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.
Dec 16, 2022 Chao-Ju Chen
Racial justice in education and LGBTQ equality are on the chopping block as the Court is reviewing two affirmative action cases against Harvard University and the University of North Carolina on the ground of racial discrimination and a LGBTQ rights case challenging Colorado’s anti-discrimination statute on the ground of free speech at the intersection of religious liberty. Conventional wisdom places the blame for the regression of equality and civil rights on the Court’s conservative super-majority. This is the same super-majority that infamously wielded its power to roll back abortion rights in Dobbs v. Jackson Women’s Health Organization. Indeed, the Court’s taste for hot-button issues is a testament to the conservative super-majority’s willingness to align itself with the conservative movement’s legal/constitutional agenda. Liberals’ and equality movements’ resentment of the Court’s ambitious conservativism is well-founded.
For Osamudia James, more is to blame for the current constitutional threats to legal equality. The equality gains that many celebrate and endeavor to protect – racial desegregation in Brown v. Board of Education and the recognition of same-sex marriage in Obergefell v. Hodges – came with a built-in weakness that led to the entrenchment, rather than disruption, of inequality. Through her elaboration on the “relational obstacles” on the road to racial justice and LGBTQ equality, James identifies the paradox situation: due to the failure to address the superordinate status of white people and straight men and heterosexual couples, equality movements and courts have produced “equality-promoting” doctrines that not only undercut the wins but also preserve “paths for the status-threatened to reinstate or reaffirm superordinate positioning” (P, 202) that would, finally, leave their old hierarchies in place. Consequently, equality’s drag is the unfortunate and unintended byproduct of equality wins. The increasing racial segregation of public schools and retrenchment of LGBTQ rights can only be attributed partly to the conservative movement because equality movements’ litigation strategies and advocacy also have a role to play.
Shifting the spotlight from the oppressed to the privileged
Many have written on Brown and Obergefell, but few have examined them in tandem to reveal the dark sides of both iconic decisions. For James, the two cases exemplify how landmark decisions and movements’ long-term litigation strategies in pursuit of equality failed to grasp relational status changes that may lead to the privileged groups’ attempts to reinstate their superiority. Disputing the understanding of “status” as referring to “individual characteristics with legal consequences” (P. 201) and the overemphasis on animus and discrimination (as classification), James considers status as “positionality in a social hierarchy” (P. 201). Status is “anchored in cultural beliefs,” “relational in nature” (P. 219), and “distinct from competition for material resources or animus,” though it often “overlaps with both in matters of equality” (P. 218). To interrogate the treatment of status in equality laws and movements, she uses school integration and same-sex marriage struggles/efforts/projects as case studies because they both involve (1) equal citizenship and access to public goods; (2) movement achievements of legal “victories” that extended such access; and (3) persistent inequality and retrenchment after key legal “victories.”
Court wins never guarantee reality change in life. Brown promised to dismantle school segregation by race. Yet, some courts were reluctant, or even refused to oversee, integration, and residential segregation has further facilitated segregation, resulting in the continuity of white privileges in education. Obergefell—like the Court’s Windsor decision it built on—granted same-sex couples access to marriage, but a new battle over public accommodations law threatens not only other civil rights laws but ongoing constitutional recognition of and respect for same-sex marriage.
Why did movements for public-school integration and same-sex marriage ended up reifying rather than disrupting the status hierarchy? Rather than blaming the “hollow hope,” James examines the interactions between law and society within which status was challenged and sustained, calling for attention to the impacts of status change on traditionally superordinate groups: “the doctrine and remedies which emerged from the movements failed to under-cut the consensuality of beliefs that inform and stabilize status hierarchies and left available opportunities for retrenchment. Failing to appreciate the impact of status only increases the likelihood that courts, advocates, and policymakers will affirm, ignore, miss, or concede to status hierarchies, instead of dismantling them.” (Pp. 204-05.)
