Diversity Readings in Legal Analysis, Research & Writing
Updated April 10, 2015.
Prepared by Mary Whisner.
This guide is part of a series of guides with readings about issues of race, class, gender, sexuality, and disability in traditional first-year courses.
Lorraine Bannai & Anne Enquist, (Un)Examined Assumptions and (Un)Intended Messages: Teaching Students to Recognize Bias in Legal Analysis and Language, 27 Seattle U. L. Rev. 1 (2003-2004), HeinOnline, journal's website
This article discusses how law school, specifically through legal writing courses, can address cultural bias and its effect on legal analysis and language. Part I addresses why the law school curriculum should aid students in recognizing expressions of bias in legal analysis and language. Part II discusses how bias typically appears in legal language, as well as how it may infect legal analysis and argument, and suggests ways of teaching students to recognize it in a legal writing course. Part III addresses challenges that may be faced in teaching the material, including suggestions for handling discussions of potentially sensitive subjects.
British Columbia Law Institute, Gender-Free Legal Writing: Managing the Personal Pronouns, British Columbia Law Institute Report, No. 2, 1998, SSRN
Abstract: The vast majority of laws apply to persons of all kinds, and most words used to designate a person who has a particular legal status are not concerned with the characteristics of sex or artificiality. Where a statement of any complexity is made about a person, the maker of the statement may face decisions about how further references should be framed. This may pose no problem if the maker can appropriately use any of the pronouns: he, she, him, her, his, hers, himself, herself, it, its, or itself. The use of these pronouns is appropriate when the statement can only apply to a particular sex or kind of person. Proper usage becomes more problematic when the person has no characteristics that dictate the use of particular pronouns. This report suggests a style of legal writing that is 'gender-free' - one that avoids the use of pronouns entirely. It explores a number of techniques that may be used in the creation of documents that are free of gender-specific pronouns. It is intended to serve three functions. The first is to convince those who entertain doubts that it is possible to write in this way without significant distortion or loss of content. The second is to serve as a guide to those who require instruction in this area. The third is to provide a source book with answers for writers who currently adhere to a gender-free style, but encounter specific problems.
Judith D. Fischer, Framing Gender: Federal Appellate Judges' Choices About Gender-Neutral Language, 43 U.S.F. L. Rev. 473 (2009), SSRN
Abstract: Through empirical research, this article examines whether judges on the United States courts of appeals are framing their opinions in gender-neutral language. Drawing on multidisciplinary sources, including the work of language scholars, psychologists, framing theorists, and legal professionals, the article explains why gender-neutral language is important and discusses ways of constructing it. The article then presents the results of a study of recent court opinions, compares data from the years 1965 and 2006, and discusses implications of the data. It concludes that courts have made significant progress toward gender neutrality, but it also identifies a need for further improvement, which can be accomplished through shifting both mental and verbal frames toward greater inclusiveness.
Julie Goldscheid, Gender Neutrality, the 'Violence Against Women' Frame, and Transformative Reform, 84 UMKC L. Rev. __ (2014 Forthcoming), SSRN
Abstract: The challenge of sustaining a progressive framework that continues to resonate in the complex aftermath of a generation of reforms lies at the heart of many current debates about gender violence legal and policy reform. This Article addresses one longstanding issue: the way gender violence is framed in law, policy, and popular rhetoric. Many initiatives continue to use the gender-specific “violence against women” frame as a default description. That “woman-specific” frame, developed in service of feminist goals such as foregrounding and challenging gender bias and fostering more inclusive delivery of social and other services, now raises empirical, theoretical, political and practical critiques. It implies that men are not also victims of abuse and reinforces a binary view of gender that is inconsistent with queer, feminist and other critical theory. The “woman-specific” frame serves to erase the particular experiences of lesbians, women of color, and survivors from other marginalized groups. It fuels arguments by those who contest the connection between intimate partner and sexual violence and gender stereotypes. It produces awkward practical contradictions; for example, it results in programs heralding services addressing “violence against women,” while reassuring that those programs are available to men. This Article builds on the work of others who advocate incorporation of intersectionality theory into work to end intimate partner and sexual violence. It unpacks the critiques and draws on frame theory to argue that the “woman-specific” frame no longer does the political work its proponents hoped it would do. It endorses a self-conscious use of frame that will vary based on context. Gender-neutral approaches that highlight historic biases and structural inequalities can support both resources for robust and comprehensive services and reinvigorated political discourse that can lead to transformational change.
Abstract: In this Article, I focus on hip hop music and culture as an access point to teach first-year law students about the academic and professional pitfalls of plagiarism. Hip hop provides a good model for comparison because most of our entering students are immersed in a popular culture that is saturated with allusions to hip hop. As a point of reference for incoming law students, hip hop possesses a valuable currency as it represents something real, experienced, and relatable.
Significant parallels exist between the cultures of U.S. legal writing and hip hop, although attempting direct analogies would be absurd. Chief among these similarities is the reliance of both cultures on an archive of knowledge, borrowing from which authors or artists build credibility and authority. Whether it is from case law or musical recordings, the necessary dependence on a finite store of information means that the past work of others will be frequently incorporated into new work. The ethical and professional danger inherent in this type of production is that one who borrows too freely from the past may be merely copying instead of interpreting or innovating. In the academic world, this is plagiarism. Members of the hip hop community call this “biting.” In neither culture is this mode of production celebrated.
My goals for this project are two-fold. First, as a professor of legal writing, I want to ameliorate the problem of plagiarism that I have seen growing worse each year. Second, as a scholar, I would like to contribute to the growing body of literature on hip hop and the law. This Article marks the beginning of my attempt to theorize a hip hop ethics and develop its application to the teaching, the academic study, and perhaps eventually, the reform of the law.
