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Harris, Angela P.
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This essay examines the connection between violence and masculinity that leads men to appoint themselves the protectors of racialized communities and that constitutes its own interracial brotherhood linking lawbreakers and law enforcers. Feminists are familiar with the concept of "gender violence," but this term is usually used to denote violence by men against women. Yet exploration of the violence in the criminal justice system begins to reveal the extent to which masculine identity is shaped by relations of repulsion and desire between men. Indeed, this community of violence extends to state actors within the criminal justice system, most notably the police. Disrupting the cycle of gender violence both inside and outside the state is a race issue and a gender issue, as well as a criminal justice issue.
In this Essay, Professor Harris suggests that "race law" consists not only of antidiscrimination law, but law pertaining to the formation, recognition, and maintenance of racial groups, as well as the law regulating the relationships among these groups. Harris argues that a constant tension in the story of race law in the past century has been the effort to reconcile constitutional and statutory norms of equality with the desire for white dominance. rn the first part of the century, if was assumed that the fact of racial difference required management through sound public policy; in the second part of the century, race gradually became understood as an arbitrary distinction that the law should ignore. Neither treating race as difference nor as sameness, however, has succeeded in accomplishing racial justice.
It may seem surprising to most readers but racial profiling in law enforcement has long been permitted, if not expressly authorized, by U.S. constitutional law. This is true despite the civil rights revolution of the 1950s and 1960s and the generally positive trajectory of racial progress in the United States over the last century. Indeed, in two major post-civil rights movement decisions that are the subject of this Essay, the U.S. Supreme Court has affirmatively contributed to the predominance of racial profiling in law enforcement in modern America.Persistent accusations of race-based ordinary criminal law enforcement, and specifically in traffic stops, have long plagued the United States. The Supreme Court declined to address the problem head on when given the opportunity in the 1996 case of Whren v. United States, which effectively rendered the Fourth Amendment impotent in combating pretextual stops of automobiles based on race. Indeed, as we shall see, the Court's decision in that case made legal challenges to profiling more, not less, difficult, thereby implicitly encouraging police officers to rely on racial profiles in law enforcement.Although racial profiling in ordinary criminal law enforcement receives the bulk of public scrutiny and scholarly commentary, the practice has had a much broader and deeper reach into modern law enforcement. Border enforcement officers have long employed crude racial profiles, which almost invariably include undefined "Mexican appearance," in making immigration (as well as drug) stops. Such profiles are used not just at the U.S./Mexico border but miles away from any port of entry. As is the case for traffic stops, the Supreme Court has sanctioned racial profiling in immigration enforcement. Indeed, more than two decades before Whren, the Court in 1975 in United States v. Brignoni-Ponce expressly sanctioned precisely this sort of profiling, so long as "Mexican appearance" was only one of many factors relied upon by authorities in making an immigration stop. Evidence unfortunately suggests that the Border Patrol today persistently relies unduly on race in targeting particular groups for stops. Although decided over two decades apart, United States v. Brignoni-Ponce (1975) and Whren v. United States (1996) are cut from the same cloth. With little apparent concern for the consequences on minority communities, both decisions in effect allow racial profiling by law enforcement officers to go largely unchecked. As a result, both in effect tacitly encouraged - and encourage to this day - racial profiling in law enforcement. To shed light on the emergence of the dominance of role in modern law enforcement, this Essay carefully situates Brignoni-Ponce and Whren in their proper historical contexts and dissects the litigation in those cases to show how and why the defense strategy failed to root out race-conscious law enforcement. It further analyzes how both Supreme Court decisions together operate in practice to effectively contribute to the problem of racial profiling in modern American social life.When carefully considered, we see that Brignoni-Ponce and Whren aptly illustrate the difficult challenges facing lawyers seeking to bring about social change and racial justice. Gerald López popularized the concept of "rebellious lawyering," as a way of empowering poor clients through grassroots advocacy facilitated by lawyers. Others have sought to import those teachings to immigration and related fields. The idea is for lawyers to bring about social change while at the same time empowering the subordinated who can be their own advocates in future struggles. The important scholarship of Anthony Alfieri has offered much to this analysis, especially in considering the role of client identity in the strategies of poverty lawyers seeking to promote social change.The work of the attorneys in the trenches in Brignoni-Ponce and Whren demonstrate the importance of litigation in seeking to confront racial subordination while also showing the importance of avoiding exclusive reliance on litigation but combining it with political strategies to bring about social change. Attorneys aggressively battled the state's reliance on race in both cases, only to be rebuffed in different - but both perfectly legal - ways. Stories of real lives of real people got lost in the shuffle of legalities. The potential solution, while possible through the courts, was more likely through the political process, by using political action to focus attention on the real life impacts of race-based law enforcement measures.Part I of this Essay carefully studies Brignoni-Ponce v. United States, which perhaps inadvertently has encouraged the excessive and undue reliance on race in immigration enforcement by bestowing great discretion on the Border Patrol to make stops and specifically permitting them to consider a vague, and quite crude, identifier - "Mexican appearance" - in making an immigration stop. Part II considers Whren v. United States, which effectively immunized racial profiling by police on the streets and highways of America from sanction under the Fourth Amendment and offered a toothless Equal Protection remedy in return. The Essay concludes, by contending that, to truly root out racial profiling from law enforcement, the law must impose limits on the consideration of race in law enforcement, restrict law enforcement discretion in making stops, and afford a meaningful remedy for impermissible stops. To maximize the potential of doing this, lawyers need to advocate for racial justice in the political arena as well as in the courts.
