Law Commons^™

Hillary Clinton, Sarah Palin, And Michelle Obama: Performing Gender, Race, And Class On The Campaign Trail, Ann C. Mcginley

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The 2008 Presidential campaign highlighted three strong, interesting, and very different women -- Hillary Clinton, Sarah Palin, and Michelle Obama -- who negotiated identity performances in the political limelight. Because of their diverse backgrounds, experience, and ages, an examination of how these three women performed their identities and the public response to them offers a rich understanding of the changing nature of gender, gender roles, age, sexuality and race in our culture. This essay suggests that optimism that Obama's race and gender performances may have removed the stigma from "the feminine" may be misplaced, at least when it comes to …

When Reading Between The Lines Is Not Enough: Lessons From Media Coverage Of A Domestic Violence Homicide-Suicide, Elizabeth L. Macdowell

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In October 2008, Karthik Rajaram murdered his wife, mother-in-law, sons and, ultimately, himself, in a wealthy Los Angeles suburb. This Article analyzes media reports about the deaths to illustrate the resilience of patriarchy and significant gaps in research and scholarship about domestic violence, and suggests a strategic approach to building counter-narratives about violence against women.

The Article is composed of five parts. Part I is the Introduction. Part II draws on narrative theory and critical media scholarship to lay the groundwork for analysis, and to show why media coverage of homicide-suicide is implicated in the production of dominant ideology.

Part …

Queer Lockdown: Coming To Terms With The Ongoing Criminalization Of Lgbtq Communities, Ann Cammett

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The criminal justice system exacts a toll on some Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) communities. The experience of living in poverty and the concomitant exposure to a variety of governmental systems puts all poor, but especially LGBTQ low-income people of color, at risk of incarceration. What typically goes unexamined are the myriad ways that LGBTQ people are drawn into and experience the carceral system because of sexual identities and expression. This negative effect surfaces at every conceivable level: the marginalization and subsequent criminalization of queer youth; anti-gay bias in the judicial system; the rerouting of domestic violence cases …

Law On The Street: Legal Narrative And The Street Law Classroom, Elizabeth L. Macdowell

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This Article argues that the failure of anti-discrimination law to address the problems of subordination reflects the hegemonic perspective in legal narratives. For the lawyer concerned with social change, it is imperative to identify these narratives and the ways in which they not only inhibit deep social change, but may perpetuate the conditions of subordination. Yet, law school polices against the consciousness necessary for the lawyer to identify the hegemonic narrative in the law, and often instills attitudes, which are antithetical to the project of social change. In this context, Street Law - a practical law course taught by law …

Only Skin Deep: The Cost Of Partisan Politics On Minority Diversity Of The Federal Bench: Why Care Whether Judges Look “Like America” If, Because Of Politics, A “Voice Of Color” Has Become A “Whisper Of Color”?, Sylvia R. Lazos

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This article explores the difficulties encountered in diversifying the federal bench and why the partisanship of the confirmation process decreases the diversity of viewpoints on the bench. Presidents value diversity in nominating judges. While Bill Clinton and George W. Bush had very contrasting political styles and judicial philosophies, the judges appointed by these two presidents now account for almost 80% of the current active federal minority judges. There has been progress in the area of descriptive diversity; currently 18% of the active federal bench is made up of minority judges according to data compiled from the Judicial Center. However, there …

The Immigrant Rights Marches (Las Marchas): Did The “Gigante” (Giant) Wake Up Or Does It Still Sleep Tonight?, Sylvia R. Lazos

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This article documents the genesis of the March 2006 immigrant rights protests and analyzes their impact. Las Marchas were truly spontaneous grassroots protests, the largest massive civil rights mobilization effort for a single event in the United States to date. This paper provides a macro- and micro-analysis of the forces that account for this success. First, the catalyst, HR 4437, a bill that was successfully approved by the House of Representatives would have criminalized illegal presence. This law was perceived as unjust, and engendered a debate around immigrant rights debate in terms with universal and simple appeal, human dignity, the …

Emerging Latina/O Nation And Anti- Immigrant Backlash, Sylvia R. Lazos

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This foreword is an introduction to the LatCrit XI, Working and Living in the Global Playground: Frontstage and Backstage symposium, convened at William S. Boyd School of Law, in Las Vegas Nevada, during October 2006 and called upon over 150 academics to focus on the impacts of globalization and immigration. At no time has LatCrit's critical approach of interconnecting the structures of inequality, the market forces of globalization, and the cultural hostility towards outsider groups been more relevant.

