Dec 13, 2023 Ann E. Tweedy
Jessica A. Shoemaker,
Re-Placing Property, 94
Univ. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Aug. 31, 2023).
In Re-Placing Property, Jessica A. Shoemaker demonstrates the extent to which our legal rules about property have allowed real property ownership to become, in many cases, paradoxically completely divorced from place attachment. Drawing from disciplines such as geography and sociology, Shoemaker defines “place attachment” as “a ‘sense of belonging, loyalty, or affection that a person feels for one or more places.’” (P. 15, quoting A Dictionary of Human Geography (Oxford 2013)). With real property increasingly owned by people who have little or no connection to the land itself, including absentee heirs and distant investors who often simply own shares of property through an investment fund, local communities bear the costs of these absentee owners’ choices. Consequently, early American ideals that, at least in theory, favored egalitarian access to ownership and that “reward[ed] productive improvement and agrarian stewardship,” (P. 4), are now being trampled to accommodate elitist ownership patterns that in some ways mirror feudalism. (Pp. 20, 60.)
Professor Shoemaker avoids romanticizing the past by highlighting the fact that “we tend to erase” Indigenous histories of land possession “in favor of a simplified story of American expansion . . . .” (P. 4.) Thus, Shoemaker is not using the past as it actually played out as a model so much as demonstrating that our traditional ideals of access to property ownership, however unevenly and unfairly applied in the past, are undermined by the modern reality that land is becoming increasingly commodified by the rich to the detriment of working-class and middle-class families and individuals, many of whom can no longer afford to buy homes or own farms because prices are being driven up—in some cases by distant investors, many of whom are foreign, and in other cases, particularly with respect to farms, because land is tied up in “hereditary family dynasties.” (P. 60.)
One example of this commodification is the fact that, over a six-year period, a billion-dollar private equity investment venture bought up 19 out of 32 homes on a single block in Nashville, Tennessee in a working-class area known for its affordability. The venture not only transformed the block into an area that middle-class buyers could not afford, but, at the same time, the venture failed as a landlord to fulfill basic maintenance requests for the tenants who rented the houses it owned. (Pp. 6-7, 35.)
Professor Shoemaker provocatively urges us to reimagine our property laws so as to facilitate more rights for those that have strong place attachment to certain areas. Using the Standing Rock Sioux Tribe’s protests against the Dakota Access Pipeline (DAPL) as an example, she argues that lack of land ownership is often unfairly used as an absolute bar to legal rights and access, even in the face of place attachment going back generations or, in this case, centuries.
As Professor Shoemaker notes, the federal government’s strategy of using the Standing Rock Sioux Tribe’s lack of ownership of the lakebed, under which the pipeline was proposed to go (and ultimately was built), against the Tribe was particularly cruel because that land was illegally taken from them by the United States government. (P. 31.) Another devastating twist that Shoemaker highlights pertains to the peculiarities of federal property law relating to Tribes. These peculiarities allowed the federal government to issue a federal trespass notice to the protesters despite the fact that they had the permission of an individual Tribal citizen who was a co-owner of the land. (P. 32.)
Thus, even very deep place attachment and strong cultural significance did not ultimately give the Standing Rock Sioux the power to object to the pipeline. And their protest itself was unfairly cut short by the perverse injustice of federal property law with respect to Native Americans.
Another example that Professor Shoemaker discusses to illustrate property law’s failure to privilege place attachment is the way that the single-family home market is increasingly being taken over by investors, including private equity funds comprised of distant and even foreign investors. This has led not only to rising home costs but also, in at least some cases, such as the Nashville example discussed above, to poor response to maintenance requests and unfair rent hikes. (Pp. 7, 35.) She argues persuasively that “[p]roperty rules decide, as a first principle, to sanction absentee investment” and that “[i]t is a choice to design property rights such that title and possession can be decoupled without limits . . . .” (P. 35.)
Much of the article is devoted to Professor Shoemaker’s very interesting explorations of the importance of place and to convincing arguments about why place should matter that build on work by scholars such as Margaret Radin, Gregory Alexander, Keith Bassos, and others. At the same time, however, Shoemaker also acknowledges that putting too much importance on place attachment can also lead to its own problems, such as hereditary family dynasties that impede newcomers’ entrance into farming as well as communities that enforce socially undesirable norms like racial exclusion or class-based exclusion in the form of protests against proposed affordable housing projects. The argument is thus for a more balanced approach to property rights in which place attachment plays an important role, not for an approach in which place attachment is the only consideration.
Ultimately, Re-Placing Property shows us that failure to privilege place attachment sufficiently in our property rules has facilitated wealth concentration to the detriment of local residents who do have such attachments. As Professor Shoemaker explains, when absentee ownership becomes the norm, “[t]he land—the landscape itself and the local people who inhabit it—is captured in a sense, controlled and used to benefit outsiders, with costs and harms left local.” (P. 52.)
While the article makes a number of important contributions, I found its elucidation of how the absence of any requirement of place attachment in our property law creates injustices for local community members and Tribes to be particularly valuable. Professor Shoemaker provides a new way to think about and define the problems with relatively novel but increasingly common practices—like foreign investors’ buying homes in well-off areas and then leaving them vacant for long periods of time or buying homes in poorer areas in order to rent them out and then raising the rents beyond what existing renters can afford.
Professor Shoemaker offers a number of potential solutions to the problems she describes, highlighting Scottish Land Reform’s emphasis on broad public access rights as one possible approach to giving more weight to place-based attachment. Using a wider lens, she advocates more generally for alterations in our property rules to “favor[] or in some contexts . . . [to] require[e] . . . conditions that promote a place-based attachment . . . .” (P. 57.) One of the aspects of the article that makes it so engaging is Shoemaker’s exploration of her own place-based attachment to her grandparents’ land in Wisconsin and her concession that perhaps she does not need ownership to preserve and honor that attachment but only access. (P. 69.)
The article is a must-read for anyone concerned about the current levels of wealth concentration in the United States and the resulting inequities. Professor Shoemaker’s critique of the sometimes unchecked freedoms that come with ownership and her argument that we should structure our property rules differently so as to limit these freedoms in the absence of place-based attachment are incisive.
Nov 7, 2023 Mark Weber
People use disability metaphors all the time, from complaining about a “disabled bus” to remarking on the barrier to filing a claim due to a “legal disability.” In Disability as Metaphor in American Law, Doron Dorfman disapproves of the use of disability metaphors in general, and specifically challenges what he calls “disability frame advocacy.” Disability frame advocacy is the metaphorical use of the disability discrimination concept to argue that society should address disadvantages not associated with physical or mental impairment, but instead associated with poverty or other experiences or characteristics. Dorfman defines this term as “when scholars and advocates use disability rights frameworks and disability as [a] metaphor to advocate for resources, recognition, and redress for members of oppressed groups who do not live with disabilities.” (P. 1757.)
