Dec 19, 2025 Ann E. Tweedy
In this current era of the weaponization of law against transgender people, I found the beauty and heartbreak of K. Iver’s Short Film Starring My Beloved’s Red Bronco fortifying. Iver is a trans, non-binary poet, but the poems in the book largely focus on their teen-age years when they identified as female and were in love with a young trans man who ultimately committed suicide.
These extremely difficult times we are now living in seem to call for poetry—even among law professors—because of its emotional immediacy, particularly its ability to transcend entrenched positions and arguments and to allow us to commune with others through the experiences poets describe. In this era of book bans and state-sponsored censorship, poetry and literature in general are perhaps less likely to have the wide reach they otherwise would, so, despite Iver’s book’s transformative potential, it may be unlikely that it will be read by many who are unsure about transgender rights or who reject them outright. However, as a trans ally and poet, I found the book deeply affecting, and I would highly recommend it to anyone.
The book describes the speaker’s beloved, whose birth name was “Missy,” as having committed suicide in 2007, and many of the poems intensely explore the years preceding that time, during a period in which the speaker and the beloved had a relationship that was off-again, on-again due to the speaker’s mother’s hostility. (Pp. 2, 59.) The primary timeframe described by the poems is thus before the explosion of anti-trans laws and legislation that started to ignite in 2018 and then launched in earnest around 2021, although some of the poems also address events in the speaker’s present, including the Supreme Court’s decision to allow the first Trump Administration’s trans-military ban to go into effect in 2019. (Pp. 45-49.) Both the poems addressing the speaker’s teen-age years and those touching on their more recent experiences viscerally bring home the very personal harms that anti-trans prejudice and the laws founded on it impose.
“Who Is This Grief For?” is a poem about more recent events. Like many of the other poems in the collection, this one is addressed in second person to the beloved. It describes the speaker’s deceased beloved, a former soldier (P. 48), as dying again due to the Supreme Court’s provisional allowance of the trans military ban:
. . . Years ago
I quit a job reporting
government affairs.
I no longer have to visit
the desks of suits who say
I don’t exist.
But headlines now wait
from our phones. Last week
upon waking—SUPREME
COURT ALLOWS TRANS
MILITARY BAN TO GO
INTO EFFECT—you died
again . . . . (Pp. 47-48.)
The intrusiveness of news of devastating current events in our current digital age is brought home in this poem, but, more critically, the reader also feels the soul-crushing weight of anti-trans legislation through the poem’s recitation of the speaker’s emotional truth that the Court’s allowance of the trans military ban, even provisionally, caused the beloved to “die[] again.”
Earlier in the book, the speaker describes their joy being troubled–before the beloved’s death–by the immense losses imposed by familial and societal prejudice. For example, “Short Film Starring My Beloved’s Living Body,” is interestingly presented to the reader through stage directions. However, this unusual form does not let the reader avoid the poem’s gut-punch:
. . . . Cut to the motel, leaving its
light on for your red Bronco. Now the motel’s
dark interior. Now the bed nearest the win-
dow where you and a just-out-of-high-school
date can finally make contact after years of
parentally-imposed silence. I’m sorry. This
film can’t access your interior. Your date is
the only one directing her memory, Your
date is me. My memory is the shower scene . . .
. . . .Missy, this is our
last frame. . . .
. . . off camera the interstate is waiting and
my lines are let’s go. (Pp.15-16.)
The joy of the lovers’ first intimate contact, long delayed, is marred not just by the beloved’s later suicide (Missy, having killed himself, can no longer reveal what he was thinking or feeling at that time), but also by more immediate societal pressures. The speaker is torn between the joy and pleasure of the moment and the need to leave, presumably to placate her mother, who plays a central role in the book.
The poem “god” is addressed to God and describes Missy’s funeral and the betrayal and erasure of the beloved’s family in only including,
[i]n the foyer, one room away [from the casket],
a decade-old portrait of him
in pearls and a black dress,
his expression proof
your goodness doesn’t extend
where it counts . . . . (Pp. 34-35.)
Poems like “god” and the previously described “Short Film Starring My Beloved’s Living Body” relate the absolute necessity of love and acceptance in a more intimate and visceral way than logical arguments could ever accomplish. These poems show us that joy and even life itself are at stake if the law continues to be weaponized against trans people. Overcoming this prejudice is a life-or-death necessity.
The poems in the book are not focused solely on grief, however. For example, in “Missy Asks Me What the Next Century’s Like,” the speaker describes the acceptance they feel during a writing fellowship in Wisconsin, concluding with the sentences: “They love us here, now. Right now, they love us here.” (P. 61.) These last words of the poem tell us of the joy and ease of acceptance, while also, through the use of limiting words like “here,” “now” and “[r]ight now,” of its precarity. Iver hints here that the acceptance is locational as well as temporal. It may fade away or be lost in a different locale. There is hope in how far we’ve come, and yet precarity, and this very precarity also suggests that the devastation and hatred that is in full force in some places now will also be temporary. At the same time, we have the sense in reading the poem that somehow the speaker’s triumphs and successes are also Missy’s.
Short Film Starring My Beloved’s Red Bronco lets us intimately experience the joy and excitement of first love, the grief of the speaker’s having been kept apart from their beloved during high school, and the deep and unhealable grief that resulted from their beloved’s suicide. Iver’s strong and personal writing shows us love’s immense power and makes the wrongness of laws designed to hurt others irrefutable. As readers, it is as if we experience both the love and pain firsthand.