The disparate impact theory has long been viewed as one of the most important and controversial developments in antidiscrimination law. In this article, Professor Selmi assesses the theory's legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis and concludes that the theory has had a strikingly limited impact outside of the context of written employment tests and is, in fact, an extremely difficult theory on which to succeed. In the final section, Professor Selmi contends that whatever gains the disparate impact theory has produced could likely have been obtained through other means, particularly in large urban cities, and that the theory may have had the unintended effect of limiting our conception of intentional discrimination. Disparate impact theory has always been seen as beginning where intentional discrimination ends, and by pushing an expansive theory of impact we were left with a truncated theory of intentional discrimination, one that continues to turn on animus and motive. Rather than a new legal theory of discrimination, what was needed, Professor Selmi concludes, was a greater societal commitment to remedying inequities and the ultimate mistake behind the theory was a belief that legal theory could do the work that politics could not.
Most vividly demonstrated in the 2008 election of the first African-American President of the United States, post-race is a term that has been widely used to characterize a belief in the declining significance of race in the United States. Post-racialists, then, believe that racial discrimination is rare and aberrant behavior as evidenced by America’s pronounced racial progress. One practical consequence of a commitment to post-racialism is the belief that governments - both state and federal - should not consider race in their decision making. One might imagine that the recent explosion in post-racial discourse also portends a revised understanding of equality, one that will result in a significant change in constitutional race jurisprudence. In this Essay, we first argue that this view ignores the history of the Court’s horribly-fraught race jurisprudence, portions of which have advanced post-race-like principles for nearly as long as the Justices have been considering the legal relevance of race. Efforts to minimize the importance race and deny racism, even as society clearly operated based upon a system of racial spoils, are seen in early cases such as the Civil Rights Cases and Plessy v. Ferguson. While Brown v. Board of Education represented an overdue reprieve from the Court ignoring the consequences of racial categorization, since at least Regents of the University of California v. Bakke, the Court has steadily predicated equal protection analysis upon a commitment to colorblindness. In the more recent cases of Parents Involved and Ricci v. DeStefano, which respectively dealt with school integration and workplace disparate impact claims, the Court has treated the state consideration of race as exceedingly dangerous. Within the equality jurisprudence of the Roberts Court, it appears that the embrace of a post-racial ethic is nearly a fait accompli. We question, however, the propriety of adopting a fully realized commitment to post-racialism within equal protection jurisprudence. In our analysis, we first use statistical and normative evidence related to the disparate life experiences of people of color within the U.S. to suggest that America is not, in fact, post-race. Given, however, the Court’s insistence on ignoring statistical disparities across racial groups as occurring “because of” race, we then offer that moving forward equal protection analysis may need to turn on questions of distributive justice.
In Unbending Gender, Joan Williams takes a hard look at the state of feminism in America. Concerned by what she finds—young women who flatly refuse to identify themselves as feminists and working-class and minority women who feel the movement hasn’t addressed the issues that dominate their daily lives—she outlines a new vision of feminism that calls for workplaces focused on the needs of families and, in divorce cases, recognition of the value of family work and its impact on women’s earning power. Williams notes that good jobs in America are designed for the ideal employee, who works full-time and often overtime, with no career interruptions. Even today, most American mothers do not meet this ideal: a majority do not work full-time, and only a small fraction work overtime. Williams points out that women will never achieve equality until mothers do: she argues that employers need to implement parent-supportive policies—or face liability for sex discrimination. She also maintains that ideal-worker fathers are supported by a flow of family work from mothers, yet divorce courts treat the family wage as owned solely by the ideal worker. The result is the impoverishment of women and children, who comprise the bulk of the poor in the United States. Unbending Gender questions the idea that women simply choose between staying at home with their children or going to work. Given the limited options that contemporary American culture allows them, mothers are forced to make compromises. Joan Williams’ solution is an inclusive, family-friendly feminism that supports both mothers and fathers as caregivers and as workers.
