Readings on Race, Class, Sex, and Sexuality Related to First-Year Courses

Prepared for the Dean's Advisory Committee on Diversity by Mary Whisner,
Marian Gould Gallagher Law Library
April 30, 2010

To use the links to the articles, HeinOnline is often the best option.

  • To use HeinOnline from off campus, go to the Gallagher Law Library's homepage (click on the "Off-Campus Access" link in the upper right corner, and log in with your UW NetID).
  • Documents on SSRN may be downloaded free.
  • Many articles will be available in several places.
    • To find online journals, use the law library's EJournals list.
    • In Westlaw, use "Find."
    • In LexisNexis, use "Get a Document."

see Table of Contents

Civil Procedure


Kevin R. Johnson, Integrating Racial Justice into the Civil Procedure Survey Course, 54 J. Legal Educ. 242-63 (2004), HeinOnline, SSRN .

Topics include:

  • Subject matter jurisdiction: citizens, out-of-staters, foreigners
  • Due process: notice and the opportunity to be heard
  • Class actions and impact litigation
  • Pleading and access to the courts
  • Summary judgments
  • Jury trials – immigrants, language requirements, felons, peremptory challenges
  • Fairness for racial minorities in civil litigation
  • Gender and class

Abstract: With the knowledge that civil procedure touches on important social justice concerns, this article lays out the case for raising issues of race, as well as class and gender, in the civil procedure survey course. There is every reason to try to integrate the most pressing social issues of our times in a class in which they naturally fit. This article also offers concrete suggestions on how one might integrate these issues into the survey course in civil procedure. In so doing, many examples are taken from cases included in John J. Cound, Jack H. Friedenthal, Arthur R. Miller, John E. Sexton, Civil Procedure: Cases and Materials (8th ed., 2001), perhaps the leading casebook, as well as one of the most traditional, in the field. This casebook has proven to be an effective teaching tool for civil procedure professors at schools across the country and, perhaps surprisingly to some, neatly lends itself to the integration of race, class, and gender into class discussion.

Anthony Victor Alfieri, Discovering Identity in Civil Procedure. Southern California Law Review, Vol. 83, 2010; University of Miami Legal Studies Research Paper No. 2009-26, SSRN.

This essay explores the story of Floride Norelus, an undocumented Haitian immigrant, her civil rights lawyers, and the judges who didn't believe them. The backdrop for Norelus's story comes out of Ariela J. Gross's new book What Blood Won't Tell: A History of Race on Trial in America. In What Blood Won't Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. . . .

This Essay extends Gross's historical scrutiny of identity trials to contemporary civil rights debates over the construction of race in law and litigation. The Essay is divided into three parts. Part II maps Gross's analysis of racial identity trials, explicating her notions of racialized common sense and performance. Part III examines the trial and appellate litigation in Floride Norelus's civil rights case [1994-2007]. Part IV considers alternative approaches to civil rights litigation embodied in identity performance and empowerment strategies.

Table of Contents

Civil Procedure: Alternative Dispute Resolution

Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (1991), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Studies the rise and use of mediation as an alternative to adversarial adjudication in divorce and child custody cases. Argues that although many who have used the process are pleased with it, mediation, particularly of the involuntary type, has many potentially harmful consequences. For example, despite the general assumption that mediation is "gentler" than litigation, the process can easily assume adversarial characteristics. Mediation can also lead to suppression of necessary [*492] anger in women. Further, the intimate setting of mediation provides an environment where racial and sexual prejudices can flourish.

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Civil Procedure: Class Actions

Hillary Jo Baker, Note, No Good Deed Goes Unpunished: Protecting Gender Discrimination Named Plaintiffs from Employer Attacks, 20 Hastings Women's L.J. 83-128 (2009), HeinOnline

This Note will cast light upon the frequent attacks deployed against women serving as named plaintiffs in sex discrimination class actions under Title VII of the Civil Rights Act of 1964.3 Because the bulk of these practices are "behind the scenes" of litigation and typically are not described in judicial opinions, this Note will tell the anecdotal stories gleaned from interviews with prominent plaintiffs' class counsel and a named plaintiff.

A core belief underlying this Note is that sex discrimination class actions are an essential tool for civil rights reform. Those brave enough to put their names and livelihoods front and center in these contentious, high-stakes proceedings are performing what Nantiya Ruan describes as an "essential and difficult public service."
p. 84 (citation omitted)

Allen R. Kamp, The History Behind Hansberry v. Lee, 20 U.C. Davis L. Rev. 481 (1987), HeinOnline

Jay Tidmarsh, The Story of Hansberry: The Rise of the Modern Class Action, in Civil Procedure Stories 233-93 (Kevin M. Clermont ed., 2d ed. 2008), KF8839.C455 2008 at Reference Area

  • Discusses Hansberry v. Lee, 311 U.S. 32 (1940), a case challenging racially restrictive covenants that went to the Supreme Court on issues of class actions, adequacy of representation, and conflicts of interest.
  • Lorraine Hansberry, the young daughter of one of the named parties, later wrote Raisin in the Sun.