Backlash against immigrants, particularly Latina/o “illegals,” is on the rise. This Introduction seeks to outline the challenges that the current immigration quandary …

Toward A History Of Children As Witnesses, David S. Tanenhaus, William Bush

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This brief essay offers a selective overview of recent trends in the historical scholarship on American childhood from the origins of the American Revolution to the early years of the Cold War. This overview of the literature has two purposes. First, it highlights recent socio-cultural scholarship that presents substantive challenges to the conventional ways of understanding the history of children and the law. Second, in so doing, it points out that legal histories concerned solely with doctrinal matters can, and often do, present a limited and distorted window into the past. Instead, the essay argues that the place of children, …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

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This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …

Lord Of The Flies: The Development Of Rules Within An Adolescent Culture, Nancy B. Rapoport

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This essay, included in the book SCREENING JUSTICE--THE CINEMA OF LAW: Significant Films of Law, Order and Social Justice (Rennard Strickland, Teree E. Foster & Tauyna Lovell Banks, eds., William S. Hein & Co. 2006), discusses the development of the law in Goldman's Lord of the Flies and raises the question of whether an island populated by a mix of boys and girls - or an island populated by only girls - would have developed a different law.

To Err Is Human, Keith A. Rowley

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This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in …

Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, And Hierarchy, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper contends that popular representations of heterosexual black men are bipolar. Those images alternate between a Bad Black Man who is crime-prone and hypersexual and a Good Black Man who distances himself from blackness and associates with white norms. The threat of the Bad Black Man label provides heterosexual black men with an assimilationist incentive to perform our identities consistent with the Good Black Man image.

The reason for bipolar black masculinity is that it helps resolve the white mainstream's post-civil rights anxiety. That anxiety results from the conflict between the nation's relatively recent …

Toward A New Student Insurgency: A Critical Epistolary, Rachel J. Anderson, Marc-Tizoc Gonzalez, Stephen Lee

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Taking the form of an epistolary (a collection of letters), this law review article explores the relationship between law and social change in the context of student activism at the University of California, Berkeley, School of Law (Berkeley Law formerly Boalt). The author’s contribution to this essay examines the simultaneously linear and circular history of social justice activism at Berkeley Law and discusses the relationship between social crises and resurging waves of activism, focusing on student activism in the sphere of legal scholarship.

Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens

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Building on the findings of the New Jersey Reentry Roundtable and a growing concern around the state about how to improve outcomes for the more than 70,000 individuals expected to return home from prison over the next five years, the roundtable examined the complex role that families – broadly defined – play in the lives of prisoners during incarceration and after their release. This document presents a set of recommendations emerging directly from roundtable sessions and provides a road map for individual and collaborative efforts accepted by a range of key players in New Jersey, including government officials, community and …

Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett

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The New Jersey Institute for Social Justice prepared this report in response to concerns about child support debt—in particular as it creates a barrier to employment for low-income parents and works at cross-purposes with the goals of the child support program. Drawing on examples from other states, this report identifies a range of policies that inform child support practice in New Jersey and offers administrative, legislative, and programmatic solutions to address child support arrears owed by low-income and incarcerated parents.