According to James, in the case of public-school integration, both the Brown Court and the movement chose to interrogate the inferiority of black people in school education and left the superordinate status of whites unaddressed. The Brown Court focused on the material and psychological harm on Black children, but stopped short of revealing “the commitments to racial purity and white supremacy which had justified segregation from the start” and thus failed to address “the dignitary and psychic losses to whites that would inevitably accompany integration” (Pp. 217-18). Its silence about status “helped affirm white monopoly on resources and power as natural” (P. 229), hence sustaining the superiority of white schools and white people. Framing the problem as a Black issue and Black suffering without challenging white supremacy also exempted whites from any responsibility for racial harms and “the burden of being labeled racist” (P 232.) Likewise, the NAACP’s strategy emphasized the subordinate status of Blacks without addressing the superordinate status of whites (which strategy deserved a “sympathetic assessment” (P. 243)). The strategy also chose prioritized accountability “to the middle-class Blacks and whites on whom the NAACP relied for support, and for whom integration had worked well” (P. 244) and further marginalized “the least powerful of minoritized communities, ensuring that the ‘wins’ inadequately serve them, if at all.” (P. 245.) Consequently, the racial hierarchy has been maintained rather than destabilized.
In the case of same-sex marriage, the Supreme Court endorsed marriage equality in Windsor and Obergefell without challenging the superordinate status of men within marriage and straight people, despite the Court’s acknowledgment of the dignitary value in recognition of same-sex relationship. James asserts that “[m]issing from the Obergefell and Windsor opinions was the same analysis absent in Brown: the identification of harm not only as injuring the subordinated group, but also as benefitting the subordinating group.” (P. 238). The Court’s glorification of marriage as an institution that confers dignity is an invitation for same-sex couples to assimilate, which “reinforces the superior status of straight people.” (P. 239) Likewise, the marriage equality movement sidelined the concerns of more vulnerable members of the queer community, presenting marriage as a cherished status and “chose plaintiffs that were disproportionately white, gender-conforming, educated, affluent, and parents.” (P. 245.) Therefore, the movement also contributed to reifying traditional norms about marriage and family through its assimilative approach that conformed to normalcy.
In both cases, the Courts and the movements failed to confront the status loss and equality costs for those on the top of the hierarchy, making it easier for the superordinate groups to reinstate their hierarchical position and harder to name their status balancing. This failure also left the cultural beliefs that informs status hierarchies intact. White norms and (heterosexual) marriage norms endure, despite landmark legal “victories.” So understood, James’s of criticism of “long-term status costs that undermine a short-term victory” (P. 247) echoes Nancy Polikoff’s thesis of “winning backward,” by which she meant “a victory the legal basis of which sets back a goal greater than the immediate outcome.” James’ call for attention to white privileges is also in line with scholarship that stress the necessity to consider oppression and privileges in tandem.
Preservation through Transformation
Interrogating equality gains and status loss in education and marriage, James has contributed to equality scholarship and movement theorizing by identifying the preservation of the status hierarchy and its transformation. She presents a dynamic of what Reva Siegel coined “preservation-through-transformation,” in which the idea of choice looms large. In the context of primary and secondary education, the doctrine of parental liberty has served to legitimate “inequality-affirming choices” (parents’ school choices informed by “built-in structural inequalities” and “made on an education market facilitated by the state”) (P. 212). James claims that “White flight can therefore be understood as race-neutral preference rather than the status-securing political moves that Brown should have named and prohibited” (P. 231). In the context of marriage, the doctrine of religious liberty—and free speech—have enabled challenges to public accommodation law like those in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Arlene’s Flowers v. Washington, and 303 Creative LLC v. Elenis that “are grounded in the voluntary choices of individuals that are either beyond the reach of the law or not easily resolved by our current legal frameworks” (P. 240). Status endures “due to a religious liberty that is most likely to protect straight white males” (P. 241). In this vein, Brown and Obergefell both “paved exit ramps away from equality” (P. 238), despite the difference that resistance to integrated education is motivated partly by material competition, whereas the recognition of same-sex marriage is not a zero-sum game. This review of the fight for education and LGBTQ equality presents a picture in which dominant groups’ liberty trumps subordinate groups’ equality.
