Oct 30, 2026 Natsu Taylor Saito
“Decolonization and reparations are distinct paradigms and projects that cannot be collapsed into one another. But the project of reparations entails decolonization.” (P. 421.)
A former UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance (2017-2022), E. Tendayi Achiume has seen the global reach of racialized harm in ways few of us ever will. Her work has highlighted opportunities for reparations offered by the international legal system and challenged its constraints. Drawing on this rich background, Achiume, now a Stanford law professor, shares her deeply thoughtful and thought-provoking analysis of reparations in this short but very powerful piece.
Achiume’s writing is beautifully clear and brilliantly comprehensive. She tackles the hardest questions and refuses to pretend they will be resolved easily. Reflecting these strengths, Race, Reparations, and International Law critiques the ability of contemporary international law to meaningfully redress the harm deriving from centuries of colonialism and, particularly, the transatlantic trade in enslaved Africans. She raises questions that should be confronted by all international law scholars, but what really caught my attention is that virtually everything Achiume says about reparations in international law applies with equal force to redress for persons of African descent (as well as Indigenous nations) within the United States.
Race, Reparations, and International Law begins with a 2022 statement from the United Kingdom to the United Nations Human Rights Council rejecting any obligation to make reparation for “the slave trade and colonialism.” Reflecting the positions of other colonial powers, including the U.S., it (i) eschews responsibility for what had, at the time, been lawful activity; (ii) claims reparations would divert resources from “the pressing challenges of tackling contemporary racism and global inequality”; and (iii) asserts that the Durban Declaration resulting from the 2001 World Conference Against Racism was itself racist. (P. 398.) These are familiar arguments, ones consistently used to oppose redress within the U.S.: the harm occurred too long ago; the actions at issue didn’t violate the law; resources should be dedicated to current inequities rather than historic injustices; and race-conscious remedies are, themselves, racist. Achiume, however, goes beyond the usual counterarguments to provide a conceptual framework and thereby moves the conversation to a new level.
The power of Race, Reparations, and International Law lies in her insistence that reparations for racialized injustice, including enslavement, cannot be achieved without confronting the ongoing, structural impact of European (or Euroderivative) colonialism. Achiume argues that, to be effective, reparations advocacy must recognize that law and colonialism have always been “mutually constitutive.” (P. 399.) Colonialization, in turn, was dependent upon its construction of race and racism, and the wealth generated by racialized hierarchy and exploitation. As a result, “the question of reparations cannot be siloed within and confined to the [] state responsibility paradigm.” (P. 403.) We cannot expect the colonizers’ law to redress the harms facilitated by that law.
Instead, Achiume urges us to conceptualize reparations as a project of “anti-colonial worldmaking” as the antidote to the “colonial racial aphasia” permeating international law, where there is silence on the relevance of race and racism, or they are decontextualized in a manner that “ostensibly disavows” them while “perversely” reproducing “the historic structural injustice of colonialism.” (Pp. 410-11.) “[W]here race and racism are concerned, past remains present,” she notes, because they are “not merely colonial injustices themselves but [] structures through which colonial injustice of various kinds is reproduced.” (Pp. 404-06.)
Reparations movements have gained momentum in the United States, especially at the state and local levels. For the most part, however, the organic relationship between racialized injustices (past or present) and ongoing structures of settler colonial hierarchy and exploitation remains unacknowledged. We tend to accept the parameters imposed by the “courts of the conqueror” as to what constitutes racialized harm, and to tailor our arguments to the Supreme Court’s increasingly narrow interpretation of equal protection under the law. In our version of colonial racial aphasia, race is deemed irrelevant and race consciousness equated to racism.
This is not to say we should abandon the law. For Achiume, “global governance regimes shape the battle terrain and conditions of possibility for these reparations” (P. 418) and legal claims for reparative justice can “‘refuse and interrupt’” what she terms “the reproduction of colonial injustice.” (P. 421.) But we must also recognize that advocating for equality within systems that perpetuate colonial domination and exploitation will not yield reparative justice.
Race, Reparations, and International law prods us to move beyond our comfort zone. What would happen if we took seriously the extent to which the construction of race and racial hierarchy has been foundational to the colonization of this continent, and to contemporary U.S. social, political, and economic structures? If we recognized that U.S. law (like international law) is designed to maintain a colonial status quo, and that here, too, meaningful reparations for the harms inflicted by occupation, enslavement, and racialized exploitation will require decolonization?
There are no easy answers. “We who are invested in anti-colonial worldmaking perpetually labor under the thumb of the expectation of perfectly formed solutions we are supposed to arrive at under conditions that are more structurally fertile for the problem (colonial racial justice) than the solution (anti-colonial worldmaking), and this expectation is itself a feature of that structure.” (P. 420.) But we need not limit our thinking—or our vision—to what we are told is possible. Once again, Tendayi Achiume sparks the imagination.
Sep 30, 2026 Eliot Tracz
Many books are timely. Quite a few books put forth an interesting and well-supported argument. Few books manage to do both while introducing a thesis that can be construed narrowly towards a specific class- in this case women- while also having a broader application towards the achievements and erasure of other groups. Professor Jill Hasday’s book, We the Men, is just such a book.
Professor Hasday’s book, which deserves to be recognized as a pilar of contemporary feminist legal jurisprudence, comes at a time when it would be particularly easy to argue that women’s rights have once again become hot legal topics. This might seem to be a particularly appealing argument as voter identification laws threaten to take away married women’s voting rights at the same time that the federal government has sought to crack down on disparate impact claims, the Equal Rights Amendment seems caught in the doldrums, and states continue to pass ever-more-repressive abortion laws post Dobbs v. Jackson Women’s Health Organization.
We the Men is organized into four parts: (1) Erasure; (2) Distortion; (3) Consequences; (4) and Hope. This structure, with its very natural progression, works particularly well in this instance. Not only does it build argument effectively, but it also helped cement the realization that like many people–lawyers and otherwise–I had a Women’s-Suffrage-sized hole in my legal and political education.
Part I presents a well-reasoned and thoughtful accounting of the erasure of women from their own struggle for equality. For many, names like Susan B. Anthony and Elizabeth Cady Stanton might be familiar. Similarly, many might be familiar with the Seneca Falls Convention of 1848. These names, however, only scratch the surface of the Women’s Rights movement, particularly Women’s Suffrage. And yet, for all of the colorful figures, diverse approaches, and hard fought battles, Professor Hasday draws attention to the fact that women themselves have been erased by both the courts themselves as well as historians.
Some of this erasure, particularly when the courts engage in it, involves deliberate linguistic choices. These choices often treat women as subjects of legal action rather than as independent legal actors. Put another way, court’s have acted as if changes into law have happened to women, rather than because of women. This section really hits home as we can watch the erasure of women from women’s rights discourse happening in present day.
Part II details the ways in which the erasure of women coincides with pronouncements of success in achieving equality for women. Professor Hasday documents two ways in which this happens. First, there is the behavior of the courts, who have, since the mid-1800’s, been writing as if women’s equality was a settled issue. In particular, Hasday notes that even while courts argued that the legal supremacy of men had been abrogated and that husbands and wives shared legal equality, gendered laws restricted women in terms of marriage, military service, property ownership, and employment. Second, Hasday also notes that popular writers have distorted the history of women’s rights. This erasure includes newspapers, books for adults, and books for children.
Part III explores the consequences of the erasure of women’s role in the history of women’s equality. First, Hasday explores the manner in which courts’ use of erasure has allowed them to avoid exploring ways in which contemporary laws, policies, and practices serve to perpetuate the inequality of women. In particular, she draws attention to the ways courts have used language to tie sexism to the past, despite issuing sexist opinions as recently as Dobbs. She shows that this behavior is as prevalent for state courts as it is for the federal court system.
Second, Hasday draws attention to the fact that distortion of the history of women’s fight for equal rights has been seized by anti-feminists for political gain. Opponents have used this distortion as a means to justify opposing the Equal Rights Amendment (ERA), claiming that the ERA was unnecessary both because discrimination against women had been eradicated by law and, paradoxically, because the ERA threatened the domesticity of women.
Finally, Part IV provides some ideas for expanding our understanding of the role women have played in the fight for women’s rights. Hasday lists teaching, commemoration, political representation, legislation, litigation, and everyday life. While all of these suggestions may seem straightforward, teaching deserves special acknowledgement. Without an emphasis on teaching the history of women’s actions during the movement for women’s rights, none of the other options would truly be possible.
