Category Archives: Equality

The Intersection between Race and National Security

Feb 22, 2024 Sheila Vélez MartinezEquality

Sheila Vélez Martinez

The book, Race and National Security, edited by Professor Matiangai V. S. Sirleaf, of the University of Maryland Francis King Carey School of Law, offers us a historic opportunity to change our political imaginary. This book delivers on its promise to “fully excavate[] the question of how race and racism relate to national security domestically, transnationally[,] and internationally.” In the words of Walter White, Executive Secretary of the National Association for the Advancement of Colored People (NAACP) from 1929–1955:

Race discrimination threatens our national security. We can no longer afford to let the most backward sections of our population endanger our country by persisting in discriminating practices. We must meet the challenge of our neighbors, not only because discrimination is immoral, but also because it is dangerous.

Although White’s critique continues to be true today, in the context of the broader conversation on national security, it is now clear that White’s focus on discrimination provides an insufficient framework. One of the many achievements of Race and National Security is that it centers a framework not of discrimination, but rather of racial justice, one that focuses on addressing institutional racism and anti-subordination. The growing general focus on racial justice, both on a national and a global scale, coupled with the continuous resistance against established racial norms, justifies the book’s deliberate examination of these issues and serves as the driving force behind this book. The authors contributing to the volume look at national security law as complicit in furthering systemic inequality from an anti-subordination positionality. They illustrate practices and policies that, whether by intent or effect, enforce the subjugated social status of historically oppressed communities within societies across the globe under the protective umbrella of national security. Thanks to their work, we are now able to draw interesting connections among the various ways these racial injustices work. Continue reading "The Intersection between Race and National Security"

The Perpetual Foreigners in Today’s America: How Colorblind Nationalism Produces Unequal Immigrants and Citizens

Jan 22, 2024 Chao-Ju ChenEquality

Chao-Ju Chen

Migrants have been crossing into U.S. borders for years in search of safety and employment. Since last year, the governors of Texas and Florida have offered “free rides” and “free flights” to send them to other cities, claiming that those who support welcoming immigrant policies should share the responsibility of caring for them. As Gaza faces a humanitarian catastrophe, former President Trump, whose Muslim ban was upheld by the Supreme Court in 2018¹ and overturned by President Biden in 2021, has recently vowed to expand the Muslim ban and bar Gaza refugees if he wins the presidency in 2024. The fate of the Deferred Action for Childhood Arrivals program will likely be decided for a third time by the Supreme Court, this time by a Court with a conservative super majority. As the U.S. moves into a post-pandemic phase, anti-Asian racism and violence continue to persist and spread.

Against this backdrop, many commentators blame white nationalism for xenophobia against Asians, Latinx, and Muslims, and see the granting of legal status to undocumented migrants and turning noncitizens into citizens as the key to their equality. Ming Hsu Chen, who recognized the paramount importance of access to formal citizenship for equality in her 2020 book Pursuing Citizenship in the Enforcement Era, finds this an insufficient explanation and solution to inequality. In Colorblind Nationalism and the Limits of Citizenship, she goes on to argue for the decentering of formal citizenship in the pursuit of equality, advocating for a new imagination of the relationship between race, citizenship, and membership that recognizes multi-layered membership. Bridging critical race theorists’ critique of colorblindness and critical immigration scholars’ critique of nationalism, she identifies the pivotal role of colorblind nationalism in producing inequality and shows how it “limits formal citizenship as an antidote for inequality.” (P. 950.) Continue reading "The Perpetual Foreigners in Today’s America: How Colorblind Nationalism Produces Unequal Immigrants and Citizens"

Reorienting American Real Property to its Egalitarian Goals

Dec 13, 2023 Ann E. TweedyEquality

Ann E. Tweedy

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.¹ 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.) Continue reading "Reorienting American Real Property to its Egalitarian Goals"

Abandoning Metaphors and Reclaiming Impairment

Nov 7, 2023 Mark WeberEquality

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. Continue reading "Abandoning Metaphors and Reclaiming Impairment"

Gender Bullies in Feminist Costumes

Oct 11, 2023 Erez AloniEquality

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.¹ 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.² 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. Continue reading "Gender Bullies in Feminist Costumes"

Un-Marking Rape Victims

Sep 13, 2023 I. India ThusiEquality

I. India Thusi

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. Continue reading "Un-Marking Rape Victims"

Property, Viewed From Below

Aug 1, 2023 Natsu Taylor SaitoEquality

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.) Continue reading "Property, Viewed From Below"

Fast Food for Thought

Jul 4, 2023 Andrea FreemanEquality

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. Continue reading "Fast Food for Thought"

Excluding Animals: A Rule of Law Violation

Jun 1, 2023 Maneesha DeckhaEquality

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. Continue reading "Excluding Animals: A Rule of Law Violation"