Most of the poems do not directly address law, although some, like “Who Is This Grief For?” and “Anti Elegy,” do. (Pp. 17-18.) “Anti Elegy” imagines that the beloved lived and gives shape to the beloved’s hopes that might have been realized if he had, such as “surgery” and “a new name.” (P. 17.) At the same time, the poem acknowledges that even these victories would have been fraught because “public officials would/still turn the fact of your body/ into arguments.” (P. 17.) The combination of imagining a long, successful life for the beloved and yet exploring the weightedness that would also lurk in the background is a powerful testament to how damaging anti-trans laws are to those whom they directly target. Yet, by envisaging a better, more hopeful present, “Anti-Elegy,” as well as poems in the book that rewrite the past in a more hopeful way, such as “Family of Origin Rewrite,” invoke the possibility of transcendence and change and implicitly urge us to fight for a better reality.
Even poems that do not directly deal with the law reaffirm the need for non-discriminatory laws rooted in love for our fellow humans. We see this is “Short Film Starring My Beloved’s Living Body,” where society, acting through parents and others, is a spectre in the background, constantly trying to tear these young lovers apart. We see the same dynamic in “Sleeping Beauty,” where the riveted beloved watches the high school-aged speaker’s ballet performance from the balcony, and the speaker laments that “the world/ won’t allow you to leave in his red Bronco,/ not anymore.” (P. 25.) This book leaves the reader with the conviction that the law must allow trans people to live their lives. Perhaps most importantly, it inspires the reader’s love and respect for the two young lovers at the center of it.
Dec 12, 2025 I. India Thusi
Andrea Freeman’s Ruin Their Crops is a bracing book— one that refuses to let law stay above the fray. The book’s title, drawn from President Washington’s command to “ruin their crops on the ground,” is more than historical reference; it’s a theory of power, waste, and control that pulses through this work with moral clarity. By centering food policy — a topic too often siloed as agricultural or technocratic — Freeman exposes how law actively structures hunger, malnutrition, and even food destruction in marginalized communities. This book is a powerful reminder that access to food, a fundamental socioeconomic right, is not peripheral to law, but one of its central battlegrounds. As Freeman stated in a recent interview, “It is the ground we stand on that sustains us. And it is this truism that frequently creates the illusion of alimentary choice while obscuring the structural racism embedded in U.S. American food politics.”
At a time when legal scholarship celebrates doctrinal complexity while distancing itself from lived experience, Ruin Their Crops does the opposite. Freeman pulls law down from abstraction and grounds it, quite literally, in the soil. She maps a legal genealogy of waste — from federally funded crop destruction to racialized school lunch programs — showing how food becomes a weapon, and hunger, a byproduct of governance. The book does what great legal scholarship should: it makes us see familiar structures differently, then implicates us in their ongoing design.
Her work has been featured in outlets like NPR, The New York Times, and the Los Angeles Review of Books, further solidifying her reputation as a leading scholar of food oppression. The Los Angeles Times Book Prize in History honored Ruin Their Crops for its cultural and political resonance, and national outlets have noted its incisive argumentation. Yet the legal academy has been relatively quiet — a silence that speaks volumes. The book challenges what many law professors have trained themselves to ignore: that racialized suffering is not an unintended consequence of flawed policy but often the goal of a rationalized legal regime. In Freeman’s telling, the law doesn’t merely permit waste — it sanctifies it. And the material harms of the law, particularly those denigrated as involving mere “socioeconomic rights,” deserve substantive legal inquiry.
Freeman’s historical account of crop destruction and food suppression in Indigenous and Black communities finds alarming echoes in the present. The current administration’s decision to slash funding for international sexual and reproductive health services — including access to contraception and HIV prevention — in the name of “moral clarity” is not a new kind of lawfare — it is a continuation of old ones. This book helps us name the pattern: waste as ideology, deprivation as governance. In both past and present, political spectacle becomes legal rationale, and material harm is dismissed as symbolic cost. The book demonstrates what theorist Achille Mbembe coined as “necropolitics,” “new and unique forms of social existence in which vast populations are subjected to living conditions that confer upon them the status of the living dead.”
To be sure, there were moments that prompted my hesitation. Freeman’s critique of policies like milk in school lunches may strike some readers as too sweeping — and I found myself unsure whether all her conclusions about dietary policy and cultural harm were as grounded as her legal history. But that’s part of the gift: Ruin Their Crops invites the kind of discomfort that produces deeper reflection. Even when I disagreed, I found myself thinking more expansively about how legal decisions shape food access — and how urgently we need to rethink those decisions.
This book reminds us that the law is not neutral in its silences and omissions — especially when it comes to who gets to eat, what they must eat, and who must go hungry. In a legal landscape still too quick to dismiss socioeconomic rights as politics rather than justice, Freeman gives us the tools to argue otherwise. Food is not merely nutrition. It is memory, dignity, identity — and access to it is structured by the state.
We talk often in legal circles about “access to justice.” Ruin Their Crops asks what justice means if it does not include the right to eat.
Nov 14, 2025 Rakhi Ruparelia
Diversity, Equity, and Inclusion (DEI) programs have always sat uneasily with me. While the aspirations of such initiatives are ostensibly noble, their development and execution often present as token efforts to address social inequalities while leaving racial hierarchies intact. Indeed, many institutions express their commitment to such projects to appease political interests and avoid liability rather than to effect meaningful change.
Like many others invested in racial justice, I find it particularly vexing when DEI is used interchangeably with anti-racism, or more recently Critical Race Theory (CRT), as though brief training in cultural competency or individual bias, or a statement welcoming applicants from diverse communities at the end of a job posting are the magic wands that will eradicate systemic inequalities. DEI initiatives can be valuable when implemented properly, but they must complement systemic remedies, not replace them, for progress to be possible.