James’s work might remind readers familiar with critical race theory of Derrick Bell, whose work on the interest convergence of Brown remains a masterpiece. Citing Bell’s call for attention to white interests and the superior status of middle and upper-class white, James notes that “a transactional approach to addressing status can be disheartening. Engaging status, however, must also be about reframing.” (P. 253.) Comparing the equality movements’ relative active engagement of animus and discrimination, James urges us to “recognize that status exerts a less visible, but forceful drag on equality movements” to reassess the movement’s triumphs and failures (P. 225). She concludes with the claim: “Better theorizing the role of status in major equality movements can limit equality’s drag, resulting in more robust and enduring equality wins.” (P. 254.) Her cautious tale of the equality gains and status loss is a timely reminder for equality seekers in the post-Trump age. The challenges of going forward lie not in defense of previous “legal victories” but in the departure from the route taken.
Nov 9, 2022 Erez Aloni
Ido Katri,
Transitions in Sex Reclassification Law, 70
UCLA L. Rev. __ (forthcoming), available in draft at
SSRN.
Our legal identity is formed in the immediate aftermath of our birth. Markers are given to us that denote our names, our hometown, and, crucially, our sex. On the basis of our genitalia at birth, we are assigned an M or F and launched into the world with a slew of expectations as to gender identity and expression.
Clashing with this weight of normative expectations forces transgender people (including non-binary and all other people whose gender identity or expression does not conform to their assigned-at-birth sex) into a public admission that they inhabit the wrong bodies. That is, that the identity that they have come to understand and nurtured does not correlate to the one assigned to them at birth. Aligning the two is the work of sex reclassification, the process through which a non-cisgender person applies to change their legal sex in their official state documents (e.g., IDs, birth certificate). This is an area of rapid doctrinal change in the US and the world at large, with an increasing embrace of self-identification: a legal framework for reclassification that is grounded in the applicant’s self-experience of gender and in the autonomous right to determine gender identity.
Into this explosion of legislative change, steps in Ido Katri, whose forthcoming article, Transitions in Sex Reclassification Law, accomplishes two important goals. First, it tracks the doctrinal and normative shifts in US approaches to sex reclassification and organizes an ambitious review of fifty states’ legislation into an easy-to-follow taxonomy. Second, it challenges the basic assumption underpinning reclassification laws and questions why we assign sex at birth at all. What if there were no “wrong bodies”?
The article tracks the various statutory approaches to sex reclassification according to the mechanism through which the state grants the reclassification. Using this device, Katri divides the legislation into five rough categories: jurisdictions that do not permit reassignment, those that require surgery, those that necessitate medical affirmation, those that call for corroboration of gender identity, and those where self-identification–expressed by self-attestation of the applicant’s own gender–alone suffices. This doctrinal spectrum corresponds with a normative one, from an understanding of the “truth” of birth-assigned sex as absolute, to a concept of gender identity as an innate truth of the self, a private right that exists alongside the public “truth” of birth-assigned sex.
Canvassing US approaches leads Katri to note a broadly progressive move toward self-identification as the gold standard for reclassification, and away from the most intrusive regimes, particularly those requiring surgical intervention. In 2013, twenty-two states required some form of gender-affirming surgery for sex reclassification on either birth certificates or state-issued identification, or both. By 2022, that number had dwindled to just ten. However, the presence of medical gatekeeping of sex reclassification remains prevalent. Confirmation of some form of medical procedure supporting “gender transition” is still a requirement to amend a birth certificate in fourteen states and the District of Columbia. This is in spite of an American Medical Association (AMA) policy issued in 2021 calling for an end to the practice.
Litigation has paved the way for easier and fairer reclassification procedures in several jurisdictions, where judicial decisions have touched on similar themes in holding that bans are unconstitutional. Overturning a ban on reassignment in Puerto Rico in 2018, a federal court judge ruled that banning sex reassignment stood in opposition to the constitutional right to privacy and personal autonomy. A similar decision in Ohio in 2020 cited a person’s right to privacy as well as equal protection in applying for sex reclassification.
