Copyright (c) 2004 New York University Law Review New York University Law Review. October, 2004. ... more Copyright (c) 2004 New York University Law Review New York University Law Review. October, 2004. 79 NYUL Rev. 1134. LENGTH: 61398 words PERFORMING RACIAL AND ETHNIC IDENTITY: DISCRIMINATION BY PROXY AND THE FUTURE OF TITLE VII. NAME: ...
This Article highlights a systematic bias in the academic, correctional, and human rights discour... more This Article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men's facilities, inmates report much more sexual victimization by female staff than by male inmates; in women's facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization. The selective blindness of prison rape discourse to count...
How are whites injured by minority-targeted racism? For years, American an-tidiscrimination schol... more How are whites injured by minority-targeted racism? For years, American an-tidiscrimination scholars and judges have not looked beyond the familiar answers provided by Civil Rights Era norms. According to these norms, the primary injuries whites suffer due to minority targeted discrimination are denial of the enjoyment of a colorblind workplace or frustration of their interest in diversity, including the opportunity to associate with minorities. Consistent with this view, Title VII interracial association doctrine-the vehicle that permits whites to sue for minority targeted discrimination in the workplace-only recognizes these two narrow categories of injury. However, review of failed Title VII interracial association cases provides a far richer account of how whites are injured by minority targeted discrimination, one that forces us to re-evaluate our focus on Civil Rights Era understandings of white injury. Relying in part on these failed inter-racial assoc iation cases, this Arti...
This Article posits that we are in a key moment of discursive and ideological transition, an era ... more This Article posits that we are in a key moment of discursive and ideological transition, an era in which the model of elective race is ascending, poised to become one of the dominant frameworks for understanding race in the United States. Because we are in a period of transition, many Americans still are wedded to fairly traditional attitudes about race. For these Americans, race is still an objective, easily ascertainable fact determined by the process of involuntary racial ascription — how one’s physical traits are racially categorized by third parties. The elective-race framework will challenge these Americans to recognize other ways in which people experience race, including acts of voluntary affiliation as well as selective and conditional affiliations. Importantly, even if one concludes that most Americans still hold traditional, ascriptive-based understandings of race, there is evidence that elective race is steadily gaining influence in certain quarters, shaping government ...
This Book Review uses Angela Onwuachi-Willig's Book, According to Our Hearts, Rhinelander v. ... more This Book Review uses Angela Onwuachi-Willig's Book, According to Our Hearts, Rhinelander v. Rhinelander and the Law of the Multiracial Family as an opportunity to explore the multiracial family's role in American society. The discussion unpacks the discussion of "interracially" explored in her book by precisely outlining the various discrimination modalities covered by her discussion of interraciality-based discrimination. The review reveals that Onwuachi-Willig explores six different types of discrimination, some of which require engagement with cutting-edge disputes in antidiscrimination theory and law. The Review teases out these various discrimination constructs and asks in a more deliberate fashion how they are related to one another and whether the injuries they cause merit redress by anti discrimination law. The review next turns to the question of the socio-cultural role played by the interracial family, in particular it's historical role in socializin...
This chapter explores contemporary accounts of racialization, arguing that Americans are currentl... more This chapter explores contemporary accounts of racialization, arguing that Americans are currently experiencing a period of “racial ambiguity blues.” The chapter explains that contemporary racial politics have been powerfully shaped by the emergence of a group of racially ambiguous characters offering controversial racial claims. The controversies triggered by these stories of racial ambiguity lay bare the fact that there currently are competing rules for determining an individual’s race in American society and no single model or account of racialization controls. The chapter briefly lays out the three contemporary racialization models: “so-called” biological race, physical race, and performative race. It then identifies the material and political implications of each racialization model. After noting the challenges the competing racialization models pose for sociology, the chapter highlights ways aspects of the various racialization models can be integrated, offering as an example ...
As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our c... more As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.
Southern California Review of Law and Social Justice, 2009
This article explores contemporary developments in American race relations that encourage law stu... more This article explores contemporary developments in American race relations that encourage law students to "decline to state" their race in law school applications. The discussion also explores broader developments that have encouraged students to withdraw from law school discussions about diversity. The article analyzes arguments offered by students regarding their disengagement from discussions about race, offers pedagogical suggestions, and considers the potential repercussions if large numbers of law students become inarticulate and reluctant to discuss racial dynamics in the United States.
