reflects her conduct and propensity to repay. But Littwin’s study shows that this assumption does not hold true in cases of battered credit when the debtor may not even have known about the loan or may have been coerced into assuming it. Even though information about default on a coerced debt may not contribute meaningful information to the market it will nonetheless be recorded on a credit record and from there affect future access to credit and credit-based services. Despite the circumstances of the creation of coerced debt there is little chance of a coerced debtor securing removal of the loan from her records because the coercion of an intimate partner will rarely operate as a defence to the claims of an “innocent” creditor. In the odd cases where removal from a record should be possible because the debt is unenforceable the coerced debtor will encounter error-correction processes that are arduous and seldom able to rectify records even in the simplest cases of mistakes within the reporting system. (Pp. 379-89.) Finding little reason to believe that credit-reporting intermediaries respond to situations of coerced debt in ways that respect equality interests, Littwin proposes instead a remedy based on selective blocking of access to information about debts that a family court has certified are coerced.

The proposed remedy is pragmatic because it concerns information about payment records rather than complex questions of substantive responsibilities for coerced debt and and as the author herself acknowledges the remedy is partial because it responds only to the subset of battered credit cases in which courts play a formal role in dissolution of the family as an economic unit. Although Escaping Battered Credit does not purport to provide a definitive legal solution to the harms of coerced debt, the article is nonetheless important to equality scholarship for its insights into the ways in which market institutions associated with debt and debt default, such as credit reporting, may be wielded as a threat or instrument of control within abusive relationships.

  1. RonaTas, Akos. “The Role of Credit Bureaus in Globalised Economies: Why They Matter Less Than We Think and How They Can Matter More.” Consumer Debt and Social Exclusion in Europe (2015). []
Cite as: Toni Williams, When Information Wields Power: The Inequalities of Credit Reporting in Abusive Relationships, JOTWELL (July 15, 2015) (reviewing Angela Littwin, Escaping Battered Credit: A Proposal for Repairing Credit Reports Damaged by Domestic Violence, 161 U. of Pa. L. Rev. 363 (2013)),

Breaking Cartels to Stymie the Reproduction of Racism and Breaking them in Time

Daria Roithmayr’s book, Reproducing Racism: How Everyday Choices Lock in White Advantage, situates the reproduction of racism outside of intentionally inflicted racist acts. She argues that even if racism by individual design ceases, everyday decisions by Whites lock in the many decades’, and even centuries’, of entrenched structures of White advantage. Tracing the history of race in America especially from Jim Crow, Roithmayr illustrates how White advantage was locked in through wealth accumulation protections given Whites and denied Blacks, through the real estate market practices favoring Whites, in educational policies perpetuated through a de jure then a de facto system, through the use of incarceration and its rise against Blacks soon after the end of slavery, and even in the levels of Black infant mortality.

Using antitrust theories, Rotihmayr’s work explaining the cartel like structure of White advantage can be juxtaposed against Lani Guinier’s analogously familiar book from over twenty years ago. In Guinier’s book, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994), Guinier discusses the many statutory protections given to those who hold less than the majority votes in corporations. Guinier argues that just as minority ownership interests are given “a turn” in corporate law, such could also protect minority racial interests in our governmental democracy. Similar to Guinier’s use of principles from corporate law, Roithmayr uses principles from antitrust law. Guinier’s book focuses more on arguing the corporate law principles as remedies. Roithmayr’s book focuses more on identifying the antitrust cartel structure and showing the way for our own creative construction of remedies to break these cartels to stymie the reproduction of racism.

Both books have had a huge impact on me. I remember taking corporations in law school in the late 1980s and wondering why the corporate principles– to protect shareholders who are not in the majority–were not embraced in America’s political systems to protect voters who are not in the majority. Thus, when I discovered Guinier’s articles, I hungrily considered her ideas. Sadly, misinformed objections to her arguments led to former President Clinton withdrawing Guinier’s well suited nomination for Assistant Attorney General for Civil Rights in 1993.

Roithmayr’s work, and her explanation of White advantage using cartel structures, eloquently proposes a straightforward analogy. Her book serves as an informative pedagogical tool. Further, Reproducing Racism is provocative as to what it does not do. While her work ends without extensively proposing many remedies to breaking these cartels, her work provokes the development of these remedies.

Using Reproducing Racism as a pedagogical tool

I teach Constitutional Law at a predominantly White school in the Deep South. One component in my class is small group presentations of recent United States Supreme Court cases. The students are allowed to self select their groups. Often a group predominantly of color will select one of the affirmative action/diversity cases to research and present.