Examples of disability frame advocacy include invoking disability as a rhetorical device to argue for accommodations to make up for disadvantages imposed by structural racial inequality or discriminatory attitudes toward transgender persons, persons who use opioids, and people who are unhoused. (Pp. 1783-84.) These forms of discrimination may be “disabilities” in a metaphorical sense, but the disadvantages imposed differ from disadvantages that stem from social conditions relating to physical or mental impairment. Dorfman acknowledges that people who are discriminated against on the basis of race, who are impoverished, or who face other disadvantages in society may have claims for positive rights to support or accommodations. He nevertheless opposes using disability frame advocacy in this context to argue for the accommodations and other remedies. He contends that the rhetorical use of disability outside the disability context obscures the unique disadvantages imposed on people who have physical or mental impairments.
Those disadvantages are not the same as those faced by members of other oppressed groups. The disadvantages of disability are unique in that they stem from the impairments themselves – physical or mental conditions – in combination with a physical and attitudinal environment that is not adapted or is outright hostile to people who have impairments. Dorfman identifies what he calls the “missing impairment problem” that occurs when writers contend that the law should regard poverty or some other conditions as disabling. Dorfman does not deny that poverty or other conditions may or do increase the risk of developing an impairment. But he contends that actually having an impairment should matter when claims are made for accommodations as a matter of fundamental social equality.
Dorfman’s exposition is extensive. He observes that disability metaphors pervade ordinary speech as well as legal discourse. Uses of disability metaphors in ordinary speech often work to signify ignorance or ineptitude, as can be seen in the expressions relating to giving a “lame” answer to a question or being “politically tone-deaf.” More important to Dorfman is the use of disability metaphors in law. Regarding legal terminology, think of the inability to file a claim because of a “legal disability” such as youth, or of courts describing the status of nonmarital children as a “disability” for inheritance purposes. Dorfman ties the loose metaphorical use of disability language to the facile adoption of a disability advocacy frame. The frame is then applied to matters other than the disadvantage that is connected to impairment. Dorfman criticizes legal literature that jumps from declaring that a form of discrimination or other harm is a disability to arguments for remedies paralleling disability accommodations. His challenge to disability frame advocacy is that it embraces an outdated approach to disability, one that ignores the impact of impairment, a key term of the definition of disability in laws such as the Americans with Disabilities Act.
The omission of impairment so broadens the disability concept that it invites backlash and ultimately threatens the legitimacy of disability rights. The lived experience of people with disabilities is that disability arises from a dynamic between social conditions (the focus of some disability frame advocacy) and impairment (the focus that disability frame advocacy overlooks). Dorfman argues that impairment is also critical to contemporary cultural conceptions of disability and the disability pride movement. Thus, disability frame advocacy, tearing disability away from impairment, works its own form of rhetorical destruction.
Frankly, trying to get people to stop using a metaphor like that of disability strikes me as, well, tilting at windmills. Language has its own logic, or lack of it. But Dorfman’s critically important contribution to the disability rights debate is that the use of the disability advocacy frame for things not connected with impairment devalues the experience of people who have disabilities and leaves out what makes disability different. Measures to remove, reduce, or compensate for social and legal barriers other than disability to further substantive equality under the law and in society need to be evaluated on their own terms, not by an advocacy frame that relies on the metaphorical use of disability language.
Oct 11, 2023 Erez Aloni
A tidal wave of anti-trans legislation is washing over the United States and across the world. The Trans Legislation Tracker reports over 566 anti-trans bills were introduced in the US in 2023 alone, with 80 passed and over 350 still active. The restrictions take the form of barriers to healthcare access, legal recognition, education, bathrooms, athletics, and openly existing as transgender in public schools. Advocates increasingly justify these measures as necessary to defend cisgender women and girls. As one example, the Preventing Violence Against Female Inmates Act of 2023, a bill introduced to the US Senate, would require that prisoners be housed based on their sex assigned at birth. Introduced by male senators only, Senator Tom Cotton claimed it “protects incarcerated women from rape and crimes,” since housing “men ‘identifying’ as women with females puts them at risk.” This strategy of cis men pushing legislation that purportedly shields cis women from harm now features prominently in lawmaking globally.
In their compelling essay, Cis-Woman-Protective Arguments, Chan Tov McNamarah names this rationale “cis-woman protective” (CWP) reasoning and exposes its flaws. McNamarah reveals the ubiquity of CWP arguments across domains, tracing their oppressive history steeped in gender inequality and paternalism, faulty logic, and actual harm to cis women through stereotyping.
One of the essay’s most valuable contributions is contextualizing CWP arguments within an extensive history of racist, xenophobic laws that cited protecting (especially white) women to justify oppression. These include labor legislation restricting women’s working hours and occupations; jury service exclusions to protect women’s delicate sensibilities; and anti-miscegenation statutes warding off Black men from “preying” on white women. Though supposedly benefiting cis women, these laws often served patriarchal and racist interests while impeding women’s progress—relying on stereotypes of weak women that need protection by strong men. McNamarah argues contemporary CWP claims echo this troubling lineage, calling it “discrimination intergroup spillover.”
McNamarah then insightfully catalogs modern CWP arguments into eight alleged threat types that transgender inclusion is portrayed as posing to cis women. These encompass threats to cis women using facilities like bathrooms and prisons, impinging cis women’s physical safety and privacy; sports participation, threatening fair competition; rehabilitation in prisons and shelters, triggering trauma by forcing interaction with persons reminiscent of previous abuse; educational institutions, disrupting the benefits of women-only spaces; statistical representativeness in datasets, losing reliability of crime, health, and other statistics by including trans women; women’s speech, risking suppression; access to political advancement by diluting scholarships, programs, and resources aimed to advance women; and liberation from patriarchy by destabilizing the notion of fixed sex categories. This taxonomy facilitates incisive examination of each argument’s logic.
The essay then continues into a rigorous and fair scrutiny of each alleged threat. This analysis exposes flawed reasoning, inconsistencies, and lack of evidence in support of the harm to cis women or in the helpfulness of the measures in fighting it. For instance, regarding prisons, McNamarah notes cis women inmates often face higher risks of guard assault than fellow prisoner assault. Yet CWP arguments irrationally single out trans women as traumatic triggers, ignoring this reality. As another example, statistics from studies investigating safety incidents contradict “bathroom safety” arguments, stereotyping trans people as prone to predation. McNamarah also meticulously tackles alleged “athletic advantages,” highlighting unpoliced impacts of factors like nutrition and training. Additionally, McNamarah notes the lack of evidence that traits like height automatically confer advantage, since they may be beneficial in some sports but detrimental in others. Importantly, McNamarah does not sidestep serious discussion of complex issues and is not dismissive of the difficult questions that may arise. For example, in meticulously examining arguments about athletic advantages, McNamarah carefully considers that performance differentials between cis women and trans women can exist in rare cases. However, the thoughtful analysis reveals how any categorical exclusion still relies on unsubstantiated assumptions. Overall, McNamarah shows how blanket measures fail to address the specific isolated cases where protections could benefit some cis women.