Race And The California Recall Election: A Top Ten List Of Ironies, Sylvia R. Lazos, Keith Aoki, Steven Bender

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Arnold Schwarzenegger's election as governor of California in the 2003 recall campaign is rife with cruel ironies. An immigrant himself, he beat the grandson of Mexican immigrants, Lieutenant Governor Cruz Bustamante, by playing the race card, and managed to dodge allegations of his praise for Hitler as a strong leader. While the pundits say that the California recall was about angry voters lashing back at faithless, self-dealing politicians, more lurks beneath the surface. In California, racial and ethnic minorities now comprise a majority of the population, and the recall election brought barely concealed and seething schisms to the surface. Californians, …

Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive? What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos

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Race matters, but judges and courts have failed to fashion a rule of law that is inclusive of all racial perspectives and realities in the United States. The reason for this dismal performance lies in how predominantly White judges, and therefore courts, conceptualize race. This article illustrates this proposition by analyzing the Rehnquist Court's race relations jurisprudence in three Supreme Court decisions handed down in 2003: Grutter v. Bollinger,Gratz v. Bollinger,and Georgia v. Ashcroft.Even as the United States Supreme Court entered increasingly complex areas of race relations, the Court continued to apply a simplistic concept of how race functions. The …

“Kulturkampf[S]” Or “Fit[S] Of Spite”?: Taking The Academic Culture Wars Seriously, Sylvia R. Lazos

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Polarization and heated debate within legal academia are nothing new. Some might argue that vigorous contentiousness, even if not always civil, is essential to a healthy intellectual culture. Others would note that lawyers, legal academics especially, are a highly contentious bunch with a reputation for aggressive behavior.

Fundamentally, this Article asks whether strife and disagreement are a necessary part of academic discourse. The Article describes the academic Kulturkampfs aimed at Critical Race Theory that have taken place in the last ten years both outside of and within the Critical Race Theory (CRT) movement. The Article particularly examines what it is …

Aliens In Our Midst Post-9/11: Legislating Outsider-Ness Within The Borders, Sylvia R. Lazos, Raquel E. Aldana

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Three recent books written by Professors Bill Ong Hing, Kevin R. Johnson, and Victor C. Romero provide skillfully crafted roadmaps with which to understand the key emerging issues that will shape immigration law well into the next decade: the relationship of immigration control to national security. This Review captures the insights provided by these three authors to examine the restrictive laws and policies aimed at noncitizens in the name of national security as highlighted by the current efforts to federalize driver’s licenses. As this Review explains, these three books map the current antagonistic attitudes towards noncitizens post 9/11, and serve …

Legal Reform: The Role Of Public Institutions And Legal Culture, Ruben J. Garcia

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In this symposium held at California Western School of Law, Professor Garcia comments on the presentations of other participants and provides his own reflections about the role that legal cultures and legal institutions play in emerging democracies and in our very own.

Dr. Jekyll & Mr. Skilling; How Enron's Public Image Morphed From The Most Innovative Company In The Fortune 500 To The Most Notorious Company Ever, Nancy B. Rapoport, Jeffrey D. Van Niel

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In this article, we explore the hypothesis that Enron's financial releases were so complex and misleading that no one could have predicted its rapid downfall, and we find that, contrary to our hypothesis, a number of people were contradicting Enron's own rosy view of itself long before the middle of 2001. We then talk about the ways in which Enron became part of the public consciousness, far beyond what it had done merely as a business entity.

Masculinities At Work, Ann C. Mcginley

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This article focuses on the study of masculinities, a body of theoretical and empirical work by sociologists, feminist theorists and organization management theorists. This work, much of which employment law scholars have ignored, studies the role of masculinities, which are often invisible, in creating structural barriers to the advancement of many women and some men at work. Masculinities comprise both a structure that reinforces the superiority of men over women and a series of practices, associated with masculine behavior, performed by men or women, that aid men to maintain their superior position over women. In their less visible form, masculinities …

Lawyers Should Be Lawyers, But What Does That Mean?: A Response To Aiken & Wizner And Smith, Katherine R. Kruse

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Lawyers should be more like social workers. That is the message of Law as Social Work, the provocative essay by Jane Aiken and Stephen Wizner (Aiken & Wizner) in the Washington University Journal of Law & Policy volume, which preceded the conference on Promoting Justice Through Interdisciplinary Teaching, Practice, and Scholarship, hosted by Washington University School of Law in March 2003. Almost as if in reply, Abbe Smith's contribution to the same pre-conference volume reasserts the importance of lawyers as zealous and partisan advocates, using the realities of the criminal defense context to argue for the value of the lawyer's …