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Civil Procedure: Discovery

Katie M. Patton, Note, Unfolding Discovery Issues That Plague Sexual Harassment Suits, 57 Hastings L.J. 991-1007 (2006), HeinOnline

This Note surveys some of the more common discovery issues that plague sexual harassment suits. Part I provides a brief overview of a sexual harassment claim and the specific elements needed for this cause of action. Part II will examine the struggle between the policies underlying Rule 26 (generally allowing parties to engage in a broad scope of discovery) with the Rule 412 presumption aiming to protect a sexual harassment plaintiff's right to privacy. Part III examines compelled mental examinations and their underlying worth in determining the scope and amount of distress the victim suffered as quantified in damages the plaintiff should receive. Part IV will focus on the relatively new issues that arise with electronic discovery and specifically how that will come to impact a plaintiff's ability to bring forth a sexual harassment suit. In conclusion, I will discuss briefly how Rule 412 plays a reactive, rather than proactive role in the discovery process, and the impact of that role on a sexual harassment plaintiff during the discovery process.

p. 993

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Civil Procedure: Injunctions: Walker v. City of Birmingham, 388 U.S. 307 (1967)

David Benjamin Oppenheimer, Martin Luther King, Walker v. City of Birmingham, and the Letter from Birmingham Jail, 26 U.C. Davis L. Rev. 791-833 (1993), HeinOnline

David Benjamin Oppenheimer, Kennedy, King, Shuttlesworth and Walker: The Events Leading to the Introduction of the Civil Rights Act of 1964, 29 U.S.F. L. Rev. 645-79 (1995), HeinOnline

David Luban, Difference Made Legal: The Court and Dr. King, 87 Mich. L. Rev. 2152-224 (1989), HeinOnline

My aim in this essay is to contrast two legal retellings of the same event: a set of demonstrations sponsored by the Southern Christian Leadership Conference in Birmingham, Alabama in 1963 that led to the arrest and incarceration of Martin Luther King, Jr. One is the Supreme Court majority opinion in Walker v. City of Birmingham, sustaining King's conviction; the other, King's own defense of his actions in his Letter from Birmingham Jail. I wish to show how the self-same event entails radically different legal consequences when it appears in different narratives, one the Supreme Court's official voice, the other the excluded voice of one of the defendants whose condemnation the Supreme Court affirmed.

p. 2156 (citations omitted)

Table of Contents

Civil Procedure: Jurisdiction

Judith Resnik, Categorical Federalism: Jurisdiction, Gender & the Globe, 111 Yale L.J. 619-80 (2001), SSRN, LegalTrac, HeinOnline

This essay analyzes the idea, put forth in the new federalism jurisprudence of the United States Supreme Court, that "the Constitution requires a distinction between what is truly national and what is truly local." This mode of analysis has generated a posture I term categorical federalism; the Court assumes that a particular law can be categorized by identifying its aims as governing certain aspects of human behavior. The litigation about the Violence Against Women Act provides a first example. In United States v. Morrison, the majority claimed that what Congress had termed a "civil rights remedy," enacted through its Equal Protection and Commerce Clause powers, was instead related to families and crime because violence against women was not "economic in nature." The majority then proceeded to identify families as a subject matter for state, rather than federal, lawmaking. The litigation about a state's human rights law, Crosby v. National Foreign Trade Association, offers a second example. There, the majority focused on a Massachusetts' prohibition on purchasing goods made with forced labor as relating to foreign affairs, rather than police powers and state spending.

Categorical federalism posits and promises clearly delineated allocations of power by suggesting that authority flows "naturally" through the history of the United States from a topic to a geographically-located government. As federal judges distinguish the "truly local" from the "truly national," they abjure responsibility by casting their project as an empirical one aimed at implementing agreements forged in 1789.

But the reference back to the founding does not work, for the "federal" had yet to be made. And the descriptive claim about what "the federal" became also fails. Decades of constitutional law creates substantive rights anchored in the Fourteenth Amendment for parents and children, just as decades of federal legislation - addressing welfare, pension, tax, bankruptcy, and immigration - define membership in groupings denominated "families" by the national government. Further, both civil and criminal federal law regulate child support obligations. Similarly, as a descriptive matter, state and localities have an array of relationships with countries and norms outside the United States. And lawmaking by localities - such as Massachusetts's law related to forced labor - are products of networks that span local, national, and international organizations.