What is particularly interesting and counterintuitive is Katri’s analysis that legal arguments in support of reclassification are united in their presentation of gender identity as an immutable, private right that exists alongside the public “truth” of birth-assigned sex. This conceptual coexistence has the unintended consequence of enabling conservative counterarguments centered on the immutability of sex (“biological sex”). It also allows for the positioning of bias against trans persons as people not protected under sex-discrimination doctrines, since sex and gender are understood as separate truths. So long as birth-assigned sex exists as a legal marker, gender identity must be asserted against it.
Here lies Katri’s powerful critique of sex-reclassification laws, even in their least intrusive form as self-identified. A self-identification framework, despite its laudable effect in producing concordant identification for trans legal subjects, perpetuates a version of the “wrong body” narrative. The wrong body narrative embodies essentialist assumptions about the gender binary; accordingly, the body is wrong in comparison to an authentic and inner gender identity. Body and gender identities are, then, separate features. Further, the wrong body portrayal does not represent the reality of all trans individuals, as some do not experience their bodies as wrong. As well, the narrative exceptionalizes the experience of trans people; whereas cisgender people also often feel uncomfortable with their physical self-image and gain access to medical procedures to “improve” their body and genitalia. Most of all, even progressive policies that are grounded in self-identification reinforce the harms that a system of assigned-at-birth sex inflicts on trans folks.
If the goal of reclassification laws is to undo the harm of birth-assigned sex, then that raises the question: why assign it at all? Katri offers a thorough, compelling, and yet sober argument in favor of ending the practice of birth assignment of sex. Katri nicely counters the possible arguments in favor of collecting sex. Readers whose instinct is that the state has compelling reasons to collect and record legal sex will also benefit from reading the highly informative work of legal scholar and bioethicist, Florence Ashley.
Heightening the significance of Katri’s argument is its relation to the broader conversation: his critique is part of a trilogy of articles, all written or published in 2022, that complicate and enrich the concept of sex assigned at birth. Jessica Clarke’s Sex Assigned at Birth, another of the three, provides an expansive and cutting-edge analysis of the evolution of “sex assigned at birth” and its role in the contemporary discourse about transgender rights. The third contribution is Noa Ben-Asher’s deeply innovative Gender Identity, The New Legal Sex, which reframes sex-reclassification laws as part of a larger transition from “biological sex” to a regime in which gender identity serves as the primary indicator of legal sex.
The importance of Katri’s work stems from his simultaneous ability to chart the progress of the sex-reclassification doctrine and effectively group its piecemeal legislation, while prodding the limits it presents. By questioning the necessity of birth-assigned sex and the conceptual framework of the wrong body that it inevitably produces, he invites further discussion of the value and desirability of giving the sex of a person a legal imprimatur. The combination of these contributions makes his latest article a fascinating read for anyone interested in the evolution of gender in society and the law, as well as in new frontiers in transgender rights.
Oct 11, 2022 Kali Murray
Renee Nicole Allen’s From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy is an important law review article. From Academic Freedom performs three valuable functions.
First, Allen outlines how legal institutions seek “to cancel” black women law professors by failing to legitimize them as public figures within the law school. Allen identifies what she terms “tools of cancellation” including dysfunctional benevolence and intentional microaggressions, as well as the responses of self-silencing and sidelining that black women law professors employ to navigate these tools of cancellation. Allen consolidates existing scholarship on these subjects. What makes From Academic Freedom powerful is the ways she employs these novel frames together to describe how these actions work together to silence black women law professors.
As Allen describes this process of cancellation, she then introduces her second innovation, her claim that law school functions as a white space that enforces white norms. Here, I want to place Allen’s work squarely within the burgeoning field of property, race and the law. Recent property theory has engaged a broad, multi-disciplinary theory in legal geography, sociology, history, psychology, with space, which can broadly be described as an abstract way to describe the physical dimension or characteristics of a location, and place, by contrast, consists of those spaces imbued with social meaning built through site-specific engagement and memory.
