Arts and Humanities Commons^™

The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake

Articles

The scope and pace of legislative activity targeting transgender individuals is nothing short of a gender panic. From restrictions on medical care to the regulation of library books and the use of pronouns in schools, attacks on the transgender community have reached crisis proportions. A growing number of families with transgender children are being forced to leave their states of residence to keep their children healthy and their families safe and intact. The breadth and pace of these developments is striking. Although the anti-transgender backlash now extends broadly into health and family governance, sport was one of the first settings—the …

Looted Cultural Objects, Elena Baylis

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In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. …

Understanding An American Paradox: An Overview Of The Racial Muslim: When Racism Quashes Religious Freedom, Spearit

Articles

In The Racial Muslim: When Racism Quashes Religious Freedom, Sahar Aziz unveils a mechanism that perpetuates the persecution of religion. While the book’s title suggests a problem that engulfs Muslims, it is not a new problem, but instead a recurring theme in American history. Aziz constructs a model that demonstrates how racialization of a religious group imposes racial characteristics on that group, imbuing it with racial stereotypes that effectively treat the group as a racial rather than religious group deserving of religious liberty.

In identifying a racialization process that effectively veils religious discrimination, Aziz’s book points to several important …

Title Ix's Trans Panic, Deborah L. Brake

Articles

Sport is an agent of social change, but that change does not always track in a progressive direction. Sport can be a site for contesting and reversing the gains of progressive social movements as much as furthering the values of equality and justice for historically marginalized groups. This dynamic of contestation and reversal is now playing out in a new wave of anti-transgender backlash that has gained adherents among some proponents of equal athletic opportunities for girls and women. In this latest twist in the debate over who deserves the opportunity to compete, the sex-separate athletic programming permitted by Title …

“It's So Normal, And … Meaningful.” Playing With Narrative, Artifacts, And Cultural Difference In Florence, Dheepa Sundaram, Owen Gottlieb

Articles

This article considers how player interactions with religious and ethnic markers, create

a globalized game space in the mobile game Florence (2018). Florence is a multiaward-

winning interactive novella game with story-integrated minigames that weave

play experiences into the narrative. The game, in part, explores love, loss, and

rejuvenation as relatable experiences. Simultaneously, the game produces a unique

experience for each player, as they can refract the game narrative through their own

cultural, identitarian lens. The game assumes the shared cultural space of the player,

the player-character (PC), and the non-player-character (NPC) while blurring the

boundaries between each of these …

Muslims In Prison: Advancing The Rule Of Law Through Litigation Praxis, Spearit

Articles

Islamic ideas about justice and equality directly informed the development of prison law jurisprudence in the United States. Since the early 1960s, when federal courts began to hear claims by state prisoner-petitioners, Muslims began to look to courts to establish Islam in prison and inaugurated an ongoing campaign for civil rights. The trend is significant when considering Muslims represent a relatively small percentage of the American population. Decades of persistent litigation by Muslims in courts have been integral to developing the prisoners’ rights movement in America. The Muslim impact on prison law and culture is an underappreciated phenomenon that involves …

Theory Matters—And Ten More Things I Learned From Martha Chamallas About Feminism, Law, And Gender, Deborah L. Brake

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This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; …

Calls For Change: Seeing Cancel Culture From A Multi-Level Perspective, Tomar Pierson-Brown

Articles

Transition Design offers a framework and employs an array of tools to engage with complexity. “Cancel culture” is a complex phenomenon that presents an opportunity for administrators in higher education to draw from the Transition Design approach in framing and responding to this trend. Faculty accused of or caught using racist, sexist, or homophobic speech are increasingly met with calls to lose their positions, titles, or other professional opportunities. Such calls for cancellation arise from discreet social networks organized around an identified lack of accountability for social transgressions carried out in the professional school environment. Much of the existing discourse …

Latina And Latino Critical Legal Theory: Latcrit Theory, Praxis And Community, Marc Tizoc Gonzaléz, Sarudzayi M. Matambanadzo, Sheila I. Velez Martinez

Articles

LatCrit theory is a relatively recent genre of critical “outsider jurisprudence” – a category of contemporary scholarship including critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian American legal scholarship and queer theory. This paper overviews LatCrit’s foundational propositions, key contributions, and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. The paper organizes this conversation highlighting Latcrit’s theory, community and praxis.