Almost always following one of these presentations, a White male student will ask something like, “Well if Black people just do better we will not need affirmative action in admissions as they will be more competitive, then don’t you think America’s problems will be resolved?” When a young, self avowed conservative, White male posed this question to a group mainly consisting of Black females toward the end of the class period a few years ago, the young women presenting were visibly shocked by the question. Their answer did not satisfy him. So, the young man approached me after class and posed the same question. A number of students gathered around to hear my response.

In answering him, first I engaged him with a discussion about admission committees and their predominant racial construction. We then discussed whether committee members would have a certain amount of personal discretion in making decisions. He agreed with this point saying, although there should be criteria, some personal discretion was critical. So, my final question to him was, “Even if the Black applicants are at least equally qualified to the White candidates, if a White committee member with implicit bias believes that Whites are more deserving makes an everyday choice to prefer the White applicant, then will the committee and hence the school reproduce the same system of White preference?”At that point, a look of recognition came across the young White man’s face. He responded, “I get it. Yes, non-White candidates need more opportunities to advance in education and to improve on certain types of standardized testing, but Whites who evaluate them also need to advance in rejecting racism and in being aware of and rejecting their ordinary decisions that promote White advantage.”

These very points from our extended after-class conversation are covered in Reproducing Racism. Roithmayr discusses how Whites over the years created institutional rules that disproportionately favor Whites over non-Whites. So, in my next semester after a similar group presentation by a majority non-White group of students and a similar question by a young White male student, I referred him to Roithmayr’s book for reading and for future discussion.

Her pedagogical contribution is experienced even outside the classroom. Non-Whites I encountered, who saw me reading Reproducing Racism, wanted to know more about this reproduction of racism. When I explained Roithmayr’s theory to them, they were relieved to know that someone has written in a scholarly and also accessible way about what they know and what they experience on an everyday basis as non-Whites in America. Her book thus serves as an excellent supportive tool both inside and outside the classroom.

Using Reproducing Racism in search for exceptional remedies to racism

I attended a law conference panel discussing Reproducing Racism, soon after it was published. On this panel, Professor Roithmayr discussed her book and distinguished panelists offered a critique of her work, especially her last section on potential remedies.

Roithmayr connects the continued reproduction to antitrust theories where companies prosper based on bad behavior. Though certain behaviors were considered illegal later, companies created a “positive feedback loop” which allowed them to continue to prosper from the economic advantage gained from their previous bad behavior. Similarly, White privilege is locked in and Whites continue to be advantaged generation after generation. Such loops cause the reproduction of racism, even if intentional racism is diminished. The bad, intentional behavior of the past locks in benefits for Whites. Though that past behavior is now frowned upon, the benefits of that behavior is still enjoyed by Whites on a daily basis.

At the end of the panel discussion, the question became how can these cartels of White advantage be broken to allow for more equitable systems? Roithmayr’s book is well written and thoughtful, but does not conclude with many detailed suggestions on workable ways to break these cartels to unlock cartel-like reproduction of American racism generation after generation. She does propose some ideas including, modifying social norms, taxing the benefits that Whites gain from the feedback loops, limiting the opportunities for White flight so that non-Whites may be integrated into the cartel loops, and others.

My question to Roithmayr and the panel was further about remedies. I wondered whether cartel breakers can indeed be found. Specifically, I wondered if poor Whites could be recruited into a movement to break racial cartels. My argument was that economically, for example in my home state of Mississippi, poor Whites are little better off than Blacks. Still, in fact, many poor Whites seem to vote against their own economic interests as they overwhelmingly vote to elect candidates who are opposed to education for all, opposed to healthcare for all, and opposed to equal rights for women.

One of the panelists who was reviewing Roithmayr’s book disagreed with my analysis. He argued that poor Whites have Whiteness and Whiteness has value. So poor Whites perceive this as a great value that outweighs any loss in the public well funded education of their children, or in health care, or in other areas they share in common with many southern non-Whites. Only to some degree did this panelist persuade me.

I still believe poor Whites should be willing to break the cartel for their own benefit. Whites in poverty, like non-Whites, need health benefits, need free and well funded public education, could benefit from the political leadership of empowered non-Whites who believe in equality for all.