Abstract: Using the alternating voices of rap and standard academic discourse, this short piece is a plea for the civil rights community to "get real" and to put some of its efforts into reforming the actual conditions under which many of the less fortunate live. The rap passages are rude, direct, even raunchy, while the prose passages proceed in academic English. This dichotomy is intentional: Rap represents the voice of the people, the voice from below, the voice of those who live in neighborhoods filled with broken glass. It is an impatient, insurgent voice that bears little in common with the complex, jargon-filled sentences of most contemporary left discourse. The latter voice, in the author's view, has become too detached from that of the many constituents who worry about their children turning to gangs and drugs and dropping out of school, about police harassment, and where their next paycheck is coming from.
Nick J. Sciullo, Conversations with the Law: Irony, Hyperbole and Identity Politics or Sake Pase? Wyclef Jean, Shottas, and Haitian Jack—A Hip-Hop Creole Fusion of Rhetorical Resistance to the Law, 34 Okla. City U. L. Rev. 455-513 (2009), HeinOnline, SSRN
Abstract: This article sets out to prove why the law must be investigated in an interdisciplinary fashion which invites an intersection between law, popular culture, and identity politics. First, this article describes how Wyclef Jean, a hip-hop artist, is an active voice of legal criticism and why his criticism is important to a larger discussion of the law. Second, this paper develops a conception of Creole/Haitian legal studies and its importance as an analytical lens through which to perceive the law and legal institutions. Third, this piece formulates a rhetorical criticism of the law through the rhetorical terrain of Wyclef's hip-hop music and cultural aesthetic to critique criminal law and legal institutions. The fusion of hip-hop, Haitian/Creole cultural identity, and rhetorical criticism, opens a new area for legal analysis and understanding. This article concludes by suggesting that rhetorical criticism, hip-hop, and other rhetorical acts (among them irony and hyperbole) provide new terrain from which to understand the law, and further, that the Haitian/Creole cultural identity is an important and underrepresented facet of legal culture, which further compliments current critical race theory.
Devon W. Carbado, Black Rights, Gay Rights, Civil Rights, 47 UCLA L. Rev. 1467 (2000)
Over the past few years, an extensive body of literature has questioned the constitutional and political legitimacy of the "Don't Ask, Don't Tell" policy. Yet, the public discourses about this policy have received virtually no scholarly attention.
In this Article, Professor Devon W. Carbado focuses on two such discourses: black antiracist and gay rights advocacy. More particularly, he examines gay rights activists' deployment of, and black antiracist responses to, analogies between racial
and sexual orientation discrimination.
According to Professor Carbado, the rhetorical form of the analogies and the substance of the responses suggest a relationship between identity and civil rights—namely, that the conceptualization of the former both structures and determines
the performance of the latter. He pursues this claim with black antiracism first, arguing that the antiracist responses to race/sexual orientation analogies normalized heterosexuality. This normalization creates the (mis)impression that homosexuality
resides outside of, and is oppositional to, black identity. To the extent that blackness is conceived of in heteronormative terms, antiracist proponents can "legitimately" marginalize black gay and lesbian experiences.
Professor Carbado's examination of black antiracism is followed by an examination of gay rights advocacy. He argues that the race/sexual orientation analogies the gay rights activists advanced were buttressed by a racial conception of homosexuality
as white. This racialization required gay rights proponents to closet, or contain, black gay and lesbian identities. Consequently, throughout the debates about "Don't Ask, Don't Tell," the representative icons of gay victimization were white.
Abstract: This article provides a brief biography of Thurgood Marshall, primarily profiling Marshall as a writer. In his roles as a lawyer and civil rights activist, a legal scholar, and a Supreme Court Justice, Thurgood Marshall mastered writing techniques that informed and persuaded his audiences throughout his life-long endeavor to achieve equality for all. This examination of Marshall’s legal, scholarly, and judicial writings can help lawyers, academics, and students increase their knowledge of how the written word profoundly impacts society.
The article first studies Marshall’s arguments and legal strategy in two early civil rights cases, University of Maryland v. Murray and Smith v. Allwright. It goes on to examine several letters Marshall wrote while he was working on Lyons v. Oklahoma, a murder trial in which the prosecution sought the death penalty. The article explains how Marshall’s creativity as a legal strategist was fashioned of necessity as a young African-American lawyer representing African-American clients in a still-segregated society.
The second profile explores the ethical dilemma that Marshall faced when drafting the appellate brief for Brown v. Board of Education and how the dilemma combined with the social context of 1954 to influence his use of persuasive writing techniques. The article explains how Marshall’s choices as a writer proved to be an effective strategy that was simultaneously principled and practical.
The article then considers Thurgood Marshall the moral activist by examining the speech he wrote for the Constitution’s Bicentennial Celebration in 1987. In that Bicentennial speech, Marshall famously refused to applaud the United States Constitution. The article compares the contemporaneous reaction to Marshall’s speech with the controversy that arose during the 2010 Senate confirmation hearings of Marshall’s most famous clerk, Elena Kagan.
Finally, the article explores Justice Marshall the writer by examining his dissent in Payne v. Tennessee, a capital sentencing case. The article demonstrates that by choosing to attack the assumptions underlying the majority’s argument, Marshall was able to craft a broad and powerful writing in which he not only advocated his opposition to the death penalty, but also defended a panoply of individual rights that he believed essential to attaining and maintaining equality for everyone.
Elizabeth Mertz, The Language of Law School: Learning to "Think Like a Lawyer" (2007), Classified Stacks (KF279 .M47 2007)
In this linguistic study of law school education, Mertz shows how law professors employ the Socratic method between teacher a nd student, forcing the student to shift away from moral and emotional terms in thinking about conflict, toward frameworks of legal authority instead.