9/11 Impacts On Muslims In Prison, Spearit

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This essay is part of a volume that reflects on the 20-year anniversary of the attacks of September 11, 2001. The work examines the impacts this event had on the management of Muslims in prison. Soon after the attacks, the culture war against Muslims in the United States began to seep into prisons, where Muslims faced heightened levels of Islamophobia, which cut across several areas of existence: the ability to access religious literature, religious leaders, and paraphernalia, in addition to the federal creation of Communication Management Units. There was also heightened hysteria about the idea of Muslim radicalization in prison, …

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

Reproducing Inequality Under Title Ix, Deborah L. Brake, Joanna L. Grossman

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This article elaborates on and critiques the law’s separation of pregnancy, with rights grounded in sex equality under Title IX, from reproductive control, which the law treats as a matter of privacy, a species of liberty under the due process clause. While pregnancy is the subject of Title IX protection, reproductive control is parceled off into a separate legal framework grounded in privacy, rather than recognized as a matter that directly implicates educational equality. The law’s division between educational equality and liberty in two non-intersecting sets of legal rights has done no favors to the reproductive rights movement either. By …

Foreword: The Dispossessed Majority: Resisting The Second Redemption In América Posfascista (Postfascist America) With Latcrit Scholarship, Community, And Praxis Amidst The Global Pandemic, Sheila I. Velez Martinez

Articles

As LatCrit reaches its twenty-fifth anniversary, we aspire for this symposium Foreword to remind its readers of LatCrit’s foundational propositions and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. Working for lasting social change from an antisubordination perspective enables us to see the myriad laws, regulations, policies, and practices that, by intent or effect, enforce the inferior social status of historically- and contemporarily-oppressed groups. In turn, working with a perspective and principle of antisubordination can inspire us to …

Exploring Diversity With A "Culture Box" In First-Year Legal Writing, Ann N. Sinsheimer

Articles

Studying law is in many ways like studying another culture. Students often feel as though they are learning a new language with unfamiliar vocabulary and different styles of communication. Throughout their legal education, students are also exposed to a profession comprised of unique traditions and expectations. As a result, learning law takes time and energy. It can be both engaging and frustrating and may even challenge some of students’ values and belief systems. To ease her students’ transition to law school, the author starts her course each year with a “culture box” exercise, which encourages students to examine who they …

From Maggie To May: Forty Years Of (De)Industrial Strategy, James Silverwood, Richard Woodward

Articles

Upon becoming Prime Minister, Theresa May installed industrial strategy as one of the principal planks of her economic policy. May's embrace of industrial strategy, with its tacit acceptance of a positive role for the state in steering and coordinating economic activity, initially appears to be a decisive break with an era dating back to Margaret Thatcher, in which government intervention was regarded as heresy. Whilst there are doubtless novel features, this article argues that continuity is the overriding theme of May's industrial strategy. First, despite the reluctance to confess it, like every UK government over the past forty years, May …

Critical Race Ip, Anjali Vats, Deidre A. Keller

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In this Article, written on the heels of Race IP 2017, a conference we co-organized with Amit Basole and Jessica Silbey, we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP). Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we …

Time Travel, Labour History, And The Null Curriculum: New Design Knowledge For Mobile Augmented Reality History Games, Owen Gottlieb

Articles

This paper presents a case study drawn from design-based research (DBR) on a mobile, place-based augmented reality history game. Using DBR methods, the game was developed by the author as a history learning intervention for fifth to seventh graders. The game is built upon historical narratives of disenfranchised populations that are seldom taught, those typically relegated to the 'null curriculum'. These narratives include the stories of women immigrant labour leaders in the early twentieth century, more than a decade before suffrage. The project understands the purpose of history education as the preparation of informed citizens. In paying particular attention to …

The Trouble With 'Bureaucracy', Deborah L. Brake

Articles

Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for such conduct in sketchy campus procedures have trickled into the public dialogue, forming a counter-narrative in the increasingly polarized debate over what to do about sexual assault on college campuses. Into this frayed dialogue, Jeannie Suk and Jacob Gersen have contributed a provocative new article criticizing …

Lessons From The Gender Equality Movement: Using Title Ix To Foster Inclusive Masculinities In Men's Sport, Deborah L. Brake

Articles

This article was written for a symposium issue in Law & Inequality: A Journal of Theory and Practice on the topic of LGBT inclusion in sports. The symposium, which was held at the University of Minnesota Law School in November of 2015, was precipitated by the controversy that erupted when NFL player Chris Kluwe sued and settled with the Minnesota Vikings for allegedly firing him over his outspoken support for marriage equality. The article situates the Chris Kluwe controversy in the broader context of masculinity in men’s sports. At a time when support for LGBT rights has resulted in striking …

Black Health Matters: Disparities, Community Health, And Interest Convergence, Mary Crossley

Articles

Health disparities represent a significant strand in the fabric of racial injustice in the United States, one that has proven exceptionally durable. Many millions of dollars have been invested in addressing racial disparities over the past three decades. Researchers have identified disparities, unpacked their causes, and tracked their trajectories, with only limited progress in narrowing the health gap between whites and racial and ethnic minorities. The implementation of the Affordable Care Act (ACA) and the movement toward value-based payment methods for health care may supply a new avenue for addressing disparities. This Article argues that the ACA’s requirement that tax-exempt …

Occupy Judaism: Religion, Digital Media, And The Public Sphere, Ayala Fader, Owen Gottlieb