Beyond issues with the arguments’ logic, the methods proposed to implement CWP measures also cause harm to cis women. Scrutinizing appearances to exclude trans women from bathrooms leads to increased harassment of gender non-conforming cis women through forcible removal for being “insufficiently feminine.” Invasive “sex verification” genital exams which are used to enforce bans on trans girls in sports likewise lead to unwarranted anatomy checks of cis girls when eligibility is questioned. As with historical tactics like racial segregation and appearance policing, such flawed methods that scrutinize appearances and focus on genitalia ultimately serve male interests by objectifying women.
Their piercing analysis significantly advances understanding of how superficially distinct discrimination interconnects across identities and eras. By incisively dissecting CWP claims, this excellent essay equips not just scholars but advocates, courts, legislative bodies, and other institutions to recognize and counter flawed woman-protective reasoning that harms the very women it allegedly protects. McNamarah’s timely intervention contributes key insights to ongoing conversations on connections between feminism and transgender equality. Fundamentally, the analysis underscores how no one wins when sources of oppression are positioned as mutually exclusive rather than intersectional. Examining relationships between forms of discrimination through phenomena like “discrimination intergroup spillover” is imperative for meaningful progress.
Sep 13, 2023 I. India Thusi
Maybell Romero,
"Ruined", 111
Geo. L.J. 237 (2022).
In her article, “Ruined”, Maybell Romero adopts an autoethnographic methodology to examine the harms judges cause by using the adjective “ruined” to describe sexual assault victims.
Romero takes us to a sentencing hearing in Utah, where she was a prosecutor for rape and sexual assault cases, and recounts how a sentencing judge referred to the rape victim as “ruined.” This experience shook her. The description of a rape victim as ruined triggered her as someone who had also experienced rape. Was she too ruined?
By explicitly centering how her personal history shaped her as a legal insider within the criminal system (prosecutor), she makes transparent what so many legal scholars try to hide—that our experiences in life shape our experiences in law. What I mean by this is who we are as people affect how we interpret the law, examine the law, advocate within it. This simple fact might be unremarkable to scholars in the humanities or other disciplines, but it is disorienting for some legal scholars who embrace the appearance of objectivity even when the substance of their work reveals subjective premises and biases that they are unwilling to confront. Professor Romero avoids this trap. Her choice to adopt an autoethnographic methodology is honest. The article openly meditates on how she personally experienced the legal phenomenon of judges’ use of the word ruined and is an example of the value of express subjectivity in scholarship. I think personal experiences can add to the expertise that one has in a subject. Transparently acknowledging that our experiences affect us as legal insiders (law professors) allows for textured legal scholarship that is informed by experience rather than fabricated from ivory towers, or even worse, rationalized and cloaked with legal doctrine when it is in fact prompted and motivated by the author’s personal biases.
But the transparency of her choice to put herself into the scholarship is not the only thing that makes this article remarkable. Romero shares her experience of rape, a crime that she describes as exceptional in experience and harm although we work in a profession marked by impersonality and performative neutrality. Her colleagues, her students, and others now know about her experience of rape. Her story of rape includes familial trauma and the exposure of personal relationships riddled with horror. Her vulnerability in this piece is laudable, but her positionality as someone who has experienced the trauma of rape makes her especially qualified to assess how a rape victim might experience judges marking them as ruined.
And labeling someone as ruined is a marking. Ruined means “the physical destruction or disintegration of something or the state of disintegrating or being destroyed.” Ruined reflects a permanence. A complete destruction of the person. It is an irrevocable status, and when the highest authority within a courtroom – the judge – labels a victim ruined, it is a permanent marking of the person’s disintegration. Romero experienced the harm of this labeling as she sat in courtrooms listening to judges repeatedly mark rape victims ruined. She was able to identify the issues with this labelling because of her subjective position in society, and she is using the tools of the law, which include legal scholarship, to address this harm that might otherwise have gone unnoticed.
Romero argues judges should embrace non-stigmatizing language that does not reduce all rape victims to ruined women (people). While women are clearly not the only victims of rape, Romero persuasively argues that rape cases with women victims received greater law enforcement support during her investigations and prosecutions. The woman victim was the conceptualized ideal. The impulse to label rape victims as ruined illustrates the value placed on a woman’s virtue. The rapist robs a woman of her virtue by taking away the thing that makes her valuable in society. A woman’s virtue is tied to her ability to be a dutiful wife and mother. It reflects her ability to reproduce the next generation. So, from the perspective of the misogynist, a woman who has her purity taken from her is permanently destroyed. Historically, the greatest assault of a rape is not just to the woman directly but to the men around her who had some ownership interest in her sexuality. Historically, the woman’s sexuality belonged to her husband or father, and when the rapist took it from them, it made the woman permanently less valuable to the men around her. Within this historical framework, the raped woman truly does appear ruined. The law should not embrace this misogynistic perspective of womanhood.
As Robert Cover recognized, “A legal tradition includes not only a corpus juris, but also a language and a mythos – narratives in which the corpus juris is located by those whose wills act upon it.” Romero’s piece invites judges to embrace a language that rejects a narrative that reduces rape victims to the permanent status of ruination. Given the legal history of rape, the direct harm that might flow from labeling someone permanently destroyed, and Maybell’s personal account of how she experienced the use of the term, I am persuaded that judges should avoid this term. I hope others in the legal academy are similarly moved by this remarkable article.
Aug 1, 2023 Natsu Taylor Saito
Property, as we have come to know and protect it, is dispossession. This is the heart of Sherally Munshi’s Dispossession: An American Property Law Tradition, a carefully researched and richly nuanced piece that’s brilliant in the simplicity and clarity of its message. As Munshi illustrates, what appears as property from a vantage point of privilege may be understood equally validly as dispossession and this implies that the injustices associated with commodification and inequitable distribution cannot be redressed except from below. Not only from the perspective of those most dispossessed, but also, quite literally, from the ground up.
“The property law canon is full of forgetting.” (P. 1031.) Munshi’s stated intent is to develop a counternarrative of dispossession utilizing what we’ve learned from critical race theory as well as studies of settler colonialism and racial capitalism. Dispossession develops this narrative beautifully, enriching both property and critical theory by incorporating equity-minded insights from contemporary Indigenous and Black activists who counter the “uplifting narrative of national progress and racial redemption” that legal discourse and education promote and perpetuate. (P. 1031.)