In contemporary race and sexuality studies, the topic of animality emerges almost exclusively in order to index the dehumanization that makes discrimination possible. Bestial Traces argues that a more fundamental disavowal of human animality conditions the bestialization of racial and sexual minorities. Hence, when conservative politicians equate homosexuality with bestiality, they betray an anxious effort to deny the animality inherent in all sexuality. Focusing on literary texts by Edgar Allan Poe, Joel Chandler Harris, Richard Wright, Philip Roth, and J. M. Coetzee, together with philosophical texts by Derrida, Heidegger, Agamben, Freud, and Nietzsche, Peterson maintains that the representation of social and political others as animals can be mitigated but never finally abolished. All forms of belonging inevitably exclude some others as "beasts." Though one might argue that absolute political equality and inclusion remain desirable, even if ultimately unattainable, ideals, Bestial Traces shows that, by maintaining such principles, we exacerbate rather than ameliorate violence because we fail to confront how discrimination and exclusion condition all social relations.
White Americans, abetted by neo-conservative writers of all hues, generally believe that racial discrimination is a thing of the past and that any racial inequalities that undeniably persist-in wages, family income, access to housing or health care-can be attributed to African Americans' cultural and individual failures. If the experience of most black Americans says otherwise, an explanation has been sorely lacking-or obscured by the passions the issue provokes. At long last offering a cool, clear, and informed perspective on the subject, this book brings together a team of highly respected sociologists, political scientists, economists, criminologists, and legal scholars to scrutinize the logic and evidence behind the widely held belief in a color-blind society-and to provide an alternative explanation for continued racial inequality in the United States. While not denying the economic advances of black Americans since the 1960s, Whitewashing Race draws on new and compelling research to demonstrate the persistence of racism and the effects of organized racial advantage across many institutions in American society-including the labor market, the welfare state, the criminal justice system, and schools and universities. Looking beyond the stalled debate over current antidiscrimination policies, the authors also put forth a fresh vision for achieving genuine racial equality of opportunity in a post-affirmative action world.
Bein alive & bein a woman & bein colored is a metaphysical dilemma.
Over the last two decades, women have organized against the almost routine violence that shapes their lives. Drawing from the strength of shared experience, women have recognized that the political demands of millions speak more powerfully than the pleas of a few isolated voices. This politicization in turn has transformed the way we understand violence against women. For example, battering and rape, once seen as private (family matters) and aberrational (errant sexual aggression), are now largely recognized as part of a broad-scale system of domination that affects women as a class. This process of recognizing as social and systemic what was formerly perceived as isolated and individual has also characterized the identity politics of people of color and gays and lesbians, among others. For all these groups, identity-based politics has been a source of strength, community, and intellectual development. The embrace of identity politics, however, has been in tension with dominant conceptions of social justice. Race, gender, and other identity categories are most often treated in mainstream liberal discourse as vestiges of bias or domination-that is, as intrinsically negative frameworks in which social power works to exclude or marginalize those who are different. According to this understanding, our liberatory objective should be to empty such categories of any social significance. Yet implicit in certain strands of feminist and racial liberation movements, for example, is the view that the social power in delineating difference need not be the power of domination; it can instead be the source of political empowerment and social reconstruction. The problem with identity politics is not that it fails to transcend difference, as some critics charge, but rather the opposite- that it frequently conflates or ignores intra group differences. In the context of violence against women, this elision of difference is problematic, fundamentally because the violence that many women experience is often shaped by other dimensions of their identities, such as race and class. Moreover, ignoring differences within groups frequently contributes to tension among groups, another problem of identity politics that frustrates efforts to politicize violence against women. Feminist efforts to politicize experiences of women and antiracist efforts to politicize experiences of people of color' have frequently proceeded as though the issues and experiences they each detail occur on mutually exclusive terrains. Al-though racism and sexism readily intersect in the lives of real people, they seldom do in feminist and antiracist practices. And so, when the practices expound identity as "woman" or "person of color" as an either/or proposition, they relegate the identity of women of color to a location that resists telling. My objective here is to advance the telling of that location by exploring the race and gender dimensions of violence against women of color. Contemporary feminist and antiracist discourses have failed to consider the intersections of racism and patriarchy. Focusing on two dimensions of male violence against women-battering and rape-I consider how the experiences of women of color are frequently the product of intersecting patterns of racism and sexism, and how these experiences tend not to be represented within the discourse of either feminism or antiracism... Language: en
Reviews two centuries of depictions of racial minorities in American popular culture, showing that in each era the dominant images have been negative and demeaning — although not recognized as such at the time. Examines reasons why this has happened, concluding that an "empathic fallacy" encourages the audience to believe that free expression will remedy racism and other deeply inscribed social ills, when it will not. Shows that the marketplace of free speech intensifies rather than relieves the predicament of unfairly maligned groups.