Allen’s work utilizes this scholarly tradition to examine the law school as a space. Adopting the scholarly work of sociologist Elijah Anderson, collected recently in Black in White Space: The Enduring Impact of Color in Everyday Life (2021), Allen identifies how law schools operate as white spaces, that is spaces characterized by the “overwhelming presence of white people” and the “exclusion of black people” where “white norms” are pervasive. (Pp. 366, 371.) A law school is a white space, Allen notes for both historical and ideological reasons because it enforces white norms in who is expected to be a law professor. White norms, according to Allen, can include norms as to appearance, teaching methods, and appropriate scholarship. For instance, a promotion and tenure review that emphasizes that the use of critical race theory method is too tied closely to “identity politics” may negatively impact black women scholars.
Finally, Allen consolidates an extensive scholarly literature on the institutional experience of Black women scholars, thus extending the lineage of critical race theory. An important part of Allen’s scholarly innovation in From Academic Freedom, is that it asks us—black women scholars—to openly discuss our experiences in the academy.
Naming the costs of our newness is such vital work. I, always, note that Patricia Williams (yes, that Patricia Williams) convinced me to go law school. I often tell this story to stress we, as black women, were so new to the law school experience, that as late as 1994, it took one of the great pioneers of legal scholarship to convince me to go to law school. Even more new is that now some of us (not enough of us), are professors and increasingly, deans. I have become concerned, though in light of the recent deaths of Prof. Lani Guinier and Dean Browne C. Lewis, that this newness, imposes substantial costs on black women professors in legal academia.
I have been so inspired by our younger black women scholars, whom have spoken of our pain, and taken on tasks, where for many personal and institutional reasons, many of us have had to remain cautious in our own work.
While, though, I admire this paper for its necessary courage, I want to be careful to notice its scholarly innovations, particularly its work in consolidating and categorizing pre-existing scholarship. I expect to not only to inform future scholarship but prompt vital conversations at law schools about improving the experience of black women law professors and students.
Cite as: Kali Murray,
All of Us Are Brave, JOTWELL
(October 11, 2022) (reviewing Renee Nicole Allen,
From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy, 68
UCLA L. Rev. 364 (2021)),
https://equality.jotwell.com/all-of-us-are-brave/.
Sep 13, 2022 Ann E. Tweedy
Cree author Billy-Ray Belcourt’s A History of My Brief Body is a visceral and devastating account of the effects of colonialism and anti-queer animus on one’s body and psyche. A memoir in the form of a series of essays, the book engagingly sets forth vignettes from the author’s life interspersed with a meta-analysis of how instances of oppression—both personally experienced and witnessed—spring from colonialism and anti-queer animus, which operate as a combined axis of oppression or separately depending on the circumstances.
As a poet and as a non-Native scholar of tribal law and federal Indian law, I am constantly trying to better understand the effects of colonialism. Belcourt’s analysis is unique in the way that it melds personal experiences with discourses of philosophy and literary criticism and in its unflinchingness and insistence on truth and accountability. I highly recommend this book for anyone that wants to understand the effects of colonialism or anti-queer animus in the Americas. While Belcourt is Canadian, I found that the work very much resonated with my understandings of colonialism and anti-queer animus in the United States as well.
The book is so rich and dense that it would be impossible to do it justice here. Legal scholars may be particularly interested in Belcourt’s exploration of crimes against Indigenous persons in Canada by non-Natives and of how inadequate institutional responses to these crimes affect him as an Indigenous person. His naming of Indigenous crime victims is a powerful act in itself, but his analysis goes much deeper. For example, with respect to a twenty-year-old Cree man, Brennan Ahenakew, “found dead in a burnt-out car on the Ahtahkakoop Cree Nation,” Belcourt first relates the Royal Canadian Mounted Police’s (RCMP) belated and empty conclusion that “‘nothing indicate[d] foul play.’” (P. 42.) He then explains that, through this conclusion, the RCMP “sought to order grief, to pressurize the narrative and what could be publicly felt….,” further relating that, through such non-responses to Indigenous victimization, “NDNs are made to live and die in ways that are without shock value.” (P. 42.)