We tend to presume that property is simply a material reality—much as race is regularly presumed a biological fact. From there, struggles for justice are often framed in terms of property’s equitable (re)distribution. But the world looks very different if property itself is understood as the tangible manifestation of others’ dispossession.
The article is bookended by concise theoretical introductions to property law and to the formation and functions of race. Beginning with Locke, the introduction to property traces the dominant property narrative and its challengers, anchoring the discussion to come in a manner that students, particularly, will find helpful. The theory of racial formation and function wraps up the work by extending Cheryl Harris’ seminal work on whiteness as property to an analysis of whiteness as dispossession, illustrated by the anti-colonial canon of W.E.B. DuBois, Frantz Fanon, Aimé Césaire, and Albert Memmi.
Dispossession fleshes out its conceptual framework with a detailed history of the impact property law has had on claims to territory and on the construction of personhood. Munshi first tackles “Property’s Empire,” tracing the racialized history of dispossession on this continent, from the forced relocation of Indigenous peoples to the theft of Black property, both rural and urban, to the preclusion of Mexican and Asian land ownership. This, she suggests, provided the foundation for the United States’ imperial expansion.
Within the nuanced narrative Munshi provides, I am especially impressed by her ability to transform the oft-told tale of Johnson v. McIntosh into what she describes as the equivalent of far too many land acknowledgments today— “acknowledg[ing] the wrong of colonial dispossession only to place it beyond the scope of justiciability or legal redress,” thereby laying the foundation for “its great achievement: the privatization of conquest and the domestication of empire.” (Pp. 1041-42.) In turn, Munshi’s recasting of this case enables her incisive assessment of how the doctrine of preemption, with its colonizing constructs of “waste” and “improvement,” has been used to eradicate Indigenous, Black, and other “undesirable” communities throughout U.S. history.
The most creative contributions of this article may lie in the section entitled “Property and Policing.” The title evokes the frequently discussed lineage of our current carceral state, tracing the history of policing back through Jim Crow laws and Black Codes to the construction of enslaved Africans and American Indians as the personal property of their “owners.” Munshi’s critical insight here is that the “tropes of dehumanization and rehumanization fundamentally misapprehend the institution of slavery and its aftermath” because it was, in fact, an institution designed not simply to erase the humanity of enslaved persons but to maximize the exploitation of all their human capacities. (P. 1061.) To view emancipation as “rehumanization,” Munshi argues, signifies “inclusion within the project of racial capitalism, rather than its abolition.” (P. 1062.)
Forfeiture and fault were the colonial constructs that justified not only the severing of Indigenous peoples from their lands, but also the enslavement of people of African descent. Those being deprived of their resources, their agency, and even their lives, were made to forfeit their rights when they failed to fulfill obligations imposed upon them by the colonizers. As Munshi explains, it was this colonial worldview that enabled Black personhood to be defined in terms of civil death conjoined with criminal culpability—the construction of people who had been entirely stripped of their rights but nonetheless remained liable for their actions. (P. 1065.) To illustrate the extent to which this construction is still prevalent, Munshi weaves the narrative of Michael Brown’s 2014 killing in Ferguson, Missouri, into the larger tapestry of Black dispossession in metropolitan St. Louis. This story, in turn, illustrates the futility of addressing abusive policing without addressing its underlying structural drivers, most notably those involving property rights.
What I most appreciate about Dispossession is that Munshi calls out the elephant in the room—the question of whether “the charge of dispossession concede[s] the naturalness or universality of a right to possession.” (P. 1038.) She acknowledges that the discussion itself “risks obscuring or even deforming what settler colonialism has taken from Indigenous peoples—not an already-objectified property interest in land, but a relationship to the land that is not reducible to commodification or ownership.” (P. 1039.) By taking this issue seriously, Munshi frees us to move beyond solutions framed in terms created by the problem itself, to think in terms of relationships, responsibilities, and the restoration of balance in our lives and our world.
Dispossession provides a devastating critique of the origins, functions, and consequences of property law in this society, exposing a bundle of jurisprudential principles so normalized that they are almost transparent—much like whiteness. Yet Munshi does not appear discouraged by this exercise in racial realism. Somewhat counterintuitively, I found Dispossession to be an uplifting piece, perhaps because it recognizes that decolonization requires us to look beyond the constraints of the status quo to “practices that have flourished not before or outside colonial capitalism, but alongside it, in spite of it.” (P. 1093.) Munshi concludes by urging us “to reclaim from property law the question posed by colonizers: to whom does the Earth belong?” (P. 1096.) Directing us toward commonality and collectivity—principles essential to human survival—Munshi paves the way for us to consider another, perhaps even more essential question: How do we belong to the Earth?
Jul 4, 2023 Andrea Freeman
How did fast food become Black – and at what cost? Naa Oyo A. Kwate’s fascinating first book, Burgers in Blackface, introduced readers to the racist restaurants that dot the American landscape. Richard’s Restaurant and Slave Market, Mammy’s Cupboard, Coon Chicken Inn, and Sambo’s profited by providing safe spaces for white people to wax nostalgic about their ancestors’ history as enslavers. Some of these businesses continue to thrive after changes to their names and business models–or no changes at all. In her powerful second book, White Burgers, Black Cash: Fast Food from Black Exclusion to Exploitation, Kwate takes a deep dive into the intersection of racism and consumption, incorporating analyses of civil rights, corporate culture, health, marketing, law, and politics.
Kwate’s starting point is fast food’s origin story. As the most American of foods, fast food began as an institution created by and for white people. Modern associations between fast food and Blackness, symbolized by rappers and food swamps, where unhealthy food is plentiful but nutritious food is scarce, have overshadowed the industry’s racial history. The first fast food restaurants featured all-white serving staff catering to an exclusively white consumer base at “white utopias.” When fast food restaurants followed their white patrons to suburbs and sundown towns, which imposed curfews on Black people, their whiteness solidified. Yet, eventually, societal and market pressure to expand into Black neighborhoods forced an about-face on the industry. Now, most people think of fast food as the epitome of poor choice, not the apex of clean, wholesome food.
Kwate applies a critical race theory (“CRT”) lens to the evolution of fast-food marketing and the harms it inflicts on the consumers it targets. White Burgers’ CRT analysis underscores the importance of the call in Poole, Grier, Thomas, Sobande, et al’s seminal work, Operationalizing Critical Race Theory in the Marketplace, by providing a stunning exposé of racism’s role in fast food corporations’ profit-seeking strategies. Fast food’s reluctant entrée into Black media progressed from complete exclusion to using Black models in ads in mainstream white media to precision marketing across a multitude of platforms.
