Jan 15, 2025 Sheila Vélez Martínez
This article, written by four distinguished Latina legal scholars, provides an analysis of the unique challenges, achievements, and potential future for Latina law professors and educators in the United States. It is framed around the 2022 Graciela Olivárez Latinas in the Legal Academy Workshop (GO LILA), which brought together 74 Latina law professors to foster community, mentorship, and strategic growth.
Much has been discussed in higher education about the impending “demographic cliff”. The consensus view is that the United States will hit a peak of around 3.5 million high-school graduates sometime near 2025. As a result, the college-age population is expected to shrink across the next five to 10 years by as much as 15 percent. Furthermore, even as high school graduation rates have increased in recent years, the percentage of graduates who choose to enroll in college right after high school has been declining. Less attention has been given to an additional demographic challenge for law schools: no matter the size, the future pool of law school applicants will differ significantly from the current one, with a much higher proportion of students of color, first-generation college students, and individuals from low-income or lower socioeconomic backgrounds.
Between 2022 and 2023, the Latinx population accounted for close to 71% of the overall growth of the United States population. Between 1990 and 2020, Latinx enrollment in postsecondary programs increased by 372%—from 782,400 to 3.7 million students. It is expected to exceed 4.3 million students by 2026, far surpassing the growth rate of any other racial-ethnic group – by over 10%. Today one in every five students enrolled in college is Hispanic. Latinas are more likely than Latino men in the same age range to have a college degree.
According to the Law School Admission Council, law school applicant numbers were up almost 40 percent in the past year. Applications from Latinx students also increased by an approximate 8.5. While higher applicant and enrollment numbers are good news for Latinx students the number of legal degrees conferred to Latinx law students remains low at 12.4 percent . Latina women in particular struggle with representation in law school and are underrepresented. Though women outnumbered men for law school enrollment in 2022, roughly 40% of lawyers in the United States are women, and of that percentage less that 2% are Latinas. According to the authors, the shortage of Latinx lawyers across the nation mirrors the scarcity of Latinx in legal academia. Latina law professors represent a mere 1.6% of the legal academy, despite decades of initiatives to promote diversity. The authors also highlight that by early 2023, only 4 of the almost 200 deans of ABA-accredited law schools are Latina women. This is consistent with the challenges Latinas face to attain other higher education senior leadership roles.
Research has demonstrated consistently that enhancing Latinx representation among faculty is essential for boosting college completion rates and showing Latino college students that academic success can pave the way for achievements both within and beyond campus. Studies indicate that diversity among both students and faculty enriches the educational experience for everyone by offering varied perspectives, fostering cultural understanding, and supporting the retention and graduation of students of color. Latino and other faculty of color also play a vital role as role models and mentors, helping students of color advance in their academic journeys.
The Graciela Olivárez Latinas in the Legal Academy (“GO LILA”) Workshop is an annual event that, since 2022, has been organized to support and mentor Latinas in the legal academy and also those that aspire to enter it, lead and succeed. The workshop name honors Graciela Olivarez, who was the first Latina law professor in the United States. At the first workshop, they found that nearly half of the 74 workshop participants were the first Latina faculty member at their respective law schools. This also often means they are the only Latina or Latinx person in a tenure-track or tenured position, highlighting the continued isolation and lack of diversity in many law schools. Is this isolation that makes spaces like the GO LILA workshop so important.
As a Latina law professor that has for years participated in efforts to support the diversification of law school faculty, it is somewhat disheartening to see that this drought of Latina law professors has persisted despite efforts over the last few decades to diversify the legal academy. For example, initiatives like Latina and Latino Critical Legal Theory (LatCrit), SALT Junior Faculty Workshop and People of Color Legal Scholarship (POC) have sought to address this disparity, but structural barriers persist. LILAs face discrimination in the form of racism, sexism, and ethnic prejudice. They report experiencing microaggressions, stereotypes, and bias against their scholarship, which is sometimes dismissed or undervalued. The authors also highlight the many scholarly contributions of LILAs and the leadership roles they often assume at their institutions, even though those roles do not necessarily translate into senior leadership roles. Despite their qualifications, LILAs often face barriers to career advancement. Biases can be based on their cultural identity or their institution’s perceived reputation, and their intellectual contributions may be undermined by prejudiced assumptions about their expertise.
The authors are committed to continuing their efforts to expand the representation of LILAs. They highlight the importance of building pipelines for more Latina scholars to enter academia and assume leadership positions. Reflecting on the journey from the first Latina law professor in the U.S. in the early 1970s to the present day, the authors note significant progress, yet they acknowledge the ongoing challenges that remain. We are indebted to them for their collective efforts to showcase the powerful contributions of LILAs while emphasizing the need for continued advocacy, mentorship, and systemic change to ensure their future success and representation in the legal academy. Their growing influence reflects the promise of a more inclusive and diverse legal professi
Dec 4, 2024 Ezra Young
Sherry F. Colb & Michael C. Dorf,
Mandating Nature’s Course, 109
Cornell L. Rev. 101 (forthcoming 2024), available at
SSRN (Sept. 14, 2023).
In the October 2024 Term, the U.S. Supreme Court is poised to decide Skrmetti v. United States. At issue is whether trans healthcare bans which civilly prohibit and criminally punish provision of care, like Tennessee’s SB1, violate the Equal Protection Clause of the Fourteenth Amendment. Oral argument will be held today, December 4, 2024.
Shery Colb and Michael Dorf’s article, Mandating Nature’s Course, forthcoming in the Cornell Law Review, is a must read for anyone following Skrmetti as well as those more broadly interested in constitutional limits over government health power.
The genius of Colb and Dorf’s article is its observation that defenders of laws which severely restrict personal liberties recast these incursions as simply prohibiting interference with nature taking its course (NTIC) (P. 109). So construed, bans on abortion, trans healthcare, and euthanasia are cast as merely prohibiting wrongful acts against nature’s will. So conceptualized, NTIC arguments effectively mask that these laws impose affirmative obligations upon individuals.
Colb and Dorf accurately note that proponents of healthcare bans do not singularly rely upon NTIC arguments in litigation. But the authors convincingly argue that NTIC arguments figure so prominently in the promotion and defense of healthcare bans that they merit deeper consideration (P. 120). Taking trans healthcare bans as one example, these NTIC arguments operate on the pretense that sex assignment at birth is natural and immutable. On that premise, bans on trans healthcare are cast as common sense and apolitical government prohibition of medical interventions which, if pursued, would interfere with NTIC (Pp. 123–26). Similar arguments are front and center in constitutional challenges to abortion (Pp. 120–23) and euthanasia bans (Pp. 126–30).
