Law Commons^™

Linking Mission And Identity At The University Of Cincinnati, David Straddler

Freedom Center Journal

This essay traces the major shifts in UC’s mission and identity, keeping in mind the questions of who it serves, and what service it provides. These may seem rather straightforward concerns, especially for an institution that has had 200 years to hone its mission, but a quick review of UC’s history makes clear that the university community has rarely reached a consensus on these central questions. Just as important, in the recent past, conceptions of UC’s mission and identity have become especially muddled. What follows addresses some broad shifts in the role of higher education in the United States, but …

The Plasticity Of The Body, The Injury, And The Claim: Personal Injury Claims In The Era Of Plastic Surgeries, Adi Youcht

William & Mary Journal of Race, Gender, and Social Justice

The accelerated rise in the number of plastic surgeries has created an inflation of personal injury claims in connection with this cultural practice. This Article, on the one hand, aims to understand how the culture of plastic surgeries affects the tortious area of personal injury law (terms, concepts, goals, procedures, remedies, etc.), and on the other to understand how the significance of plastic surgery popular culture is designated by law. The Article suggests a new paradigm for defining personal injuries in order to face the legal challenges raised by plastic surgery culture and, in light of the culture’s re-designation by …

Contracting Around Gender Constructs: Transgender Men At Women's Colleges, Elizabeth A. Heise

Michigan Journal of Gender & Law

As the transgender community gains increasing visibility in society, women’s colleges have begun to address new questions about who is eligible to attend. One such question is whether students who come out as transgender men after matriculation are eligible to remain enrolled and graduate from these institutions. The main claims relevant to this discussion are (1) colleges’ right to retain their identity as all-women’s institutions; (2) the parallel rights of cisgender female students who explicitly choose to attend an all-women’s institution, and (3) transgender students’ competing right to avoid arbitrary or capricious dismissal based on gender identity. This Note posits …

Conscious Identity Performance, Leslie P. Culver

San Diego Law Review

Marginalized groups in the legal profession sometimes feel pressure to perform strategies to communicate their identity in a predominantly white legal profession. Relevant legal scholarship describes this phenomenon, for example, in terms such as covering and passing—largely forms of assimilation. The notion is that outsiders—women, people of color, LGBTQ—use these strategies to communicate with insiders—white, heterosexual, males—in ways designed to advance their status in the legal profession. This article expands on that scholarship by drawing on a theoretical framework that legal scholars have largely ignored: co-cultural theory. This interdisciplinary theory describes how non-dominant cultures communicate in a dominant society. In …

“The Lost Lawyer” Regained: The Abiding Values Of The Legal Profession, Robert Maccrate

Dickinson Law Review (2017-Present)

No abstract provided.

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

Hiring Supreme Court Law Clerks: Probing The Ideological Linkage Between Judges And Justices, Lawrence Baum

Marquette Law Review

Since the 1970s, the overwhelming majority of Supreme Court law clerks have had prior experience clerking in lower courts, primarily the federal courts of appeals. Throughout that period, there has been a tendency for Justices to take clerks from lower court judges who share the Justices’ ideological tendencies, in what can be called an ideological linkage between judges and Justices in the selection of law clerks. However, that tendency became considerably stronger between the 1970s and 1990s, and it has remained very strong since the 1990s.

This Article probes the sources of that alteration in the Justices’ selection of law …

Dissenting In And Dissenting Out, Nancy Leong

Chicago-Kent Law Review

The intense legal and social preoccupation with the appearance of diversity and nondiscrimination both reflects and reinforces a process I call “identity capitalism.” Through that process, ingroup individuals and ingroup-dominated institutions derive value from outgroup identity. This process results in the commodification of outgroup identity, with negative consequences for both outgroup members and society. Outgroup members actively participate in the process of identity capitalism in various ways. In particular, they leverage their outgroup membership to derive social and economic value for themselves. I call such outgroup participants “identity entrepreneurs.” In this essay, I apply the framework of identity entrepreneurship to …

Feminism, Masculinities, And Multiple Identities, Martha Albertson Fineman

Nevada Law Journal

No abstract provided.