Later in the book, Belcourt recounts the high-profile trial of Gerald Stanley for the killing of Colten Boushie, a citizen of the Red Pheasant Cree Nation. Boushie was shot by Stanley during an incident in which Boushie and a few others were trespassing on Stanley’s property and attempting to use one of Stanley’s vehicles. Stanley was ultimately acquitted for both second-degree murder and manslaughter.
Belcourt explains how peremptory challenges were used during the trial to remove Native jurors—“[o]ne by one, each potential juror with NDN features or an NDN cultural disposition was shown to be too biased or too implicated in the case to deliver justice….” (P. 120.) Belcourt’s astringent account of the all-white jury as “demonstrate[ing]…that what was to be scrutinized wasn’t truth but the social conditions by which NDNs were to live and die” (P. 121) potently brings home the way that colonialism reinscribes historical injustices so as to make them seem inevitable and inescapable. Belcourt next describes hearing of the acquittal during a reading and having to respond on the spot. (Pp. 122-123.) He acknowledges, however, that there were words he couldn’t speak in that moment. After the verdict, Belcourt and other Indigenous persons are left to wonder how they “will ever look white people in the eyes and not periodically see our mangled bodies.” (P. 124.)
Belcourt experiences feelings of doom after Stanley’s acquittal (P. 124), as well as after the Pulse nightclub shooting.
In the context of the Pulse shooting, Belcourt probes the fact that the shooter had targeted Latinx club patrons in particular; he then defines doom “as the ways in which knowledge of one’s killability sits in the air….” (P. 127.)
Belcourt’s exploration of discrimination is by no means limited to the context of violent crimes and the justice system’s failure to appropriately respond. He also describes the anti-queer animus he experienced during his interactions with the medical establishment in an attempt to procure a post-exposure prophylaxis to protect him from HIV after an unintentionally risky sexual encounter. He was repeatedly turned away from clinics on the premise that the necessary drugs were expensive and that his sexual encounter was not risky enough. (Pp. 63-65.) Worse yet, his concerns were not treated seriously—indeed, he overheard a doctor describing his request for the drugs as “such a silly matter” and a waste of time. (P. 65.)
Belcourt explains the sense of wholesale abandonment and loneliness he felt as a result of these denials of care, denials which themselves sprung from a deep-rooted cultural fear of sexually transmitted diseases:
I was being conscripted into a culture of fear that makes STIs [sexually transmitted infections] such as HIV into public enemies. Without care, there is no room for harm reduction. What’s more, I had no audience for my misery. With no one around to apprehend the exigencies of my emotional tumult, everywhere I went became a zone of abandonment. (P. 65.)
Belcourt thus powerfully demonstrates how fear of diseases that are tied in the public imagination to queerness lead to lack of concern for the medical needs of queer persons. By sharing the intense feelings he experienced as a result of being denied care—fear, loneliness, and abandonment—Belcourt creates a work that operates on an academic and descriptive level at the same time it is piercing readers with visceral emotion.
And yet to say A History of My Brief Body is multi-faceted in this sense merely scratches the surface of the numerous levels on which it operates. The book is also filled with probing questions and unique and damning descriptions of anti-Indigenous and anti-queer culture in the Americas. I will leave you with one example–in a one-page essay written in the voice of “NDN writer,” in which he discusses Foucault, Belcourt comments that “NDN writer is hard at work on the paradox that one can be born into a past and at the same time [be] indecipherable to it.” (P. 45.) I read this passage as a powerful critique of the popular notion that Indigenous persons and cultures are part of the past (rather than the present) and the concomitant misrepresentation of them in this past-present in a form in which they never existed.
I urge everyone to read A History of My Brief Body. It may break you, but it will also widen your understanding of the entrenched injustices that infuse our culture. And understanding can be a step toward repair.
Jul 27, 2022 Doron Dorfman
One of the most significant questions of recent years is who gets (rather than who should get) a seat at the table, meaning who is allowed to partake in formal decision-making processes on law and policies, specifically when those pertain to minority groups. A recent example of these discussions was the appointment of Justice Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court. Although supporters of this nomination emphasized why “representation matters,” others opposed President Biden’s January 2020 statement that he would nominate a Black woman to the bench to replace Justice Stephen Breyer.
