Monthly Archives: September 2021
Hana E. Brown, Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States
, 85 Am. Soc. Review
776 (2020), available at SAGE
The Indian Child Welfare Act (ICWA) is under attack, and legal scholars (including me) have written much about it. But being lawyers, we typically focus on judicial decisions, and within that set, on decisions with precedential impact. That makes sociologist Hana Brown’s Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States a welcome intervention. By examining the different ways that social workers, state courts, and federal judges apply ICWA’s “Indian child” definition, Brown provides valuable insights not just on ICWA, but on race-making generally and the importance of institutional context in translating law into practice.
To be covered by ICWA, a child must be an Indian child as the statute defines it. The definition rests on tribal citizenship: a child must be either enrolled in a tribe, or be eligible for enrollment and have a biological parent who is enrolled. 25 U.S.C. § 1903(4). But social workers and courts have applied the definition through a racial lens and excluded children from coverage because they were not racially Indian enough. Exclusion denies children, families, and tribes ICWA’s protections for family preservation and tribal sovereignty. Continue reading "Institutions, “Indian-ness,” and ICWA Implementation"
Jennifer Holland’s well-researched, captivating history will open a new chapter in historiographic debates about the pro-life movement’s roots—and about the racial politics of abortion. Focusing on antiabortion organizing in the Four Corners region of the United States (an area encompassing all or part of Colorado, Utah, Arizona, and New Mexico), Tiny You explores how abortion became (and remained) the defining political issue for social conservatives. Holland offers a provocative look at the long shadow cast by civil rights law on so many of our debates, exploring how conservative social movements have laid claim to those traditions in profoundly consequential ways.
In recent years, historians of the 1960s and 1970s have documented how abortion foes redefined their cause as a quintessentially legal, rather than religious, cause. The movement successfully leveraged the strategies of the civil rights movement to justify restrictions and outright bans on abortion. Pro-lifers relied on the rhetoric of civil rights in the political and legal arena. In court, pro-life attorneys invoked race-discrimination jurisprudence, pointing to the Equal Protection Clause to establish unborn children as a protected minority. Some scholars suggest that pro-lifers’ turn to civil rights was both sincere and transformative. What had been a Catholic movement won allies with different political perspectives and religious backgrounds. In the late 1960s and early 1970s, some secular activists, Mormons, Orthodox Jews, and mainline Protestants had joined the movement. By the 1980s, evangelical Protestants, even those opposed to busing and key planks of the civil-rights agenda, joined the movement in increasing numbers. By moving away from explicitly Catholic arguments—and by playing down opposition to contraception—abortion foes built a more religiously diverse movement. All the while, as pro-lifers painted their struggle as a fight for civil rights, the movement remained predominantly white. Continue reading "What Does Civil-Rights History Have to Say About Abortion?"
Danielle Kie Hart, Contract Law & Racial Inequality: A Primer
, 21-05 Sw. L. Sch. Res. Paper
1 (2021), available at SSRN
For nearly a year and a half, our country has been in the grips of a global pandemic. Covid-19 has exposed and exacerbated racial and economic inequities that have plagued our society for centuries. As we have grappled with the dual pandemics of Covid-19 and systemic racism, there has been a renewed focus on interrogating historical and current practices that have contributed to the inequalities that many communities of color experience. In her recent thought-provoking essay Contract Law & Racial Inequality: A Primer, Professor Danielle Kie Hart examines the role that contract law has played in creating, maintaining, and perpetuating such inequities. She argues that acknowledgement of this role is critical if America is to become a more equitable society.