Categorical federalism not only fails as a description, it is also harmful, for it deflects attention from the many political and legal judgments made by the national government in its regulation of the lives of current and former householders, and made by local governments in their relations with economies outside the United States. Just as it cloaks national and local powers from view, categorical federalism also provides a false sense of security from transnational lawmaking.

To interrupt the embrace of categorical federalism, I offer another approach, termed multi-faceted federalism, which acknowledges the reliance on categories but refuses to ascribe a single mark of identity to a given law and which presumes governance may reside at multiple sites. When conflicts among legal regimes exist, multi-faceted federalism makes the assignment of preemptive power to a particular level of government but does so with a presumption against permanency.

By examining shifting roles for women, by detailing the interrelationships among violence, family and women's economic capacity, and by examining changing laws both within the United States and beyond (such as the U.N. Convention on the Elimination of All Forms of Discrimination Against Women), this essay demonstrates that multi-faceted federalism provides a better description of current practices and a better set of aspirations for living in a world increasingly, and painfully, of permeable borders.

Judith Resnik, Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 15 Yale J. L. & Feminism 393-418 (2002), SSRN

This essay has five themes. First, jurisdiction has gender. Whenever power is being allocated between state and federal courts, one must ask not only how women are treated but how the allocation affects our understanding of the problems that belong to women and to men. By drawing jurisdictional lines, polities may also be drawing gender lines. We must probe both the jurisdiction in gender, and the gender in jurisdiction.

Second, I counsel against assuming that any particular jurisdiction is necessarily a safe harbor for women's equality. Equality is not an artifact of the level of a court or of a government body but of who has power within it and what their commitments are. Therefore, I am opposed to what I have termed "categorical federalism," to rigid equation of any particular level of governance with a particular set of problems or a particular view of them. Laws are not unidimensional but often affect many aspects of a person's life. Opponents of VAWA who wanted to label it a statute about families and about crime were right to understand that it did implicate family life and street crime. But they were wrong to see the provision in only those terms. VAWA was also about the relationships among violence, commerce, and equal citizenship. But proponents of equal citizenship ought not to assume that national or transnational legislation could ever suffice to alter the material conditions of women's lives. They need to look to state as well as national and international efforts to forward those goals.

My third point is to enlarge the frame beyond the arguments that jurisdictions can become gendered and that jurisdictional divides are one of the many mechanisms by which women and men are distinguished. Gender systems are themselves forms of jurisdiction. At its core, the sex/gender system is a system of boundaries. Many of the successes that have advanced women's equality have come by reframing understandings of the range of possibilities of both women and men, by redrawing some boundaries, and by erasing others. To do so has required detaching assumptions of the naturalness of differences between women and men and replacing those assumptions with appreciation for the breadth of capacities that all persons possess.

Feminism has long known that it had much to fix. That women had to come to terms with the political construction of the family has long been obvious. That women had to focus on violence has also been readily evident. What I hope to show is that feminism must also take on the conceptual underpinnings of this federation. We need to understand the assignment of roles within it to state, local, and national institutions and to demonstrate the way in which gender and patriarchal assumptions infuse understandings of the categories of federalism and of the very meaning of the powers permitted to the national government. Thus, and fourth, in addition to projects related to women's work, to violence, and to families, feminists must add questions of federalism to the list of structures and practices requiring refurbishing.

Fifth, to work successfully to create women's equality depends upon collaboration - among women, between women and men, and across levels of government.

Table of Contents

Civil Procedure: Summary Judgment

Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705-77 (2007), HeinOnline

In this Article, I turn to one of the most important procedural devices in federal civil procedure-summary judgment-and examine its problematic application through a study of gender cases. Identifying a new dimension of the interrelationship between procedure and gender, I explore the ways in which summary judgment impacts cases involving gender and how gender impacts judicial decision making on summary judgment. I use these insights to analyze the dangers of current summary judgment practice and propose reforms.

pp. 705-76

Deseriee A. Kennedy, Processing Civil Rights Summary Judgment and Consumer Discrimination Claims, 53 Depaul L. Rev. 989-1012 (2004), HeinOnline

Plaintiffs in consumer discrimination cases face significant substantive and procedural hurdles in articulating viable claims. This Article discusses the way in which the prevailing procedural standards undermine the ability of plaintiffs to pursue consumer discrimination claims. It raises the concern that premature dismissals of these claims unduly silence plaintiffs, hinder the ability of the Civil Rights Acts to fairly address issues of societal discrimination, and prevent a broader understanding of the subtle ways in which racism continues to be manifested.

pp. 989-90.

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Constitutional Law

Note: The aspects of constitutional law covered in upper-level courses such as Equal Protection and the First Amendment often deal with race, class, sex, and sexuality. Including books and articles on those topics would overwhelm this reading list. This list focuses on topics typically covered in the first-year course: the structures of government and the processes of constitutional adjudication.