Civil rights activists’ focus on fast food as a site of equality, documented at length in Marcia Chatelain’s Franchise, set the stage for policies that promised progress through the expansion of Black capitalism. Throughout White Burgers, Kwate highlights how law and policy catapulted fast food from occupying a peripheral place in Black lives to becoming central to discourse about Black health today. Concerns about the U.S.’ international reputation, residential redlining, crime, labor issues, civil unrest, police brutality, and federal funding for fast food franchises in the name of Black empowerment all played key roles in fast food’s eventual, inevitable full embrace of Blackness.
Simultaneously, fast food has remained unbearably white. Trump was the quintessential Fast-Food President, publicly consuming burgers and fries and flaunting his obsession by serving McDonald’s, Burger King, Wendy’s, and Domino’s to national football champions, the Clemson Tigers, at the White House. This stunt embodied the duality of fast-food racism. Trump’s gesture insulted the team while championing his relatability to the everyday Joe, the common white man. But Trump was not exceptional in perpetuating an association between fast food and Black taste. Kwate points out that even the Obamas, who implemented health-forward policies, blamed Black people for their food choices, embracing an individualistic, “healthist” understanding of nutrition instead of a structural one. Then, after scolding Black Americans for feeding their children Popeye’s for breakfast, President Obama failed to act any differently at his inaugural luncheon. While treating the adult guests to a sumptuous smorgasbord of seafood stew, pheasant, and duck, Obama offered the children in attendance a banquet of hot dogs, cheeseburgers, French fries, and cheese pizza. (P. 341.)
A stunning collection of images documenting the industry’s evolving architecture, advertising, geography, and decor supports Kwate’s comprehensive narratives of fast food’s history in Detroit, St. Louis, Chicago, and Cincinnati. Through explorations of popular culture and political conflicts, White Burgers provides social and historical context for the current racialized health crisis. Kwate highlights Black resistance to fast food’s regulatory capture while acknowledging how racism distracts from the harms inflicted by the industry. “As the symbolic meanings of fast food shifted over its long history from all-American meal to fattening pollutant, Black people who consumed its meals became the fact of moral turpitude.” (P. 305.) White Burgers, Black Cash is a stunning contribution to the growing literature on race and food that should be required reading for all consumers.
Jun 1, 2023 Maneesha Deckha
Those wanting to brush up on “the rule of law,” recall the differences amongst leading rule of law theorists, or consider the equality implications of classic definitions of what the rule of law is and is said to protect, need only consult John Adenitire’s The Rule of Law for All Sentient Animals published last year in the Canadian Journal of Law & Jurisprudence. In it, Adenitire argues that prevailing accounts of the rule of law are exclusionary of beings with “lesser” rational capacities (both human and nonhuman), and he charts a more inclusive path. Through these contributions, Adenitire also convinces his reader as to the need for any rule of law theory to explicitly protect animals.
In a single article, Adenitire concisely illuminates key rule of law theories—formal, procedural, substantive—through focusing on their exposition by influential proponents. Adenitire takes Lon Fuller, Jeremy Waldron, and T.R.S. Allan as illustrative theorists of the formal, procedural, and substantive iterations respectively. Adenitire’s intent is to show how each excludes animals from their purview by privileging what he terms “active legal subjects” (P. 1), understood as those able to apprehend and adhere to the law and those who can be sanctioned for any violations.
Adenitire notes that such privileging relates to how the rule of law is conceptualized to begin with, typically as an undercurrent to a legal system where human subjects are able to be guided by the law in their actions. A primary catalyst of such conceptualizations is the moral desire to protect human dignity. (Pp. 7, 10-11.) Yet, this preferred conceptualization forgets about “passive legal subjects” (P. 3), those who aren’t able to grasp what the law says or follow its dictates at the requisite presumed rational level. Both humans with as yet undeveloped or atypical cognitive abilities and non-human animals fall into this category.
Adenitire claims that an exclusion of passive legal subjects cannot be justified if we agree that the central preoccupation of the rule of law is (1) to curb arbitrary power (whether exercised by public or private actors), which certainly burdens the lives of animals, and (2) to help the victims of such power, a status for which sentient animals clearly qualify. (P. 2.) He explains that the benefit of the rule of law in the human realm, no matter if theorized through the formal, procedural, or substantive account, is not compromised by framing the rule of law through this “arbitrary power” axis and thus extending its protective remit to nonhuman animals. To the contrary, including animals would better respect rule of law ideals that object to arbitrary power no matter which convention version (formal, procedural, substantive) is preferred. (P. 4.) Adenitire proficiently summarizes each account to show how their principal terms can feasibly apply to “passive legal subjects,” including non-human animals.
Adenitire’s argument connects with current debates about whether human rights and equality are imperilled if courts or legislatures recognize animal rights. Some believe that human dignity is compromised by seeing dignity in nonhuman others or otherwise valuing such beings to a greater extent than the law current does. This “dehumanization of humans by elevating animals” concern is a misguided view that has nonetheless vexed fundamental rights litigation for animals, as Adenitire discusses. (Pp. 17-18.)
In challenging the taken-for-granted premise that the rule of law is tethered to human agency, responsibility, and dignity, Adenitire asks us to rethink our commitment to human rights like equality and dignity in more inclusive ways. (Pp. 17-18.) Instead of continuing to valorize active legal subjects and tolerate human passive legal subjects on the basis of the latter’s human dignity, Adenitire offers sentience as a better “foundation” for the type of being the rule of law should protect. (P. 18.) Sentience (or “the capacity to subjectively experience reality and, consequently, the capacity to experience things as beneficial or harmful” [P. 13]) is what qualifies (sentient) animals to advance justice-based claims vis-à-vis humans and to matter morally to us.
Although not part of his central argument regarding the need to create “an inclusive rule of law” (P. 18), Adenitire observes that a substantive vision of the rule of law will help animals the most. (Pp. 3, 23, 26, 29.) It is this account that would call for the invalidation of food systems and other industries predicated on animals as tradeable and killable commodities. Adenitire refrains from advocating for one vision over another, but emphasizes that those who promote substantive accounts of the rule of law—including all substantive equality advocates and most readers here—cannot continue to ignore animals if they see animals as “subjects of morality and justice.” (P. 13.)
It is no answer to counter that animals do not presently qualify as legal subjects, Adenitire notes. Subjecthood for animals, Adenitire believes, is properly based on existing legal recognition of animal sentience (however symbolic or weak) and in the identification of certain anti-cruelty protections as rights-conferring for animals (again, despite how weak and distant from fundamental rights to life and bodily integrity anti-cruelty protections are). (Pp. 15-16.)
It is not clear that Adenitire has to prove animals’ existing legal subjecthood to make the rule of law extension to animals compelling, especially on a substantive account. One could also question Adenitire’s exclusion of non-sentient animals and probe his acknowledgement that humans and animals ultimately do not need equal treatment even after anthropocentric premises are removed from rule of law accounts. (Pp. 13, 18.) Whether such baselines for the argument enact their own unjustified exclusions and limit our vision for what the rule of law protects is an open question. We can also, of course, wonder about the further valorization of the rule of law for animals or anyone, given the concept’s colonial entrenchment.