Toward A Third-Wave Feminist Legal Theory: Young Women, Pornography And The Praxis Of Pleasure, Bridget J. Crawford

Michigan Journal of Gender & Law

Part I of this Article explores the general themes of third-wave feminist writings. The Article begins with an overview of third-wave feminist literature and its predominant concerns. These concerns are (1) dissatisfaction with earlier feminists; (2) the multiple nature of personal identity; (3) the joy of embracing traditional feminine appearance and attributes; (4) the centrality of sexual pleasure and sexual self-awareness; (5) the obstacles to economic empowerment; and (6) the social and cultural impact of media and technology. Textual analysis reveals third-wave feminists' reliance on non-legal tools for remedying gender inequality. Although third-wave feminists acknowledge the law's role in women's …

Uncovering Identity, Paul Horowitz

Michigan Law Review

This Review raises several questions about Yoshino's treatment of identity, authenticity, and the "true self' in Covering. Part I summarizes Yoshino's book and offers some practical criticisms. Section II.A argues that Yoshino's treatment of authenticity and identity leaves much to be desired. Section II.B argues that Yoshino's focus on covering as an act of coerced assimilation fails to fully capture the extent to which one's identity, and one's uses of identity, may be fluid and deliberate. Section II.C focuses on another identity trait that runs through Yoshino's book, always present but never remarked upon: those aspects of identity and …

Choice And Fraud In Racial Identification: The Dilemma Of Policing Race In Affirmative Action, The Census, And A Color-Blind Society, Tseming Yang

Michigan Journal of Race and Law

This Article focuses on the implications of self-conscious efforts by individuals to alter their racial identity and the challenge that they pose to social conventions and the law. It also considers some implications of such a framework to the promotion of a color-blind society, in particular with respect to health care services and bureaucratic records.

From Race To Class Struggle: Re-Problematizing Critical Race Theory, E San Juan Jr.

Michigan Journal of Race and Law

The misconstrual of "class" as a theoretical and analytic concept for defining group or individual identity has led, especially during the Cold War period, to its confusion with status, life-style, and other ideological contingencies. This has vitiated the innovative attempt of CRT to link racism and class oppression. We need to reinstate the Marxist category of class derived from the social division of labor that generates antagonistic class relations. Class conflict becomes the key to grasping the totality of social relations of production, as well as the metabolic process of social reproduction in which racism finds its effectivity. This will …

Disposable Mothers, Deployable Children, Annette R. Appell

Michigan Journal of Race and Law

Review of Interracial IntimaciesL Sex, Marriage, Identity, and Adoption by Randall Kennedy

Who’S In Charge Of Who I Am?: Identity And Law Online, Susan P. Crawford

NYLS Law Review

No abstract provided.

Power, Possibility And Choice: The Racial Identity Of Transracially Adopted Children, Twila L. Perry

Michigan Journal of Race and Law

Review of The Ethics of Transracial Adoption by Hawley Fogg-Davis

(Dis)Embedded Women, Rhoda E. Howard-Hassmann

Michigan Journal of International Law

The position argued in this Article is that women's rights are individual rights. To explain this position, the Article will progress along the following arguments: 1) The dichotomy between Western individualism and non-Western collectivism is false. 2) Much of the debate regarding the role of women and women's rights confuses interest and identity. 3) Women do not necessarily constitute a social group. 4) "Women's" rights are actually universal human rights: they pertain mostly to women, but also to men. 5) The debate about whether women are a social group is rooted in part in differing conceptions of women's embeddedness in …

The Paradox Of Silence: Some Questions About Silence As Resistance, Dorothy E. Roberts

University of Michigan Journal of Law Reform

In Part I, I note the difficulty in distinguishing between silencing and silence as resistance. This difficulty has often led people in power to misinterpret the silence of people of color. Part II further explores the complications of incorporating the study of silence into resistance scholarship. I illustrate this complexity by discussing the silencing of welfare mothers and the use of language by women of color to challenge dominant medical discourse. Part III considers Professor Montoya's proposal to use silence as a pedagogical tool. Continuing my examination of silence as both liberating and accommodating, I distinguish between silence in the …

Between National And Post-National: Membership In The United States, T. Alexander Aleinikoff

Michigan Journal of Race and Law

This essay argues that the concept of post-nationalism does not precisely explain the American concept of citizenship. This is due to the strict construction of the nation state in American constitutional theory, the ineffective role of international human rights norms in American jurisprudence, and the extension of protection to non-citizens based on territorialist rationales. For these reasons, the author suggests that denizenship is a more appropriate way of viewing the American citizenship model, and is one that explains how notions of personal identity can be transnational while still justifiable within traditional nation-state constructs.