Professor Hart begins her essay by detailing the medical and economic harms that members of Latinx, Black, indigenous and immigrant communities have disproportionately experienced during the pandemic. Death rates, job and wage loss, and housing and food insecurity were proportionately higher for communities of color, and, generally speaking, such communities did not share in the increases in wealth that occurred during the pandemic. According to Professor Hart, this disparate reality can be explained, in part, by the historical and present operation of contracts and contract law in our society. Continue reading "Acknowledging Contract Law’s Contributions to Racial Inequities"
Law claims supremacy in determining behavior; officials act as if law subjects have moral obligations to do what the law requires them to do. However, it has proven notoriously difficult to defend the idea that there is a general moral duty to obey the law, even in a democracy. Traditional arguments in political philosophy using general considerations have run into a number of difficulties. Recently, hope of bypassing those difficulties has come from what Dindjer calls the “one-system view” of law presented by a new school of anti-positivism. As Dindjer interprets this view, it holds that legal norms and moral norms belong to the same normative system. It follows that a legal obligation just is a kind of moral obligation; and so, there is always a moral duty to obey the law. (The one-system view applies to other legal incidents as well, such as legal powers and legal privileges.)
Dindjer sets out to show that the one-system view of law so understood is untenable by finding counterexamples in familiar legal content or, in some cases, possible legal content. Unlike traditional critics of anti-positivism, Dindjer does not simply trot out legal requirements that are egregiously evil and laws that are outrageously unjust; in fact, he rarely mentions them. Many of his exemplar laws are morally flawed, but in subtle and familiar ways. Sometimes they are flawed only at the periphery because of over-inclusiveness. Continue reading "One Less Reason to Believe There is A Moral Duty to Obey the Law"
Marie-Amelie George, Exploring Identity
, 54 Fam. L. Q. __ (Forthcoming, 2021), available at SSRN
I recently came across a pilot podcast series from Scottish Ballet called Scottish Ballet’s Half Hour Call. The premise of the podcast is to discuss how ballet and ballet companies fit the world we currently live in. In the second episode, dedicated to masculinity in ballet, Myles Thatcher (choreographer and dancer at San Francisco Ballet) shared a story that made me think of Professor M.A. George’s captivating latest article, Exploring Identity.
Thatcher relates how exciting it was that while he was choreographing a piece for Ballet22 (two•dos), a body type, gender identity, and race inclusive company that performs dances that break gender normative traditions, he started looking at pointe shoes in a new way. Even though he has been aware that gender exists beyond the binary, that collaboration made him realize that “a pointe shoe is not a gender object.” Transcending ballet’s common binary understanding of gender opened up for Thatcher new avenues of creativity and experimentation in his choreography. Continue reading "On Pointe: The Right of Children to Explore their Gender Identity"
Increasingly, courts in the United States and Canada are called to rule on parental disputes about the gender identity and expression of children. Often in the background of a custody dispute, courts are faced with the task of deciding what parental arrangement is better to support the gender identity/expression journey of a young child. In the classic case, one parent encourages the gender exploration of the child and the other objects, often also accusing the supportive parent of putting ideas about gender nonconformity into the child’s head. This new terrain raises serious questions about gender, equity, and the best interests of the child. And, of course, both in the U.S. and Canada, cases are often accompanied by wide media coverage and politics that try to drag this situation into the culture wars.
To the rescue arrive two excellent and original articles, one from Canada, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts, and the second from the U.S, Exploring Identity. They are not the same, but they tackle similar questions. Each is valuable, and together they provide rich and largely missing context that can guide courts, litigants, and policymakers when they navigate these relatively new and complex cases. They provide clear analyses of relevant terminology, science, doctrine, and caselaw, and each makes specific policy recommendations. Continue reading "Judging Gender"
Hiba Hafiz, The Brand Defense
, 43 Berkeley J. Emp. & Lab. L.
__ (forthcoming, 2022), available at SSRN
I am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies.
The Brand Defense says it “takes a systemic view of intellectual property, antitrust and work law,” which means reading it demands keeping several balls in the air and following their interacting paths. It is worth the effort. Here are three paths the article’s argument follows. Continue reading "“Trademark, Labor Law, and Antitrust, Oh my!”"
On July 1, 1997, sovereignty over Hong Kong was transferred from the United Kingdom to the People’s Republic of China, and, so the story goes, the sun finally set on the British Empire. Except it didn’t. As Paul Scott masterfully explicates in The Privy Council and the constitutional legacies of Empire, the Empire endures, both in terms of ongoing control over Overseas Territories unlikely to become independent, and in the retention of formal mechanisms of constitutional governance which hide this imperial residue from the domestic constitutional order.