But these are all (important) questions for another day. The immense value in Adenitire’s work lies in how it shows us a sustainable connection between the foundational concept of the rule of law and questions of animal justice. Readers will be enriched by how he reviews the leading accounts of the concept of the rule of law, highlighting their exclusionary reason-based premises, and through his compelling alternative for each account, where he details the level of legal protection that would flow under each account. With this work, Adenitire also constructively adds to the growing number of pathways that scholars and advocates are pursuing to create legal systems that are much more responsive to animals.
Amidst catastrophic animal-based food systems and other industries occasioning unfathomable suffering and biodiversity loss, Adenitire gives us a very helpful nutshell with the conceptual tools to understand for ourselves and explain to others why “a legal system cannot be indifferent to the well-being of non-human animals” (P. 4)—if we believe in the rule of law.
May 3, 2023 Doron Dorfman
Andrew Gilden,
The Queer Limits of Revenge Porn, 64
B.C. L. Rev. __ (forthcoming, 2023), available at
SSRN (Sept. 21, 2022 draft).
The law has a strange relationship with gay sex. Courts and legislators often manage simultaneously to ignore the realities of gay sexual expression, on the one hand, yet treat it differently from heterosexual sex on the other. Even when striking down the Texas sodomy law and expanding constitutional protection to same-sex, nonmarital sexual relations in Lawrence v. Texas, the Supreme Court constructed a narrative of a deep emotional bond between the couple at the heart of the case when in reality, the couple was not in a longstanding romantic relationship. As a few scholars pointed out, the Court seems to ignore the possibility that it was simply a hook-up, which nevertheless deserves as much protection as consensual sex in a committed relationship does. When presenting the court with the marriage equality cases, United States v. Windsor and Obergefell v. Hodges, lawyers went to great lengths to desexualize same sex relationships, making them easier for the court to swallow. And as I have recently showed empirically, in both the law and the public’s eye, gay sex with preventive measures against HIV is still deemed more dangerous than unprotected heterosexual sex is.
In his fabulously queer and highly significant article The Queer Limits of Revenge Porn, Andrew Gilden provides yet another example of such gay sex exceptionalism in the legal realm. Gilden exposes how even the feminist project to legally protect sexual privacy misses the mark when it comes to sexual norms in the LGBTQ community. Revenge porn, referring to the nonconsensual distribution of sexual images, has become a household term in the age of social media. Twenty-nine states now have criminal legislation prohibiting revenge porn. These laws, however, explicitly exclude images of voluntary nudity or sexual expression in “public” and “commercial” settings. (P. 21.)
As Gilden skillfully points out, the meaning of what is a public (as opposed to private) setting in which one can engage in a sexual expression is distinct when talking about the LGBTQ community. Fearing prosecution, queer people historically had to carve out for themselves spaces in which they could express themselves sexually. These include dating and hookup apps, parades, nude beaches, street fairs, and commercial websites like OnlyFans. The virtual spaces replace the physical “cruising” spots and bathhouses of the twentieth century in providing “not just ‘sleazy’ places that happen to cater to sexual interests shared by the queer people who frequent them; they are also constitutive of queer community, politics, and identities.” (P. 29.) Yet, the field of privacy law has routinely excluded queer people often on the basis of the perceived publicness of their activity.
As Gilden notes, under current revenge porn law, “if you sexually express yourself in a place accessible to more than just a few trusted people, then documentation of your sexual expression becomes fair game for the entire world: your boss, your mother, your sheriff, and anyone on the internet who wants to see it.” (P. 23.) And while one could object to such exclusion from legal protection on account of “personal responsibility” (i.e., if one is concerned about their boss seeing their naked body, then they should take responsibility for ensuring no untrusted third parties have the opportunity to surveille them), one should recall that the same logic goes to the heart of the protection of women from revenge porn and “slut shaming.” Indeed, it seems that same-sex sexual expression is regarded as different in the eyes of the law.
When it comes to commercial settings, Gilden claims that such exclusions disproportionately affect queer people because (1) sex work can be one of the few available avenues for economic survival for marginalized members of the LGBTQ community, especially trans women and trans women of color; (2) queer sexual norms are often much more accepting of commercial sex work than mainstream culture; (3) commercial sex sites serve as a unique educational function for young queer people, particularly in the absence of formal sex education and a pervasive stigma around the issue. (Pp. 37-38.) As Gilden and other scholars note, “If one of the justifications for revenge porn laws is that it is wrong to intentionally harass someone for engaging in consensual, pleasurable sexual expression, then this justification can absolutely extend to commercial settings.” (P. 39.)
At the end of his piece, Gilden reflects on whether the criminalization of revenge porn as it relates to queer people is the appropriate solution. This is because law enforcement has a problematic relationship with the LGBTQ community: “surveilling, arresting, and harassing queer people under the guise of protecting vulnerable populations from sexual abuses.” (P. 45.) By considering the pros and cons of civil remedies and criminalization of revenge porn, this article opens itself up not only to scholars who call on the law to be more sex positive when it comes to queer people, but also to timely conversations around abolition and the role of criminal law in society.
Gilden’s article (and his work in general) helps shed light on the way law treats queer life beyond more heteronormative aspects (such as marriage and childbearing). It brings us one step closer to envisioning a world that accepts a complete and whole way of being queer.
Mar 29, 2023 Ezra Young
Before I stepped behind the podium for the first time in Fall 2021, I made a conscious decision that I would not hide that I pray from my students. My particular combination of anxiety and devoutness more often than not means that I pray for the strength, wisdom, clarity, and patience to reach each and every one of my students before I dive into any given day’s materials. As a cradle Catholic, ending a private prayer even in public with the sign of the cross is a highly visible reflex. That first time I prayed in front of my class, I hesitated. Not because I’m ashamed of my faith. But because I worried what my students might think I was praying for, given the significant and enduring problems with American Catholicism and the institutional Church.
In time, as I’ve gotten my sea legs as a law professor, many of the things about the job have become easier. But it is only quite recently that I’ve seen fully that my lifelong commitment to a faith and Church that promises everything but regularly falls woefully short is compatible with teaching Constitutional law day-in and day-out. Some days, the only thing that keeps me going in a broken and flawed Church and country is faith. Faith that, despite all the failures, self-inflicted injuries, horrific and at-times seemingly unspeakable truths, redemption and salvation is just around the corner.
This is precisely why Christians put so much emphasis upon Jesus’ liberatory teaching in John 8:32, “You will know the truth, and the truth will set you free.” Truth and freedom are inextricably intertwined. The same can be said about the United States. As Frederick Douglass so astutely observed in his speech, What To the Slave Is the Fourth of July, true American liberation was impossible without reckoning with Black slavery. To wit, he urged “The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.”