This article uses the occasion of the 2012 Reauthorization of the Violence Against Women Act (VAWA) to review the circumstances by which legal theory and social movement discourse have acted to circumscribe the scope of VAWA and the dominant approach to domestic violence. It seeks to explore the relationship between domestic violence advocacy and feminist theory of the type that has functioned as “the ideological reflection of one’s own place in society” with insufficient attention to superstructures. It argues for the re-examination of the current domestic violence/criminal justice paradigm and calls for the consideration of economic uncertainty and inequality as a context for gender-based violence. It argues that as an epistemology, domestic violence scholarship has fallen behind other fields of study due to its failure to address the structural context of gender-based violence. The article then proposes a redefinition of the parameters of domestic violence law and presents new (and provocative) ways to think about law-related interventions to ameliorate gender violence.
In this Article, Professor Abrams examines the emergence of feminist narrative scholarship as a distinctive form of critical legal discourse. Arguing that the failure to debate publicly the conventions and merits of this form has perpetuated misunderstandings about its claims and disadvantaged its practitioners, she begins by examining several of the critiques that have been offered, in nonpublic settings, of feminist narratives. To provide background and context for examining these critiques, she then analyzes four recent examples of feminist narrative legal scholarship. In the final section of the Article, Professor Abrams returns to the opening critiques. She argues that their grounding in the methodological assumptions of objectivity does not render these critiques unusable, but requires that they be restated in terms more consistent with the methodological and epistemological assumptions of narrative. After discussing possible ways of reframing these objections, Professor Abrams explains how proponents of narrative scholarship might respond to them, highlighting not only the conventions of narrative scholarship but also emergent criteria for evaluating the efforts of its practitioners.
From the diverse work and often competing insights of women's human rights activists, Brooke Ackerly has written a feminist and a universal theory of human rights that bridges the relativists' concerns about universalizing from particulars and the activists' commitment to justice. Unlike universal theories that rely on shared commitments to divine authority or to an ‘enlightened’ way of reasoning, Ackerly's theory relies on rigorous methodological attention to difference and disagreement. She sets out human rights as at once a research ethic, a tool for criticism of injustice and a call to recognize our obligations to promote justice through our actions. This book will be of great interest to political theorists, feminist and gender studies scholars and researchers of social movements.
The Americans with Disabilities Act (ADA) was heralded as an emancipation proclamation for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this canonical belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms. It then places the ADA within historical context by illustrating how now-outdated social conventions about other workers with atypical biological identities, particularly women and African Americans, persist in keeping workers with disabilities from equal labor market participation. Finally, the Article demonstrates how ADA accommodation expenses are an appropriate and reasonable remedy, and explains why, for both economic and prudential reasons, disability-related accommodations must operate as antidiscrimination provisions (rather than as tax-and-spend subsidies) in order to alter social attitudes towards the disabled. The Article concludes with some thoughts on what extra-judicial factors could facilitate the ADA's transformative agenda.
Equality Without Tiers offers a comprehensive analysis of tiered equal protection review and argues that the current framework has outlived its utility and functions in many respects as a barrier to equality. As an alternative to the current ossified test, the article develops and tests a single standard of review aimed to provide a more finely calibrated response to the complexities of discrimination in the 21st century. To support this argument, the article focuses first on tensions in the current tiered framework for equal protection review, pointing to, among others, the Court's variously weak and strong approaches to rational basis review and the largely acontextual approach to affirmative action. Then, after identifying class legislation as the key focus of equal protection analysis, the article distills a single standard from the Court's extant equal protection jurisprudence. With this standard in place, I argue, both theoretically and through application of the standard to the several equal protection cases decided during the past three decades, that a single standard can enable sufficiently careful review to capture prejudice-infested classifications while not becoming excessively rigid. Against this background, the article concludes that the tiers may be understood best as a transitional analytic tool to assist courts in identifying impermissible bias in once-natural classifications. At the same time, I argue that the analysis prompted by the tiers is unduly simplistic and that serious scholarly consideration should be given to the possibilities for equal protection review opened up by a single review standard.
Economic justice: race, gender, identity and economics
- Coleman Jordan
- E Harris
- E Coleman Jordan
Beyond the monster factory: gender violence, race, and the liberatory power of restorative justice
- A P Harris
- AP Harris