Mandating Nature’s Course makes an important contribution to literature exploring the constitutional metes and bounds of government health power. For the last century, the Supreme Court has somewhat consistently recognized that government’s abstract interest in public health does not diminish an individual patient’s liberty interests in making her own treatment decisions. However, in the context of abortion as evidenced by Dobbs and euthanasia as reflected in Glucksberg and its progeny, appeals to nature short circuit what should be straight forward constitutional analysis. Appeals to nature—even those dubiously premised on pseudoscience—obfuscate the extent to which healthcare bans infringe upon bodily autonomy. So cast, patients’ protests of healthcare bans are conceived as futile umbrage at Nature, not constitutionally significant challenges to government overreach.
In a just world, Mandating Nature’s Course should give the Supreme Court pause. The Court’s solemn responsibility is supposed to be definitively determining what the law requires. But dubious appeals to nature, like NTIC arguments, have led the Court adrift from its appropriate role in safeguarding individual constitutional rights against government incursion. Rather than seriously inquiring as to whether government may ban certain healthcare when sought by certain persons, the Court has bent over backwards to legitimate restrictions on politically and morally contested treatments at the expense of doctrinal coherence.
If nothing else, Mandating Nature’s Course helpfully shines light on a long-overlooked frame by which the Supreme Court has side-stepped its constitutional duty in challenges to healthcare bans. As Colb and Dorf conclude, once we come to understand NTIC arguments for what they are—dubiously premised on the notion that letting NTIC is preferrable to intervention—we can at the least begin the hard work of assessing whether government has the power to coerce certain medical decisions in the first place (Pp. 144–50).
Oct 31, 2024 I. India Thusi
The Thirteenth Amendment provides, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Professor Adam Davidson examines the Thirteenth Amendment’s Except Clause in his article, Administrative Enslavement.
Recent attention to the harms of mass incarceration and mass criminalization has included scrutiny of the Except Clause with many critics concerned that it permits the enslavement of incarcerated people. However, Davidson’s critique is a little different than the more common, wholesale disavowal of this clause. Davidson examines how courts have interpreted this clause, critiquing their reimagination of forced labor as merely a prison administrative matter.
Davidson argues that through the ordinary processes of developing common law and passing legislation, judges and legislatures have reinterpreted this clause to allow prison administrators to assign incarcerated people to forced labor without the formality of treating slavery as a separate form of punishment. Davidson describes this phenomenon as administrative enslavement, “a constellation of judicial and legislative choices that places the punishment of enslavement outside the scope and processes of our traditional criminal punishment structure and into the hands of prison administrators.”
This interpretive shift from “slavery as punishment” for a crime to “slavery as an administrative matter” assigned by prison officials is significant for several reasons. Punishment requires specific substantive and procedural safeguards in its administration. Punishment should be based on facts that are proven beyond a reasonable doubt. Punishment should be proportional to the crime of conviction. Punishment should be properly explained to the defendant. Punishment should be announced in open court and be based upon the specific facts of the case. This is not the case for administrative matters.
Many of the safeguards that we require for punishment are nonexistent for matters that are conceptualized as administrative rather than punishment. Accordingly, by transforming the forced labor that incarcerated people engage in into an administrative rather than punitive category, courts and legislatures prevent incarcerated people from receiving the procedural protections that we require for punishment.
This development means that when a defendant is making a choice about whether to accept a plea, they do not have full information about the nature of their incarceration before them because the enslavement they might face is not punitive, according to courts and legislatures. Defendants might not be aware that their incarceration means that they will be risking their lives to prevent fires, or that they will be spending their time manufacturing products for various corporations for pennies on the dollars of profits that the businesses garner.
Defendants might not be aware that they will be engaging in labor for sums that are substantially lower than minimum wage, and in most cases, for compensation that is much less than even a dollar an hour. Defendants might accept a plea that requires a particular term of incarceration and lack of freedom, certain fines, or restitution, and limitations on their activities as determined by required probation or parole conditions; but courts generally do not inform defendants that they might also work for their term of incarceration.
The judge generally won’t inform defendants that specific facts, found beyond a reasonable doubt, mean that forced labor is suitable punishment in their case as would be the case for other forms of punishment. In fact, it’s usually not a judge that is sentencing the defendant to prison labor as “punishment for a crime.” It is usually a prison warden or other prison official who decides that such labor is suitable. This development contradicts the very language and intent behind the Thirteenth Amendment.
Davidson’s article is notable because this aspect of how the Except Clause has been interpreted by courts and legislatures has received relatively little criticism. The transformation of enslavement from punishment to administrative relies on a legal fiction concerned more about carceral convenience and administration than the general ban on enslavement otherwise reflected in the Thirteenth Amendment. This interpretation prioritizes the orderly administration of prisons over the moral compass of a society that otherwise prohibits slavery. Moreover, Davidson “shows that our current system of prison slavery is built on the sorts of mundane processes and decisions that seem small and unimportant individually but, in the aggregate, create a regime” that facilitates enslavement. Administrative Enslavement illustrates the ways that ordinary processes of lawmaking can produce extraordinary cases of injustice that should have no place in a civilized society.
Oct 15, 2024 Erez Aloni
In Andrew Sean Greer’s Pulitzer-winning novel Less, protagonist Arthur Less embarks on a global journey to avoid his younger ex-lover Freddie’s wedding. Through his adventures, Arthur grapples with his experiences as both the younger and older partner in age-gap relationships. This fictional journey resonates with the real-world dynamics explored in Tony Silva’s sociological study Daddies of a Different Kind: Sex and Romance Between Older and Younger Adult Gay Men. Silva examines these intergenerational relationships—especially common among same-sex male couples, who are more likely to have large age gaps than other types of pairings—and delves into the construction of the “daddy” identity, a role characterized by mentorship, age, and masculinity. His research offers a nuanced analysis of daddy-younger pairings, challenging stereotypes and revealing the emotional depth and cultural significance of these partnerships.
Silva’s research is built on the narratives of 39 men who identify as daddies and 26 younger men who were in relationships with age gaps of at least ten years. Importantly, all the interviewees were adults over 21, and the study exclusively focuses on relationships between adults. This distinction is crucial in avoiding harmful stereotypes, emphasizing instead the mutual emotional enrichment these partnerships often provide. Silva’s book seeks to answer several key questions: Why are gay men more open to such connections compared to heterosexuals or lesbian and bisexual women? What does it mean to be a “daddy,” including the forms of masculinity it involves? What is the quality of these relationships, and how do financial arrangements operate within these dynamics? Along the way, Silva addresses deeper themes such as LGBTQ+ culture, politics, nonmonogamy, and the fluid boundaries between friendship and kinship within the gay community.