In her excellent article, law professor Tanya Hernández homes in on the proliferation of DEI programs as a response to the racism that has become increasingly difficult to deny following the unjustified police killings of George Floyd and other Black men and women. As the Black Lives Matter movement surged, organizations and corporations loudly professed their commitment to DEI and doing (or at least appearing to do) the right thing in a climate where so much was evidently wrong. Although their quality and efficacy vary, these programs still attract the ire of those who claim they promote unfairness and discrimination against white people, whom they characterize as the true victims of racism in an overly sensitive era. Sociologist Tressie McMillan Cottom aptly describes this unfounded perception as “race fantasy.”
Professor Hernández highlights the prominent role of DEI education in civil rights remedies that require a defendant both to: (1) stop allowing or engaging in discrimination; and (2) prevent discrimination, despite the negligible impact of such initiatives. As she explains, consent decrees in discrimination suits often mandate training and policy reform to fulfill the defendant’s obligation, but the content of any such requirements is rarely prescribed and varies substantially. (P. 290.) She observes, “the lucrative industry of diversity is flourishing, even though diversity, for the most part, is not.” (P. 293.) She traces the conservative critics’ “branding” and demonization of DEI programs as anti-American, anti-white “toxic propaganda” so as to provoke backlash against any initiatives intended to promote racial equality or diversity. CRT, previously unknown outside of specialized academic circles, swiftly entered the mainstream lexicon. (As Hernández points out, even popular shows like Saturday Night Live satirized the attacks on CRT.) CRT, as co-opted by the political right, is denounced as a threat to fundamental “American” values that undermines the importance of merit and hard work in the name of “political correctness” or “woke culture” instead of as an interdisciplinary approach to understanding and challenging structures and systems of racism. Intentionally conflated with CRT despite the clear distinctions between the two, DEI is thus deemed dangerous and discriminatory, thereby justifying (even demanding) legislative interventions to ban such initiatives.
Like many others living in these strange times, I follow the news every day with a sense of dread, disbelief, and distress. How can hard-earned racial gains be so quickly and easily reversed, and with such little challenge? How can performative DEI initiatives be convincingly misconstrued as hateful attempts to discriminate? Hernández’s examination of the strategic, demoralizing, and hostile attacks on CRT might be expected to lead her reader down a path of hopelessness. Instead, her work feels like a reassuring chat over tea with a close friend who “gets it.” She draws from meticulously researched academic literature, case law, and news sources to verbalize intuitive responses to anti-CRT rhetoric and ambivalence over DEI undertakings. The result is a dynamic, considered, scholarly analysis that on its own would enrich academic and political debate.
However, Hernández takes her inquiry even further. In what strikes me as the most compelling aspect of her argument, she champions a CRT-informed conceptualization of DEI (which she coins “CRT DEI”) (P. 304) that would better serve racial justice and move away from decontextualized discussions of implicit bias, white victimhood, and individual transformation (termed the “Let’s Talk” model of DEI by sociology professor Savita Srivastava). Refreshingly, Hernández pursues this inquiry from the standpoint of law, a discipline less active in the debate than, for example, sociology or philosophy. She clarifies why DEI initiatives in their current form are limited in scope, ineffectual, and vulnerable to criticism from both ends of the political spectrum, but she does not discard the baby with the bathwater. Instead, she advocates for a more intentional, evidence-based approach to anti-racism and DEI. She contends:
…The focus on systemic and structural aspects of racism is the very heart of what CRT concerns itself with. Put together, this means what DEI actually needs is an infusion of CRT.
This may seem counterintuitive, given the huge legislative onslaught of efforts to ban CRT. These efforts, however, are based upon a faulty conception of CRT as focused on the implicit bias of individual mindsets and a call to reject personal racial privilege. (P. 289.)
Since her article was published in 2024, attacks against DEI and CRT have grown even more vicious. While public institutions were initially targeted by the State and directed to remove all references and practices related to CRT and DEI, the offensive has now reached private universities (even wealthy, elite, powerful ones), corporations, and other entities that rely on government funding or cooperation, many of whom have since relented to such pressures. Although Hernández’s piece predates the most recent and brazen escalation of attacks, her analysis provides an accessible approach to understanding and navigating new and ongoing challenges.
Ultimately, she uses CRT as a tool to dismantle the very criticisms launched against it. She reshapes a narrative that has been deliberately distorted for political gains and reclaims a rigorous intellectual framework that offers a lifeline to those of us who have been marginalized personally and professionally. If we embrace Hernández’s approach, DEI and CRT could develop into the threat to racial hegemony and injustice that proponents desire and critics fear.
Oct 15, 2025 Erez Aloni
Legal scholarship has long grappled with how to name and remedy discrimination that doesn’t fit neatly into existing legal and conceptual frameworks. We have robust vocabularies for overt bigotry, implicit biases, and increasingly nuanced understandings of microaggressions—those subtle slights that accumulate from interpersonal to structural harm. But what about the moments when someone refuses to use another’s pronouns—not with hostility, but with a shrug? When they double down, explaining they’re “not wired that way,” or that recognizing someone’s genderqueer identity is simply “asking too much”? What happens when misrecognition isn’t hidden, but rather is framed as ordinary, reasonable—even inevitable?
In their revelatory article, Blasé: Deviant Lawyers and the Denial of Discrimination, Swethaa Ballakrishnen names this under-theorized dynamic through interviews with sixty law students and early-career legal professionals from marginalized groups. Ballakrishnen calls it blasé discrimination: a form of bias that arises when emerging or less institutionally legible identities—such as nonbinary gender—are dismissed not as wrong, but as irrelevant. This is not discrimination that hides, but discrimination that shrugs. The harm lies in the casualness of erasure—where certain forms of difference are brushed aside as too trivial or inconvenient to matter. Ballakrishnen traces how identity categories in flux become especially vulnerable to denial.