Here is the thing I really enjoy (like lots?) about this book. Professor Hasday presents a new look at persistent problems plaguing the fight for women’s equality. Her argument raises many issues which deserve honest discussion, beginning with the question of how we can rely on a “history and tradition” that excluded women from a seat at the table. From there, the possible topics for discussion are practically endless. As a result, this book should be a staple of book clubs and seminar classes for years to come.
Finally, this book reaches me on a different, and likely unintended, level. It speaks to me as a genderqueer, bisexual, person of color watching many of my identities being systematically erased by actions remarkably similar to those described in this book. Many of Hasday’s arguments could be applied to each of my identities, which in turn brings to mind that famous civil rights maxim–which is, fittingly, attributed to a woman, Fannie Lou Hamer–that “none of us are free until all of us are free.” If you want to find a true path towards equality, read this book.
Sep 4, 2026 Maneesha Deckha
In jurisdictions around the world, constitutions are held up as venerable national texts available to strike down legislation and government action offending basic societal commitments. Constitutions are seen as forces of good and not just due to their explicit rights-granting provisions, but also the unwritten principles courts have held them to house. But similar to how law schools and other educational institutions have “hidden curricula” that can subvert an institution’s formal written principles of inclusivity and equality, recognizing unwritten constitutional provisions can cut in different directions. Specifically, how might they undermine more formal equality provisions?
In The Unwritten Constitution and the More-than-Human World, Jessica Eisen considers the case of the Canadian Constitution, which many regard as a model for equality and justice due to both its written and unwritten commitments. Eisen’s article provides a valuable corrective to the sense of the implicit goodness of the Canadian Constitution. It illuminates the “ignominious” (P. 571) unwritten principles that “shap(e) constitutional praxis even as they are ignored, denied, or repudiated by actors within the system.” (P. 553.)
Eisen argues that the Canadian Constitution houses two closely related unwritten commitments that should be acknowledged in the “constitutional story” (P. 595) told about the document. One involves “anthropocentric exploitation,” by which she means “a particular dynamic of extraction . . . premised on a hierarchy of human over other, and a denial of reciprocal obligation to nonhumans”. The second unwritten commitment in the Canadian Constitution is the “the subordination of Indigenous legal orders to Canadian state law.” (P. 552.) Eisen terms both of these commitments “shadow commitments.” (P. 553.) Both operate “quietly” alongside written and unwritten constitutional commitments. “[W]hen named, they strike many actors within the system as embarrassing or disreputable.” (P. 554.)
Eisen’s article is notable for the calibre of the writing. The analysis is elegant, incisive, and far-reaching. Eisen skillfully conveys a complex argument. In the first part, she shows how anthropocentric exploitation infuses constitutional text and is a “stable, core and binding [commitment] — enduring over long time horizons, making the legal order what it is, and demarcating the outer limits of interpretive possibility.” (Pp. 553-54.) The second part of the analysis illuminates the intertwined nature of anthropocentric exploitation and the subordination of Indigenous legal orders. Here, Eisen calls our attention to the disconnect between anthropocentric exploitation and “the commitments within many Indigenous constitutional orders to relations of kinship and reciprocity with the more-than-human world.” (P. 555.) Eisen convincingly argues that the shadow commitments to anthropocentric exploitation and dominance of state law over Indigenous laws holds an equivalent influence in Canada’s constitutional order to that of the more officially recognized unwritten constitutional commitments. (And this situation obtains despite the significant inroads that have been made to integrate Indigenous law within Canadian law.) “Unwritten constitutional commitments” in this sense are the values that Canadian jurists regularly celebrate, such as the “rule of law, democracy, minority protection, and the Crown’s honourable dealing with Indigenous peoples.” (P. 553.)
Eisen argues that these lamentable shadow commitments operating with equal force to formal unwritten constitutional commitments should not cause animal, Indigenous, or equality rights advocates to despair. Legal change is possible, Eisen suggests, but only by apprehending the more accurate picture of Canada’s constitution as “polyvalent” that her work provides. (P. 557.) This especially insightful and thought-provoking part of the analysis is its second standout feature.
Eisen recalls the Supreme Court of Canada’s doctrine that the orthodox unwritten principles such as the rule of law and democracy work together symbiotically. She argues that this is also how we should view the workings of constitutional shadow commitments that intertwine with unwritten constitutional principles. Eisen shows these dynamics at work in recent litigation involving Indigenous rights, in which an Indigenous group sought to protect land and the animals associated with it from proposed commercial development that the government was permitting.
In the last part of the analysis entitled “Hope, Activism, and the Shadow Commitments”, Eisen addresses the concern that emphasizing the extent of shadow commitments’ operation in Canadian constitutional law might stymie law reform efforts to redirect law toward non-anthropocentric outcomes respectful of nonhumans and toward the vindication of Indigenous rights as well. Her response is eminently sensible, and she proposes that if we wish to transform the Canadian Constitution’s shadow commitments, we must have a complete picture of them. We must know the full extent of the barriers to paradigm change to change both them and the paradigm itself.
Eisen’s article also generously enhances our understanding of how animal rights struggles and Indigenous rights struggles align. This may help to inform scholarly and public conversations that often posit the movements as invariably in tension with one another. We are left to consider how successful contemporary Canadian state commitment to reconciliation with Indigenous peoples and legal and social trends embracing Indigenization and decolonization will be if status quo animal uses by states and the larger public are not revisited.
The article also deepens the growing body of scholarship that explains why legal pursuit of equality and justice in general must go beyond the human actor and the traditional.
Jul 22, 2026 Doron Dorfman
Not long ago, a friend in his late thirties confided that coming out as gay had been unexpectedly difficult for him. He is the son of one of the first lesbian couples to raise children in the Southern state where he grew up. I was initially surprised—having always known him as confidently and openly queer, and as someone who had even worked for a Jewish LGBTQ organization. In his words, he feared disappointing his parents and failing to live up to the expectations shaped by their long struggle for LGBTQ parental rights. His disclosure stayed with me. It prompted me to reflect more deeply on the dynamics and complexities of intergenerational queer families—an issue thoughtfully explored in an illuminating article by Bella Mancini Pori and Edward Stein, Foregrounding the LGBTQIA+ Children of LGBTQIA+ People.
Many anti-LGBTQ laws currently under consideration or already in force rest on the premise that simply encountering LGBTQ people, ideas, or representation can influence a child’s sexual orientation or gender identity. This faulty premise was described nearly 15 years ago by Cliford Rosky as the Fear of the Queer Child. It animates legislative efforts to restrict drag performances and drag story times attended by children, remove children’s and young adult books with LGBTQ content from libraries, and permit parents to opt their children out of classroom discussion of LGBTQ content in schools, a policy the Supreme Court endorsed in Mahmoud v. Taylor (2025). Indeed, in the words of Mancini Pori and Stein: “The myth of indoctrination––the idea that queer adults would turn straight children queer––looms large in the struggle for LGBTQIA+ rights.” (P. 66.)
Historical state antagonism toward queer families and queer children shaped the strategic decisions of LGBTQ advocates, often compelling them to minimize aspects of queer family life that might be perceived as distinctive. The presence of multigenerational queer families, for example, can be reframed by opponents as evidence that queer parents, whether through biological inheritance or social influence, “produce” queer children. In a recent piece, I’ve written about the possibility of disabled parents choosing to have a child with the same disability as them. Thus, similar to intergenerational queer families, these parents make difference a positive part of the family story. The infamous words by Justice Oliver Wendell Holmes, Jr. in the 1927 case Buck v. Bell, that “Three generations of imbeciles is enough,” seem to take on another meaning when discussing intergenerational queer families.
As Mancini Pori and Stein show, this way of thinking manifests in child custody and visitation cases involving queer parents. Nowadays, most courts apply a “nexus” test in custody disputes, treating a parent’s sexual orientation or gender identity as relevant only if it can be linked to concrete harm to the child. This approach rejects earlier presumptions that queerness itself is harmful. Still, unlike cisgender or heterosexual identity, LGBTQ status remains subject to scrutiny and debate in custody determinations. (P. 71.) Relatedly, in my own work, I showed how taking PrEP, an anti-HIV prophylactic popular among gay men, can affect decisions in custody cases, as it signals another homophobic trope, that of promiscuity.