The term “daddy,” as Silva explains, refers to “desirable older men, although not necessarily in a sugar daddy context, among both heterosexuals and gay and bisexual men” (P. 1). The men Silva interviewed characterize daddyness as involving three main characteristics: first, age and the stability it suggests; second, a dominant and leadership-oriented personality; and third, a mentoring role (P. 33). These characteristics align with the experiences of Arthur and his ex Freddie, who describe their relationships with older men as being shaped by mentorship and the wisdom that comes with age, reflecting the dynamics Silva uncovers. Interestingly, many of Silva’s interviewees had themselves been in age-gap relationships when they were younger, mirroring Arthur Less’s journey from being the younger partner to becoming the daddy.
One of the most compelling aspects of Silva’s work is its challenge to common misconceptions about age-gap relationships. Far from being exploitative or transactional, these bonds are often emotionally rich and involve deliberate efforts to prevent financial power imbalances from defining the partnership. For example, men in both the older and younger groups actively sought to keep finances from influencing their relationships (Pp. 48-56). While the daddies on average are wealthier and may occasionally cover expenses like dinners or vacations, the younger men often insist on maintaining their financial autonomy. Further, Silva argues that daddies play a crucial role in transmitting cultural knowledge within the gay community. These intergenerational relationships help younger men navigate the complexities of gay life, such as confronting homophobia, accessing LGBTQ+ spaces, and understanding the community’s history (Chapter 4, Pp. 92-123).
The book also provides fascinating insights into the evolving nature of masculinity for gay and bisexual men. Silva reveals that many older men in these relationships report experiencing a boost in their masculinity as they age, often tied to their roles as mentors and being desired by younger men (Chapter 5, Pp. 124-140). This finding contrasts with the more common narrative of aging as a detriment to sexual desirability and highlights the positive aspects of masculinity that these men embrace. Further, Silva provides a fresh perspective on masculinity that differs from the traditional construct of “breadwinner masculinity.” In doing so, the study contributes to the idea that masculinities are not static but develop over time, shaped by relationships, mentorship, and desire. The daddy identity thus allows older men to maintain and even enhance their sense of masculinity, while younger men often find freedom from traditional masculine expectations in these relationships (Chapter 5, Pp. 124-140).
An unexpected finding in Silva’s work is that many age-gap pairings do not resemble classic romantic partnerships. Instead, they take the form of emotionally intimate friendships, friends-with-benefits arrangements, or ongoing sexual relationships. This broader understanding of relationships and kinships within the queer community expands even the concept of “families of choice,” which has long been central to LGBTQ+ life (Chapter 6, Pp. 141-174). Silva’s interviews reveal a spectrum of connections that defy easy categorization, illustrating the fluid boundaries between friendship, mentorship, and romantic involvement among gay and bisexual men. Unsurprisingly, many of the daddies Silva interviewed were in nonmonogamous long-term relationships alongside their connections with younger partners.
Silva’s research offers valuable insights for examining laws and policies concerning relationships among LGBTQ+ individuals as well as other relationships. One question that emerges for legal readers is whether and to what extent heteronormative-based laws are applicable to the LGBTQ+ community. For instance, how might laws designed to compensate for gendered contributions in heterosexual households apply to relationships between daddies and younger men, which often operate under different dynamics? Put differently, in laws that aim to compensate women for their unpaid contributions to the household, especially when children are involved, how should these laws apply in relationships with fundamentally different arrangements?
Although not discussed directly in the book, Silva’s study sheds light on the unique dynamics between gay men—encompassing norms, power, connections, and practices—which differ from those in conventional heterosexual relationships. This raises important questions about the suitability of laws, often designed with heterosexual frameworks in mind, for various aspects of relationships among gay men, such as regulations around sex work, consent, and public sex. The book also provides a stark illustration of how an aging population changes partnerships dynamics and preferences over time, suggesting a need for rethinking laws applicable to relationships among older adults.
Another intriguing aspect of Silva’s work is his exploration of why these age-gap relationships are particularly common among gay men. Rejecting the simplistic explanation of a limited dating pool (which fails to account for why similar patterns of significant age-gap relationships aren’t seen in lesbian and bi women’s relationships), Silva points to a broader trend of nontraditional pairing among gay men. This trend extends beyond age to include less assortative mating in terms of race and class. Unlike the more common practice of assortative mating—where people partner with those of similar background or status, often reinforcing social stratification by concentrating wealth and privilege—these diverse pairing patterns challenge such norms. The prevalence of age-gap relationships among gay men, therefore, represents not just a unique dating preference but potentially a more fluid and egalitarian approach to partnership formation.
In the wake of the marriage equality campaign, many—including myself—predicted that same-sex relationships would become more institutionalized and gender-conforming. This book proves that gay men remain pioneers in exploring nonconventional and egalitarian relationships, whether through a more equal division of unpaid domestic labor, less assortative mating, or nonmonogamy. The question now is how these qualities, which challenge traditional relationship structures, might be transferable to other forms of relationships or communities, encouraging more flexible and egalitarian partnerships across society.
Just as Arthur Less learns through his journey that love and connection often defy conventional categories—realizing that relationships are complex, unpredictable, and not bound by traditional norms—Daddies of a Different Kind reminds us that partnerships evolve, expand, and transcend societal expectations. Silva’s work not only illuminates the complexities of these intergenerational relationships but also challenges us to reconsider legal and social norms surrounding partnerships across all communities. Ultimately, both Greer’s novel and Silva’s study illustrate that love, mentorship, and companionship can take many forms, inspiring us to rethink which of our norms and laws truly protect the vulnerable, and which merely reinforce entrenched gendered assumptions.
Jul 22, 2024 Natsu Taylor Saito
In her very timely Imperialism and Black Dissent, Nina Farnia proposes that the jurisprudence of political speech and association is best explained not by abstract principles of constitutional law but by a context in which domestic movements intersect with the global projection of American political and military power. Using case studies from four phases of racial resistance in the United States—Black Communism, the Civil Rights Movement, the Black Power movement, and the Movement for Black Lives—she disrupts the commonly accepted narrative that both First Amendment jurisprudence and the state’s targeting of particular ideologies are “colorblind” processes.
For Farnia, “[b]ecause domestic security in the United States necessarily involves the management and suppression of racialized rebellion and radical dissent, national security ideology and the First Amendment cannot be decoupled.” (P. 403, emphasis added.) What’s interesting here is not the fraught relationship between individual rights and collective security—we’ve circled that rock often enough since 9/11—but Farnia’s thoughtful and detailed discussion of the interplay of ideological and racial repression.