You Asked For It, You Got It … Toy Yoda: Practical Jokes, Prizes, And Contract Law, Keith A. Rowley

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For what seemed to be a simple contract dispute, Berry v. Gulf Coast Wings Inc. garnered an unusual amount of attention in both the legal and popular press. Former Hooters waitress Jodee Berry sued her ex-employer for breaching its promise to award a new Toyota to the winner of an April 2001 sales contest. Berry alleged that her manager, Jared Blair, told the waitresses at the Hooters where she worked at the time that whoever sold the most beer at each participating location during April 2001 would be entered in a drawing, the winner of which would receive a new …

Cultural Context Matters: Terry's "Seesaw Effect", Frank Rudy Cooper

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This Article investigates why the enforcement of a given legal doctrine may vary with changes in the cultural context in which it is applied. It argues that officials apply the law along an "enforcement practices continuum" in accord with changes in the prevailing articulations of the meaning of cultural identity norms associating particular groups with crime.

Terry v. Ohio doctrine allows police officers to make "stops" and "frisks" of limited scope upon reasonable suspicion of crime rather than requiring the higher standard of probable cause. The Article contends the officer discretion resulting from this "scope continuum" approach permits cultural identity …

Introduction To Symposium, The Rights Of Parents With Children In Foster Care: Removals Arising From Economic Hardship And The Predicative Power Of Race, Ann Cammett

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Professor Cammett introduces a symposium at the Association of the Bar of the City of New York exploring the predicament posed by the surge of child removals through neglect petitions, and the subsequent placement of those children in foster care. The panel’s published comments offer some poignant reflections on the crisis of the child welfare system.

The Latina/O And Apia Vote Post-2000: What Does It Mean To Move Beyond “Black And White” Politics?, Sylvia R. Lazos

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This Article frames the challenges to LatCrit theory and activism posed by voting rights, electoral process, and minority politics. In order to focus on the key challenges, The Article poses this question: What does a LatCrit theorist mean when she proposes to move beyond the "Black-White" paradigm? The Article discusses the changes in the U.S. electorate that in post-2000 have made the Latina/o and APIA vote the darling of both major parties. In the process of being perceived as an important electoral group, Latinas/os and Asian Pacific Islands Americans are at times being depicted as "model minorities." The Article concludes …

Across The Borders: Immigrant Status And Identity In Law And Latcrit Theory, Ruben J. Garcia

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Immigrants make up a large and increasing portion of the American community. The recent census found an unprecedented number of immigrants within the United States. Immigrants, however, have fewer legal protections than almost any other individuals within our borders. This lack of protection is especially disconcerting given that immigrants are often the most subordinated members of our communities. Particularly after the events of September 11, 2001, the rights and protections available to immigrants—whether they are documented or not—are tenuous. As LatCrit scholars have pointed out, immigration law is intensely racialized, and yet other bodies of law, such as civil rights …

Shielding The Unmedia: Using The Process Of Journalism To Protect The Journalist's Privilege In An Infinite Universe Of Publication, Linda L. Berger

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When a computer and a connection to the Internet allow almost anyone to claim to be a journalist, the question of who should be covered by media shield laws becomes especially difficult. Based on the premise that it is important to preserve the journalist's privilege and to accommodate the "unmedia" if that can be done without undermining journalism's values, this article suggests that the best way to limit the journalist's privilege is not to define "who is a journalist?" or "what is news?" Instead, the privilege should extend protection to anyone who is engaged in the work process of journalism. …

“Owing To The Extreme Youth Of The Accused”: The Changing Legal Response To Juvenile Homicide, David S. Tanenhaus, Steven A. Drizin

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In this essay, the authors seek to dispel the myth that the juvenile court was never intended to deal with serious and violent offenders; a myth that has largely been unchallenged, especially in the mainstream media, and one that critics of the juvenile court have used to undermine its legitimacy. The discovery of homicide data from the Chicago police department from the early twentieth century, the era in which modern juvenile justice came of age, provides us with new historical date with which to put this dangerous myth to rest, by showing that the nation’s model juvenile court—the Cook County …