In response to such narratives, impact litigation strategies around same-sex marriage, as described in Cynthia Godsoe’s work on Perfect Plaintiffs, frequently foregrounded families with straight children as plaintiffs and public representatives. This approach implicitly conveyed that queerness is not an identity to be deliberately cultivated or transmitted. Rather, it reinforced a framing of queerness as a status that warrants tolerance and protection, but not one that should be actively fostered or celebrated.
Such an approach misses the mark and actually harms queer children and intergenerational families. Andrew Solomon’s distinction between “vertical” and “horizontal” identities provides a useful lens for understanding difference within families. Vertical identities are passed from parents to children and typically shared across generations—race and ethnicity are clear examples, and religion often functions similarly. Because these identities are familial and expected, they tend to be socially recognized and affirmed.
Horizontal identities, by contrast, describe traits that children do not share with their parents. Sexual orientation, gender identity, and many disabilities often fall into this category. Intergenerational queer families are, of course, an exception to this rule. Solomon explains that while vertical identities are generally treated as natural, horizontal identities are more likely to be seen as disruptions—both by families and by society more broadly.
This framework helps explain the challenges faced by queer children raised by non-queer parents. When queerness operates as a horizontal identity, children may lack role models at home who share their experience and may struggle to find support, especially in less accepting environments. By contrast, queer children raised by queer parents encounter less difference within the family itself. Queer parents can provide affirmation, guidance, and a sense of belonging, even as their children navigate a predominantly straight and cisgender society. As Mancini Pori and Stein state: “These are real benefits that are specific to queer families, but these benefits went undiscussed in the fight for marriage equality.” (P. 78.) And while my friend’s story does not operate in this exact way, it does show how the early days of the LGBTQ movement’s messaging affected queer families.
The central move Mancini Pori and Stein make is to challenge the over-reliance of LGBTQ advocates on the “immutability” claim (that people are born queer), as both empirically uncertain and strategically limited, especially in the face of the fear of the queer child rhetoric. Instead, they argue that advocates should center multi-generation queer families to challenge the idea that becoming queer is a harm to be avoided.
Intergenerational queer families unsettle the societal and legal assumption that queerness is purely horizontal. These families also disrupt the idea that queerness is always a break from ongoing familial story, or that it is inherently tragic. Dare I say, it is something to celebrate. The Tony Award–winning musical Fun Home, based on Alison Bechdel’s memoir about growing up with a closeted father, is a pathbreaking cultural work that centers an intergenerational queer family and captures the phenomenon in all its complexity—its tensions as well as its generative possibilities.
Mancini Pori and Stein urge the LGBTQ rights movement to affirm and center intergenerational queer families in its advocacy. Even more striking is their yearning for judicial recognition, an outcome that may feel especially remote in the current political moment, yet remains normatively powerful and well worth repeating: “A court holding that it is in a child’s best interest to be raised by queer parents, even if that means a child has a more expansive view of their own sexuality and gender (and/or sexuality and gender more generally), would go a long way towards confronting and dismantling the fear of the queer child that is animating many anti-LGBTQIA+ laws around the country.” (P. 74.)
This piece lays the groundwork for future empirical inquiry. A mixed-methods approach—integrating quantitative data with qualitative analysis—would allow scholars to better assess the scope of the intergenerational queer families phenomenon and to examine more closely how these families interact with, and are shaped by, legal institutions.
Jun 23, 2026 Sheila Vélez Martínez
In his recent book, Critical Wage Theory: Why Wage Justice Is Racial Justice, Professor Ruben Garcia argues that wage justice is inseparable from racial justice and offers a framework for understanding the intersection of race, class, and labor law through what he terms “Critical Wage Theory” (CWT). García’s work builds on decades of scholarship in critical legal studies and labor law, weaving together historical struggles for fair wages, social movements, storytelling and structural critiques of inequality.
This is a Moment of Wage Policy Rollbacks
In the first ten months of his presidency, Donald Trump signed 217 executive orders, 54 memoranda, and 109 proclamations, addressing issues ranging from foreign policy to artificial intelligence. Given this volume and the immense variety of rights targeted, it is entirely possible that many people might have missed the fact that the current administration has, in a very systematic way, been limiting the access of workers to a living wage.
Among these actions, were significant rollbacks of minimum wage protections. On March 14, 2025, President Trump revoked a Biden-era executive order that had set a $17.75-per-hour minimum wage for federal contractors. This means the Biden-era minimum wage for federal contractors is no longer in effect. The applicable minimum wage instead reverted to the Obama-era standard of $13.30 per hour under Executive Order 13,658. The administration also proposed eliminating minimum wage protections for approximately 3.7 million domestic workers—a workforce largely composed of women and racial and ethnic minorities, including immigrants. In addition, the Department of Labor withdrew a proposed rule that would have ended sub-minimum wages for workers with disabilities, leaving the current $7.25-per-hour standard intact.
Critical Wage Theory, a way to better understand structural wage inequality
Fortunately for us, for over 20 years, Professor Ruben Garcia has been paying attention to how low-wage workers struggle to survive. Garcia demonstrates that these policy changes exacerbate long-standing structural inequalities. Over the past fifty years, income inequality has widened, particularly for immigrants and people of color. This book brings together two decades of research and writing on the importance of raising the minimum wage, not only to lift workers out of poverty in general, but also as a way of fighting structural racism. Critical Wage Theory applies the principles of Critical Race Theory to wage law, emphasizing intersectionality and the need for structural solutions to systemic barriers preventing workers of color from attaining a living wage. García argues that the “fusion of race and class is even more important at this period of backlash,” highlighting how immigration status and race intersect to deny economic dignity. (P. 28.)
Professor Garcia’s book also comes across as very personal. He includes his experiences as a labor and employment attorney representing unionized bakery workers, graphic designers, undocumented immigrant painters, and exotic dancers. It seems clear from his telling of these experiences that, when there is a coalescing of gender, immigration status, and work that is performed in the margins, workers are more vulnerable to wage theft. This is part of what he calls the “racial political economy.” Racial political economy often results in the law failing to protect the workers, even when protective law exists, due to the politics surrounding the minimum wage.
Proposed Reforms and Comparative Lessons
The book also proposes important reforms that need to happen to achieve wage justice. The first of these is to raise the minimum wage and lift millions of people out of poverty. Other needed reforms include eliminating the exemptions to the minimum wage, making wage increases consistent, making work more beneficial than unemployment, limiting unpaid internships, ending tipped wages, and using universal income to supplement not to supplant. He also promotes the idea of moving from the minimum wage concept to a minimum salary that is not calculated hourly and that would provide workers with more stability. In particular he proposes converting the minimum hourly wage to a livable working wage that could offer flexibility to employers and certainty to workers.
He closes the book with an important reminder that, in a globalized economy, transnational advocacy networks are essential for minimum wage policy. Maybe we should be looking to our neighbors south of the border for guidance. Mexico’s recent experience offers a compelling comparative example. Between 2018 and 2024, Mexico doubled its minimum wage, contributing to a 12-percentage-point reduction in poverty—from 42.9 percent to 29.6 percent—and lifting nearly 13 million people out of poverty. Poverty fell from 42.9 percent to 29.6 percent. According to experts, minimum wage increases explain around 70 percent of this historic reduction. The way Mexico achieved this offers valuable lessons for a way forward that mirrors many of Garcia’s proposals. He cautions however that even though translating minimum wage standards across borders is particularly challenging, transnational advocacy is important to achieve a better wage policy globally.
Garcia also reminds us that law conveys social meaning and that a low and stagnant minimum wage communicates that we as a society “place little value on all workers, not just those who happen to earn at that low level.” (P. 141.) As Garcia recognizes, advancing stronger labor protections for people of color is essential to raising labor standards more broadly across society.