Nick Sciullo, Richard Sherman, Rhetoric, and Racial Animus in the Rebirth of the Bogeyman Myth, Hastings Comm. & Ent. L. Rev. (forthcoming 2015), SSRN
Abstract: I first analyze the context and content of the interview, setting the stage for a larger discussion of rhetoric, racial animus, and the myth of the bogeyman. Next, I consider the evolving rhetoric of black danger in law and media, situating the coverage of the Sherman interview in the larger discursive framework of racialized media. Then, I expand the discussion of racial animus in sports media to encompass the pernicious myth of the bogeyman, which has reared its ugly head in the creation of the Richard Sherman saga. Last, I analyze the myth of the bogeyman in history, paying particular attention to its coloration in German and Romanian myth, and a painting by Francisco Goya to consider the now racialized violence that exists by the construction of Richard Sherman as modern-day bogeyman. I do this because I think it important to create multi-model models of understanding racism in order to best critique it. This approach also compliments my belief in the value of rhetorical and interdisciplinary inquiry into law. Richard Sherman, as a relatively dark-skinned black man, embodies a long-standing fear of darkness, that often goes undiscussed in public culture. I conclude with suggestions for further research and suggestions for ways in which the media and law can cease constructing black danger and supporting anti-black racism.
In this paper, I investigate the difference between the labels "racist," on the one hand, and "liberal" and "conservative," on the other, in four contexts: employment, admission to the bar, the use of peremptory challenges in jury selection, and defamation law. I conclude that the otherwise able Democrat-Gazette got it wrong: the epithet "racist" is significant and harmful, unlike the generally benign classifications "liberal" and "conservative." The lesson: the label "racist" is a pernicious pejorative and is generally
recognized by the law as such. It should not be bandied about frivolously, but, rather, should be reserved for those situations in which actual racial discrimination exists.
Abstract: This Article is intended to serve as a roadmap for law professors and law review editors alike in their efforts to find a better way for students to evaluate articles. Further, this Article aims to offer low-cost ways to improve the institution of student-run law reviews by strengthening editors' evaluation skills and processes. This Article is divided into three main parts. Part II of this Article, Manifestations of Systemic Bias, develops a theory of the safe-dissent continuum and employs this theory to determine whether there is empirical support for claims of bias in article evaluation and the legal discourse. Part III of this Article, Origins and the Tenacious Nature of Systemic Bias, utilizes insights from economic theory to examine some sources of and explanations for the persistence of systemic bias in article evaluation by law reviews. Part IV of this Article, The Article Evaluation Tool Box, identifies some ways to mitigate the potential for individual and systemic bias in the law review article evaluation process.
Taunya Lovell Banks & Penelope Andrews, Two Colored Women's Conversation about the Relevance of Feminist Law Journals in the Twenty-first Century, 12 Colum. J. Gender & L. 498-509 (2003), HeinOnline, SSRN
Abstract: This is a critique by two non-white law professors in the form of a conversation about the relevance of feminist law journals on their lives and scholarship. We conclude that the impression that feminist scholarship now is accepted in mainstream law reviews may be illusory and thus there is a continuing need for feminist law journals. In the past rather than creating a new type of journal, feminist law journals tend to replicate the traditional law journal model. Only the focus is different. Twenty years later not only do race and sexuality continue to separate us, but increasingly, careerism as well. The resulting lack of trust between women means that we need more open and honest conversation among and between feminists and non-feminist women. Refocused feminist law journals may be able to provide both the public and private space to pursue these conversations.
Abstract: This Article presents original empirical research documenting a significant gender disparity in student note publication. Examination of the notes published during a ten-year time span in the general-interest law reviews at fifty-two schools - a total of nearly six thousand notes - reveals that women authored approximately forty percent of student notes, while men published almost sixty percent. At thirteen schools, women authored fewer than thirty-five percent of published student notes. The Article proposes a range of explanations for the disparity, recognizing that the explanation may differ from one school to the next and from one year to the next at the same school. Moreover, the Article argues that the disparity matters: it has negative consequences for women’s careers years after graduation from law school. Consequently, the Article concludes by offering some preliminary ideas about what law students, law reviews, and faculty members might do to remedy the gender disparity, and by encouraging stakeholders in the note publication process to continue the conversation within their institutions.
Abstract: Gender disparity remains an unrelenting issue in the legal profession. In “The Persistent Gender Disparity in Student Note Publication,” published in the Yale Journal of Law and Feminism, I (along with Nancy Leong) presented original empirical research documenting a significant gender disparity in student note publication. Examination of the notes published during a ten-year time span in the general-interest law reviews at fifty-two schools reveals that women authored approximately 40% of student notes, while men published about 60%. Our article discussed the range of explanations for the disparity and explored its significance. We concluded by offering some preliminary ideas about what can be done to remedy the disparity. The reactions to our research proved to be nearly as interesting as the research itself. This article contextualizes these reactions as well as their implications for our original work. Part I summarizes the findings of my earlier work. Part II presents a collection of reactions to both the collection of the data undergirding these findings as well as the findings themselves. Part III places these reactions within a broader context of the legal community and its approach to gender disparities generally. I conclude that responses to gender disparity appear to be shifting, making the chances for productive change more likely.
Abstract: Law review symposia are a major means by which legal developments establish and validate themselves. They can highlight developments in an established field, like same-sex marriage in family law, or cover an entirely new field such as game theory or rational choice. These symposia and their authors help establish and delimit the legal canon. Following up on a previous article exploring the law review symposium issue, this study of subsequent law review symposia shows how certain recurrent figures and groups tend to dominate symposia on mainstream issues, while outsider scholars remain poorly represented and ghettoized to symposia on race and civil rights.