Received history tends to portray American communism from the 1920s through the 1950s as a movement of Euroamericans, particularly recent immigrants; one that is separate and distinct from struggles for Black liberation. This leads to the perception that the state’s unconstrained attacks on “communist” ideology and on association with groups allegedly advocating the violent overthrow of the U.S. government are not forms of racial subordination. Instead, we are assured that because struggles for racial equality focus on civil and political rights, they have been protected by the Constitution. “Remembrance,” however, “is also ‘a form of forgetting, and ‘the dominant narrative of the civil rights movement…distorts and suppresses as much as it reveals.’” (P. 428, quoting historian Jacquelyn Down Hall.) Farnia challenges the notion that Black activists have prioritized civil and political rights over economic and social justice. She contests the framing of Black radicalism solely in terms of nationalism and incorporates Black communists into a history of resistance that has consistently prioritized economic wellbeing as well as racial equality—and has been met, just as consistently, with intense violence.
Imperialism and Black Dissent illustrates that jurisprudence, too, is a form of forgetting. By including the stories of Black Marxists like Claudia Jones, Paul Robeson, and W.E.B. DuBois—prosecuted, deported, exiled, or otherwise silenced because of their opinions and associations—in the evolution of First Amendment caselaw, Farnia exposes silent spaces in commonly accepted narratives of the struggles for racial equality. Fresh insights emerge from this contextualization. Some concern the history at issue. Thus, Farnia reminds us that the Civil Rights Movement emerged in a period when there were virtually no constraints on the government’s repression of communists, or those it claimed were communists, purportedly because they advocated overthrowing the U.S. government by force and violence. Intriguingly, she argues that this contributed to civil rights leaders’ insistence that their movement be nonviolent, even in the face of intense state (and private) violence. Other insights emerge from Farnia’s examination of relevant Supreme Court cases where, for example, she argues that the assessment of First Amendment protections under equality principles initially appeared promising but ultimately meant only that “the colorblindness that emerged in”—and one might say eviscerated—“equal-protection jurisprudence came to be applied to the First Amendment.” (P. 463.)
Moving from Dr. King’s Poor People’s Campaign to the Black Panther Party’s breakfast program and the “anticapitalist and anti-imperialist demands” of the Movement for Black Lives (P. 449), Farnia turns to policies implemented by the Trump and Biden administrations. For example, she notes that, under Biden, the Justice Department has continued to prosecute some 350 racial justice advocates charged by Trump administration with violations of the 1968 Civil Obedience Act. (P. 454-55.) Her analysis yields important insights into how the tactics employed by state authorities to eliminate “foreign” threats—which are largely exempted from constitutional scrutiny—have been used to quash Black dissent. Thus, she points out how in 2017, under Trump, the FBI implemented a domestic terrorism program targeting what it termed “Black Identity Extremists,” conflating race and ideology to claim that “perceptions of police brutality” were endangering law enforcement officers. (P. 451.) And Farnia is equally clear that while the Biden Administration’s 2021 National Strategy for Countering Domestic Terrorism identifies white nationalism as a significant threat, its proposals will have a particularly strong impact on Black activists, as it expands the militarized repression of those it describes as “‘violently oppose[d to] all forms of capitalism, corporate globalization, and governing institutions.’” (P. 451.)
Taken as a whole, this piece sheds light on the intertwining of “race” and “national security,” a construction that conflates ideology and identity to allow the state to slip from one to the other, as convenient, in its quest to protect the status quo. This is the dynamic that so often renders hollow the promises of the First Amendment which, upon close examination, turn out to be almost entirely content- and context-dependent. Peppered with well-researched background facts and illustrative examples, Imperialism and Black Dissent prompts us to consider anew how to respond when First Amendment protections depend on the content of one’s speech, the ideology of one’s associates, and/or the ways one is racialized. These are questions that take on increased urgency in 2024, as students occupy college and university campuses to protest the asymmetric war in Gaza, militarized police forces are deployed to restore “order,” and it’s no longer clear what, if anything, academic freedom means.
Imperialism and Black Dissent is an ambitious project, deserving of book-length treatment. But that is the beauty of synthetic work, work that weaves disparate chunks of knowledge and perception together in ways that profoundly shift our understanding of both the parts and the whole. Farnia’s contribution feels like a gust of fresh air, prompting us to re-examine the familiar, to identify the drivers of ideological and racial repression, and to breathe new life into ideals that have, thus far, failed too many of us.
May 21, 2024 Maneesha Deckha
Equality and patent law may seem to make strange bedfellows. Convincing analyses exist though of how legal definitions related to science and innovation and patents themselves have fostered domestic inequalities as well as global health disparities. Concerns about the intra-human inequities that patent law produces are pressing ones. Still, in remaining anthropocentrically-bound by presuming that only humans can be inventors, these concerns miss the full scope of patent law’s inequality quotient. Laura A. Foster’s recent article Plants as Inventors: Interrogating Human Exceptionalism within Narratives of Law and Vegetal Life refreshingly takes up the inventive capacity of plants themselves as knowledge producers.
Foster seeks to correct her own human-focused examination of patent law’s role in elevating Western science at the expense of Indigenous knowledges in her 2017 book Reinventing Hoodia: Peoples, Plants and Patents in South Africa. With her 2023 article Plants as Inventors, Foster brings attention to plants, and patent law’s role in subordinating them, through telling stories about plants that pivot on the “binary logic of human exceptionalism” (P. 228). The article provides an engaging and instructive analysis inspired by what Foster terms “a vegetal feminist approach” (P. 229).
The first part of Foster’s thesis—“how the law draws upon and reinforces the view that humans are superior to and more worthy than other creatures and forces in nature” (P. 229)—is not new. Many animal rights scholars, for example, have already established the legal anthropocentrism which the legal liberal subject has normalized.
But Foster extends the remit of this insight into patent law by demonstrating how plants innovate and produce knowledge, situating her analysis in an intersectional understanding of patent law. She argues that human exceptionalism, harbouring “residues of colonial pasts” (P. 230), ultimately “obscures an understanding of plants as complex and lively beings that pervade the law” (P. 229). Foster draws upon recent attention to the sentient life of plants in the humanities, hoping “to shift conceptions of the liberal legal subject that undergird the law” (P. 229) and “imagine new ways of understanding and acting toward plant worlds” (P. 230).
The article compellingly shows that plants can qualify as inventors under a re-imagined patent law and in a manner equal to human groups in producing valuable knowledge and materials about and in themselves. The analysis is concise yet rich and accessible to those that know nothing about plants, patents, or feminist or postcolonial analysis, or who may have never heard the term “human exceptionalism” let alone questioned it. Foster leads the reader through helpful summary accounts of all these themes and concepts and adeptly ties them together.
She begins by noting how “legal reasoning and its conception of reason as the highest order of thought by which the truth can be determined,” along with its emphasis on “humans as rational subjects” (P. 230), sets up a human-plant binary. She provides background to how this human exceptionalism is related to intrahuman hierarchies, unpacking the gendered and racialized premises of legal protection for intellectual scientific labour and “associations of inventorship with the rational mind” (P. 231).