May 25, 2026 Luke Herrine
We have become inured to a world of surveillance so pervasive it would make the Stasi blush. Much of this infrastructure is built on our nominal consent in the guise of consumption choices. We carry around tracking and recording devices in the form of “phones” because they also contain navigation tools, music libraries, messages with our intimates, games, cameras, and a huge variety of other tools to make our lives more convenient and connected. We accept that our online lives will be monitored, not always thinking of it, because doing so makes it possible to provide many services for free and makes it easier to find things and people that fit one’s idiosyncrasies. And, as brick-and-mortar stores close and more people stay in touch with each other through networked communication devices, it is increasingly difficult to live one’s life without “opting into” a surveillance architecture. Many (most?) of us would rather that the conveniences and connectivities of modern life not be connected to a network of surveillance—especially as the second Trump administration knits together these networks of commercial surveillance even more closely with state surveillance and repression–but we find ourselves feeling powerless to do much about it.
We association most of the modern infrastructure of nominally opt-in surveillance with the rise of Big Tech, but as Nakita Cuttino’s new article The Presumption of Creditworthiness reminds us, before Big Tech came credit reporting. Over the second half of the Twentieth Century, credit reporting agencies developed the basic approach of collecting data that businesses had on their customers without customer consent and compiling into files that other businesses and law enforcement agencies could buy. Once Fair Isaac Corp. developed its initial credit scoring model, the credit reporting industry also became the first to sell its data to firms with proprietary models that could be used to automate customer evaluation and, eventually, to segment consumer markets (and to target vulnerable customers with the most predatory deals). And as consumer credit became a core part of American life, the data collected by these companies became increasingly valuable for all kinds of businesses (employers, landlords, insurance companies) and the difficulty of opting out of the surveillance dragnet became increasingly high.
Cuttino’s thorough and thoughtful article gives a sense of how difficult opting out of the surveillance dragnet can be. Cuttino’s subject is “unscored” or “credit invisible” consumers—those about whom credit reporting agencies have insufficient information to produce a credit score. Approximately 32 million US adults—that is, nearly 13% of the adult population—are in that category. In the current system, unscored individuals are mostly presumed to be of low creditworthiness. Cuttino argues convincingly that this is a problem, and she provides a creative but tractable account of how it could be solved by flipping the presumption. In the process of doing so, she also provides fodder for a broader critique of using credit scores to parcel out opportunities and, indeed, of the creeping inevitability of megacorporations and governments using statistical analysis of our past to carve out the future paths available to us.
Cuttino points to several problems with treating unscored customers as presumptively unworthy of credit (or of only high-cost credit). The first is lack of credit history (or stale credit history) is not associated with nearly as high a risk of nonpayment as the current system assigns to them. Multiple studies indicate that most people with limited credit history are quite reliable payors. If they are being treated as if they are not, creditors are inefficiently restricting credit. Because Black and Latine individuals are disproportionately likely to be unscored—because, to oversimplify, people from these communities are less likely to have relatively wealthy and credit-sophisticated family members to ease them into credit markets—the inaccurate presumption of non-creditworthiness reinforces, as it also reflects, existing racialized inequalities. As Cuttino puts it: “the inadvertent creation of unscored consumers frustrates the credit scoring system’s promise to mitigate discrimination and promote equity” by providing ways of evaluating creditworthiness that rely on predictive data rather than stereotypes. (P. 469.)
In addition, the consequence of treating individuals without credit history as presumptively risky is to create a self-fulfilling prophecy. Unscored individuals find themselves either shut out of mainstream markets or offered credit on terms that are more difficult to pay. Borrowers with riskier loans have higher risks of nonpayment—loan risk becomes borrower risk—and their potential need to borrow again to fill gaps in income exacerbated by high payments. Borrowers deprived of credit might find themselves deprived of opportunities to build wealth or just earn income—by acquiring a house that itself appreciates in value or a car that helps them get to a job—which, among other things, makes it more difficult for them to pay future loans. And because credit scoring is used outside lending markets, unscored individuals will also find other opportunities pulled away from them and/or accessible to them only at higher prices. Since being unscored is largely a result of not being part of a community with sufficient resources to underwrite one’s access to credit markets, attaching these cycles of disadvantage to lack credit history is likely to add further cycles to the reproduction of inequality that credit reporting was meant to help remedy.
After diagnosing the problem, Cuttino then explains why the market solutions currently on offer will not suffice. The two most promising categories of market solutions Cuttino examines (she examines four total) are alternative underwriting and alternative lending.
Alternative underwriting draws on data from the expanded surveillance dragnet of our modern world to attempt to sort out the risky from the less risky unscored borrowers. Alternative models have shown some promise—especially when they make use of consumers’ payments on accounts not tracked by credit reporting agencies—but they are not great predictors and they come with risks. One risk is that requiring unscored borrowers to provide more information about themselves makes them more vulnerable in the case of a data breach and also requires borrowers to submit themselves to more pervasive surveillance and judgment regarding often intimate details about their lives. This risk further entrenches the norm of mass surveillance and makes it even more difficult to opt out of. Another is that some of the sources of information drawn on reinforce existing inequalities—borrowers that attended a historically Black college, for example, have been treated as riskier in at least some models.
The other promising market solution, alternative lending, involves products like “earned wage access” and “buy-now, pay-later” options. By these means, lenders provide credit to borrowers after at most a limited credit check, often because they require borrowers to link to payroll and/or bank accounts. While these products do provide sources of credit to at least some unscored customers at relatively low cost, they usually do not help borrowers build credit history (since they do not usually report to credit reporting agencies). And they also require customers to disclose more sensitive information than most customers. Most worryingly, they too-often serve as gateway drugs to higher cost credit products.
What makes the problem of unscored borrowers so vexing, Cuttino argues, is that treating lack of credit history as equivalent to a history of difficulties with repayment produces a form of adverse selection. “Only the most ‘privileged’ of quality unscored consumers will opt out, such as those who can operate solely in cash or who borrow from relatives. The remaining unscored consumers will be compelled to opt in,” which will then force them to use credit products that are more difficult to repay, that require them to expose more of their lives to lenders, and/or that do not actually help them build credit history. (P. 492.)
Adverse selection problems are, of course, problems of inadequate information. But because Cuttino is attuned to the costs that come with acquiring information about individuals’ lives, she is attuned to the limits of market solutions that would solve the problem by increasing surveillance. A more satisfactory solution, she argues, would be using one or more mechanisms to mandate a presumption of creditworthiness. “Such a policy might mandate that consumers who are quality credit risks subsidize those that are poor credit risks to ensure a market exists for those who are unknown risks—i.e., unscored consumers. Alternatively, it might mandate that lenders extend introductory mainstream credit on favorable terms to unscored consumers while absorbing—or being subsidized for—the associated risk.” (P. 493.)
The last section of Cuttino’s article provides some visionary ideas for making this policy goal real, combining interpretations of existing law (primarily under the Equal Credit Opportunity Act) and supplementing with new statutes. Interested readers should turn to the article for the details.
To me, the most interesting and generative aspect of Cuttino’s account is how it provides a wedge into a more deeply critical analysis of the logic of credit reporting. Throughout her article, she points out how increasing the information available to lenders does not necessarily increase predictive accuracy and, even when it does, it does not necessarily reduce the racially disparate impact of credit models. Moreover, more than most scholarly observers of consumer credit markets in the modern world, Cuttino is constantly alive to the risks and costs that come with providing more information about oneself. These and other observations lead her to advocate for a credit market that uses cross-subsidy (and/or public options) to make lenders less reliant on huge amounts of information to narrowly target their offerings. Cuttino’s focus is on unscored borrowers, but as she acknowledges at several points, the basic insights that she develops cannot be easily cabined to that class of consumers. Future work on consumer credit—and, indeed, on surveillance-facilitated commerce more generally—would do well to develop these insights.
Apr 27, 2026 Ryan Thoreson
As feminist scholars have long observed, the rise of populist governance has often been fueled by the enforcement of rigid gender and family roles. Populist leaders frequently cast themselves as the guardians of traditional gender norms and family structures and disparage global elites as imposing new or foreign ideas on unwilling publics. Recently, right-wing governments around the globe have reliably campaigned against what they have called “gender ideology,” a flexible and protean term that can include anything from changing gender norms, to same-sex marriage, to legal gender recognition for transgender people.