Abstract: Since the 1960s, racialized metaphors describing dysfunctional parents have been deployed by conservative policymakers to shape the way that the public views anti-poverty programs. The merging of race and welfare has eroded support for a robust social safety net, despite growing poverty and economic inequality throughout the land. This Article begins by describing the influence that metaphors have on the way people unconsciously perceive reality. It proceeds by examining historical racial tropes for Black families and how they were repurposed to create the Welfare Queen and Deadbeat Dad, the metaphorical villains of welfare programs. It also tracks the demise of welfare entitlements and the simultaneous ascendency of punitive child support enforcement intended to penalize both “absent” parents and families with non-normative structures. Ultimately, this Article argues that the focus on demonizing Black parents in the welfare system has created an obstacle to providing necessary resources to alleviate the suffering of a growing number of poor children of all races, the intended beneficiaries of public assistance.
Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 Fordham L. Rev. 1451 (2011), HeinOnline, SSRN. (Also: 32 Immigr. & Nat'lity L. Rev. 613 (2011), HeinOnline.)
Abstract: Metaphors tell the story of immigration law. Throughout its immigration jurisprudence, the U.S. Supreme Court has employed rich metaphoric language to describe immigrants attacking nations and aliens flooding communities. This Article applies research in cognitive linguistics to critically evaluate the metaphoric construction of immigrants in the law.
Three conceptual metaphors dominate legal texts: IMMIGRANTS ARE ALIENS, IMMIGRATION IS A FLOOD, and IMMIGRATION IS AN INVASION. In order to gauge the prevalence of these metaphors, the Article engages in a textual analysis of modern Supreme Court opinions and presents original empirical data on the incidence of alienage terminology in federal court decisions. The Article explains how immigration metaphors influence not only judicial outcomes, but also social discourse and the broader debate over immigration reform. As such, the theoretical study of language has very practical consequences for the people defined by immigration metaphors.
The Article concludes by proposing an oppositional metaphoric framework based on the concepts of migration and economic sanctuary. These metaphors describe immigration in terms of movement, work, and community, in contrast to existing legal metaphors that describe immigration in terms of danger, attack, and criminality. Thus, while today’s immigration metaphors signify a loss of economic security and cultural hegemony, the proposed terms emphasize immigrants’ economic contributions and potential for social belonging. This process of evaluation and substitution diminishes the power of existing metaphors to conflate and essentialize, while creating space in the legal imagination for new frames to emerge.
Abstract: Metaphors are not pretty figures of speech; they affect the way people within cultures perceive reality. It is therefore significant that the metaphors most commonly used for the adversary system center on war and sports. This tends to over-emphasize the competitive aspects of litigation and disguise opportunities for more cooperative behavior. This article collects and analyzes those metaphors, and discusses the reasons for their powerful hold on legal culture. It also considers some of the negative effects of the metaphorical system and speculates about whether we could find and nurture alternative metaphors.
Edward L. Rubin, Passing through the Door: Social Movement Literature and Legal Scholarship, 150 U. Pa. L. Rev. 1 (2001), HeinOnline
During the past three decades, the study of social movements has become a major area of social science research in both America and Continental Europe. As is often true, a different approach has been adopted in these two places, so that, in effect, there are two separate literatures on the subject. But the gap between American and Continental social movement literature is now widely recognized by sociologists and political scientists within the field, and, having been so noted, is being overcome by scholars who recognize the value to be gained from incorporating differing perspectives in their own research. The subject matter of this Article is another gap, one that has been much less widely noted and less often bridged. This is the gap between legal scholarship and the social movement literature as a whole. As discussed below in Part I, these two fields display considerable overlap in both their subject matter and their methodology; they study the same phenomena and draw on the same theoretical sources in doing so. Yet, they communicate only fitfully, if at all, with one another. The social movement literature, although it pays some attention to law, makes little use of legal scholarship. In turn, and of more direct concern for present purposes, legal scholars seem largely oblivious to the extensive social science literature on social movements. Apparently, the narrow university paths that separate law schools from social science buildings are harder to cross than the Atlantic Ocean; the language barrier between legal and social science discourse is higher than the one between English and French, German or Italian; and the sense of foreignness that afflicts legal scholars and social scientists who belong to the same university, share the same political views, and live in the same neighborhoods is greater than that which divides inhabitants of different continents.
Abstract: Analyzes and responds to an article criticizing the idea that some scholars of color write in a distinctive "voice" by virtue of their experience and background. Summarizes how conventional liberal discourse views the issue of voice. Contrasts that view with outsider perspectives and illuminates the paradigmatic gap between critical race theory and mainstream scholarship.
Abstract: Investigates the state of affairs now that critical race theorists and radical feminists have entered the legal academy in substantial numbers. Revisits the original article, The Imperial Scholar, and explores whether the new generation of majority-race (white) scholars continue to operate in an insular fashion that marginalizes outsider and minority writers. Documents how the descendants of the original imperial scholars -- white academics writing about race in the top reviews -- although younger and hipper than the original versions, continue the same exclusionary pattern of neglect and non-citation. Concludes that those who control the terms of discourse will marginalize outsider writing as long as possible.
Part of a symposium issue on legal scholarship, this article addresses a question many have asked in the wake of my Imperial Scholar article in the Pennsylvania Law Review -- namely, do scholars of color behave in much the same way the imperial (white) scholars do, that is, citing each other and taking little note of writing by authors on the other side of the color line? I find that the answer is, in a word, no: minority scholars writing about race and civil rights cite white and non-white authors in numbers roughly proportionate to their representation in the relevant bodies of scholarship.