She then connects this colonial history to the rise of patent law and its framing of laws as “inert” and “passive” (P. 231), instead of as “creative and inventive beings” (P. 232). Foster explains the influence of the scientific method, Christianity, and taxonomic classification in creating “hierarchical understandings of life” (P. 232), and she valuably blends feminist, anti-colonial, and critical plant studies perspectives to distill the development of patent law and its importance to the growth of the British Empire and its dismissal of plants as mere economic resources. She also explains how the legal treatment of plants carried imperial and gendered significance.
Foster then moves to analyzing contemporary patent doctrine that frames plants as resources for humans. Foster discusses alternatives to this framing, evaluating recent accounts of how best to affirm “plant intelligence” and wondering whether some of these carry problematic pro-capitalist connotations. As a better option to affirm the inventive capacity of plants, she highlights accounts that emphasize that plants are aware of their surroundings and relations with others and that they change dynamically to adjust to changes in their surroundings and relations.
Foster further notes how plants “recognize plant stems, seeds, molecules, sensations and touch as ways of knowing…” (P. 238). She concludes that, resultingly, it does make sense in patent law to consider plants as inventive and creative just as humans are, whether we consider the standards of modern science or traditional Indigenous knowledge to be models for rewarding innovation.
Thoughtful accounts like Foster’s that ask us to imagine new legal possibilities for nonhuman life —here, of pluralizing our definitions of knowledge producers and intelligence — are important to help law catch up to social realities even where resistance runs deep. Some years ago the prospect of a macaque claiming copyright in selfies he took with camera equipment deliberately left in his Indonesian jungle environment resulted in a lawsuit that drew international attention. Adopting the human exceptionalist precedent to the effect that animals cannot claim copyright in their own creations, the trial court kept the monkey in the legal realm of what can be owned rather than who can be an (intellectual property) owner.
That position has still not changed. However, we do see a rising number of courts taking issue with law’s anthropocentric baseline, inspired to consider the justice claims of the nonhumans who inhabit our planet and citing from the plentiful socio-legal and other scholarship now advocating for rights for animals and rivers and generally questioning human exceptionalism and the wisdom of the paradigmatic liberal legal subject.
Similar developments for individual plants may seem a long way off. That is precisely why astute and crisply explained contributions like Foster’s are to be welcomed and read. They augment scholarly discourse that equality and justice are interspecies matters, too, and ask us to reimagine how human laws can be directed toward much more accountable interspecies relations.
Cite as: Maneesha Deckha,
Planting Equality, JOTWELL
(May 21, 2024) (reviewing Laura A. Foster,
Plants as Inventors: Interrogating Human Exceptionalism within Narratives of Law and Vegetal Life, 10
J. Narrative Culture 226 (2023)),
https://equality.jotwell.com/planting-equality/.
Apr 29, 2024 Doron Dorfman
In recent years, and certainly since Dobbs v. Jackson Women’s Health, grave concerns about reproductive rights have proliferated. While most of the discussion has been focused on attacks on the right to end a pregnancy and the child welfare system, other issues that fall within the umbrella of the reproductive justice movement also deserve serious attention. One of those aspects is “birth justice.”
In their canonical book Reproductive Justice: An Introduction, Lorretta Ross and Ricky Solinger acknowledge that “all people giving birth are entitled to safe, dignified, and compassionate health care” (p. 85). They view birth justice, defined as “the right to give birth with whom, where, when, and how a person chooses,” as a subset of reproductive justice (p. 96). Birth justice is an issue of equality specifically considering that maternal mortality rates of Black women are 2.6 times than those of white women. Yet, the role that the law plays in ensuring birth justice remains underexplored in the legal literature on reproductive justice. Elizabeth Kukura’s exciting work works to fill this gap in the literature while at the same time situating birth justice within the health law literature.
One reason why less attention has been paid to ensuring birth justice may be lack of information as to what is actually going on in delivery rooms, where the very private act of giving birth often takes place. Another barrier for challenging practices that result in denying birth justice is the fact that the practice of giving birth has been monopolized by the health care system. The mechanisms of providing health care have traditionally been hierarchical in nature and not prone to change. Protecting physicians’ authority and control from interventions of other actors has been a goal of both professional boards as well as of hospitals. In her illuminating article Birthing Alone, Kukura demonstrates how complex power dynamics among health care professionals end up hurting patients, specifically ones in an extremely vulnerable state: those who are about to give birth.
Kukura traces the history of birth doulas, women who are providing birthing support. Such support could be physical, emotional, and administrative in navigating the health care system. Birth doulas have been found to play an important role in promoting good perinatal care. While having a birth doula assist a person giving birth may seem like a luxury attainable only by those who can afford it, Kukura discusses the development of community-based doulas who provide services to underserved communities, specifically communities of color that, as mentioned, suffer from much higher rates of maternal mortality.
The relationship between hospitals and birth doulas has been contentious. As an example, at the height of the COVID-19 pandemic, hospitals banned all visitors from the premises, and birth doulas were also denied entry, showcasing how hospitals were not willing to acknowledge their status as professionals. While the story of hospitals and physicians trying to protect their turf has been told many times, the case of birth doulas as told by Kukura helps uncover new aspects of it. As part of the process of over-medicalizing childbirth through unnecessary surgical procedures, physicians seem to object and resent any other person in the delivery room intervening and advocating for the patient giving birth. This is specifically true in situations such as during the birthing process when informed consent to a procedure may not be as clearly given by the person giving birth who is extreme pain or under medication. This tension has a clear gendered undertone to it: the fact that most birth doulas are women surely contributes to doctors’ paternalism around birth.
For traditional legal scholars, such a situation is a call for regulatory intervention, one that would help elevate the status of birth doulas through official credentials. Hospitals may come to mind as the appropriate credentialing body that would oversee and regulate birth doulas. Such a formalizing process might boost the coverage of doula services under insurance through the creation of official billing codes that exist with regard to any other covered medical procedure done by a health care professional.
Yet after considering the pros and cons of formalizing the status of birth doulas, Kukura reaches the conclusion that regulating doulas through hospital credentials is not a good idea. First, it could lead to conflict of interests between doulas’ duties to the birthing person and the credentialing hospital staff, prompting doulas to be less proactive in their advocacy because of fear of repercussions. Second, credentialization will limit the pool of doulas when actually more of them are needed considering the United States is facing a maternal health crisis with more women dying from childbirth complications than in any other developed country.
Instead, Kukura proposes preserving the independence of birth doulas by following the example of states like Minnesota, Oregon, New York, Indiana and New York by including doula services in Medicaid Managed Care plans that often include “extra” services for enrollees negotiated by states with insurers. This type of investment is likely to elevate the status of doulas without creating unnecessary barriers of entry into the profession.