Yet the rightward shift toward authoritarian governance in many countries has coincided with a relatively recent recognition of LGBTQ rights in constitutional jurisprudence. Rehan Abeyratne’s excellent new book, Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment, examines how LGBTQ rights have fared amid democratic backsliding and a retreat from a coordinated and generally progressive global constitutionalism. Abeyratne focuses on developments in three jurisdictions: the United States, India, and Hong Kong. He argues that decisions affirming LGBTQ rights have thus far survived an illiberal, authoritarian turn in each of these jurisdictions. This is because LGBTQ rights have provided a vehicle for judges in these jurisdictions either to signal a commitment to liberal values by recognizing at least some LGBTQ rights claims even as they acquiesce to a rightward turn in other respects, or to assert some modicum of judicial independence by ruling against the government and affirming LGBTQ rights claims in the face of growing constraints.
Although that argument quite likely has explanatory potential in many settings, its force in the book derives from Abeyratne’s intensive focus on the three case studies. Abeyratne’s attention to context allows him to chart a rich history of the judicial recognition of LGBTQ rights in each jurisdiction, situating victories and setbacks not only in the arc of precedent but in the changing institutional and political pressures in each jurisdiction that shape judicial behavior. This detailed analysis also allows Abeyratne persuasively to explore the nuances of many of the landmark LGBTQ and civil rights opinions, and the ways in which procedural and substantive seeds planted in landmark victories and setbacks often have borne unexpected fruit years or decades later.
Separate from the book’s argument and thoughtful comparative methodology, one lasting contribution that Abeyratne’s monograph makes is its careful dissection of the tensions that are animating what increasingly feels like a real inflection point for constitutional commitments to LGBTQ equality in many parts of the world. While Abeyratne’s book frames a recent history where LGBTQ rights have been ascendant in many places, his careful explication of the current moment is also useful for readers wishing to understand how the forces of democratic backsliding might ultimately overwhelm judicial commitments to LGBTQ rights.
In the short time since the book was published, there are two areas where that potential seems particularly apparent. First, there are pronounced signs that the shift toward more authoritarian governance in Hong Kong, India, and the United States is reshaping the judiciary’s will or ability to safeguard LGBTQ rights. One telling example is the Hong Kong Court of Final Appeal’s ruling in 2023 that the government must recognize same-sex partnerships. In September of 2025, the government’s bill to recognize same-sex partnerships was rejected by the Legislative Council, leaving it unclear whether or how the government will actually comply with the court’s ruling. Similarly, after India’s Supreme Court ordered the government to recognize transgender rights in the NALSA decision in 2014, the government responded by adopting the Transgender Persons (Protection of Rights) Act in 2019, a law that activists argue falls short of what NALSA required in important respects. In particular, the law rejects self-identification of gender in favor of a government certification process that requires proof of gender affirming surgery to change one’s legal gender. The law also prohibits discrimination against transgender people in various domains but does not provide for the affirmative action measures ordered by the court in NALSA. Whether apex courts continue to insist on LGBTQ rights even in the face of government intransigence (and sometimes efforts to transform the judiciary itself) or, instead, water down or retreat from those rights remains an open question. Abeyratne’s book is well positioned to help future scholars approach and answer it.
Second, even as many judges have retreated from a liberal cosmopolitan approach to constitutional adjudication, courts have not invariably become more insular or provincial in their reasoning. Instead, there are some signs that courts in different jurisdictions continue to use a global lens to understand LGBTQ rights claims. They are, however, increasingly doing so with an eye to countries whose jurisprudence is more skeptical or even hostile to LGBTQ rights. Here, the U.S. Supreme Court, which has a fraught relationship with modern global constitutionalism in the context of its own constitutional decision-making, offers one example. As Abeyratne notes, Justice Kennedy discussed comparative jurisprudence in cases like Lawrence v. Texas (on the constitutionality of criminalizing same-sex intimacy) and Roper v. Simmons (on the constitutionality of the juvenile death penalty). These discussions drew sharp criticism from many of Kennedy’s more conservative counterparts, a phenomenon that led to appeals to international law in constitutional decision-making falling out of favor on the Court, resulting in little mention of the global context in later cases like Obergefell. Yet one notable feature of the Court’s recent Skrmetti v. United States opinion upholding state bans on gender-affirming care for minors is that it looked to foreign practice and the regulation of gender-affirming care in England, Finland, Norway, and Sweden to support a ruling that rejected pro-trans equal protection claims. At the policy level, it is already evident that right-wing opposition to LGBTQ rights is globalizing in important ways, with some populist leaders, for example, declaring that there are only two sexes that are fixed at birth and then using that position to limit transgender people’s access to gendered spaces, healthcare, and identification documents, and to withhold government funding from or otherwise punish entities that recognize or affirm transgender people. What global constitutionalism’s relationship to LGBTQ rights will look like in the future remains to be seen.
Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment provides a richly textured account of the rise and fall of transnational judicial dialogue and the development of an influential jurisprudence recognizing and protecting LGBTQ rights. The book not only persuasively details how that jurisprudence has fared in the face of democratic backsliding, but it does so at a moment when both LGBTQ rights and judicial independence remain under sustained threat around the globe. In capturing that trajectory to the current moment, the book promises to be an invaluable text for those interested in how law and politics have historically intertwined to foster the development of LGBTQ rights jurisprudence, as well as for those scholars and advocates navigating the uncertain future into which that jurisprudence is headed.
Mar 26, 2026 Ezra Young
In her Supreme Court chambers, the late Justice Ruth Bader Ginsburg prominently displayed a passage of Hebrew scripture: “Tzedek, Tzedek, tirdof.” In English, the passage reads: “Justice, justice you shalt pursue.”
Some Americans are ardently religious. And some, like Justice Ginsburg, believe they are religiously obliged to do right in both public and private life. Figuring out how far individuals may extend their religious exercise into the public sphere is difficult and increasingly fraught. As Justice Ginsburg elevated more than a decade ago in her dissent to Burwell v. Hobby Lobby Stores, Inc., a legal rule that allows a religious person to affect the rights of someone who does not share their views is constitutionally suspect. Put another way, the big metaphysical questions some of us happily answer through faith alone are not always conducive to secular logics, let alone law.
As a man of faith and ardent constitutionalist, I have been uneasy about the special solicitude the Court has extended to some free exercise challengers, especially those who appear to be litigating in bad faith. But not having a strong background in First Amendment jurisprudence, I have had trouble fully digesting the gravity of recent decisions. For readers like me, Professor Zalman Rothchild’s latest article, The Impossibility of Religious Equality, published by the Columbia Law Review, is a must-read descriptive account and critique of the Supreme Court’s free exercise jurisprudence.
Cogently, Rothschild explains that, over the last few decades, the Court has shifted from conceptualizing free exercise as a liberty interest, to conceiving it as mandate for super-charged religious equality. For much of the twentieth century, the Court approached free exercise through a liberty paradigm—any law that burdened religious practice, even incidentally, was presumptively unconstitutional unless narrowly tailored to achieve a compelling government interest. (P. 455.)
Things changed with Employment Division v. Smith. In Smith, the Court held that Oregon’s generally applicable unemployment rule which disentitles workers to benefits if they are terminated for misconduct does not run afoul of the Free Exercise Clause when applied to Native American drug counselors terminated for using peyote. Peyote is a cactus containing mescaline, consumed by some as a religious sacrament, which Oregon criminal law separately prohibited. Smith ultimately reasoned, that while possible for Oregon to create a religious accommodation for peyote use legislatively, the First Amendment does not require enactment of a “religious-practice exemption.”
Over time, Smith has bizarrely been construed as creating a “new constitutional rule against religious discrimination.” (Pp. 455, 460–85.) Under this new rule, if a law gives secular exemptions but denies religious exemptions, it is presumptively unconstitutional. (Pp. 496–97.) This holds “even if regulating religion is entirely unrelated to the law’s purpose.” (Pp. 496–97.) Consequently, “[w]hen a law bestows the benefit of an exception according to a classification that does not include ‘comparable’ religious entities, activities, and motivations,” it is unconstitutional. (P. 456.) (Or the Court may even, as was held recently in Mahmoud v. Taylor, require reinstatement of previously eliminated opt-out policy to specially accommodate religious objectors.)
As a practical matter, because most laws have some secular carve-outs, all must also accommodate religious exemptions. Rothschild characterizes this rule as affording “additional deference [to religion] that renders it even more sweeping and more potent than religious liberty.” (P. 487.)
