Book Review: Reply – Article by Ariela J. Gross

From Volume 83, Number 3 (March 2010)
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What Blood Won’t Tell: A History of Race on Trial in America tells the history of race and racism in the United States through the lens of trials of racial identity—cases in which courts or administrative bodies determined whether someone was black, white, or Indian. The book is first and foremost a history of the shifting ways Americans have used the law to create “race,” a system of ordering people hierarchically with grave consequences for liberty, property, and rights. While many histories of race and law emphasize the rise of a “one drop of blood rule” as uniquely degrading to African Americans because of its association of “negro” blood with taint, and focus on evidence from statutes and high court pronouncements, my book instead looks at law “on the ground.” 

In practice, degree-of-blood rules were not as important as other forms of racial knowledge, especially evidence of racial performances and associations, and certain kinds of racial “science” and expertise. Moreover, the discourse of racial performance rose together with the better-known discourse of science in the mid-nineteenth century, and they were not perceived as opposites or mutually exclusive. My point is not to show that race is legally “constructed”—a starting rather than an endpoint of the narrative—nor that race was contingent, performative, and fluid, but to show that making race depend on performance drew a close connection between whiteness and citizenship in U.S. law. It is this imaginary connection between whiteness and fitness for citizenship that I believe remains a potent force today in debates over immigration, the PATRIOT Act, and innumerable other public questions.


 

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Book Review: Reading Between the (Blood) Lines – Article by Rose Cuison Villazor

From Volume 83, Number 3 (March 2010)
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Legal scholars and historians have recognized the rule of hypodescent—that “one drop” of African blood categorized one as Black—as one of the powerful tools that law and society deployed to construct racial identities and deny equal citizenship. Indeed, at least one prominent scholar has suggested that the concept of hypodescent operated as the most determinative method of ascertaining racial identity. Formalistic in its application, the hypodescent rule ensured “[t]hat even Blacks who did not look Black were kept in their place.” 

Ariela J. Gross’s new book, What Blood Won’t Tell: A History of Race on Trial in America, boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, What Blood Won’t Tell argues that the legal and social construction of race was far more complex, flexible, and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. Using racial identity trials and local records as sites for examining the legal production of race, What Blood Won’t Tell exposes the various methods that local citizens deployed to define race. “Common sense,” “race performance,” and “race by association” were among the informal and subjective factors that ignored the formalism of blood rules in the prescription of racial identity. Thus, contrary to the general view that blood always determined race, What Blood Won’t Tell illustrates how people were “raced” despite their blood—leading Gross to boldly state that “we have made too much of the ‘hypodescent’ rule.”


 

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Book Review: The “Common Sense” of Race – Article by Neil Gotanda

From Volume 83, Number 3 (March 2010)
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In What Blood Won’t Tell: A History of Race on Trial in America, Ariela J. Gross provides a compelling and nuanced account of race in America. Through her examination of “racial trials”—litigation in which racial identification plays a crucial role—Gross ties together the personal, social, and political dimensions of racial identity and classification. This discussion provides an important new perspective on the study of race in this country. 

Earlier studies of racial classification have focused on the meanings of statutory racial categories. Gross, however, centers her analysis on the formation and reaffirmation of racial categories as a primarily social process. Gross draws from numerous racial trials—spanning slavery in the antebellum South to modern-day Mexican Americans grappling with “whiteness”—in order to survey the origins and history of “black” and “white” as categories in American life.


 

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Book Review: Race, Blood, and What the Alligator Knows: A Review of What Blood Won’t Tell – Article by Jason A. Gillmer

From Volume 83, Number 3 (March 2010)
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From the opening pages of Ariela J. Gross’s What Blood Won’t Tell: A History of Race on Trial in America, it is clear that the reader is about to embark on something special. The story begins in a Louisiana courthouse in 1857, with an enslaved woman named Alexina Morrison claiming that she is white. For her contemporaries, the assertion no doubt carried troubling implications. James White, the man who insisted Morrison was black, had papers to prove that he paid good money for her and that she was his property. But her “blue eyes and flaxen hair” told a different story, and her recent appearances at public balls in Jefferson Parish had convinced a number of residents that her graceful mannerisms and affectations were those of a white woman rather than slave. The courtroom was soon bombarded with a dizzying array of evidence for such a simple question—was she white or was she black?—with men eventually stripping her to the waist to examine her body for the tiniest signs of her true identity. Three trials later, the community still had not resolved the issue. But more importantly, from Gross’s view, this case provides an unparalleled opportunity to examine the complex and constantly shifting ground of race and its import for this nation’s history.


 

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The Political Economy of Youngstown – Article by Edward T. Swaine

From Volume 83, Number 2 (January 2010)
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The time is ripe for a nondoctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond the personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective of advancing congressional interests and constraining presidential power. 

A political economy approach better explains the problem to which Justice Jackson was responding—the capacity of presidential unilateralism to establish policy that can withstand statutory correction, regardless of whether it has a legal basis—and also explains more formally how Youngstown’s categories offer a practical, if legally unorthodox, constraint. The assessment becomes more negative, though, once those categories are treated endogenously—that is, once the political branches are modeled as behaving dynamically and reacting to the framework itself. For example, both case studies and empirical surveys of executive orders suggest that the president may react to the risk of legislative disapproval (which, under Youngstown, will likely result in judicial disapproval as well) by avoiding Congress altogether or by seeking only its indirect blessing. Because these and other results disserve the framework’s objectives, this Article proposes several more benign alternatives—and, in general, advocates reseizing Steel Seizure.