In the more than twenty years since the Supreme Court created Title VII’s sexual harassment prote... more In the more than twenty years since the Supreme Court created Title VII’s sexual harassment protections, judges and feminist legal scholars have struggled to create a clear conceptual account of the harm sexual harassment inflicts. Many courts and scholars were content to justify sexual harassment law by arguing that it vindicates women’s interest in workplace equality; however, several feminist legal scholars revealed the inadequacy of this account by the late 1990s, suggesting instead that harassment should be understood as inflicting dignitary harm. The failure to reach consensus about sexual harassment law’s purpose appeared without significant consequence until courts began developing sexual harassment law for non-workplace settings. Operating without clear conceptual mooring posts, courts have created narrow, cabined sexual harassment protections governing settings like prisons, often without principled justifications for doing so. To address this problem, this Article argues ...
Marriage Markets and the Price of Masculinity MARRIAGE MARKETS: HOW INEQUALITY IS REMAKING THE AM... more Marriage Markets and the Price of Masculinity MARRIAGE MARKETS: HOW INEQUALITY IS REMAKING THE AMERICAN FAMILY. By June Carbone & Naomi Cahn. New York, N.Y.: Oxford University Press, 2014. 272 Pages. $27.50.IntroductionObergefell v. Hodges,1 the recent Supreme Court decision recognizing gay Americans' right to marry, demonstrates that the United States continues to promote marriage in both direct and subtle ways. Obergefell is one of the government's less subtle recent efforts to market marriage. The decision makes it clear that from the State's perspective, marriage remains a near ideal form of social union. As Obergefell explains, marriage in the United States is an institution of "transcendent importance"; it is "essential . . . to the human condition."2 Marriage is special because it "allows two people to find a life that could not be found alone."3 The Supreme Court's romantic musings in Obergefell about the centrality of marriage w...
This Essay uses the current controversy over the racial self-identification decisions of former H... more This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial identity claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away the current model, which conflat...
This article asks a central fundamental question: why does a society ostensibly committed to raci... more This article asks a central fundamental question: why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology market (“ART market”) to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed and sometimes priced based on race. The role these market practices play in naturalizing segregation and promoting racial inequality have been recognized, but curiously there has been no will generated to address this commercial practice head on. My article explores the cultural and regulatory impasse that must be overcome to address this racial phenomenon. Part I of the article probes the racial categorization practices currently used in the ART market to provide a better account of what is actually being exchanged when parties purport to sell racially marked ova and sperm. After exploring the high risk of fraud, confusion and potentially misleading speech, the article demonstrat...
Copyright (c) 2004 New York University Law Review New York University Law Review. October, 2004. ... more Copyright (c) 2004 New York University Law Review New York University Law Review. October, 2004. 79 NYUL Rev. 1134. LENGTH: 61398 words PERFORMING RACIAL AND ETHNIC IDENTITY: DISCRIMINATION BY PROXY AND THE FUTURE OF TITLE VII. NAME: ...
This Article highlights a systematic bias in the academic, correctional, and human rights discour... more This Article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men's facilities, inmates report much more sexual victimization by female staff than by male inmates; in women's facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization. The selective blindness of prison rape discourse to count...
How are whites injured by minority-targeted racism? For years, American an-tidiscrimination schol... more How are whites injured by minority-targeted racism? For years, American an-tidiscrimination scholars and judges have not looked beyond the familiar answers provided by Civil Rights Era norms. According to these norms, the primary injuries whites suffer due to minority targeted discrimination are denial of the enjoyment of a colorblind workplace or frustration of their interest in diversity, including the opportunity to associate with minorities. Consistent with this view, Title VII interracial association doctrine-the vehicle that permits whites to sue for minority targeted discrimination in the workplace-only recognizes these two narrow categories of injury. However, review of failed Title VII interracial association cases provides a far richer account of how whites are injured by minority targeted discrimination, one that forces us to re-evaluate our focus on Civil Rights Era understandings of white injury. Relying in part on these failed inter-racial assoc iation cases, this Arti...
This Article posits that we are in a key moment of discursive and ideological transition, an era ... more This Article posits that we are in a key moment of discursive and ideological transition, an era in which the model of elective race is ascending, poised to become one of the dominant frameworks for understanding race in the United States. Because we are in a period of transition, many Americans still are wedded to fairly traditional attitudes about race. For these Americans, race is still an objective, easily ascertainable fact determined by the process of involuntary racial ascription — how one’s physical traits are racially categorized by third parties. The elective-race framework will challenge these Americans to recognize other ways in which people experience race, including acts of voluntary affiliation as well as selective and conditional affiliations. Importantly, even if one concludes that most Americans still hold traditional, ascriptive-based understandings of race, there is evidence that elective race is steadily gaining influence in certain quarters, shaping government ...