Anna Offit’s recent article, Benevolent Exclusion, discusses the question of representation in decision-making in a context in which lay participation is most often used in the legal realm, that is, trial by jury. The article shines a light on income- and wealth-based juror exclusion describing how “the process by which ordinary people are empaneled as jurors is one that is stacked, at every turn, against the poor.” (P. 625.) With an eye toward intersectionality, Offit points out how despite the elimination of property ownership as a condition to serve on the jury in the 1960s, a policy put in place as a tool to exclude Black people and women, along with legislative efforts such as the Jury Selection and Service Act of 1968, juries today still have a representation problem. Blanket exemptions for caregivers, for example, can result in gender imbalanced venires. And economic biases have been shown to constitute the greatest remaining impediment to Black peoples’ participation on juries. (P. 624.)
Exclusion of indigent people from juries, even if done with the best of intentions, so as to not threaten their livelihoods, has consequences for theories of citizenship and democracy. It threatens the creation of representative juries, which in turn violates a person’s constitutional right to serve as a juror, undermines public trust in the legal system, and jeopardizes the accuracy of verdicts.
In a true law and society fashion, Offit’s work compares the law on the books to the law in action. Although more than 75 years ago the Supreme Court in Thiel v. Southern Pacific Co. (P. 649) officially addressed the systemic excusal of low-income daily wage earners from serving on juries, the solution the Court endorsed meant giving nearly unfettered discretion to judges to excuse such individuals based on their personal circumstances through “cause challenges.” Offit’s article shows this broad discretion afforded to judges has allowed the problem to persist.
Through impressive field work that includes extensive interviews with former jurors and lawyers, along with participatory observations, Offit does excellent work exposing the courtroom dynamics in which judges take in either one of two modes: benevolence or vigilance. On the one hand, judges excuse low-income jurors as an act of benevolence – in order not to cause undue burden to individuals who are poorly compensated for their jury service. On the other hand, judges do not want to lose too many jurors from the venire, so they tend to be suspicious of potential jurors expressing caregiving obligations or financial burdens. Many times, judges pass on the hot potato of assessing the jurors’ hardship arguments to the lawyers. One of the structural issues the article discusses is the lack of formal guidance for such an assessment, leaving judges, lawyers, and jurors frustrated with the current situation.
Another structural issue Offit discusses is the complete lack of or very low compensation provided to jurors. The majority of states do not require employers to compensate jurors for their service, and even those that do so grant them around $50 a day. Jurors serving on federal courts also receive $50 per day of service (or $60 per day if serving more than ten days). As Offit points out, such low compensation “illustrates the different economic incentives that can motivate otherwise eligible jurors and introduce class disparities to juries.” The article thus suggests reforms that would increase jurors’ wages to account for inflation and the increased cost of living. It even suggests a way to fund such reform through filing fees for civil cases.
Benevolent Exclusion is an extremely important piece of scholarship that extends far beyond the study of juries. It exposes that dangers of paternalism and the need to strike the right balance when dealing with ensuring a just system while guarding the needs of vulnerable populations. It is part of a larger trend in equity scholarship arguing for systemic reforms that would help make room at the table to those who have been historically absent.
Jul 4, 2022 Natsu Taylor Saito
As teachers and scholars, we think a lot about how the world really works, what can be done to make it more equitable, and how to articulate coherent analyses that will be put to good use by others. For those of us who’ve been at it a while, it’s wonderful to hear from young scholars excited by something we wrote long ago—but it can be disheartening as well. After that initial relief that the piece hasn’t been swallowed by a black hole, the worry sets in. Why does decades-old work appear as fresh insight? Are we still circling the same old rock? Shouldn’t this intellectual project have evolved much further by now?
Then, along comes a gem like Raymond Magsaysay’s Asian Americans and Pacific Islanders and the Prison Industrial Complex. This somewhat prosaic title masks a beautifully written and artfully constructed exposé of the conceptual disappearance of Asian Americans and Pacific Islanders (“AAPIs”) in the criminal “justice” system. It is not, however, a “we, too, are oppressed” story. Rather, the brilliance of Magsaysay’s article lies in his use of critical race theory, Asian American jurisprudence, and the work of anti-colonial and indigenist scholars as well as prison abolitionists to highlight how the narratives of criminalized AAPI youth can undermine anti-Black racism and help us envision a future unconstrained by mass incarceration.