This qualitative study centers three groups whose identities diverge from institutional norms within the legal profession: genderqueer individuals, Muslims, and people with disabilities. While all respondents described experiences of exclusion— particularly the questioning or dismissal of their identities—the nonbinary participants reported a distinct pattern. When they attempted to clarify or assert their pronouns, they were not met with apology or defensiveness, but with indifference. Misgendering was routinely cast aside as harmless or too difficult to fix. Interlocutors claimed they were “too old” to adapt, invoked firm policies, or cited grammar rules. These moments occurred in law schools and law firms alike. What linked them was not just the misrecognition itself, but the refusal to acknowledge that any harm had occurred—a doubling-down on erasure, framed as a minor inconvenience or personal quirk. Ballakrishnen shows how this dynamic is especially entrenched in legal institutions, which prize clarity and tradition and often render the unfamiliar illegible.
Blasé discrimination inflicts harms that are far from trivial. Ballakrishnen shows how these shrugs reinforce structural inequalities, strip targets of the language to describe their experiences, and chill participation in professional spaces. A nonbinary lawyer, told by a potential employer that they “can’t” use they/them pronouns and would instead use she or he, withdrew from the opportunity rather than risk further hostility. A law student misgendered by a professor stopped seeking mentorship in that professor’s field. In each case, the blasé response erased identity while also narrowing access and opportunity. Such injuries underscore the value of Ballakrishnen’s central contribution: a concept precise enough to name these denials and set them apart from familiar ideas like microaggressions.
The conceptual clarity of blasé discrimination is what makes this article a major theoretical contribution. While all non-dominant groups encounter discrimination, Ballakrishnen notes that individuals whose identities are more socially and legally recognized—such as Muslims or people with disabilities—at least nominally benefit from established legal protections. When these respondents identified the discriminatory behavior, perpetrators tended to backpedal or justify their actions. In contrast, nonbinary individuals were often met with outright dismissal: their identity claims were seen not only as unprotected, but as implausible. This distinction brings into focus the unique precarity of those whose identities remain emergent or liminal, making a compelling case for institutional change that moves beyond performative diversity and attends to how legal spaces respond to identity-based harm.
Methodologically, Ballakrishnen introduces a QuEer CRT approach: a fusion of queer theory and empirical Critical Race Theory (eCRT) that centers deviance, ambiguity, and marginality as starting points for analysis. Rather than comparing minority experiences to a presumed norm, Ballakrishnen draws on overlapping peripheral perspectives to illuminate institutional expectations. By intentionally sampling across multiple minority groups—rather than isolating one identity category—the article shows how the relative novelty and social illegibility of nonbinary identity shapes its vulnerability to blasé discrimination. This methodological innovation advances eCRT’s commitment to grounding theory in lived experience, while drawing on queer theory’s attention to unstable identity boundaries. It opens promising new terrain for empirical legal scholarship focused on intersecting peripheries.
While blasé discrimination thrives in many professional settings, it is not beyond institutional response—and, in some places, that response has begun. In British Columbia, where I live and work, concrete efforts have been made to counter the very patterns Ballakrishnen documents. In 2020, the BC Provincial Court and Supreme Court issued directives requiring counsel and parties to state names, titles, and pronouns during introductions. Likewise, the Law Society of BC advises lawyers to use the pronouns individuals request, cautioning: “don’t assume.” Crucially, their guidance recognizes the impact of mistakes: “If you make a mistake, acknowledge it, apologize, learn from it, and move on.” This model, grounded in recognition, repair, and humility, stands in stark contrast to the blasé responses Ballakrishnen reports. The Law Society’s next step, perhaps, is to name the harm directly: blasé discrimination. Thanks to Ballakrishnen’s powerful intervention, we now have a name for this form of denial—and with it, a sharper lens on how power operates not only through what is said, but through what is dismissed. In the quiet shrug of misrecognition, Ballakrishnen shows us, the mechanisms of exclusion endure.
Sep 16, 2025 Natsu Taylor Saito
Enslaved Africans occasionally poisoned those who abused them. As legal scholars, how do we process this? You may have jumped, as I did, to drafting a mental list of legal justifications that could apply in a poisoning case. Or you may have assumed, as I did, that such legal defenses would be the focus of Angi Porter’s analysis in her new article “POISON! An Africana Legal Studies Investigation into Enslaved Africans and their Deadly Roots.” In fact, however, Porter, an assistant professor at American University’s Washington College of Law, does something wildly, brilliantly, courageously different.
POISON! moves outside of the framework of the enslavers and their legal system to assess the use of poisons by enslaved Africans from the perspective of indigenous African governance. With this shift, Porter confirms that the emergence of Africana Legal Studies brings us a new methodology, not just an expansion of the subject matter at hand. Utilizing her meticulous research on poisonings, the knowledge held by African healers, and what she terms the governing Protocol of West African Akan speakers, Porter helps us see that these enslaved Africans may best be understood not as individuals forced to act in self-defense but, instead, the enforcers of a collective Protocol that governed and protected their communities.
This opens up a world of fresh insights. And Porter, thankfully, is not afraid to speak the truth, as she understands it. The legal frame of self-defense, she argues, is a dead-end because it is still a defense, a narrative of victimhood firmly embedded in the legal construction of crime imposed upon African peoples. “At its core, [the legal frame of self-defense] prioritizes a Western Way of thinking about Governance and silences and invalidates the African Way.” (P. 21.) And this silencing, she emphasizes, is part of the “narrative violence that . . . render[s] the catalyst for African resistance—the original violence—invisible.” (P. 18.)