This brings me to Professor Anthony Paul Farley’s latest article, Critical Race Theory & the Gospels, which hits home for me for at least one obvious reason as a devout Catholic. Farley’s stunning prose beautifully illustrates and elevates the parallels between how enslaved Black folks who were Christian came to understand slavery, liberation, and emancipation as an ordeal that mapped directly onto the suffering, sacrifice, death, and resurrection of Christ. Farley’s at-times masterfully lyrical writing is, to be sure, reason enough to read this article and share it widely. As one example, “Slavery is death, death only, and that continually. This death, far from being an escape ‘devoutly to be wish’d’, is a perpetual calamity…Slavery is crucifixion. Death, calamitous death, is forever” (P. 724). And yet, that is not why I picked this piece to feature in this Jot.
What makes Farley’s contribution so unique and powerful is his careful articulation of how Critical Race Theory (CRT) is not just compatible with, but is a flower in the midst of the ruins of, American Christianity and the American experiment more broadly. This is a daring and heavy lift at a time when the far right has so aligned itself with American Christianity and simultaneously declared literal war on Critical Race Theory.
Let me say this outright: Farley’s article is not evangelical. He does not write to convert readers to Christianity. Nor does his approach portend that Christian theology, culture, or logics have a rightful place, let alone a special place, in secular American law and politics. Farley writes for American Christians who, as a matter of faith and orientation, observe a blurred line between the secular and religious in public life. He also dials into a key strength of Christian thought in the present moment—that, at its core, our shared faith requires us to confront human suffering of the most barbaric and cruel kind, and through that meditation we learn the power of grace and love for all humanity. (Easier said than done, obviously.)
I agree wholeheartedly with my non-Christian friends that American Christianity—the institutional Catholic Church included—has repeatedly failed to reckon with our nation’s original sins, including first and foremost Black slavery, genocide, racial apartheid, colonialism, and the lingering effects of rampant racism in our laws, institutions, and systems. And yet the irony, as Farley so deftly uplifts, is that Christians should be the best primed to recognize these atrocities and root them out because that is what our faith quite literally teaches. As Farley explains:
“[t]he promise of ‘good tidings of great joy…to all people’ is possible only if great joy is ‘the miracle of liberation’. The miracle of liberation is key to any theory of transition to a classless society, which is another way of saying that the classless society itself is our vehicle and instrument of transition, and we have seen it already, we have seen the promised land.” (Pp. 732–33.)
Why there has been no coherent and robust trans-denominational Christian leadership helming the cause of anti-racism in the United States is a question Farley’s article asks—and begins to answer. Our nation has to date failed to live up to its promised deliverance from tyranny, and it still falls miserably short of reckoning with the legal, material, and social inequities that the Framers built this nation on top of at the founding. Each and every American today still finds herself awaiting liberation from the sins of our forebearers. Yes, we’re a nation that spilled the blood of hundreds of thousands of our citizens over generations in attempts to atone for Black slavery. But even those staggering sacrifices made generation after generation again have left us woefully forsaken. The scourge of American racism continues to demand blood and psychic sacrifices today as it always has and seemingly always will.
Underneath the bigotry that still freely flows in so many parts of American society even today is a helplessness shared by all of us irrespective of race or our ancestral connections to our nation’s founding sins. So many Americans today wish desperately to turn a page on our past. I do not blame folks who longingly dream that maybe a national forgetting of the brutal realities of our history and the enduring deficiencies of our constitutional order might bring us the deliverance we’ve strived so hard to win, but failed to obtain, despite considerable attempts at ridding our society of racism.
I do not think it is lost on most anyone who teaches constitutional law today that we, as a nation, have tried so hard, for so many centuries at this point, to redeem ourselves and our nation. I think it only natural to at times wonder what more we as Americans can offer up if a Civil War, Reconstruction, the Civil Rights Movement, and hard-won seemingly racism-defying achievements of the likes of Thurgood Marshall and Barack Obama were not enough to move the needle.
In this particular moment—amidst what my colleague Michael Dorf has aptly termed “the pit of despair”—Farley’s intervention is a breath of fresh air. It has a particular and much needed resonance for American Christians in and outside of the legal academe.
Invoking the rich imagery and metaphors of Christianity, Farley taps into a way of knowing fundamental and difficult truths based on faith alone. Though he does not label it as such, Farley’s prose clearly embraces a complex theological concept Christians term “mystery of faith.” In my Catholic tradition, a mystery of faith is something that transcends and by design lies beyond human understanding and reason. These mysteries are hidden in God and can never be known to humans unless God reveals them. Logic alone cannot explain one’s backing of a particular article or doctrine of faith. There is beauty, grace, and deliverance all in its purest form on offer. The catch is that humans can never truly know a mystery on our own. It’s not that we Catholics revel in the irrationality of the truth claims of our religion. But rather that we appreciate there are things that cannot and will never be known through anything short of faith alone.
Appreciation of the way mysteries of faith resonate with Christians across denominations even today is, I think, what makes Farley’s intervention—linking Critical Race Theory with Christ’s death and resurrection and God’s ultimate sacrifice for all humankind—so astoundingly profound and powerful. As Farley so powerfully illustrates:
Slavery is death. It is time to abolish prison and replace it with nothing. It is time to free Dred and Harriet Scott. It is time to free ourselves and everyone. It is time to leave the tomb.
The conceits of the modern era are all around us written in ruin and in spectres of future ruin…Critical Race Theory is a flower in the midst of ruin. Critical Race Theory is said to be radical? Critical Race Theory is radical. Critical Race Theory, the stone that the builders refused, is as radical as the Gospels, as avante garde as philosophy, as American as the abolition of slavery, and as necessary as tomorrow” (P. 737).
Devout Christians of every denomination see the mysteries emanating from and through Christ’s life, death, and resurrection as central to everything that has been or ever will be. (The literal Alpha and Omega of everything.) That teaching is, to the most devout amongst us, a radical message that is just as true and salient today as it was two millennia ago. That is why Christians today still preach the Gospels—the literal “good word” brought to us by and through Christ.
Masterfully, Farley threads the needle here for Christians who may be weary of CRT today by embracing its brazen call to radically reorder and reconceive what it means to be American and how we relate to our forebearers, warts, abhorrent and unrelating racism, and all. That Farley chooses to make the case for CRT through Christian tongues is a strategic move in a nation that for better and worse is still deeply Christian in outlook and worldview.