Using Covid-19 lockdown orders as one example, under the liberty paradigm, a challenger may have been able to show the order imposes a “substantial burden” on her religious practice, but still would have failed to impeach “the compelling nature of the government’s interest or the necessity of the government’s chosen methods” by pointing to the order’s secular exemptions. (P. 486.) But under the equality paradigm, the challenger will prevail if the order contains any secular exemption but lacks a religious one (id.). The operative difference is, Rothchild reasons, that the equality paradigm presumes free exercise entitles the plaintiff to an exemption on religious grounds if exemptions are available on nonreligious grounds.
Rothschild’s critique of the Court’s new religious equality mandate is intriguing. He urges that the mandate is both “practically unworkable and conceptually incoherent.” (Pp. 457, 494–95.) It is unworkable because it calls for treating religion the same as secular comparators even though religion is not comparable in terms of its essence or value. (Pp. 495–523.) And it is incoherent insofar as it presumes that “religion is always at least as valuable as all that is secular” (P. 494) but not vice versa, which Rothschild charges is “the very opposite of equality.” (P. 524.)
In the Roberts Court, one of Rothschild’s suggested interventions may prove viable. To wit, Rothschild suggests that the Court and scholars alike have overlooked that, as a textual matter, the First Amendment bars government from making laws “prohibiting the free exercise [of religion].” (P. 528.) This “antipersecution” component of free exercise has been underappreciated by the Court. I agree with Rothschild that the word “prohibiting” in the First Amendment should inform how we construe the metes and bounds of the free exercise guarantee. Hopefully, Rothschild and other scholars will more fully interrogate what difference that shift makes in the coming years.
Feb 25, 2026 Chao-Ju Chen
Rachel Bayefsky,
Tradition and Feminism in Constitutional Rights Adjudication, __
Va. L. Rev. __ (forthcoming), available at
SSRN (May 27, 2025).
In the post-Dobbs world, concerns over the Courts’ growing use of “history and tradition” as an interpretative tool and as a constitutional test, particular its invocation in ways that reinforce inequality, have reached an unprecedented high, and with good reason. One of the latest examples is the Supreme Court’s adoption of historical practice as a central interpretative mode in its 2025 birthright citizenship case, Trump v. CASA, which imposes limits on lower-courts’ ability to enter preliminary injunctions and opens up the possibility of discriminatory legal measures being blocked for some but enforced against others, including those in marginalized communities who lack resources to legally challenge them.
Joining a growing body of legal scholars addressing “history and tradition’s equality problem,” Rachel Bayefsky has now made a timely feminist intervention that brings conceptual clarity, methodological rigor, hope for change, and a persuasive appeal to both liberals and conservatives to move beyond the adversarial relationship between tradition and equality. In a world of intensified polarizations, Bayefsky’s constructive and philosophically nuanced engagement with traditionalists is especially commendable. Her proposed theory of dialectical traditionalism reconciles the tensions between traditionalism and feminism by providing a framework for adjudicators to engage with traditionalist reasoning without replicating and justifying the unequal past, regardless of whether they identify as “traditionalists.” A recent study examining the role of history and tradition in state court abortion decisions supports Bayefsky’s hope, as some of these courts have adopted a critical approach to history and tradition in protecting reproductive rights.
Refusing to argue in support of any variant of originalism while also refraining from abandoning traditionalism, Bayefsky begins her argument by challenging an essentialist view of tradition and criticizing the idea that reasoning based on history and tradition is simply a value-neutral and descriptive fact-finding practice. Instead, she proposes a critical definition of tradition as “networks of enduring practices and understanding,” characterized by duration and continuity and change. This definition encompasses cultural and legal sources of law, and constitutes a collective life and memory in which participants are agents capable of engaging in interpretation, reinterpretation, and revision. This anti-essentialist and organic view of tradition leads to her distinct form of traditionalism: “dialectical traditionalism,” a form which allows tradition to evolve without forfeiting its instructive power. Dialectical traditionalism is dialectical in the Hegelian sense: past practices can be acknowledged as incomplete and reshaped into present ones without losing all of their force; the past and present can be reconciliated without fully resolving the tension between them. (P. 22 n.136.)
Defining and assessing tradition, therefore, necessarily entails a normative judgment and a moral choice, resulting in the choice of either of tradition’s dual roles: as a positive source supporting the legitimacy of a constitutional right or the constitutionality of a government regulation (e.g., traditions of feminist activism as positive precedent), or as a negative source underscoring the problems of the past – that is, the use of tradition as a “negative precedent” (a record of past wrongs to be remedied as the nation strives to define itself) that renders the reliance interest tainted and therefore invalid.
Bayefsky further claims that a traditionalist argument can, at times, take the form of a genealogical critique – “identifying the problematic historical roots of a practice, or disturbing historical cognates, to reject the practice’s current manifestations.” (P. 46.) This critique may even proceed to identify similarities between injustice in the past and in the present, as there may be no clean break between the bad old days and good modern days, an insight that echoes Reva Siegel’s “preservation through transformation” thesis.
Why is it beneficial for adjudicators to adopt a dialectical traditionalist approach? Bayefsky identifies four normative rationales: concrete experience, reliance, democracy, and national identity, each of which may carry a different kind of appeal to different audiences. She intends to bring both traditionalists and feminists on board: to have traditionalists endorse feminism and feminists embrace traditionalism. Feminists, particularly those grounded in standpoint theory, may find dialectical traditionalism appealing because it values the experiences of subordinated groups who live out the realities of social subordination and imagines ways to incorporate their perspectives into democratic processes and the ongoing construction of national identity. Dialectical traditionalism may also attract feminists insofar as it invites members of the polity to engage in a critical recommitment to the past: preserving historical practices and understandings deemed morally justified (such as advancements in women’s rights) or morally neutral (such as single-sex education), while repudiating those deemed morally indefensible (such as the doctrine of chastisement). Traditionalists, on the other hand, may be persuaded to accept dialectical traditionalism because it underscores “facts on the ground,” promotes stability, allows more room for majoritarianism and the public will, and bolsters the stability of the American polity by connecting the present and future with the past.
For adjudicators who find Bayefsky’s ideas of dialectical traditionalism persuasive, how might they put them into practice? Bayefsky offers several guidelines, including diversifying the sources of tradition to include both formal law and non-legal sources, and valuing continuity while remaining open to change. As for dealing with the indeterminacy question (the selection of influential traditions and the choice between traditionalism or other modalities), she suggests that two sets of criteria (objective and value) are both important and emphasizes the pluralist nature of dialectical traditionalism. One of the hypothetical positive outcomes of dialectical traditionalism she provides involves Geduldig v. Aiello, a case in which the Court upheld a California disability insurance scheme that excluded pregnancy-related conditions on the ground that classifications based on pregnancy were not inherently sex-based. Had the Geduldig Court embraced dialectical traditionalism, its formalist reasoning, which refused to consider pregnancy discrimination as sex discrimination, might not have prevailed, as traditionalism would have provided a basis for recognizing the historical association between gender and pregnancy. In this respect, dialectical traditionalism adds important conceptual heft to critiques of Geduldig that have decried its sex equality “logic” on the basis of a less rigorous notion of “common sense.”
Bayefsky’s assumed readership also includes equality advocates, given her aim of exploring tradition’s potential constitutional role in advancing women’s and others’ equality rights. Her advice is to “refer to American traditions in general” and “draw on histories of women’s rights activism in particular.” (P. 48.) One of her persuasive strategies, which also demonstrates of the pragmatic benefits of traditionalism, is to find a silver lining wherever possible, including in cases where the Court celebrated marriage and endorsed the masculine standard.
There is more to this bid than it might initially seem. I myself remain unpersuaded by the view of marriage articulated in Griswold, Loving, and Obergefell, where the Court considered marriage as sacred, fundamental to people’s existence, and the keystone of the social order. Nor do I appreciate Justice Ginsburg’s approval of the Virginia Military Institute’s use of the masculinist adversative method in the VMI case. Nevertheless, Bayefsky’s analysis invites a reassessment of whether the Court’s embrace of tradition in these cases may have practically advanced the cause of equality by tempering the resentment of those inclined to disagree and broadening support among moderates, thereby enhancing the legitimacy of judicial opinions. She also notes that three Justices in the majority of Griswold were also in the majority of Eisenstadt, suggesting the possibility of endorsing marital privacy while simultaneously valuing individual autonomy.