Porter asks, “What were African people doing before we were so rudely interrupted?” (P. 32.) She highlights the plurality of perspectives on law and governance across human societies, while noting that one particular frame—laying claim to universality—has been imposed on many of us without our consent. This prompts us to see enslaved Africans not as generic human victims, but as specific peoples, from particular cultures, with unique histories and ways of understanding and ordering their worlds. Colonially imposed law is thus de-centered. Now we can think about liberation not just in terms of rights, but as a matter of genuine self-determination.
In this article, engagingly written as a cold case study, Porter brings an Africana Legal Studies lens to a series of poisonings attributed to enslaved Africans in Maryland in the eighteenth century. The framework itself is presented in more detail in her Africana Legal Studies: A New Theoretical Approach to Law & Protocol, 27 Mich. J. Race & L. 249-322 (2022). In POISON! she begins by summarizing her work’s “grounding principles” (P. 3) and then describes cases in which Africans in Maryland in the 1700s were prosecuted for poisoning their enslavers.
Porter takes us through the law as it was invoked, pointing out its shortcomings before making a “pivotal shift from a Legal orientation to [the Africans’] Protocol orientation.” (P. 27.) This leads to a fascinating overview of Akan “Ways of Knowing” (P. 36)—knowing that permeates all aspects of the culture and informs an approach to life, death, and healing from a communal rather than individual perspective. This is not a rhetorical exposition. It is a door that Porter opens to particular histories and narratives, allowing us glimpses into a very different worldview and illustrating the richness of its—and her—perspective.
Angi Porter speaks truths that have long been in need of articulation in legal scholarship. She prods us to revisit our assumptions and to open our minds to fresh ideas. I was particularly struck by Porter’s insistence on “distinguishing African Governance from European Governance by using distinct language and avoiding use of Legal terms of art to describe African Governance.” (P. 4.) Initially, I was resistant—partly because I often find specialized terms and unorthodox capitalization to be gimmicky, but mostly because I am hesitant to cede the construct of law to the colonizers. Nonetheless, Porter makes an extraordinarily important point about the extent to which culture is embedded in language, and how difficult it is to use the language of the dominant culture to deconstruct its foundational premises.
Throughout the piece, I was delighted to have my thinking on this subject expanded and challenged. But my favorite part of POISON! is embedded in Porter’s first footnote, the one typically reserved for identifying ourselves and thanking all the important people we can plausibly name. The note begins with a quote from James V. Deane, who had been enslaved in Maryland: “When we wanted to meet at night we had an old conk, we blew that. We all would meet on the bank of the Potomac River and sing across the river to the slaves in Virginia, and they would sing back to us.” (P. 1.) They would sing back to us. Porter provides this beautiful, searing image to explain that she is singing across the river, and thather “article is meant to be a voice in a collective song, an invitation to sing back.” (P. 1.) Would that we all had that vision for our scholarship.
Cite as: Natsu Taylor Saito,
Roots of Freedom, JOTWELL
(September 16, 2025) (reviewing Angi Porter,
POISON! An Africana Legal Studies Investigation into Enslaved Africans and Their Deadly Roots, 43
Law & Ineq. 1 (2025)),
https://equality.jotwell.com/roots-of-freedom/.
Aug 4, 2025 Andrea Freeman
Professor and scholar-activist Bernadette Atuahene’s meticulous research and riveting writing in Plundered reflect decades of living in communities resisting predatory governance. Over ten years after Professor Atuahene’s powerful first book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program, she turns a spotlight on a Detroit community under siege from its own county. In her heartbreaking exposé of illegal property tax assessments and foreclosures, Professor Atuahene paints a vivid picture of people fighting for the right to keep the homes that rightfully belong to them.
Focused on two families – one Black and one Italian – Plundered: How Racist Policies Undermine Black Homeownership in America shows how government decisions circumscribe the ability to build wealth through generations. The narrative is rife with details that each deserve a book in themselves. Ms. Mae, who Plundered introduces in its opening pages, put up with years of abuse before finally shooting her husband. “He came home and tried to jump on me. I was sitting there watching tv, and he pulled his shotgun to shoot me, and so I got it, and I shot him.” To pay her defense lawyer, Ms. Mae took out a lien on her home. She finally got rid of the lien ten years later but her luck was short-lived. Soon after relieving herself of the debt, she damaged her shoulder while lifting a resident at the nursing home where she worked. Surgery could not fully restore proper use of her shoulder. Then, holes in the roof of her house caused leaks in the kitchen ceilings which made the basement ceiling fall in, unleashing a flood. While trying to drain her flooded basement, Ms. Mae fell, permanently injuring her spine and bringing her working life to an abrupt halt. The flood also destroyed her hot water tank, forcing her to boil water for everything. Instead of coming to her aid, the system repeatedly failed Ms. Mae and families like hers and then turned around and blamed them for their troubles.
Exposing not just the laws and policies that allow the government to profit from improper property tax foreclosures but also the myths that sustain these illegal practices, Plundered tells a universal story. It elegantly lays out how enslavement, Jim Crow, redlining, racially restrictive covenants, school segregation, and selective policing constricted Black people’s opportunities. Detroit’s exploitation of racist policies and stereotypes allowed the Wayne County to profit from foreclosures while causing massive displacement and trauma in Black communities. Two men, Grandpa Brown, who was Black, and Grandpa Bucci, who was white and Italian, started working in Detroit’s auto industry at the same time but ended up with vastly different financial legacies.
Despite the wide reach of this injustice, few people even know it exists. In Professor Atuahene’s words, “Cell phone videos and police body cameras have captured state violence and galvanized the public into long-overdue demands for change. But there is no easy way to convey the devastation that occurs when public officials replenish public accounts through racist policies. And yet predatory governance systematically cripples Black people like Mr. Karl, the Vietnam veteran who lost his family home for failure to pay property taxes that he should not have owed in the first place.” (P. 299.) Plundered is a must-read for anyone seeking insights into how structural racism and racist tropes allow even those who have pledged to protect us to profit from injustice. The book concludes with a call for the reader to join the movement against racialized tax administration spearheaded by the Institute for Law & Organizing, offering an avenue to advocacy, community, and hope.