Rather than shy away from the baggage that even the most progressive of Christian perspectives—including, as he names directly, a progressive but still marginalized movement called liberation theology—Farley embraces CRT as complementary to, and an expression of, Christian salvation. As Farley explains, CRT offers legal theory the promise of a flower breaking through ruins of the past. Yes, to many Americans CRT is radical in the sense that it forces us to engage with disturbing truths about our past and present. It also, similarly, makes demands of adherents that seem to ask too much, including an overarching commitment to deliverance that experiences on the ground suggest is impossible in our lifetimes—a day where racism in all its manifestations is ended.
And yet, as Farley so beautifully illustrates for faithful Christian eyes and ears that we should properly understand the possible futures that CRT promises us as sign of the coming Resurrection from this hellscape our forebearers foisted on us. As Farley explains, “Critical Race Theory is radical” to us now, which is why it is in part feared. (P. 737.) It is dangerous to those who do not have faith or, worse still, choose to reject faith despite being schooled in the greatest and most profound truths humans can know. In this way, the radical demands of CRT are not denied because they are earth-shattering and disturb the status quo. Instead, the breakthrough point is made that, just as we Christians can believe and teach things that seem beyond human understanding let alone possibility, so too can we have faith that CRT can set us all free.
There is without a doubt a war on CRT in our country right now. The realities of our current predicament and the treacherous journey of reckoning ahead are understandably enough to scare many Americans. And yet, perhaps to the Christians amongst us there is some sense of comfort to be had in recognizing that the precise features that make CRT radical today closely parallel what devout Christians have long celebrated about our faith in Christ. Despite our many differences as Americans, in parallel to the deep divides amongst Christians today, at our core faith in its purest sense has always been and remains today a radical invitation to deliver all of humanity for all times to a better tomorrow.
Jan 23, 2023 Sheila Vélez Martínez
Despite our long historical presence, there is a general sociolegal invisibility of Latina/os in the United States. As with other traditionally subordinated communities within this country, the combination of longstanding occupancy and persistent marginality has fueled an increasing number of contemporary Latina/o legal scholars to engage with and try to define the contours of what it means to be Latino in the United States, as well as questions of what is our place/space now and in the future of this nation, which, as the author highlights, “thinks of itself as the conscience of the world.”
Inventing Latinos by Professor Laura Gomez is an invaluable contribution to the growing literature on Latino studies because it not only tackles the question of how Latinos came to be in the context of the United States but also looks forward and asks: “What is at stake?” and “What is to be done?” This book is important because it looks for the answers to these questions by interrogating the complicity of colonialism, imperialism, and white supremacy in inventing and maintaining hierarchies of ethnicity and race as a central part of the American project.
As a Latina who sometimes struggles with the label, I appreciated the fact that, from the outset, Professor Gomez made it clear that Latinos exist only in the context of the United States; no one outside of the United States has the need to self-identify as a Latino. We just exist within the complexities of our national, or, as in my case, colonial, identities. I became a Latina when I moved to Pittsburgh 12 years ago; before then, I was mainly a Puerto Rican, a Latin American, or even an American, depending on where I was traveling.
Latino/Latina/Latinx are also contested designations within the very communities that they seek to encompass because they center around colonialism as a binding thread in exclusion of Indigenous communities. These terms are an imposition of the racial taxonomy of the United States that negates the complex cultures and histories of each country, as well as Anglicizing the Spanish language, just to name a few of the issues. Nonetheless, the Latino and Latinx designations have also been adopted by critical theorist and social movements that seek to empower all of us in an intersectional way and have become an important tool to garner political gravitas.
In her first chapter, “We Are Here Because You Were There,” Professor Gomez begins the book by thoroughly documenting the long history of intervention of the United States in Latin American, an intervention that predates the adoption of the Monroe Doctrine. Before the Monroe Doctrine established the United States as protector and owner of interests and resources in Latin America, the United States had engaged in a corporate colonialism that exploited the resources of the newly independent nations in ways not dissimilar to the colonial extraction by Spain.
The United States’ dominance and influence in Latin America would not have been sustainable for more than a century without a combination of public and private enterprise. American imperialism and interventionism throughout the Americas via military force, political maneuvering, and economic policy imperatives catalyzed the Latino’s presence in the U.S.—it is no coincidence that Latino groups in the U.S. hail mostly from the places in which the U.S. has most interfered, such as Mexico, Puerto Rico, Cuba, Nicaragua, Guatemala, the Dominican Republic, El Salvador, and most recently Venezuela. Different countries in Latin America have served and continue to advance different United States agendas. As the author expertly puts it, “today and for the past several decades” the United States “has reaped what it sowed.”
In the following chapters, “Idealized Mestizaje and Anti-Black and Anti-Native Racism” and “The Elusive Quest for Whiteness”, the author engages with the complexities of race in both the formation of identities in Latin America and those of Latinos in the United States. Both the initial colonial project forged by Spain in Latin America and the foundation of the United States are based in a racial project: white supremacy. As Cheryl Harris has taught us: “proximity to whiteness confers tangible and economically valuable benefits, and it is jealously guarded as a valued possession, allowed only to those who met a strict standard of proof.” Proximity to whiteness opens a whole set of privileges that materially and permanently guarantee basic needs, and therefore, survival.
The author posits that Latinos have held on to the concept of mestizaje to traverse a middle racial category of “other” affirming historical expressions of colorism and blanqueamiento to effectively distance themselves from African Americans and remain in the buffer zone between whiteness and blackness in a way that holds that boundary in place. As one of those Latinas that often finds herself outside the binary, I value that the author also incorporates the perspectives of sociologists like Eduardo Bonilla Silva and Raquel Z. Rivera and recognizes that there is also a possible space of transgression and affirmation in rejecting the binary in favor of “a wide variety of intermediate racial possibilities.”
In “To Count We Must Be Counted” Professor Gomez tackles the role of the US Census in promoting and upholding white supremacy by creating and manipulating categories of people. She recounts the history of how in 1980, Latinos came to be counted as an ethnic group rather than a racial category and how this served both the interests of conservative Latino leaders and of other racial minorities, since it continued to allow Latinos to identify as white, black or even Asian without affecting the total numbers in those categories. In practice though, the 1980 Census count gave visibility to Latinos. Latinos had arrived; the next step after visibility is representation.
Perhaps the most important contribution this book makes is that it brings the above-mentioned conversation regarding history, colonialism, and race as the build up to a call for action. The author answers her questions, “What is at stake?” and “What is to be done?”, with a specific call to action. She proposes doing away with the so-called Hispanic ethnicity question and instead incorporating the Latino/Latina/Latinx signifiers among the race questions. She further proposes that space be allowed for national origin information to be collected and that a comprehensive education campaign be conducted to explain how colonialism has operated and that Latinos, as well as everyone else, be able to self-identify with more than one category. La Raza is here and occupies multiple categories, and we could all agree with the author that this information should be counted and represented a way that represents the “lived reality of race” in a way that makes it visible as an influential political actor that should be counted.