On this note, I cannot help but recall the collaboration among feminist lawyers and historians in filing an amicus curie brief in Webster v. Reproductive Health Services, a case that upheld a Missouri statute restricting abortion. Concerned about the Court’s potential deployment of “our history and traditions” to constrain women’s reproductive rights, the amicus brief contested Missouri’s claim of a long-standing and consistent tradition of states criminalizing abortion, and instead demonstrated that abortion was lawful and widely accepted for much of the nation’s history. Although the Webster Court did not cite the brief or adopt its positions, it nevertheless refrained from relying on history and tradition as the basis for its reasoning in support of Missouri’s restrictions on abortion. Sylvia Law, the architect of this interdisciplinary collaborative brief, considered its modest objective to have been achieved, as it had “precluded the Court from using history in a shallow and determinate way.” From an advocate’s perspective, the pragmatic value of a traditionalist approach may also reside in its capacity to facilitate reasoning such that judicial outcomes adverse to equality are not justified by history and tradition, precisely because courts may regard such reasoning as too indeterminate to sustain. At best, the Court might embrace dialectical traditionalism when reasoning from history and tradition; at the least, the Court might avoid turning “bad” history into constitutional doctrine.
Bayefsky’s treatment of the constitutional fidelity question resonates with Catharine A. MacKinnon’s views on the same subject even as their perspectives on moral reasoning diverge. Arguing against what she describes as a “top-down” style of moral reading which asks questions about good or bad, right or wrong, rather than about equality, MacKinnon claims to practice constitutional fidelity by adopting a “bottom-up” approach to interpreting equality under the Constitution. As she sees it, such an approach to equality’s meaning is thick with social reality, because the Constitution prohibits inequality, not immorality. “Count me an adulterer,” she said, if constitutional fidelity means a moral reading of equality, which knows only what power has already been compelled to yield – that is, a reading of the Constitution incapable of seeing inequality until the law has already condemned it as such. While MacKinnon declines the invitation to theorize and interpret morally, Bayefsky, who does not disapprove of the position of a moral reader, has demonstrated that, under the dialectical traditionalist model, tradition’s power to bind a community over time not only demands the inclusion of concrete experience, but also, paradoxically, calls for a measure of flexibility, which bears the potential of identifying what power has not yet been brought to concede.
Bayefsky has persuasively advanced a theory of history and tradition for the American people that promotes equality for all. I, as an outsider to “We the People,” also wonder whether the practice of dialectical traditionalism could extend to engaging with the traditions of “the Other” in ways that would avoid the trap of legal Orientalism. Anti-abortion advocates have long deployed claims concerning alleged backward Asian cultural traditions of son preference to advance sex-selective abortion bans, despite criticism and objections from scholars and advocates, including AAPI women. Justice Thomas’s concurrence in Box v. Planned Parenthood also identified sex-selective abortions as among the contemporary practices he characterized as “a tool of modern-day eugenics,” a claim that has been subject to extensive rebuttal. For a theory of history and tradition to claim the power for change that Bayefsky imagines, future adjudications informed by dialectical traditionalism should endeavor to critically de-essentialize Asian traditions in a manner that promotes equality, freedom, and justice, rather than hindering them.
Jan 29, 2026 Marc Spindelman
Dean Spade’s latest book, Love in a F*ucked Up World: How to Build Relationships, Hook Up, and Raise Hell Together (2025), is a self-help volume with a distinctive mission. The book’s self-improvement stylings arrive amidst the highly intentional teachings of an established social movement activist, organizer, and institution-builder writing here primarily for a younger generation on or open to the political left. The book leverages hardscrabble wisdom wrought from Spade’s years on the political front lines as deepened by serious psychological study and reflection. The result is a book offering readers a space for meaningful self-witness. Love encourages readers to discover via self-reflection that many of the forces they oppose “out there” in the social world also operate within themselves. The book’s self-help resources then guide readers toward the transformative self-healing that may follow—producing selves capable of new intimacies, relationships, and social movement work that may yet set them, and the rest of us, free.
Love’s self-help advice unfolds across digestibly structured chapters. These carve-ups give readers opportunities to process the book’s instruction and self-exam prompts, making the experience almost dialogic. The book braids self-help advice with political argument and complements both with first-person narrative and fictionalized vignettes that supply readers with additional layered contact points for approaching its ideas, questions, questionnaires, assessment tools, and worksheets.
Early substantive chapters orient Love’s readers to their self-transformative possibilities through accounts describing leading cultural forces that pervasively shape and script the social world, its systems, and individual selves, including inner experience. In doing so, these chapters reveal how these same social forces condition individual capacities for building and sustaining relationships.
Along these lines, Love’s chapter materials spotlight the old cis-heteropatriarchal romance narrative storied as the best and truest path to self-realization, happiness, and flourishing. Recasting this narrative and its scripts in critical relief empowers Love’s readers to recognize how the romance narrative may have podified them and placed them on “autopilot” while providing the basic, if occluded, terms for their social being, social horizons, and thus their political selves. (P. 20.) Love builds on this discussion in a subsequent chapter treating still other cultural forces and scripts, not least including those associated with U.S. political economy, that can likewise alienate people from their authentic selves by “numb[ing]” them and shrinking their “emotional range” and interconnective capabilities. (P. 78.) Understanding this numbness as socially determined positions Love’s readers to imagine that they, too, could become more sensate: present, awake, and available for intimacy, including in all manner of relationships—and politics. “[D]ismantling . . . systems [of domination] inside and outside ourselves requires being able to feel more.” (P. 93.)
Subsequent chapters explore how individual childhood and other personal histories also construct us, while offering practical advice on tracing and changing those histories’ effects. Love reckons with how to avoid pitfalls that can create challenges for oneself and social movement living, like gossiping, “campaigning,” and seeking vengeance against exes. (P. 177.) Readers also encounter strategies for handling “[n]egative [s]elf-[t]alk, [f]ear, and [a]nxiety,” and for sustaining relationships when they are psychically activated. (P. 213.) Elsewhere, the book tackles relationship conflict, and “[c]ommunication and [r]epair,” emphasizing “[l]istening,” “[a]pologizing,” and “forgiving” as skills that are about relationships with others as well as with oneself. (Pp. 225, 238, 243, 247.) A final substantive chapter, entitled “[r]evolutionary [p]romiscuity—[and] [g]etting [f]ree [t]ogether,” considers issues of difference, safety, and security, and different forms of interpersonal connections, jealousies, and the challenges of accepting change. (P. 264.) This discussion returns to the romance myth as constraint and condition for self-transcendence. Love maintains that the understandings and skills it promotes are not only about individual social flourishing, but also about individual and collective “surviv[al]” in a wide sense, through, in part, the collective movement politics that Love sees as the best hope for tomorrow. (P. 318.) Love concludes by collecting various points and offering a picture of existing socio-political conditions. The point is not to shut down readers newly opened up, but rather to steel them for the challenges they will face, armed now with Love’s teachings and better able to relate “with as much integrity and compassion as possible” as they liberate themselves and others from the “old cultural scripts [and] coping mechanisms that undermine effective action” required to build a freer future “in this gorgeous, fucked-up world.” (P. 326.)
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As a matter of form, Love—as a self-help book—is hardly classic legal academic scholarship. Substantively viewed, the matter is somewhat more complicated—and interesting. Legal academic readers generally familiar with left-liberal and progressive anti-subordinationist theorizing will see it circulating and doing important lifting in Love’s affirmative argument.
Love’s tally of the social world does not overly emphasize the state’s and the law’s distinctively significant roles in instantiating and reproducing hierarchical social relations. The choice of relative emphasis is almost certainly related to Spade’s anti-statist leftism. Still, the state and the law are characters in Love’s narrative. They surface in the book’s references to the government, judges, police, prisons, military, “the school discipline system, the family policing system,” the “[s]ystems of taxation, property, healthcare, housing, and immigration,” and the legal institution of marriage. (Pp. 280, 24.) Like other social forces that Love attends to, the state and the law in these iterations involve systems: “systems of domination” and “illegitimate systems of authority” that, in a larger sense, make up “[t]he systems we live under,” elsewhere more colloquially termed “the system” itself. (Pp. 271, 280, 17, 35.)
In more traditional left-liberal and progressive legal scholarship, views like these are commonly predicates that ground follow-on calls to halt and reverse the state’s and the law’s role in social inequality’s reproduction. Love, by contrast, does not advance its anti-subordinationist positions primarily by imagining seizing and then wielding control of the state and the law to drive everyone into a leftist egalitarian future.