First, the lacunae. Did you know that AAPI youth are disproportionately criminalized? That in the late 20th century their arrest rate was about triple the rate of their population growth? Or that these rates continued to rise, even as arrests of Black, Indigenous, and White youths decreased? That in Oakland in 2006, the glaring disparity in arrest rates for White youth (13 per 1,000) and Black youth (116 per 1,000) was topped by Samoan youth, who were arrested at a rate of 130 per 1,000? (P. 454.) I certainly didn’t. There is so much more that could be said about what we don’t know.
The interesting question, though, is why we rarely hear about the criminalization of AAPI youth, apart from occasional news flashes about Southeast Asian gang activity. Magsaysay lays much of the blame on the “model minority” myth whose narrative, he notes, diverges dramatically from both contemporary realities and the racialization of Asian Americans and Pacific Islanders throughout U.S. history. This is an important move because, while there are numerous Asian American critiques of the “model minority” construct, they rarely focus on criminal law.
Even more impressive is how Magsaysay uses this lens to develop an intersectional analysis in which “static dichotomous understandings of oppression—e.g., that AAPIs are diligent and Black people lazy” are reframed “as dynamic, dialogic processes.” (P. 474.) These relationships, in turn, provide the foundation for an interest convergence analysis that facilitates coalition building based upon aligned interests rather abstract principles. Rather than repeating what have become rather formulaic exhortations to cross-racial solidarity, Magsaysay illustrates very concretely how disappearing the criminalization of AAPI youth both ensures their ongoing subordination and reinforces the anti-Black tropes that facilitate the criminalization of African American youth.
There’s a richness to Magsaysay’s analysis of these dynamics that this simple summary simply cannot convey. So, here I turn to another innovative and energizing aspect of Magsaysay’s article: his illustration of the life-changing power of narrative, and his advocacy of Ethnic Studies and related programs as essential not just to understanding the realities of life in subordinated communities, but to bringing about liberatory change. When we recognize erasures such as the conceptual disappearance of criminalized AAPI youth, we often focus on top-down solutions. What legislative fixes are available? How could police be better trained? Where can we find more funding for their communities? Magsaysay, however, takes a very different approach.
The article begins with Eddy Zheng; his 18-year incarceration for a youthful crime, and how he spent 11 months in “the hole” at San Quentin for, among other things, co-authoring a prison reform proposal that included expanding Ethnic Studies programs. Narrative, the stories that situate our lives within our histories, cultures, and shared realities, was Eddy Zheng’s lifeline, and Magsaysay argues that it is similarly important to AAPI youth who are bullied, harassed, profiled, and criminalized. It is a critical dimension of the transition he envisions to a society in which we no longer live in a carceral state; a key to addressing the “academic disengagement, truancy, and mental health issues” that undergird the school-to-prison pipeline; a path to “cultivate critical consciousness” and “decolonize the minds” of those whose realities are erased from the dominant narrative. (P. 517.)
Magsaysay recognizes that this is just one piece of the puzzle. But in explaining the importance of making these stories accessible, he is articulating a very concrete way in which we can work “from the bottom,” as critical scholars have urged, toward what Magsaysay terms “a radical reimagination of schooling, education, and epistemology itself,” one that “dignifies and humanizes history and the lived experiences of marginalized communities.” (P. 518.) It’s a joy to see the work of several decades of critical scholarship being put to such good use, and to know younger scholars are taking it to the next level.
Two final points. First, this article was written and accepted for publication while Magsaysay was still a law student. As such, it’s an inspiration for us as teachers, and for our students. And second, a shout-out for the footnotes. Magsaysay is reviving a lost art, using the notes to weave his arguments into the larger fabric of scholarship in the field, making connections across disciplines, clarifying complex issues and adding nuance to simple statements. The piece is worth reading, and sharing with current students, for the notes alone.