Richard Delgado & Jean Stefancic, Crossover (2009). American Indian Law Review, Vol. 33 (2009). Available at SSRN: http://ssrn.com/abstract=2104439
Abstract: Should minority writers aim for a "crossover" audience of mainstream (white) readers or write mainly for a circle of readers like themselves, viz., minorities or people of color? Despite the attractions of achieving crossover status -- including fame, fortune, and book reviews -- the article argues that writers of color should usually visualize an audience of their peers, that is, readers of color. Writing for a broad audience of mostly white readers risks that the minority writer will adopt topics, language, and approaches that will appeal and ring true to this group. Consciously or unconsciously the writer may pull his or her punches, cater to an audience other than his own, lose her own voice, and end up reinforcing stereotypes or writing in a sentimental and inauthentic mode.
Abstract: What is the relationship between critical theory and law? Have people like Patricia Williams, Robin West, Kimberle´ Crenshaw, Richard Delgado, Mari Matsuda, and the late Derrick Bell been standing for over thirty years outside the gates of a walled city, critiquing the work of its inhabitants? Many traditionalist leaders seem to think so. Inside the city, they go about their work unaffected, using the same language and methods they learned from their mentors. Occasionally a traditionalist defender reacts to the prophets, usually with name-calling derision. Richard Posner, for instance, has accused critical race theory of repudiating reasoned argumentation and choosing storytelling instead. He has called critical race theorists “whiners and wolf-criers,” coming across as “intellectually limited.” He says that their presence in law schools is a disgrace and their scholarship is “bunk.” Having hurled his attack over the city walls, he goes back to his own work, unaffected by oppositionist critique.
Posner and others like him thus maintain that oppositionists stand outside the gates of law. True, few traditionalists have tried to understand the oppositionist critique, but frankly, oppositionists have often failed to speak in a language traditionalists can understand. The result has not been pretty.
The 25th anniversary of the publication of Peter Goodrich’s Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis offers a chance to do better. This article uses narrative theory and cognitive science to help traditionalists begin to understand critical theory – specifically, why critical theory insists on telling stories and why those narrative critiques are legitimately a part of law. In traditional law talk, the controlling meta-narratives are kept implicit. We don’t speak of those things. But like psychoanalysts looking for what lies beneath an explicit behavior, oppositionists look deeper to ask what is really going on. Can such questions be asked inside the wall?
The article begins with what Posner says he wants – logical argument – to “reason” its way to the conclusion that critical theory critiques law from the inside. Part of that argument is the premise that master stories operate at a largely unconscious level beneath the language of law. To demonstrate that premise, we look at the role of one myth – the myth of redemptive violence – in legal decision-making. The article explains the myth and how it is pervasively reinforced through movies, video games, and other media, and then shows how it affected the deliberations in Hamdi v. Rumsfeld, the saga of an American citizen imprisoned without due process by his own government.
Deductive argument cannot be the end of the matter, however, because what we mean by “law” is not a matter of some logical structure – mine or anyone else’s. Rather, it is a matter of human choice, and thus is driven by contested values and frames. The article ends with some reasons for choosing to define law broadly enough to include oppositionist critique. A primary difference between the Right and the Left is the starkly different set of constitutive myths and metaphors each uses to structure the world. The question for each of us, including for judges, is which set of myths we will choose to live within. We can call them law, or not, but that’s where the real action is.
Marc A. Fajer, Essay, Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship, 82 Geo. L.J. 1845 (1994), HeinOnline
In this essay, I explore how the existence of pre-understanding affects the questions of authority and credibility in the context of outsider narratives. In Part I, I elaborate the concept of pre-understanding and explain how personal narratives can be used to combat it. I then examine the claims to authority that outsider storytellers reasonably can make when they use their stories to combat pre-understanding. In particular, I address concerns about whether a particular storyteller represents an "authentic" outsider voice. I argue that these concerns are misplaced, especially when a story demonstrates how an individual was treated because others understood her to be a member of a particular group.
In Part II, I argue that when outsiders recount stories that conflict with common pre-understanding, credibility questions inevitably arise. I suggest some tactics for presenting outsider stories that may minimize these questions. I reject Farber and Sherry's suggestion that we completely eschew first person narratives to avoid credibility issues. I also take issue with Tushnet's analysis of the credibility of Patricia Williams's work and his focus on narrative style as the key to the credibility issue.
In the conclusion, I briefly explain my understanding of why outsider scholars feel compelled to keep telling the stories of our experiences as outsiders, despite the discomfort these stories obviously bring to others.Throughout this essay, in keeping with its themes, I often rely on examples from my own experiences as a gay man. However, I believe my analysis also applies to storytelling by members of other systematically disadvantaged groups.
Abstract: What is the point of writing? What impact is it meant to have on the world, and what impact does it actually have? These are questions that all academic researchers are called upon to answer, at some point, for themselves or for others. They seem to arise more often and with extra urgency in relation to feminist research. Feminist scholarship must justify itself not only to the usual skeptics who doubt the need for independent, non-instrumental knowledge production, but also to two other audiences.
Abstract: Feminist Legal Writing analyzes feminist legal scholarship from a rhetorical, linguistic and writing perspective. Much has been written about the substance and method of feminist legal theory. This article is devoted exclusively to an in-depth look at the techniques of persuasion that make so much feminist legal scholarship so powerful.
The Article starts from the premise that the conventions of legal advocacy and legal writing may require feminist legal theorists to choose between following the conventions of legal persuasion and fully conveying their feminist message. Using linguistic theory as well as persuasive writing and rhetorical theory, the Article explores feminist legal scholarship that manages to be both subversive and powerful through the use of unconventional rhetorical techniques. These techniques include many of the rhetorical devices socio-linguists commonly identify as hallmarks of the language of subversive societies or classes - those groups or classes that stand in resistance to the established society in which they are forced to exist.