Editor’s note: The title of this Jot changed from ‘Predatory Governance in Detroit and Beyond’ after publication; we also made conforming changes to the text.
Jul 3, 2025 Eliot Tracz
It’s rare that an article comes along with the potential to reshape how an entire area of law is litigated. This is particularly true for articles addressing discrimination against the LGBTQ community. Katie Eyer authored such a piece, which influenced the outcome in Bostock v. Clayton County. Now, Zee Scout, in her article Trans Erasure, Intersex Manipulation: The First Amendment and Other Reflections from Women in Struggle v. Bain, has written just such a work, which promises to impact how anti-trans legislation is litigated.
Scout’s article addresses the onslaught of state legislation targeting what she refers to as transgender, gender nonconforming, intersex, and queer (TGNCI) people. While the Equal Protection Clause has long been the tool of choice to advance TGNCI rights, federal courts have begun rolling back progress. This rollback, according to Scout, is premised on the “real differences” doctrine, which argues that men and women have distinct biological characteristics which in turn permit certain types of distinctions in regulation. (P. 121.) As a result, states have been able to pass legislation as based on binary differences of reproductive anatomy (which of course erases intersex people entirely).
What Scout has done is respond to these types of laws with three arguments rooted in the First Amendment. Initially, she identifies several principles underlying Free Expression jurisprudence. The truth-discovery principle, embodied by Justice Holmes concept of the “market place of ideas,” posits that the best way to ascertain truth is through the free exchange of ideas. The second principle identified by Scout is the democratic process. This principal suggests that the First Amendment protects the formation of public opinion. The final principal is autonomy, which suggests that free speech allows us to define, develop, and express ourselves as individuals.
Using these three principles as a baseline, Scout offers two compelling First Amendment based arguments. The first is that anti-TGNCI legislation is a form of viewpoint discrimination. (P. 161.) It is well established that when the government chooses to propound certain messages over others, and, in the process, suppresses viewpoints it opposes, it chills speech. Scout argues that, in the context of anti-TGNCI legislation, the state uplifts a message that bathrooms, healthcare, and sports participation should be “organized exclusively around immutable birth sex.” In the process, the message promoted by the state erases TGNCI viewpoints regarding gender identity and access to sex-separated facilities and institutions. Scout further develops, in detail, those TGNCI viewpoints and places the argument in the context of Florida’s bathroom ban. The effect is an impactful and original application of the First Amendment to anti-TGNCI laws and really any anti-LGBTQ, legislation.
Scout also offers a second novel application of the First Amendment to anti-TGNCI legislation through the application of the Compelled Speech Doctrine. It is well understood that the First Amendment prohibits the government from compelling people to choose between compliance with the law and engaging in sincere expressive speech. Indeed, this principle was at the heart of 303 Creative LLC v. Elenis, a recent case viewed as a defeat for the LGBTQ community. The Compelled Speech doctrine has been used to stifle anti-discrimination laws, so it is fitting that Scout turns it into a tool to combat anti-TGNCI legislation by pointing out that such legislation forces TGNCI people to choose between violating their beliefs and potentially endangering their personal safety, or affirming their beliefs and risking punishment under the law. The result is that it is often the case that TGNCI individuals are forced to become bearers of the State’s message.
Of course, Scout has done her due diligence and addresses a number of counter arguments. There is not space here to address them in detail, but despite some strong arguments, Scout’s application of the First Amendment holds up well. Both of her arguments are worthy of application in the courts.
Zee Scout has given us a formula for a rekindled hope for equality. To be clear, the use of the First Amendment in LGBTQ rights cases is not new. Sometimes it has been wielded as a sword to strike at anti-LGBTQ policies, while at other times is has been used as a shield to protect private interests from having to accept LGBTQ people. What Scout has done is repurpose the First Amendment in a novel, compelling manner to breathe new life into the fight for TGNCI rights. Whether you are a scholar, a litigator, or simply an interested party, this article is worth a read or two. But once you’re done reading, it’s time to think about how to apply these arguments.
Jun 5, 2025 Maneesha Deckha
Although still perched on the periphery, scholarship asking how the law can remedy human harms against animals and other nonhuman life is proliferating. A foundational question is how legal systems can embed equality and justice as values that would apply across species and not simply among humans. A corollary is how to influence more humans to support a legal system that regards animals as beings or entities whose interests matter alongside humans’.
When fashioning dramatic reform like this, we may be tempted to focus on the present as we hope for a much less anthropocentric future. But it also helps to look to the past. Jesse Arsenault and Rosemary-Claire Collard’s Crimes Against Reproduction: Domesticating Life in the Animal Trials is instructive in this regard. It helps readers understand how the earliest instances of European human-animal legal regulation centuries ago can shed light today on the need to see the legal treatment of animals and marginalized humans as entwined, and anthropocentrism as an all-species gendered equality problem.
Distilling a rich array of scholarship about laws against bestiality, infanticide, and witchcraft between the 1200 to 1700s in France, the United Kingdom, and other western European countries, Arsenault and Collard offer a compelling, if provisional, analysis of how such laws cohere as a gendered interspecies triad. The authors argue that laws against bestiality, infanticide, and witchcraft (involving small animals known in folklore as “familiars”) not only helped produce a gendered reproductive ordering of human society, but also one of animal life that set the stage for the extractive capitalist economy that devastates so many beings today, humans included.