Articles

This article provides an analysis of Occupy Judaism, an explicitly religious expression of Jewish protest, which occurred simultaneously with Occupy Wall Street, the direct-democracy movement of 2011. Occupy Judaism, like Occupy Wall Street, took place both in physical spaces of protest in New York City and digitally, through mobilizing and circulating debate. The article focuses on the words and actions of Daniel Sieradski, the public face and one of the key founders of Occupy Judaism, supplemented by the experiences of others in Occupy Judaism, Occupy Wall Street, and Occupy Faith (a Protestant clergy-led initiative). We investigate what qualified as religion …

Avenging Carlota In Africa: Angola And The Memory Of Cuban Slavery, Myra Ann Houser

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Fidel Castro’s meta-narrative of Cuban history emphasizes the struggle – and eventual triumph – of the oppressed over their oppressors. This was epitomized in Nelson Mandela’s 1991 visit to the island, when his host took him to the northwestern city of Matanzas, and the pair gave speeches titled “Look How Far We Slaves Have Come!” The use of Matanzas as a site of public political memory began in 1843, and the memory of slavery soon became a surrogate for Cuba’s flawed liberation movement. One-hundred and fifty years after the execution of Carlota, one of the enslaved leaders of the Triumvirato …

Sonic Jihad — Muslim Hip Hop In The Age Of Mass Incarceration, Spearit

Articles

This essay examines hip hop music as a form of legal criticism. It focuses on the music as critical resistance and “new terrain” for understanding the law, and more specifically, focuses on what prisons mean to Muslim hip hop artists. Losing friends, family, and loved ones to the proverbial belly of the beast has inspired criticism of criminal justice from the earliest days of hip hop culture. In the music, prisons are known by a host of names like “pen,” “bing,” and “clink,” terms that are invoked throughout the lyrics. The most extreme expressions offer violent fantasies of revolution and …

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …

On Not 'Having It Both Ways' And Still Losing: Reflections On Fifty Years Of Pregnancy Litigation Under Title Vii, Deborah L. Brake

Articles

This article, published in the B.U. Law Review Symposium issue, “The Civil Rights Act of 1964 at 50: Past, Present and Future,” reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it …

South Africa’S History Of Struggle And Liberation, Myra Ann Houser

Articles

Clive Glaser’s The ANC Youth League, Colin Bundy’s Govan Mbeki, and Saul Dubow’s South Africa’s Struggle for Human Rights together contribute to Ohio University Press’ new series, Ohio Short Histories of Africa. The three works fit within the larger set of eight brief monographs, written by eminent scholars in a simple and publicly digestible format. The series provides an entry point for new scholars and the general public to familiarize themselves with contemporary histories in a format that is short and easy to read. At the same time, all three works have many challenges to offer more established …

Southern Families, Jennifer Burkett Pittman

Articles

The emphasis on family unity that is characteristic of the southern family has its roots in the traditional values of the agrarian upper class. The English, Scottish-Irish, and African immigrants to the south, who arrived in the 1600 and 1700s, instituted the basics of southern culture, though these patterns continued to develop and progress, as they do today. The basis of the southern lifestyle was farming and rural living, which lingered well into the 20th century, at least in certain parts of the south. Even today, agrarian traditions continue to influence southern culture. Because of the influential governing classes, family …

Muslim Radicalization In Prison: Responding With Sound Penal Policy Or The Sound Of Alarm?, Spearit

Articles

This article assesses radicalization among Muslim prisoners in the post- 9/11 era by analysis of ethnographic data in light of the available research. There are two primary motives that drive this inquiry: (1) to determine whether prisons are “fertile soil for jihad” as claimed, and (2) to the extent prisoner radicalization does occur, determine the ideological motives. In the last decade, politicians and analysts have clamored about the “danger” and “threat” posed by Islam in American prisons. Yet these characterizations sit in tension with several decades of sustained Islamic outreach in prison to support inmate rehabilitation and re-entry. They also …

Re-Theorizing The “Structure–Agency” Relationship: Figurational Theory, Organizational Change And The Gaelic Athletic Association, John Connolly, Paddy Dolan

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This article illustrates how the figurational sociology associated with Norbert Elias provides an alternative theoretical framework for explaining the relationship between, ‘individualorganization- society’ and organizational change, and in so doing transverses what is conceived as a false dichotomy between structure and agency. Through an historical case study of the Gaelic Athletic Association in Ireland, the ‘individual-organization-society’ relationship is conceptualized as overlapping figurations and organizational change is explained as figurational dynamics—the shifting social interdependencies between the individuals and groups comprising an organization, between that organization and other organizations, between social groups on a higher level of integration and competition. In tandem …

Religious Minorities And Shari’A In Iraqi Courts, Haider Ala Hamoudi

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There is a rising interest in our academy in the study of constitutional states, particularly in the Islamic world, whose legal and constitutional structure is at least as a formal matter both founded on and subject to religious doctrine. For those of us interested in the Arab spring, and indeed in constitutionalism in much of the Islamic world, this work is not only valuable, but positively vital. Without it, we are unable to discuss most emerging Arab democracies in constitutional terms. In Iraq, and in Egypt after it, two of the premier Arab states which have recently seen constitutions approved …