The use of these subversive rhetorical techniques, including negation, metaphor and other poetic devices, narrative, and relexicalization, reveal a rich tapestry of persuasive language in the writings of feminists. The legal scholarship of Catharine A. MacKinnon, Patricia Williams, Martha Mahoney and Susan Estrich, among others, are used as examples of the unique power of the unconventional techniques of feminist legal writing. Ultimately, the Article argues that the power of feminist legal writing should lead advocates to question the conventional wisdom of many of the rules of persuasive legal writing.
Abstract: Because the topic of social justice is important to both of the authors, we were pleased to participate in the 2000 Legal Writing Institute Conference, even though neither of the authors is currently a legal writing professor; however, we both were in the past. Incorporating social justice in legal writing assignments provides benefits for professors and students. The first section of this article discusses the parameters of social justice and the goals advanced by incorporating social justice issues into legal writing curricula. The second section provides practical suggestions for creating fact patterns that contain social justice issues either as the background to the assignment or as the body of substantive law. The article then addresses concerns that may arise when professors incorporate social justice issues in legal writing assignments, including issues of academic freedom and job security for non-tenured professors and discusses how to resolve some of these concerns.
Kathryn M. Stanchi, Resistance Is Futile: How Legal Writing Pedagogy Contributes to the Law's Marginalization of Outsider Voices, 103 Dick. L. Rev. 7 (1998), HeinOnline
This Article will examine the ways in which legal writing pedagogy contributes to the marginalization of outsider voices in the law.20 In Part II, the Article explores the two reigning pedagogies of legal writing and describes the linguistic model used to gauge how teaching law as language marginalizes outsider voices. In Part III, the Article applies the linguistic model to explore *11 specific examples of how legal writing pedagogy may contribute to the marginalization of certain groups by focusing on audience and socializing them into the culture and language of law. In Part IV, the Article considers various solutions, all of which include the suggestion that law school must teach more critical legal theory and methodology in the first year, in a way that demonstrates how to incorporate them into legal practice. The Article concludes that, notwithstanding the practical problems associated with this suggestion, the academy should consider expanding legal writing courses to teach students to incorporate concepts of critical theory into the art of lawyering.
Dawn D Bennett-Alexander, The Use of the Term 'Boy' as Evidence of Race Discrimination: Apparently the 11th Circuit Didn't Get the Memo?, (November 11, 2010). Available at SSRN: http://ssrn.com/abstract=1785095 or http://dx.doi.org/10.2139/ssrn.1785095
Abstract: In an unusual and interesting case, the 11th Circuit decision was appealed to the U.S. Supreme Court, the Supreme Court rendered a decision remanding the case with guidance, and upon remand, the 11th Circuit virtually ignored the Court's guidance and went its own way. The Supreme Court determined that the term "boy," when used in referring to an adult African American male, can, under certain circumstances, be evidence of race discrimination. Despite the evidence, the 11th Circuit on remand did not find such circumstances to be present in this case. The decision is not only peculiar in its decision to give only lip service to the Supreme Court's guidance, but also in its staunch refusal to recognize the vestiges of the stark historical realities of the three southern states within the circuit.
Abstract: This Article examines racial language in the law to show how discrimination is perpetuated in politically correct speech. It argues that names and labels authorized by law maintain racist trappings that fueled the projects of colonialism and slavery; it also puts to rest the notion of “post racial” since such a state is impossible due to the systemic nature of prejudice, where racism is structural. Indeed, laws and legal institutions have a profound influence on the way Americans conceive and speak of one another, and at minimum, may be seen as providing society with a legal base of racial vocabulary. Although the law is not the originator of terminology that supports structural distinction, legitimating of these terms helps lay cornerstones for the foundation. This analysis draws on federal and state constitutions and statutes and the U.S. Census to determine why words like “Indian,” “colored” and other seemingly innocuous terms like “black” and “white” are inherently oppressive. Despite their politically correct appeal, these terms create false binaries, reinforce racial hierarchies like the “one drop rule,” or somehow denigrate their referent. Although the census ritual has been going on for centuries, determining the principles that guide their system is a daunting task. The logic is puzzling, yet the negative effects of language are clear; racial language is never “only words,” but conceptual building blocks that support racial projects of the present.
Abstract: Sometimes, sexist language is blatant and universally shunned. Other times, it is more subtle and even socially acceptable. For instance, as summarized in this article, substantial social science research has considered the use of male-gendered generics (the use of such words as he, man, chairman, or mankind to represent both women and men) rather than gender-neutral alternatives (such as she or he, human, chairperson, or humankind). This research concludes that male-gendered generics are exclusionary of women and tend to reinforce gender stereotypes. Yet, these words may not be recognized as discriminatory because their use is perceived as normative and therefore not unusual. In addition, those who use these words may not be intentionally harmful. Complaining about their use may even be criticized as a trivial activity or an overly sensitive reaction.
Given this social science research, there is a surprising absence of awareness on the use and effect of these words among lawyers, law faculty, law student, and judges. Based on our original empirical analysis of hundreds of legal documents (judicial opinions, legal briefs, and law review articles), we find that the legal community continues to use male-gendered words even though gender-neutral alternatives exist. Thus, while some judges, lawyers, and legal scholars may not intend to be sexist, they are being subtly sexist. The research reveals a strong general pattern of the dominant use of the male-gendered option in a number of word pairs (four out of the nine word pairs) and substantial use in three other word pairs. In contrast, there is the dominant use of the gender-neutral word option in two word pairs.