Arsenault and Collard unpack how these laws were not simply about how humans, particularly women, should behave in matters of sex, family, and intimate life, but also about how humans should relate to animals. The latter dimension, the authors note, is often overlooked when thinking about infanticide and the witch trials or even bestiality even though the animal trials have been compared to the witch trials. Adding to this literature, but taking the trials for all three categories as their focus, Arsenault and Collard innovatively suggest how the trials set expectations for human reproduction and social reproduction of the family. The authors also show how the law fostered a gendered worldview of human extractive domestication over animal bodies and animal life rather than conditions of interspecies care.
The article is invigorating in its scholarly breadth and navigation through multiple literatures. There are so many ideas assembled about how hierarchy was normalized through the reproductive orders the trials reinforced and a richness of critical feminist and animal studies insights about the multispecies lens needed to understand them more fully. For example, Arsenault and Collard analyze the trials to show how what the law thought about the innocence of animals in the trials is suffused with gendered expectations about humans. Their unique historical legal window and focus enrich existing feminist animal studies literature demonstrating the mutually constituted nature of species and gender ideologies.
No less important is the illumination of Arsenault and Collard’s historical reading for our present planetary moment. While women enjoy formal legal equality in many countries, significant cultural and legal contestations continue to prevail regarding reproductive norms, both biological and social. And, remarkably, centuries onwards from the fifteenth-century bestiality prohibitions, animals continue as property in Europe and every other country where imperial projects amplified the common law and civil law Enlightenment worldviews of animals as commodities. As well, the legal subjectivity ascribed to animals in the trials, however performative given the overwhelmingly brutal outcome for the animals involved, has long since been eliminated.
In fact, we cannot easily dismiss the striking argument that the legal plight of animals has more or less stagnated since the time of animal trials nor the perspective that this is due to the feminization of animals, particularly the tens of billions of land and ocean-based farmed animals whose domesticated reproduction lie at the heart of our social order. Consider also that we have reinforced the civilization veneer of humane animal use through lax anti-cruelty laws even as staggering amounts of these and other animals suffer enormously in captivity. Or consider that we ascribe no legal agency to animals today despite the exponential rise of scientific knowledge regarding the thoughtfulness of so many species and the decisions and choices they make in leading their lives.
In 2025, there is no doubting the need to connect the concept of “reproductive order” to one that arrests the cycle of intensive animal reproduction at the heart of the harm-ridden global food system, a point the authors highlight in their concluding remarks. (P. 35.) With Crimes Against Reproduction, we are indeed reminded of the incompleteness and impoverished impact of our equality and justice analyses when animals and nonhuman beings are excluded. But, as the authors also hopefully note, we are also reminded that how we look at animals can change and “that there are other possible ways of relating to animal life than capital’s totalizing mastery allows” (P. 36.)
Mar 19, 2025 Ann E. Tweedy
In Flattening Breast Cancer by Removing the Breasts: Protecting a Woman’s Right to Choose Reconstruction of an Aesthetic Flat Chest After a Mastectomy, Amelia Landenberger centers the experiences of women who carry a genetic predisposition for breast cancer (namely the BRCA1 gene). The article argues that these women should have the option of aesthetic flat chest reconstruction, along with other breast reconstruction options. To vindicate this option as a legal right, Landenberger argues for a broad interpretation of the Women’s Health and Cancer Rights Act of 1998 (WHCRA). The WHCRA is an under-researched federal statute that prevents insurance companies from denying coverage for breast reconstruction after mastectomies. Landenberger maintains it should be read to require coverage for aesthetic flat chest reconstruction when preferred by a patient. Landeberger’s article contributes to the sphere of equality scholarship by centering the experiences of a little-understood group—those who carry the BRAC1 gene—and by bringing to light a little-understood problem, namely difficulty accessing aesthetic flat chest reconstruction.
Landenberger’s article is illuminating in several important respects. First, Landenberger centers the experiences of high-risk women, who are termed “previvors,” for a practical reason, namely because, when they choose mastectomies as a preventative measure, such women have a full-range of options available for reconstruction (whereas the reconstruction options of some breast cancer patients may be more limited). (Pp. 1201-02.) Nonetheless, this approach is a powerful one. Landenberger explains the astronomical risks that these previvors have of becoming afflicted with breast cancer—a 55% to 72% chance, and she further describes the liminal space that such women occupy—the space between sickness and wellness. She also relates that, for many such women, breast cancer is “not merely a hypothetical future,” but it is also “a part of their past,” as many have lost mothers, grandmothers, and/or aunts to breast cancer. (P. 1204.)
Landenberger also includes powerful testimony from previvors throughout the article. Taylor Harris, one previvor quoted in the article, describes her conflicted feelings and grief after having undergone a preventative mastectomy: “I’m looking for space, as a previvor, to mourn. A space where I can stop and consider that my scars are signs of relief but also collateral damage from a choice I made. I am fortunate and disappointed, indebted and sad.” (P. 1205.)
I am a two-time breast cancer survivor myself and therefore know a great deal (too much, in fact) about the experience of being faced with various harsh treatment options and of the challenges of going through treatment. I also have friends and colleagues who have a genetic predisposition for breast cancer. Nonetheless, Landenberger’s depiction of the experiences of previvors opened up a whole new world of experience and understanding to me.
Landenberger’s legal argument is that patients receiving breast reconstruction should be informed of the option of aesthetic flat chest reconstruction and that insurance companies should be required to cover the procedure under the WHCRA. WHCRA is light on definitions, and Landenberger creatively mines criminal law for authority that flat chests are also considered breasts and, therefore, that flat chest reconstruction should be understood as breast reconstruction for purposes of the WHCRA. Landenberger importantly explains that reconstruction is needed to achieve a flat chest. (P. 1220.) Previously, I had assumed that a flat chest would result if a patient simply opted out of reconstruction, not knowing that reconstruction is required to achieve that result and that there is this grey area relating to coverage for this procedure under the WHCRA.