Scott’s article is part of a symposium edition of the Northern Ireland Legal Quarterly, entitled “The Constitutional Legacies of Empire.” This broader project is of a piece with comparative and global constitutionalism’s increased—and important—focus on colonialism and decolonization. For example, in an editorial in March 2020, the editors of Global Constitutionalism charged constitutional scholars to “decolonise constitutional law” through “a commitment to analyzing the colonial legacy in constitutional formation, the contemporary rights regime, and international public law, from both theoretical and historical perspectives.” Scott turns a critical eye on the British constitution itself and calls for a reckoning “with the legacy, and indeed the ongoing reality, of the British Empire.” Continue reading "Empire’s Residue"
Jonas-Sébastien Beaudry, Somatic Oppression and Relational Autonomy: Revisiting Medical Aid in Dying through a Feminist Lens
, 52 U.B.C. L. Rev.
241 (2020), available at SSRN
In 2015, Canada’s Supreme Court ruled that an absolute prohibition on physician assisted suicide and euthanasia violated the right to life, liberty and security of the person. It did not endorse a full-fledged constitutional right to what has since been termed in Canada ‘medical assistance in dying’ [hereafter MAID], explicitly limiting its ruling to the circumstances of the plaintiff, a person approaching her natural death due to a fatal neurological disease (Amyotrophic lateral sclerosis). It also suspended its declaration of invalidity for one year, inviting Canada’s parliament to develop a ‘stringent regulatory regime’ and made other statements that left room for lawmakers to design specific access criteria. Yet, the constitutional rights basis of its ruling and parameters it set out in its ratio dedicendi fuelled a seemingly irresistable rhetoric around the existence of a broad constitutional right to MAID.
This rhetoric found its culmination in a recent bill, which expanded MAID outside an already flexible end of life context. During parliamentary hearings on the new law, about all major disability rights organizations, and three United Nations Special Rapporteurs, warned that the new law, which creates, exclusively for people with disabilities, access to MAID outside the end-of-life context, was stigmatizing and discriminatory. Some academic commentators expressed dismay about how Canadian feminist scholars jumped on the bandwagon of atomistic autonomy-based rhetoric and failed to account for the complexity of end-of-life decision-making in the context of a seriously constrained health care and social support system. Daryl Pullman, invoking Carol Gilligan, argued for the need to hear from a “different voice of care”. McGill University’s professor Jonas Beaudry recently provided such a different voice in Canadian legal scholarship with a sophisticated analysis of the country’s MAID debate through a relational theory and disability rights focused lens. Continue reading "How the Mantra of Informed Consent in the Canadian Assisted Dying Debate Obscures Somatic Oppression"
In Global Southerners in the North, Ama Ruth Francis offers a new theoretical angle on the long-standing and crucial question of how to mobilize popular opinion and legal power on behalf of migrants who lack political voice. Her contribution decenters the state as the key actor in international law, and suggests instead that scholars concentrate on individuals and sub-state spaces. Focusing on climate change migration, Francis suggests that the way to address the severe power asymmetries between those responsible for and those most impacted by the changing climate is to reconceptualize the Global South to include all people and spaces rendered expendable by racial capitalism. She builds on the Third World Approaches to International Law (TWAIL) literature to argue that international law should be theorized as a shared commitment that can be furthered by political agents – in other words, that states are not the only actors capable of creating international law.
Francis begins her analysis by noting that the Global South is not a monolithic bloc; there are vast differences across and within states. For example, among the BRICS nations (Brazil, Russia, India, China, and South Africa), China is a major emitter even though it remains part of the Global South. Moreover, within states in the Global North and the Global South, racial capitalism creates significant gulfs between rich and poor that underlie disparities in both emissions and community resilience in the face of climate change. She describes the TWAIL literature on international environmental law that discusses the history of colonial expansion and domination linked to environmental degradation, and explains how this project of global economic inequality was justified and continues to be bolstered by international law. Continue reading "Theorizing Transnational Resistance “From the Inside Out”"