Finally, the article offers some proactive suggestions. While the legal community is reluctant to change, it did shift from using the male-gendered option of reasonable man to the gender-neutral reasonable person. We suggest that this change occurred because of the legal community's heightened awareness of the sexist nature of the use of reasonable man, and that a heightened awareness of the subtle sexism of all male-gendered generics could prompt further changes. The article ends with a useful guide on gender neutral language that can be duplicated for distribution in the legal community and elsewhere.
Charles R. Calleros, The Spirit of Regina Austin’s Contextual Analysis: Exploring Racial Context in Legal Method and Writing Assignments and Scholarship, 34 J. Marshall L. Rev. 281 (2000), HeinOnline, SSRN
Abstract: In Professor Regina Austin’s article, Bad for Business: Contextual Analysis, Race Discrimination, and Fast Food,” 34 J. Marshall L. Rev. 207 (2000-2001), the central thesis is that many legal issues can be fully appreciated only in their social context, and specifically, in their racial context. Thus, data about an ethnic group's distinctive experiences in, or relationship to, a larger community-perhaps through formal ethnographic studies, or perhaps through other means-often can inform teaching, scholarship, and representation of clients in a meaningful way.
Professor Austin's thesis is supported by the teaching and scholarship of teachers of legal method of writing. This essay shares some examples from that field to illustrate both the benefits and the minefields of exploring issues of difference, of "otherness," in the classroom and particularly in legal writing courses or in seminars with writing components. This essay also suggests different ways that race or other facets of "otherness" can be acknowledged and confronted, rather than ignored, in the law school classroom.
Abstract: Our federal system includes 562 federally-recognized American Indian nations, most of whom have their own sovereign lands, governments, and court systems, and who interact every day with the state and federal systems. Yet most legal thought overlooks our sovereign Native American nations and legal heritage. Although much of American law and policy intersects Tribal jurisdictions, such issues generally appear in the law school curriculum only in specialized, upper-level courses. This Article argues that the three-sovereign system should provide the fundamental framework for the United States legal system across the legal curriculum, and provides several concrete examples for how to do so. It also argues that many law courses should touch upon how their disciplines impact Tribal jurisdictions and their citizens.
By changing our fundamental orientation toward the role of Tribal sovereigns in the U.S. system, we will advance the academy’s goals of scholarship, teaching, and service. First, we will accurately represent the true structure and diversity of our tripartite federal system. Second, we can improve learning by using direct and comparative Tribal perspectives for fundamental legal principles and methods. Third, we can further the social justice mission by raising awareness of Tribal sovereignty among future advocates and lawmakers.
See these sections of the article: Teaching the Three-Sovereign Model as an Introduction to the U.S. Legal System, at 805-11, Sources of Law and Forms of Reasoning, at 811-17, Selection of Authority and the Path of Review, at 817-21, Cultural Literacy Skills, Case Theory, and Narrative Reasoning, at 821-24.
Abstract: This Article examines the sometimes-vehement resistance to legal storytelling, a resistance reflected in Daniel Farber and Suzanna Sherry’s oft-cited article, Telling Stories Out of School: An Essay on Legal Narrative. Part I suggests that, rather than focusing on who is telling stories in law, it is more important to ask why. The answer, put simply, is that stories are said to demonstrate how power can inhere invisibly in the most apparently neutral of standards. The focus on power helps explain why story-telling holds strong appeal for scholars especially interested in social change. Storytelling attempts to illustrate the inevitable partiality of all evaluative criteria, and this attempt suggests a counter-critique of Farber and Sherry’s appraisal. For the kinds of standards to which Farber and Sherry would hold storytellers — standards requiring “reason” and “analysis” — are exactly those the storytellers wish to question.
Part II explores a dilemma within the storytelling movement. Many of the stories told in law recount in detail real-life experiences, experiences which the law can respect or deny. Yet storytellers often argue that there is no reality that can be uncontroversially known, i.e., that there are no “true” accounts, just many accounts. The article argues that it is this inconsistent, ambivalent attitude toward the truth-claims of stories that opens the movement up to criticism.
Brennan P. Breeland, I Am Jack's Radical Self-Degradation: A Pedagogical Argument for the Inclusion of the Indigenous Narrative in the Postmodern Legal Education (March 27, 2010), SSRN
Abstract: An American legal education begins with a first-year curriculum which is largely uniform across the spectrum of institutions: Contracts, Torts, Constitutional Law, Property, Civil Procedure, and the like are considered the requisite basis for the continued study of law. In the course of learning the basic precepts underpinning these areas of law, first-year law students are exposed not only to the majority rules and those which govern the jurisdictions which contain the law school itself, but also minority rules and important lines of alternative reasoning, because incorporating these alternative analyses is critical to providing future practitioners of the law the proper tools with which to practice. It goes without saying that the value gained from exposure to the minority rules is not insignificant, but this is not the end of the discussion of legal pedagogy and the best way to educate legal thinkers.
In analyzing legal pedagogy, it is important to determine not only the quality of the instruction, but what it is that is being taught. Of equal importance is the converse – an analysis of what is not being taught. The typical legal education does not usually incorporate an understanding of the nature of the law as a narrative, and further, it reinforces the silencing of alternative cultural narratives, or story-based understandings of legal concepts, in favor of the “color-blind” jurisprudence and pedagogy that is only color-blind in that it only sees white (i.e., non-colored) western narratives as viable. This article explores the value of incorporating native narratives into the traditional legal education, in a manner similar to the study of the common law of other jurisdictions for the purpose of learning basic concepts of law.
The article proposes the inclusion of the indigenous narrative in the baseline legal education by including cases from tribal courts in the case method of legal study, and considers this proposal through the lens of Lacanian psychoanalytic theory, specifically as illustrated by David Fincher’s film adaptation of Chuck Palahniuk’s novel Fight Club.