This Book Review uses Angela Onwuachi-Willig's Book, According to Our Hearts, Rhinelander v. ... more This Book Review uses Angela Onwuachi-Willig's Book, According to Our Hearts, Rhinelander v. Rhinelander and the Law of the Multiracial Family as an opportunity to explore the multiracial family's role in American society. The discussion unpacks the discussion of "interracially" explored in her book by precisely outlining the various discrimination modalities covered by her discussion of interraciality-based discrimination. The review reveals that Onwuachi-Willig explores six different types of discrimination, some of which require engagement with cutting-edge disputes in antidiscrimination theory and law. The Review teases out these various discrimination constructs and asks in a more deliberate fashion how they are related to one another and whether the injuries they cause merit redress by anti discrimination law. The review next turns to the question of the socio-cultural role played by the interracial family, in particular it's historical role in socializin...
This chapter explores contemporary accounts of racialization, arguing that Americans are currentl... more This chapter explores contemporary accounts of racialization, arguing that Americans are currently experiencing a period of “racial ambiguity blues.” The chapter explains that contemporary racial politics have been powerfully shaped by the emergence of a group of racially ambiguous characters offering controversial racial claims. The controversies triggered by these stories of racial ambiguity lay bare the fact that there currently are competing rules for determining an individual’s race in American society and no single model or account of racialization controls. The chapter briefly lays out the three contemporary racialization models: “so-called” biological race, physical race, and performative race. It then identifies the material and political implications of each racialization model. After noting the challenges the competing racialization models pose for sociology, the chapter highlights ways aspects of the various racialization models can be integrated, offering as an example ...
As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our c... more As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.
Southern California Review of Law and Social Justice, 2009
This article explores contemporary developments in American race relations that encourage law stu... more This article explores contemporary developments in American race relations that encourage law students to "decline to state" their race in law school applications. The discussion also explores broader developments that have encouraged students to withdraw from law school discussions about diversity. The article analyzes arguments offered by students regarding their disengagement from discussions about race, offers pedagogical suggestions, and considers the potential repercussions if large numbers of law students become inarticulate and reluctant to discuss racial dynamics in the United States.
In the more than twenty years since the Supreme Court created Title VII’s sexual harassment prote... more In the more than twenty years since the Supreme Court created Title VII’s sexual harassment protections, judges and feminist legal scholars have struggled to create a clear conceptual account of the harm sexual harassment inflicts. Many courts and scholars were content to justify sexual harassment law by arguing that it vindicates women’s interest in workplace equality; however, several feminist legal scholars revealed the inadequacy of this account by the late 1990s, suggesting instead that harassment should be understood as inflicting dignitary harm. The failure to reach consensus about sexual harassment law’s purpose appeared without significant consequence until courts began developing sexual harassment law for non-workplace settings. Operating without clear conceptual mooring posts, courts have created narrow, cabined sexual harassment protections governing settings like prisons, often without principled justifications for doing so. To address this problem, this Article argues ...
Marriage Markets and the Price of Masculinity MARRIAGE MARKETS: HOW INEQUALITY IS REMAKING THE AM... more Marriage Markets and the Price of Masculinity MARRIAGE MARKETS: HOW INEQUALITY IS REMAKING THE AMERICAN FAMILY. By June Carbone & Naomi Cahn. New York, N.Y.: Oxford University Press, 2014. 272 Pages. $27.50.IntroductionObergefell v. Hodges,1 the recent Supreme Court decision recognizing gay Americans' right to marry, demonstrates that the United States continues to promote marriage in both direct and subtle ways. Obergefell is one of the government's less subtle recent efforts to market marriage. The decision makes it clear that from the State's perspective, marriage remains a near ideal form of social union. As Obergefell explains, marriage in the United States is an institution of "transcendent importance"; it is "essential . . . to the human condition."2 Marriage is special because it "allows two people to find a life that could not be found alone."3 The Supreme Court's romantic musings in Obergefell about the centrality of marriage w...
This Essay uses the current controversy over the racial self-identification decisions of former H... more This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial identity claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away the current model, which conflat...
This article asks a central fundamental question: why does a society ostensibly committed to raci... more This article asks a central fundamental question: why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology market (“ART market”) to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed and sometimes priced based on race. The role these market practices play in naturalizing segregation and promoting racial inequality have been recognized, but curiously there has been no will generated to address this commercial practice head on. My article explores the cultural and regulatory impasse that must be overcome to address this racial phenomenon. Part I of the article probes the racial categorization practices currently used in the ART market to provide a better account of what is actually being exchanged when parties purport to sell racially marked ova and sperm. After exploring the high risk of fraud, confusion and potentially misleading speech, the article demonstrat...
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