Another important contribution that Landenberger’s article makes is its elucidation of the difficulties that many previvors and breast cancer patients face in accessing aesthetic flat closure. As she explains, often patients are not told it is an option and they may face pushback when they request it based on their own research. She posits that these reactions and omissions are due to many surgeons not knowing how to create such a result in some cases and, in other cases, to stereotypes about what women should look like or want, as well as paternalism. I found this aspect of the article extremely insightful. When undergoing breast cancer treatment and reconstruction myself, especially the first time, I often experienced paternalistic attitudes from doctors, which I have written about (although I was one of the lucky patients Landenberger describes who can afford to see a variety of doctors before choosing one (P. 1232), so I ultimately ended up with great doctors). Therefore, I was all too familiar with the fact that breast cancer patients frequently have difficulty having their wishes regarding treatment and reconstruction heard and acknowledged. As one doctor Landenberg quotes explains, “‘What it feels like to the woman has been a kind of blind spot in breast surgery.’” (P. 1222.) It had not occurred to me that these difficulties extend to, and even appear to be exacerbated for, women who choose aesthetic flat closure after mastectomies.
In short, the article does an excellent job of bringing several little-known issues relating to WHCRA and breast cancer treatment to the forefront.
Feb 7, 2025 Doron Dorfman
Healthcare settings have long been sites where minoritized patients have needed to fight to receive adequate quality of care. The recent debates about physicians not wearing masks in hospitals and clinics to protect immunocompromised and vulnerable patients is only the latest example of systemic failures allowing such health-related injustices to appear.
For decades, legal scholars have been discussing the promise and shortcomings of tort law as an avenue to bring about social change and promote equality. In her important and novel article Biased but Reasonable, Maytal Gilboa discusses how one avenue to address health-related injustices—using tort law, specifically medical malpractice (professional negligence)—fails Black patients.
Gilboa starts her article by discussing “diminishing stereotypes” among physicians. Those stereotypes make physicians second-guess the symptoms of minoritized patients and lead them to choose less intensive (or less effective treatment) for those patients compared to White patients. Gilboa extensively discusses one type of such diminishing stereotype attributing higher tolerance of pain to Black patients, a topic she also covered in a previous article cleverly titled The Color of Pain.
In that area, Gilboa is in conversation with other legal scholars researching racial serotypes affecting quality of care, notably Dayna Matthew Bowen, Ruqaiijah Yearby, Seema Mohaptra, Brietta Clark, Mary Crossley, and more recently Alice Abrokwa. Using critical race theory, these scholars attribute a bundle of stereotypes relating to Black people in the medical context —like that of resistance and noncompliance, incompetence in caring for oneself, and untrustworthiness—to the legacy of enslavement.
Gilboa impressively engages with significant social science research proving the existence of such racial bias in clinical decision making. Once specific study that stands out is an experiment in which physicians were randomly assigned identical medical files showing symptoms of acute coronary syndrome with a photo of either a Black or White patient. The study found disparities in the rates of recommending blood thinner medications to treat the symptoms: showing more likelihood of recommending the treatment to White over Black patients. Gilboa then analyzes how current legal structures allow for these stereotypes to flourish in healthcare settings or at least do not assist in addressing them through the litigation.
Gilboa persuasively claims that current malpractice doctrine fails to provide adequate redress for patients harmed by care affected by implicit bias, specifically diminishing stereotypes. This is because the way professional duty is structured in tort law: a plaintiff needs to show that the physician’s chosen treatment fell outside the range of professional standard of care. This standard of care is measured with reference to “ordinary prudence and real-world practice” and allows physicians to select inferior treatments for minorities (specifically Black people) based on bias – creating what Gilboa terms a “biased but reasonable” barrier for recovery.
In other words, as long as the treatment the physician chose for a Black patient is within the spectrum of what is considered widely accepted standard of care (also known as “the multiple methods of treatment doctrine”), the fact that the choice of treatment was affected by stereotypes is immaterial for establishing malpractice. Gilboa therefore calls out the standard of care as a safe harbor for biased healthcare decisions (P. 515). As a law and economics scholar, she points out how this doctrinal loophole leads to underdeterrence and creates very little incentive (at least as far as civil liability goes) for reducing racial biases among healthcare professionals, “lead[ing] to the impression that tort law tolerates, and even validates, gross inequality” (P. 517).
In terms of identifying a solution to the problem of a biased treatment being considered reasonable, Gilboa offers a clever contribution. After arguing that as a normative matter biased treatment should never be considered reasonable (Pp. 524-26), she suggests harnessing the “loss of chance doctrine” to allow Black patients who can prove they received biased treatment to be able to recover at least partial redress for their resulting injuries. The compensation such plaintiffs could receive will be calculated in proportion to the likelihood that the physician’s wrongful behavior (choosing wrong treatment based on bias) contributed to the injury.
This is a valuable solution under most circumstances: where a plaintiff cannot establish by the preponderance of the evidence (likelihood of more than 50%) a but for causation between the bias and the injury. Thus, in a situation where the plaintiff can only prove that the chance that racial bias contributed to the physician’s choice of a less intensive treatment by 30% because of bias, the plaintiff will still be able to receive compensation for the diminution in their chance of recovering from their injury the physician’s biased treatment caused. Such a solution is justified from both a corrective justice perspective as well as from a deterrence perspective.
Gilboa’s work is as excellent as it is teachable. One can easily incorporate it into a 1L class discussions to show the connection between doctrine and systemic real-world problems including DEI issues. Indeed, my own torts students have benefited greatly from Gilboa’s work over the years and I hope many more across the country will soon do too.