Teresa Godwin Phelps, The Ethics of Narrative: A Nation’s Role in Victim/Survivor Storytelling, 18 Ethical Persp. 169 (2011), journal's website
Victim/survivor stories have become one of the primary means for conveying human rights abuses. Even as these kinds of stories have captured our collective imagination, we do not know much about how they operate in a transitional democracy: whether they are transformative and contribute to the peacemaking process, or disruptive and can thwart the process. This article discusses the value of such stories and asks, first, whether an emerging democracy has an ethical obligation to provide spaces for victims and survivors to tell their stories of the harms that befell them under the former regime. It concludes that victim/survivor storytelling can assist former victims in finding and building of voice that enables them to become contributing citizens in the new country. It enables them to become less alienated from and suspicious of the state, and to become empowered enough to participate in governance. It is thus in a country’s best interest to encourage storytelling activities. Second, the article attempts to provide a framework by which we might recognize different kinds of stories and begin to distinguish between those that a country should support and those that it should discourage.
Abstract: This article begins with a discussion of storytelling, setting the context for what follows: the author's own story of an affirmative-action-fueled journey through law school; law school teaching then law school publishing – to his ultimate resignation from what he calls the Vampire Law Professor existence (hence Vampires Anonymous). Most tenured law professors, he notes, are Storyhaters, preferring instead 100-page law journal articles with 400 footnotes. Indian people, on the other hand, love their story-tellers and their stories. Indian people also raise their children to think independently and act for others. The act-for-others theme makes its second appearance toward the end of the article, after Professor Williams colorfully describes how he was, temporarily, sucked into the blood-sucking, soul-draining, tenure-chasing, article-writing hell of his early professorial days. It was only after he joined Vampires Anonymous that Williams was able to “stop writing law review articles for a while and serve the needs of others in [his] community.” He accomplished this by involving both himself and his law students in Critical Race Practice. Williams concludes that as he and his students practice it, Critical Race Practice is about “learning to listen to other people’s stories and then finding ways to make these stories matter in the legal system.”
Devon W. Carbado, Race to the Bottom, 49 UCLA L. Rev. 1283 (2002), HeinOnline
Much of Critical Race Theory has as its point of departure the notion that antiracist politics and legal theory should be informed by the voices of people "on the bottom of discrimination." The claim is both simple and normatively appealing: The people on the bottom are in the best position not only to describe the nature and extent of their discrimination but also to identify the means by which to eradicate it. But precisely who are the people on the bottom of discrimination and precisely what is the content of their voices? In this Article, Professor Carbado argues that these questions are insufficiently theorized in Critical Race Theory. To support this claim, he first highlights the conceptual and political difficulties of looking to the bottom. Next, he assumes these difficulties away, stipulating that it is possible both to look to, and capture the voices on, the bottom. The questions remains, why should antiracist proponents do so? Professor Carbado challenges the standard justifications Critical Race Theorists offer for adopting this epistemological approach. Professor Carbado then turns to a current debate in Critical Race Theory about the Black/White paradigm. The debate centers on the question of whether American racial politics are structured exclusively or predominantly around Black and White experiences, creating a BlacklWhite paradigm for understanding historical and contemporary race relations. According to Professor Carbado, the critique of the Black/White paradigm is fundamentally about how to look to the bottom and where specifically to look. He argues that while this critique has helped to make clear that there is more than one race on the bottom, it often obscures the multiracial effects of legal and political regimes that formally are articulated in Black/White racial terms. Finally, Professor Carbado suggests that, among other additional problems with the critique of the BlacklWhite paradigm, the critique often elides the asymmetrical relationship between Blacks and Whites, failing adequately to consider the cumulative social costs of occupying the negative end of a rigorously policed binary.
Emily M.S. Houh & Kristin Kalsem, It's Critical: Legal Participatory Action Research, 19 Mich. J. Race & L. 287-343 (2014), HeinOnline, SSRN
Abstract: The ongoing community-based research project that we describe in this article will contribute, we hope, to an understanding of the fringe economy by offering insights into what remains "unexplained" in the current existing literature, namely the gender and race disparities relating to who uses "alternative financial service" (AFS) products. This article likewise contributes to a growing body of literature within Critical Race Theory and Critical Race Feminism that deals with economic inequalities and how they are inextricably and structurally linked to race and gender subordination. By explicitly incorporating "participatory action research" (PAR) values and methods into our work as critical race/feminist scholars and researchers, we offer in this article a "new" way of doing critical race/feminist work that is designed specifically to enable likeminded legal scholars to "get out of [the ivory tower]...and hear from people firsthand." Our PAR intervention puts the voices and concerns of community stakeholders and research partners at the center of the work itself. Thus, our approach, which we call legal PAR, makes its most significant and original contribution to the existing legal scholarship by not only "looking to the bottom" in a theoretical sense, but also by treating those "at the bottom" as equal research partners who are presumptively best situated to identify, analyze, and solve problems that directly affect them.
The article presents an overview of some recent empirical studies on those most likely to use "alternative financial services," also known as the "unbanked" and "underbanked." It also discusses and critiques the relevant legal literature on fringe banking and the unbanked and underbanked, and highlights some organizational efforts that aim not only to protect the unbanked and underbanked from predatory lending practices, but also seek to encourage and facilitate more responsible lending practices and innovations. The article introduces PAR, including its origins and critical developments, specifically highlighting the ways in which feminism, intersectionality, and CRT have and are continuing to impact the field. Finally, the article makes the case that PAR has much to offer legal scholars and scholarship while also setting forth some challenges — and resulting benefits — of doing legal PAR.