A movie illustrates what may be my unrealistically idealistic view. In the film In Time (Twentieth Century Fox 2011), dollar bills are not the currency; time is. Initially, I was frustrated with the story line as it promotes the idea that Will, a White man (played by Justin Timberlake), has to break the system to save the poor and racial minorities. I thought of other films where the savior of racial minorities always seems to be a White superstar. In Time, though, gave me greater pause, as Will is himself poor and disenfranchised. By helping to save others, he redeems the memory of his poor White mother. The plot of the film comes from the status of these humans. When a human being turns 25, the person stops aging biologically. Each human automatically receives a digital clock imprinted on their arms indicating the amount of time they have left to live before suddenly dying. Those born into wealth and privilege are gifted with clocks with time of fifty years or more. Those born poor and disenfranchised receive time clocks with maybe 24 hours of time on their biological clock.

The movie’s hero, Will, unintentionally ends up working with a rich young White woman, Sylvia (played by Amanda Seyfried), to rob the banks of time, to bring down a corrupt system stacked against minorities and poor Whites. His bringing down the corrupt system is as much for him and the memory of his poor White mother who died depleted of time (which was to him before her time), as it is for the others. So, he has recognized his commonality with others and sees he cannot truly be saved unless they are, too.

The activist role of a poor White male in a movement for inequality is critical. The same applies today. Race and class equality cannot be a viable affront to the structures of supremacy until the movement encapsulates poor Whites and helps them finally see they are allowing themselves to be used to further inequality and separation from others who struggle with inequality. Poor Whites seem to be banking on White advantage, but barely surviving without the same remedies that poor non-Whites seek.

In addition to poor Whites generally, what about White women, regardless of economic class, as cartel breakers? This could apply especially to those who realize the gender cartels that oppress them. In the movie In Time, a rich White girl, Sylvia, joins the liberation effort. She has White privilege and class privilege, yet her father’s gendered views and desire to maintain status imprisons this young woman, with an indefinite imprisonment of time. As they are so rich that she might live forever, this living forever in a cage on a pedestal becomes quite distasteful to Sylvia. Is it possible that the sexism that is part of the reproduction of racism could become so distasteful that even middle and upper income White women can be enlisted, too, as cartel breakers to stymie the reproduction of racism?


Daria Roithmayr’s book, Reproducing Racism, provides an excellent framework to explain and study the reproduction of racism. In a time when racism is still rampant, an accessible way of confronting locked in White advantage is a needed key. Roithmayr provides this key, unlocking a door where those who dare to join as cartel breakers may enter and, hopefully, set America finally free by rendering the reproduction of racism stymied and eventually barren.

Cite as: Angela Mae Kupenda, Breaking Cartels to Stymie the Reproduction of Racism and Breaking them in Time, JOTWELL (June 16, 2015) (reviewing Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock in White Advantage (2014)),

Bargaining for Equality

Nancy Leong, Identity Entrepreneurs, 104 Cal. L. Rev. ___ (forthcoming 2016), Available at SSRN.

Have you ever invoked an outsider aspect of your identity? Maybe, like many applicants in academia, you’ve discussed how you would contribute to the diversity of the institution you hope to join. Possibly, like Sarah Palin, you’ve found an occasion to emphasize the “unique perspective” of women; or like John Edwards and Rick Perry, you’ve highlighted your working class roots. Or, perhaps less likely, you’ve needed to revive your fan base and found that coming out as a sexual minority could be a good career move; or you’ve embarked on stardom in adult films and discovered Asian femininity is a great asset; or your celebrity as a rap artist includes not only race and gender, but also geographic credibility.

If so, Nancy Leong contends you are hardly the only “identity entrepreneur.” While Leong acknowledges the postmodern work on “performativity,” her conceptualization is Marxian and stresses the value of identity in our capitalist society underwritten by the rule of law. For Leong, being an identity entrepreneur is neither necessarily good nor bad. Entrepreneurs, she states, are increasingly respected and popular in America, even as to be “entrepreneurial” connotes a person who is “self-promoting, grasping, inauthentic, a climber.” For Leong, the term “appropriately reflects ambivalence about the practice of identity entrepreneurship.” It is a “complicated phenomenon with both positive and negative consequences.”

Identity Entrepreneurs builds on Leong’s highly regarded previous article Racial Capitalism. Here she expands the range of identities and focuses on how “outsiders” leverage their status. She argues that identity entrepreneurship does have negative consequences: it can reinforce in-group preferences, divide out-group members from each other, and perpetuate group subordination. On the positive side, she contends that identity entrepreneurship can have benefits: it can increase autonomy for individuals; advance material and symbolic gains for other out-group members; and facilitate progress including support for other out-group members. All in all, she says, “Identity entrepreneurs walk a fine line.”