Love pursues its liberatory anti-domination politics by means that appear more immediately interested in enhancing voluntaristic individual and collective action—a voluntarism whose dynamics vitally include individual and collective self-reform and self-healing. These are the forms of self-change that may generate the interpersonal and structural movement politics and thus the world-altering effects that Love ultimately dreams about. Seen this way, Love’s self-help project is both end and means. As means, it is, by design, astute social movement governance. Should its self-help proposals take root and flower, they will reduce intra-movement frictions and their movement costs, giving social movement participants and social movements themselves access to a much larger array of interior and interpersonal resources to use in their shared work. (See Pp. 2–4.)
In doing this, Love does not show up as an exercise of Taylorist workplace efficiency nor as so much “woo woo” utopianism in its political dream-scaping. (P. 15.) Navigating the polarities, Love’s overall outlook is realistic and pragmatic, as suggested by its refusal to mince words when describing the social world as “fucked up,” “brutal,” and filled with “much loss and suffering.” (Pp. 9, 1, Ch. 2 (online edition).) Improbably and nevertheless, Love remains persistently hopeful, even joyful, about the prospects of individual and collective change—from small, individual change to change of more collective and even world-historic proportions. This will make the book especially alluring for those readers today who are yearning for blessed release from a sometimes gripping, sometimes enervating, worldly pessimism. Love fires its readers up so they may break into brighter and more sustainable political affects.
Love does warn that nobody should think its hopeful politics imply a politics of ease. The work that Love refers to, including its self-help work, is serious and difficult, and it demands committed “practice.” (P. 66.) The resulting ardors are not of a world-denying asceticism, but, if anything, closer to its opposite. They arise in and as world-affirming and world-making liberatory politics. These politics, which partly trace an important queer lineage, encompass more than the pains of self-estrangement and extend to the pains and pleasures associated with new possibilities for desire, pleasure, intimacy, relationships, and thus new ways of being-in-the-world and being-in-the-world-together-with-others. Love’s title trumpets relationships, sex, and “raising hell, together,” while imagining people actively reshaping their lives and the social world as part of a larger sensual, sensuous leftism.
Love’s particular politics advance an abiding faith in humankind and plasticity. Love thereby inevitably re-raises age-old questions about human nature and good versus evil, as well as questions about just how pliable humans actually are after a certain point of psycho-social development. Understanding these issues, Love engages them to some degree, but defers many details. (See Pp. 57–61.) Its realistic conviction is that people are at least pliable enough to do this kind of self-work by themselves and with others. Love takes a somewhat similar stance in relation to critiques that stand waiting in the wings, ready to point out how this effort in political psychology might be coopted by reactionary political foes happy to claim the work shows that social hierarchies’ injuries and social hierarchies themselves reduce to subaltern psychology. Refusing the distraction, Love prepares terms for future battle and effectively answers in the present tense that no, thankyouverymuch, it is not finally saying that social hierarchies’ harms or social hierarchies themselves result from socially subordinated peoples’ mental states. “I’m [n]ot [s]aying [i]t’s [a]ll in [y]our head,” Spade says. (P. 22.) No, Love’s whole point, after all, is that self-aware self-adjustments that “align our values with our actions in relationships” will be required along with social movement mobilizations to remake the social world in freer directions. (P. 3.)
***
How legal academics will react to Love and its call is not among the book’s special concerns. Still, its offerings provide space for legal academics, too, to get introspective. This might only be in relation to their nonacademic lives, but there is also the prospect that they might reconsider aspects of their academic life and work, including their scholarship and teaching. (Teaching is a subject that Spade has written about before.)
On the scholarship front, Love practically delivers a reminder of the productive possibilities of the long under-attended but far-reaching law-and-psychology terrain. Re-opening the particular dynamism between and among inner experience, “outer” social world, and individual and large-scale change, Love might inspire next-generation breakthrough scholarship that will leverage political psychology and inner life’s power to reshape front-line politics and thus the future on any number of matters of import to left-liberals and progressives. By its example, Love’s methods could also prompt new legal academic scholarship that returns to older critical traditions of first-person narrative and storytelling and that gives those methods and their transformative capacities a fresh lease on life. Reengaged, this work might be undertaken at an important intersection with more recent social movement theorizing.
Among the many other types of law scholarship that Love may give a new chance, however, one in particular warrants mention given its thematic significance to the book. This is the prospect of a new egalitarian-minded legal scholarship on love itself.
Love talks about “love” in different registers. The book critically interrogates love’s place as head-trip, as in in the old heterosexualized and economically determined cultural romance narratives and scripts that herald love in interpersonal romance terms and as the golden ticket to self-realization, happiness, and flourishing. More positively, the book depicts love as an interpersonal and structural social affect and a powerful motivating, indeed world-changing, social force. Love surfaces on this level as interpersonal feelings that individuals have for one another in platonic, erotic, and political relationships in their various combinations, and as feelings that are structurally inflected and widely diffuse. Love bears witness, for instance, to the “love of solidarity” and social movement efforts undertaken with an “open and loving heart.” (Pp. 27, 325.)
Actually, Love discusses love quite a bit, though the book declines a fully systematized and worked-out theory of the term. Rather, Love fills and empties love with different meanings, while finally leaving it to function as an essentially empty concept.
Legal academic readers who prefer their concepts poured analytically straight amidst more formal theory tallies may regard Love’s treatment of love as—if not an occasion for some dashed hopes—then as a shortcoming of the work.
There is, however, another way to see it. And that is that Love’s seemingly superficial and promiscuous use of love productively leaves love’s ultimate meaning open and subject to readerly self-reflection, definition, and collective negotiation, including through social movement. Readers must decide for themselves what love is and what love has to do with their lives, relationships, and political movement efforts. If Love boasts that it is “pro-risk, pro-sex, and pro-love of all kinds,” the book still—somehow—manages to hint that it feels the pull of social movement activities that would fix love as a political north star. (P. 27.) Among other flashes hinting at the prospect is the epigraphic trumpet quoting an old protest print saying: “Your heart is a muscle the size of your fist. Keep Loving. Keep Fighting.” (P. 77.) Love here precedes—and animates—freedom struggle. The book’s dedication to “lovers and fighters” shows its deeper resonances when read in this light.
If Love itself keeps up the loving while leaving love open-ended and open to practice centering it, the book might well enlarge the campfires of love scholarship that have, over time, appeared in left-liberal and progressive legal scholarship. A new left-liberal and progressive love law scholarship might take many different forms: from studying love’s past and present as a left-liberal and progressive political and legal value to considering why, even now, it seems so difficult to imagine a serious and burgeoning body of academic, including legal academic, writing on the subject.
A new love scholarship in law might, in all events, prove no more than a flash-in-the pan, or worse, a dead-end that distracts from all the other serious work that there is to do and that thus generates serious social costs.
Those and other possibilities must be countenanced, but Love’s appearance testifies that Spade is tracking, and perhaps joining, others working outside the academy in left-liberal and progressive circles where love is rising as a political and spiritual force, one that, with Amanda Gorman’s “The Hill We Climb,” may “become[] our legacy” and change the next generation’s “birthright.” Love’s rise and rise away from law may mean it was only a matter of time before the dawn of a new generation of legal scholarship on love. Spade’s Love book may hasten the development, and with it, the individual, collective, and generational transformations that love may bring about.
Ultimately, Love’s self-help stylings offer both instruction and an occasion for reflection on love’s many forms. The book may thus serve as an antidote to the pessimism and isolation that many people these days, even some involved in social movements, are experiencing and reporting out. Spade’s Love stands as that rare work by an author who happens to daylight as a law professor that may help its readers realize, broadly, “the possibility of being here for what’s here.” (P. 326.) And how being here like that, while “treating others and ourselves as well as we can,” allows us to experience the thrills of presence and everything else that comes along with living “together, in this gorgeous, fucked-up world” in the days and years and years ahead. (Id.)
Cite as: Marc Spindelman,
Spade’s Love, JOTWELL
(January 29, 2026) (reviewing Dean Spade,
Love in a F*cked Up World: How to Build Relationships, Hook Up, and Raise Hell Together (2025)),
https://equality.jotwell.com/spades-love/.