Beyond The Rhetoric Of "Dirty Laundry": Examining The Value Of Internal Criticism Within Progressive Social Movements And Oppressed Communities, Darren Lenard Hutchinson

Michigan Journal of Race and Law

Part I of this Article discusses examples of resistance to internal criticism within progressive social movements in order to demonstrate the extent to which such opposition operates as a barrier to constructive dissent. Part II argues that resistance to internal criticism may often result from the embrace of heterosexism, patriarchy, and racism within oppressed communities and among progressive intellectuals, and that any remaining explanations for such resistance are outweighed by the value of internal criticism to progressive theory and politics. Part III offers suggestions-to both internal critics and to the objects of their critiques-for minimizing the potentially negative effects of …

Who Is Black Enough For You? An Analysis Of Northwestern University Law School's Struggle Over Minority Faculty Hiring, Leonard M. Baynes

Michigan Journal of Race and Law

This Article considers the factors that should be used in hiring a person of color to a faculty position and raises the following questions: Apart from potential teaching ability and scholarly productivity, should faculty appointments committees look to other criteria for candidates of color? Provided that we can still consider the race and ethnicity of prospective candidates of color at private institutions, should faculty appointments committees be concerned about how closely identified a candidate is to an essentialized conception, for instance, of Black persons? Should a faculty hiring committee focus its efforts to hire African Americans on a Black person …

In Sisterhood, Lisa C. Ikemoto

Michigan Journal of Race and Law

A review of Where Is Your Body? by Mari Matsuda

The Rooster's Egg: On The Persistence Of Prejudice, Elise M. Bruhl

Michigan Law Review

A Review of Patricia J. Williams, The Roosters' Egg: On the Persistence of Prejudice

The Social Construction Of Identity In Criminal Cases: Cinema Verité And The Pedagogy Of Vincent Chin, Paula C. Johnson

Michigan Journal of Race and Law

This article will discuss the use of the film, Who Killed Vincent Chin?, as a method: (1) to analyze the relationship of social constructions of identity, particularly race, on the rules and discretionary application of criminal jurisprudence; (2) to provide an interactive pedagogical tool for law teachers, especially criminal law teachers, to examine the social contexts of criminal jurisprudence from multiple perspectives; and (3) to examine the ability of criminal law doctrine to address issues of race.

Community, Constitution, And Culture: The Case Of The Jewish Kehilah, Nomi Maya Stolzenberg, David N. Myers

University of Michigan Journal of Law Reform

Part I describes the historical development of the Jewish kehilah, its subsequent evolution, and eventual dissolution. Part II surveys recent trends in legal scholarship which reflect a growing consciousness of the tension between the demands of self-conscious cultural groups and liberal legal principles.

Community, Citizenship, And The Search For National Identity, Frederick Schauer

Michigan Law Review

As a test of this proposition, I want to explore the issue of alienage restrictions. Under what circumstances is it justifiable to draw lines based on whether a person is a citizen? Lines drawn on the basis of citizenship are a useful test of how seriously we take the idea of the nation as a relevant community and, more tangentially, of how seriously we take the idea of community itself. To the extent that we are skeptical of such lines, our concerns are to that extent individual-oriented, primarily focused on the adverse consequences of excluding some people from benefits or …

Private Standing And Public Values, Michael Boudin

Michigan Law Review

A Review of Legal Identity: The Coming of Age of Public Law by Joseph Vining

Proposal For A Model Name Act, Ellen Jean Dannin

University of Michigan Journal of Law Reform

This note will discuss the common law of names relating to such issues as identity, contract, civil procedure, and criminal procedure, as well as discussing common law and statutory change of name methods. The failure of some courts to apply the existing law of names in a manner consistent with the state interest in record keeping and the personal interest in freedom of expression will be reviewed. Finally, a model act will be proposed attempting to reconcile and promote these interests.