 

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What Dignity Demands: The Challenge of Creating Sexual Harassment Protections For Prisons and Other Nonworkplace Settings – Article by Camille Gear Rich

From Volume 83, Number 1 (November 2009)
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In the more than twenty years since the Supreme Court created Title VII’s workplace sexual harassment protections, judges and feminist legal scholars have struggled to create a clear, conceptual account of the harm sexual harassment inflicts. For years, many courts and scholars were content to justify sexual harassment law by arguing that harassment should be prohibited because it interferes with women’s interest in workplace gender equality; however, by the late 1990s, several feminist legal scholars had revealed the inadequacy of this account, suggesting instead that harassment law should be understood as protecting women from dignitary harm. The failure to reach a broad-based consensus about the injury sexual harassment inflicts, and relatedly about sexual harassment law’s purpose, appeared without significant consequence until federal courts began using understandings developed in the context of workplace sexual harassment law to develop new sexual harassment doctrine for nonworkplace settings. Operating without clear conceptual moorings, many federal courts created narrow, cabined sexual harassment protections governing nonworkplace settings, often without principled justifications for doing so. To demonstrate the serious nature of this problem, this Article explores the Eighth Amendment sexual harassment doctrine courts have created to govern prisoners’ sexual harassment claims against guards, demonstrating the myriad ways in which workplace sexual harassment doctrine has distorted the development of prisoners’ sexual harassment protections. Yet the prison cases discussed here are offered as an example of a potentially far broader phenomenon. To address the larger issue—the distorting effects workplace sexual harassment law has had on other areas of sexual harassment doctrine—this Article argues that we should return to the dignitary account of sexual harassment law that was introduced by feminist workplace sexual harassment scholars in the late 1990s. However, in order to use this dignity analysis for settings other than the workplace, the dignitary framework these scholars introduced must be expanded and particularized to account for the different dignity expectations a person may reasonably hold in different institutional contexts. To that end, this Article offers a nuanced, context-specific analysis that will allow federal courts to determine “what dignity demands” in each institutional setting. The Article demonstrates that this dignitary framework will allow federal courts to identify the key considerations that should be weighed when creating sexual harassment doctrine for locations other than the workplace.


 

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Rethinking Donor Disclosure After the Proposition 8 Campaign – Note by David Lourie

From Volume 83, Number 1 (November 2009)
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Proposition 8, the California ballot measure that amended the state constitution to deny marriage to same-sex couples, passed by a small margin in November 2008. The campaign was contentious, well funded by both sides, and the subject of much media attention. After Proposition 8 passed, however, the debate about same-sex marriage in California was far from over. Shortly after the election, Proposition 8 opponents organized protests against certain Proposition 8 supporters and their employers throughout California and in other states. For example, opponents protested at the Church of Latter-Day Saints in Los Angeles because the church and its members raised a significant amount of money to support Proposition 8. Opponents also organized boycotts of businesses whose owners or employees donated to support Proposition 8. Several of these protests had negative repercussions for donors. For example, following threats of boycotts of his musical works and his employer, Scott Eckern, the longtime artistic director of the California Musical Theater, resigned from his position after it was revealed that he donated $1000 to Proposition 8. Marc Shaiman, the composer of the music for Hairspray, told Eckern that he would not let his work be performed in the theater due to Eckern’s support for Proposition 8. U.S. law requires a secret ballot for both candidate and issue elections, so how did opponents of Proposition 8 identify the donors to Proposition 8? The answer lies in disclosure laws. In California, as in most states, campaigns must publicly disclose certain information about individuals who donate to a ballot measure or candidate. California’s Political Reform Act of 1974, as amended, provides that all campaign donations of $100 or more must be published on the Secretary of State’s website, allowing the public to easily search for the names of campaign donors online. Further, not only must the donor’s name and the amount of the contribution be disclosed, but the donor’s street address, occupation, and employer’s name—or, if self-employed, the name of the donor’s business—must also be disclosed. On the federal level, campaign contributions to federal candidates are also now easily accessible to the public online. Federal law requires disclosure of individuals who contribute $200 or more to a candidate. This information can be viewed online through the Federal Election Commission’s (“FEC’s”) website, as well as on other websites. Not only has technology increased the availability of donor information online, but political entrepreneurs have also taken the FEC’s campaign finance data and made it even more accessible online, allowing users to search the data by multiple categories. For example, the Huffington Post, a popular blog, runs a search engine called “Fundrace 2008,” which allows a user to search for donors to 2008 presidential candidates by a donor’s first or last name, address, city, or employer. The website boasts about the easy access to the political leanings of nearly anyone a user knows of: “Want to know if a celebrity is playing both sides of the fence? Whether that new guy you’re seeing is actually a Republican or just dresses like one?”


 

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Courts and The Politics of Backlash: Marriage Equality Litigation, Then and Now – Article by Jane S. Schacter

From Volume 82, Number 6 (September 2009)
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Groundbreaking decisions on same-sex marriage, particularly those from the Hawaii, Massachusetts, and California supreme courts, have generated widespread political backlash in the form of state constitutional amendments and statutes, the federal Defense of Marriage Act (“DOMA”), a proposed federal constitutional amendment, and more. By contrast, the first state supreme court decision to strike down a ban on interracial marriage—Perez v. Sharp, decided by the California Supreme Court in 1948—was met with barely a political whimper, even though it made international headlines and came decades before broad public acceptance of interracial marriage. This Article identifies that puzzling difference, tells the political story of the cases, explores factors that might explain the disparity in political and public reactions, and uses the contrasting case studies to elucidate the political dynamics that surround courts today and to suggest directions for the future study of antijudicial backlash.


 

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