This proposal is reminiscent of states’ attempt to attend to the social determinants of health (the social, cultural, economic, and environmental factors affecting health) under Medicaid coverage by having insurers cover issues of physical accessibility, hygiene, and availability of nutritional foods to underserved communities. Such a move requires injecting some flexibility into a rigid health care system. However, unlike with services associated with the social determinants of health that conservative legislators would object to as they see it as an expansion of the welfare state, providing birth assistance through doulas, a goal more easily correlated with increasing childbirth rates, might be viewed more favorably across party lines.
Kukura’s is a promising and unique voice in legal scholarship. Her fascinating and well-researched work on birth justice and the legal aspects of childbirth illuminates important yet oft-ignored aspects in discussions of reproductive justice and health care access, providing a fuller picture of the many challenges and promises within those realms.
Apr 16, 2024 Andrea Freeman
I am not tragically colored. There is no great sorrow dammed up in my soul, nor lurking behind my eyes. I do not mind at all. I do not belong to the sobbing school of Negrohood who hold that nature somehow has given them a lowdown dirty deal and whose feelings are all hurt about it. Even in the helter-skelter skirmish that is my life, I have seen that the world is to the strong regardless of a little pigmentation more or less. No, I do not weep at the world—I am too busy sharpening my oyster knife.
― Zora Neale Hurston, Dust Tracks on a Road (1942).
Colleen Campbell’s important and fascinating new article, Intersectionality Matters in Food and Drug Law, explores the complexities of skin lightening products and how to mitigate the damage they cause. She lays out two major problems with these products. They contain harmful ingredients, including mercury, which disproportionately poison dark-skinned women, their primary target. They also exploit and reinforce colorism, a system of bias that grants more social and economic capital to light-skinned over dark-skinned people.
The paper goes to the heart of the political economy of food and drug law. As Campbell explains, “To critique the commercialization of race and beauty is to confront racial capitalism head on in the areas where it hits the deepest: intimacy, self-expression, sexuality, performance, acceptance, and love.”
And all this happens in the void where Food and Drug Administration (“FDA”) oversight should be. Cosmetics is an 8.6-billion-dollar industry that is highly under-regulated, likely because it is a feminized enterprise. Campbell begins by situating her analysis within feminist scholarship then expands her perspective to include intersectionality and critiques of essentialism. She persuasively argues that these lenses are vital to seeing that Black women experience unique harms at the hands of the FDA’s indifference, laxness, and corporate deference. Skin lightening peddlers feed off of “hegemonic beauty standards that idealize proximity to Whiteness” to profit from misogynoir.
Campbell’s careful handling of the topic leaves room for consumer agency where others seek simplistic solutions. Campbell does not recommend banning these products both because people might turn to even more dangerous alternatives and because she recognizes their strategic use as tools to navigate the realities of a world that worships whiteness. Instead of laying blame or shame on users, she acknowledges their rationality, complicating the problem and potential responses in a respectful and thoughtful manner.
Campbell provides an interesting but tragic history of cosmetics regulation, from freckle waxing to the co-optation of Black is Beautiful. Ultimately, she argues for a public health approach that recognizes the systemic nature of race and gender-based oppression through marketing and corporate greed. The paper is an essential read for students and scholars of race and markets.
Feb 22, 2024 Sheila Vélez Martínez
The book, Race and National Security, edited by Professor Matiangai V. S. Sirleaf, of the University of Maryland Francis King Carey School of Law, offers us a historic opportunity to change our political imaginary. This book delivers on its promise to “fully excavate[] the question of how race and racism relate to national security domestically, transnationally[,] and internationally.” In the words of Walter White, Executive Secretary of the National Association for the Advancement of Colored People (NAACP) from 1929–1955:
Race discrimination threatens our national security. We can no longer afford to let the most backward sections of our population endanger our country by persisting in discriminating practices. We must meet the challenge of our neighbors, not only because discrimination is immoral, but also because it is dangerous.
Although White’s critique continues to be true today, in the context of the broader conversation on national security, it is now clear that White’s focus on discrimination provides an insufficient framework. One of the many achievements of Race and National Security is that it centers a framework not of discrimination, but rather of racial justice, one that focuses on addressing institutional racism and anti-subordination. The growing general focus on racial justice, both on a national and a global scale, coupled with the continuous resistance against established racial norms, justifies the book’s deliberate examination of these issues and serves as the driving force behind this book. The authors contributing to the volume look at national security law as complicit in furthering systemic inequality from an anti-subordination positionality. They illustrate practices and policies that, whether by intent or effect, enforce the subjugated social status of historically oppressed communities within societies across the globe under the protective umbrella of national security. Thanks to their work, we are now able to draw interesting connections among the various ways these racial injustices work.
Race and National Security also serves to fill a void in approaches to international law. Scholars like James Thuo Gathii, featured in the anthology, have been arguing for some time that race and identity have so far been “underemphasized, understudied, and undertheorized” in mainstream international law. Just as the institution of slavery dehumanized black communities, situating them as beyond the scope of humanity at the founding of the United States, Euro-heteropatriarchal international law has served as a tool to dehumanize indigenous and non-European populations, and, as a consequence, mark them as unworthy of self-sovereignty in the worst cases or as incapable of self-government in the best. Race and National Security displays many of the connections across historical eras and diverse geographical locations, revealing recurring and structural patterns that include policing, incarceration and border policies in the United States, extrajudicial killings in Palestine, technology of war and surveillance in Iraq and Afghanistan, and the complicity of international organizations like the International Criminal Court and the United Nations.
The first chapter—an Introduction by Sirleaf—sets the stage and argues how international law has failed to see and engage with race by obscuring the role of racism and White supremacy in national security as if “hidden in plain sight.” It contends that the reconceptualization of national security is required and demonstrates how race structures national security. This chapter also clarifies why centering subordinated groups is necessary. It maintains that a racial justice approach requires consideration of macro-structural processes that facilitate racial subordination and stratification in national security as opposed to focusing on discrete episodes of individual discrimination.
The second section of the book—“Why Race & National Security”—addresses the need to engage in a discussion about race, national security, and what the scope of that conversation should entail. Here, the authors—James Gathii, Catherine Powell, and Aziz Rana—present how the racist origin story of the United States plays out in decisions from those involving national security law and colonialism to those involving pandemic policies. In the third section of the book—“Race & The Scope of National Security”—Monica Bell, Andrea Armstrong, and Jaya Ramji-Nogales offer contributions that weave together policing of black bodies, mass incarceration, and the eternal foreignness of black and brown immigrants in the United States to answer unequivocally the question of whose national security the state is protecting.
In the fourth section of Race and National Security, and maybe my favorite—“Race & The Boomerang Effect of National and Transnational Security”— contributors Asli Bâli, Noura Erakat, and Margaret Hu contemplate how national security methods of repression developed for “over there” migrate back to the metropolis to be deployed on those othered internally. This section highlights how colonies and other subordinated territories are used as laboratories for repressive techniques and technologies that are later used against marginalized communities in the metropolis. These techniques and technologies include not only tanks and weapons now used against antiracist activists in the United States, but also biometric data gathering.