Leong’s article makes provocative reading for anyone interested in how we — and others — “leverage” our various identities. But while I might be interested in a dinner discussion about whether certain movies starring certain performers reinforce harmful stereotypes, I’ll admit that I can find cultural criticism in legal scholarship unsatisfying. But Leong’s article does turn to the legal questions at hand and posits that legal doctrine and policy relating to identity entrepreneurship should be governed by the following principles:

First, doctrine and policy should respect individual agency.

Second, doctrine and policy should encourage informed decision-making—that is, choices about identity entrepreneurship should be made with an understanding of how those choices affect individuals, groups, and society.

And finally, doctrine and policy should be evaluated according to whether they ultimately promote social progress toward a world in which identity is not a commodity and identity entrepreneurship is therefore irrelevant.

She explores these rather abstract principles in the last section of the article with concrete examples in Title VII, rights of publicity and privacy, and intellectual property.

It is Leong’s discussion of Title VII that makes Identity Entrepreneurs a real contribution to equality scholarship. Regarding sexual harassment, Leong explores the predicament of a woman employee who tries to be the “Cool Girl,” after a passage in Gillian Flynn’s successful novel (and then movie) Gone Girl. The “Cool Girl” is the heterosexual woman who is essentially “a dude in a hot girl’s body” and the opposite of a “feminazi.” As an identity entrepreneur, the “Cool Girl” consciously leverages “the ideal of the attractive, intelligent, tolerant woman who laughs at questionable jokes (giving such jokes undeserved legitimacy)” and thus uses her “Cool Girl status to advance in the workplace.” Given Title VII’s requirement that sexual advances be “unwelcome,” the “list of Cool Girls turned Title VII losers is a long one.” When the strategies of an identity entrepreneur no longer work — as when the harassment becomes intolerable or even turns violent — the Title VII claimant’s previous attempts to leverage her “Cool Girl” identity work to her disadvantage. She is not a victim, but a participant. Leong suggests that Title VII be amended, either by interpretation or statutory amendment, to “shift the burden from the plaintiff to prove unwelcomeness to the defendant to prove welcomeness.” Under this new interpretation, “playing along” would not be viewed as “anything other than ambiguous evidence,” and would recognize “the experience of navigating the workplaces as an outsider, including the decision to engage in forms of identity entrepreneurship.”

Additionally, Leong suggests that those who are not identity entrepreneurs should be better protected. One example she uses is Bryant v. Begin Manage Program, an opinion from the Eastern District of New York in 2003, in which an African American employee claimed discrimination because her employer disapproved of her failure to dress in an Afrocentric manner and of her lightened hair. Having written about this case in Dressing Constitutionally: Hierarchy, Sexuality, and Democracy as one which illustrated Title VII’s inability to confront discrimination based on so-called “grooming,” I was intrigued by Leong’s conceptualization of the situation and her doctrinal remedy. For Leong, courts using “comparators” among employees — to determine if there is discrimination based on a protected identity — should take into account different decisions relating to identity entrepreneurship. She concedes that she is “not necessarily advocating the view that a black women who engages in identity entrepreneurship is no longer ‘similarly situated’ to one who does not,” she nevertheless advocates that “courts need to acknowledge that in many workplaces identity entrepreneurship may create relevant differences between two members of the same identity category that warrant a more searching inquiry into whether they are appropriate comparators.”

Finally, and perhaps most controversially, Leong proposes that employers engage in affirmative training regarding identity entrepreneurship in order to go beyond platitudes of “treat everyone equally.” What makes this proposal controversial is not the training itself, but her suggestion that it would serve as employer immunity against hostile workplace claims under the Faragher-Ellerth doctrine. She admits that many might argue that “the last thing Title VII doctrine needs is a modification that makes it more difficult for plaintiffs to recover,” but insists that litigation is rarely the best outcome. Instead, such a revision in the law could “get us where we want to go,” not by providing recovery for violations but by “providing strong incentives to ensure that the law is never violated at all.”

At its core, Leong’s article insists law must be a force for progress toward a more egalitarian society. She complicates our understandings of identity, even as she recognizes the agency each of us possesses — in larger or smaller amounts — to capitalize on our various identities. Law cannot solve every social problem, she notes, but it can shape the ways in which individual identity entrepreneurs and the out-groups to which they belong can flourish.

Cite as: Ruthann Robson, Bargaining for Equality, JOTWELL (May 18, 2015) (reviewing Nancy Leong, Identity Entrepreneurs, 104 Cal. L. Rev. ___ (forthcoming 2016), Available at SSRN),