In the fifth section—“Comparative and International Perspectives on Race & National Security”— Yuvraj Joshi, Rachel Lopez and Adelle Blackett investigate what redress and remedies might entail when race and racial justice are centered in national security by turning to comparative and international perspectives. The final reflection, a conclusion by Sirleaf, considers what it would mean to reimagine national security and the reach of the security state.
Race and National Security will help set the stage for upcoming generations of activist students and lawyers to implement a different approach to national security in a way that can point towards a post-subordination future.
Jan 22, 2024 Chao-Ju Chen
Ming Hsu Chen,
Colorblind Nationalism and the Limits of Citizenship, 44
Cardozo L. Rev. 945 (2023), available at
SSRN (Aug. 20, 2022).
Migrants have been crossing into U.S. borders for years in search of safety and employment. Since last year, the governors of Texas and Florida have offered “free rides” and “free flights” to send them to other cities, claiming that those who support welcoming immigrant policies should share the responsibility of caring for them. As Gaza faces a humanitarian catastrophe, former President Trump, whose Muslim ban was upheld by the Supreme Court in 2018 and overturned by President Biden in 2021, has recently vowed to expand the Muslim ban and bar Gaza refugees if he wins the presidency in 2024. The fate of the Deferred Action for Childhood Arrivals program will likely be decided for a third time by the Supreme Court, this time by a Court with a conservative super majority. As the U.S. moves into a post-pandemic phase, anti-Asian racism and violence continue to persist and spread.
Against this backdrop, many commentators blame white nationalism for xenophobia against Asians, Latinx, and Muslims, and see the granting of legal status to undocumented migrants and turning noncitizens into citizens as the key to their equality. Ming Hsu Chen, who recognized the paramount importance of access to formal citizenship for equality in her 2020 book Pursuing Citizenship in the Enforcement Era, finds this an insufficient explanation and solution to inequality. In Colorblind Nationalism and the Limits of Citizenship, she goes on to argue for the decentering of formal citizenship in the pursuit of equality, advocating for a new imagination of the relationship between race, citizenship, and membership that recognizes multi-layered membership. Bridging critical race theorists’ critique of colorblindness and critical immigration scholars’ critique of nationalism, she identifies the pivotal role of colorblind nationalism in producing inequality and shows how it “limits formal citizenship as an antidote for inequality.” (P. 950.)
Echoing the critiques of the Black/White paradigm in critical race theory, Chen centers her discussion on the inequality facing “racialized foreigners” (immigrants and citizens perceived as foreigners because of their race), particularly Asians, Latinx, and Muslims. The article is a timely intervention into racial and citizenship inequality in today’s America, where the talk of colorblindness prevails, especially after the Court overturned race-based affirmative action in admissions, dividing Asian Americans and pitting them against racial minorities. Speaking in the distinct voice of people of color, Chen – herself an American citizen born to parents of Chinese heritage who immigrated to Taiwan and then the United States – shows us what can be seen through “looking to the bottom,” a method proposed by Mari J. Matsuda.
Three Walls, Three Pretenses, and Colorblind Nationalism
Immigrant exceptionalism is often invoked to deny equality to noncitizens, but equality is not a privilege common to all citizens. Not all citizens enjoy full membership in the United States; some of them are limited to partial citizenship, lacking substantive citizenship, that is, “the social, cultural, economic and political belonging thought to accompany the rights and benefits of formal citizenship.” (P. 947-48.) On the spectrum of noncitizens at the one end and substantive citizenship at the other, Chen identifies three walls that stand in the way of racial equality. The first wall is located at the borders, while the second and the third walls are situated beyond the borders.
Policies and practices of immigration restrictions constitute the first wall, guarding against the entry of foreigners. The racism of the first wall is manifested in the Trump administration’s Muslim travel ban, which explicitly banned travel and refugee resettlement from seven majority-Muslim countries, and the Covid-19 pandemic measures, which barred Chinese (the Chinese ban) and South American asylum seekers from entering the U.S., but opened a door for Ukrainian migrants fleeing the war zone. Beyond the first wall is the second wall of racialized barriers to citizenship. Historically, racial exclusion has been enforced through a series of racial prerequisite cases that “naturalized Whiteness as the normative American identity and a requirement for citizenship.” (P. 970.) Its legacy can be found in modern naturalization practices that disproportionately delay and deny the applications of racial minorities.
A third wall awaits naturalized immigrants and their children and U.S.-born children of immigrants, denying them substantive citizenship. Examples of their unequal status compared with other U.S. citizens are many, of which the Japanese internment during World War II is a well-known example. The revitalization of denaturalization is another example that has not yet received much scholarly attention. Chen notes that, while denaturalization had functioned to exclude political dissidents in the early twentieth century and Mexican Americans during the Great Depression, the denaturalization provisions stayed on the books but remained relatively dormant until the Trump administration invoked them to denaturalize Muslim Americans and deport them on flimsy grounds (such as misspelled surnames). Claiming that the denaturalization cases let “nationalism prevail within the nation,” Chen concludes that “citizenship is conditioned on beliefs, race, religion, and prior legal status.” (P. 976.)
While the manifestations of inequality are sometimes purposefully and overtly racist and xenophobic, Chen draws our attention to the ways in which racist tropes are covertly invoked in the language of nationalism. White supremacy is not a necessary component of nationalism, but “the articulations of liberal national interest can downgrade the interests of other nations as nationalism seeks to guard against foreign threats to national security, public health, and national identity.” (P. 948.) She identifies three pretenses that provide facially race-neutral justifications for de facto racial exclusion: national security, public health, and economic protectionism.
The pretense of national security is evident in the cases of Muslims (racialized as “Arab terrorists”) and Asians (racialized as the Japanese “enemy race” during World War II and as “Chinese spies” in recent years). Public health concerns have served to legitimize the exclusion of Chinese (blamed for the “China virus”) and Latinx (racialized as “illegal aliens”) during the pandemic, despite the availability of Covid tests and vaccines. Asians and Latinx have also been excluded under the guise of prioritizing American economic interests and protecting the jobs of American citizens. The Trump administration’s Chinese ban during the pandemic, based on the mixed grounds of guarding public health, preserving the economy, and protecting against espionage, illustrates how the three pretenses can function together to justify racialized exclusion. Hence, “[n]ationalism becomes the ultimate pretext for racism.” (P. 1001.) Colorblind nationalism “rationalizes exclusion as an exercise of the nation’s right to sovereignty.” (P. 984.)
The Perpetual Foreigners
Asian Critical Race Theory has shed light on the “perpetual foreigner syndrome” suffered by Asian Americans when it emerged to challenge the dominant Black/White paradigm of Critical Race Theory. Arguing that “liberal interpretations of colorblind equality can merge foreignness with the biases of sovereignty, democratic self-governance, and social closure to reinforce inequality” (P. 961-62), Chen extends the wisdom of Asian critical race theory on foreignness to include Muslim and Latinx Americans. White immigrants follow the idealized path to first-class citizenship, enjoying “the white premium,” as exemplified by the acceptance of East European refugees after World War II and Ukrainian migrants after the outbreak of the Russian-Ukraine War. Denied the “citizenship premium” (P. 991), Asian, Latinx, and Muslim immigrants remain socially excluded as second-class citizens after naturalization. For them, “once an immigrant, always an immigrant.” (P. 990.) Perpetual foreigners they are.
Chen’s discussion of birtherism brilliantly demonstrates how foreignness is, in my words, selectively stored in the blood, blending jus sanguinis with jus soli citizenship. She offers three manifestations of birtherism, all of which are facially race neutral: (1) the attempts to abolish birthright citizenship; (2) the restrictions on birthright citizenship for the children of legal nonimmigrants, including travel restrictions for pregnant women visiting the U.S.; (3) the inconsistent exclusion of U.S.-born children of noncitizens from running for elected office. Chen’s vivid comparison of white men born outside the U.S. and non-white people born on U.S. soil in the legal test of loyalty for the presidential office is illuminating.
As the child of white parents, John McCain (born on a U.S. military base in the Panama Canal Zone) overcame the presumption of doubt. Yet, Barack Obama (born to a White American citizen mother and an international student father from Africa) and Kamala Harris (born to parents who were both non-white international students) suffer from Americans’ mistrust of foreigners, despite the fact that they were born on U.S. soil. She further points out the gender dimension of the birthers’ challenge of Obama’s eligibility for the presidency: the erasure of the citizenship of Obama’s White U.S.-born mother by her husband’s foreign nationality, which demonstrates the legacy of the marital expatriation of U.S. female citizens. (P. 986-88.) The foreign stains in Obama’s and Harris’s bloodlines are sticky with the stench of political disloyalty.
Of particular note is Chen’s watchful eye on precedents for the Court’s treatment of racialized foreigners. She sees white supremacy in United States v. Wong Kim Ark, a case brought by a U.S.-born Chinese that established birthright citizenship, and points to the Court’s concerns that a contrary holding would deny citizenship to people of European parentage. (P. 981 n.145.) She also sees the disparagement of Chinese Americans as “a race so different from our own that we do not permit those belonging to it to become citizens of the United States” in Plessy v. Ferguson. (P. 970 n.88.) Although she presents her observations in the footnotes, I find them to be excellent examples of how White supremacy was affirmed when birthright citizenship was granted to U.S.-born Chinese, and how racial discrimination against Blacks as inferior citizens and Chinese as unqualified outsiders finds manifestation in the same decision.
The Cure That Equality Laws Do Not Offer: Multi-layered Membership
Drawing from cell biology, Robert Chang and Keith Aoki have claimed that “In the same way that the cell wall or membrane serves a screening function, the border operates to exclude that which is dangerous, unwanted, undesirable.” Chen’s article is a valuable addition to Chang & Aoki’s thesis. It shows not only how the cell wall screens and excludes racialized foreigners, but also how foreignness and inequality penetrate through the cell wall. Yet, constitutional and statutory equality laws against discrimination based on race and national origin have failed to protect racialized foreigners from discrimination justified in the name of colorblind nationalism. Chen proposes two steps toward remedying this inequality. The first step is to recognize the harm. The second step is to move away from binary categories and toward multi-layered conceptions of membership by creating spaces for alternative sources of belonging.
Acknowledging that “[c]itizenship is necessarily a boundary drawing exercise” (P.1011), Chen advocates for migration along the citizenship spectrum to facilitate racialized foreigners’ democratic and social engagement, which in turn will boost their political, social, and economic inclusion. Her proposal calls for opportunities such as political participation and civilian services provided at the federal and state levels. Specifically, she identifies the practical role that state and local governments can play in broadening the conception of community and enabling the inclusion of marginalized groups.
On her list is noncitizen voting in local elections, which existed in fifteen cities across four states as of the time of her writing. (P.1010.) Recent legal developments on noncitizen voting present a mixed picture. New York city passed a noncitizen voting law in 2022, but it was subsequently struck down by a state supreme court. D.C.’s noncitizen voting law, also passed in 2022, is similarly facing legal challenge in court. A look at noncitizen suffrage outside the U.S. offers some hope. Noncitizens can vote in local elections in South Korea (the only Asian country that grants noncitizens the right to vote at the subnational level), Spain, Sweden, and other countries. Some of these countries have residency requirements or European Union residency requirements.
On a personal note, I was an international student at the University of Michigan Law School, Ann Arbor when 911 happened. Dearborn, one of the largest Arab American communities, was nearby. At that time, Asians were not the primary targets of hate crimes, surveillance, and deportation. Still, we knew that Yellow was closer to Brown than Black when it came to “foreign threats.” We smelled racism when being singled out for additional security checks at the airport. Some of us fulfilled the “affirmative racial duty” to display “patriotism” by hanging U.S. national flags on apartment windows. The feelings of mistrust, unwelcome, exclusion, and insecurity linger today. The anti-Asian hate in the midst of, and in the aftermath of, the Covid-19 pandemic revitalizes these feelings and fears.
For racialized actual foreigners like me who have no intention of seeking U.S. citizenship, “the perpetual foreigners” syndrome remains harmful because it constitutes and reflects our status as secondary foreigners. For Taiwanese like me who wish to claim our national identity when crossing national borders and when on temporary visas in the U.S., the denial of my country’s statehood has resulted in numerous troubling instances where I have been unable to find an appropriate nationality or country box to check. This denial of statehood produces distinct harms outside the experience of many noncitizen Asians, proving Chen’s point that the Asian race is as diverse as it can be. (P. 994.)
The Taiwanese category has never been included in the U.S. census form. Whereas liberals fought against the inclusion of the citizenship question in the 2020 Census and succeeded in the court challenge to have it removed, Taiwanese Americans strived to make Taiwanese count and matter in and through the 2020 Census. The Census 2020 “Write in Taiwanese” Campaign seeks the acceptance of Taiwanese as members of the political community whose racial identity does not suffer misrecognition or nonrecognition. I wrote in “Taiwanese” on the 2000 census form more than two decades ago as an international student. I dream of a space for the racial belonging of Taiwanese in Chen’s aspirational future for the U.S.: “a more equal nation for those who reside in the United States, regardless of prior citizenship status or race.” (P. 1010-11.)