Constitutional Law: General

George Anastaplo, 'Racism,' Political Correctness, and Constitutional Law: A Law School Case Study, 42 S. Dak. L. Rev. 108-64 (1997), HeinOnline.

In the fall of 1995, students in a meeting complained of allegedly racist remarks by Prof. Anastaplo in his Constitutional Law class. Over the next several months, he discussed the issue in lectures to his students and memos to his colleagues. This law review article reproduces those documents.

Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 Cal. L. Rev. 1512-97 (1991), HeinOnline.

  • Property class
    • Roots of title in the New World – pp.1521-23
    • Slavery – pp. 1523-26
  • Race and the Constitution – pp. 1539-54

Anthony E. Cook, The Temptation and Fall of Original Understanding, 1990 Duke L.J. 1163 (reviewing Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1989)), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Explains why the version of historicist judicial philosophy embraced by Robert Bork's conception of original understanding is an impoverished approach to constitutional interpretation. Argues further that Bork's insistence on a color-blind Constitution silences the very voices who must be heard -- those of African-Americans, whom the Thirteenth, Fourteenth, and Fifteenth Amendments were designed to protect.

Randall Kennedy, Afro-American Faith in the Civil Religion; Or, Yes, I Would Sign the Constitution, 29 Wm. & Mary L. Rev. 163-68 (1987), HeinOnline

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Constitutional Law: Dormant Commerce Clause

Marybeth Herald & Julie A. Greenberg, You Can't Take It With You: Constitutional Consequences of Interstate Gender-Identity Rulings, 80 Wash. L. Rev. 819-885 (2005) SSRN, HeinOnline

Contradictory approaches to defining male and female can create bizarre and confusing results as transsex persons cross state lines and find that their legal sex changes according to the laws of a given jurisdiction. Recent U.S. decisions establishing a person's legal sex have adopted a kaleidoscope of approaches that range from the absurd (a man must be able to fertilize ovum and beget offspring, while women must produce ova and bear offspring), to the religious (gender is immutably fixed by our Creator at birth), to the scientific (gender itself is a fact that may be established by medical and other evidence). Under current laws and state court rulings, a male-to-female transsex person is legally a woman in approximately one-half of the states and legally a man in the other one-half of the states. This article discusses the constitutional implications of the varied approaches to determining a person's legal sex. It concludes that states that refuse to recognize an amended birth certificate from a sister state violate principles of full faith and credit and unconstitutionally infringe upon the right to travel under the dormant Commerce Clause. In addition, when states impose sex tests that are based on gender stereotypes and force people to live as the sex that conflicts with their self-identified sex, they violate the Fourteenth Amendment's equal protection and substantive due process mandates.

Joseph R. Palmore, Note, The Not-So-Strange Career of Interstate Jim Crow: Race, Transportation, and the Dormant Commerce Clause, 1878-1946, 83 Va. L. Rev. 1773-1817 (1997), LexisNexis

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Constitutional Law: Federalism

Akhil Reed Amar, Race, Religion, Gender, and Interstate Federalism: Some Notes from History, 16 Quinnipiac L. Rev. 19 (1996) LexisNexis

Paul Finkelman, Race, Federalism, and Diplomacy: The Gentlemen's Agreement a Century Later, 56 OSAKA U. L. REV. 1-30 (2009), SSRN

Abstract: In 1908 the governments of Japan and the United States completed the final negotiations on an informal, non-binding "Gentlemen's Agreement" to limit Japanese immigration to the United States. The one hundredth anniversary of the final "Gentlemen's Agreement" in 2008 provides an appropriate moment to revisit these Agreements and reconsider their place in history.

Barbara Holden-Smith, Lynching, Federalism, and the Intersection of Race and Gender in the Progressive Era, 8 Yale J.L. & Feminism 31 (1996) HeinOnline

Calvin Massey, THE CURRENT LEGAL FRAMEWORK OF SEX/GENDER DISCRIMINATION LAW: Congressional Power to Regulate Sex Discrimination: The Effect of the Supreme Court's "New Federalism", 55 Me. L. Rev. 63 (2003) HeinOnline

Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947 (2002), SSRN, HeinOnline

Abstract: Americans debated questions of women's citizenship for over a half century before adopting the Nineteenth Amendment, but neither the Amendment nor its history now plays any role in modern interpretations of the Constitution. Instead, the Supreme Court addresses questions of women's citizenship under the Fourteenth Amendment, reasoning about problems of sex discrimination by analogy to problems of race discrimination. This framework denies sex discrimination law a foundation in constitutional history, and, in so doing, weakens its apprehension of issues affecting women's status and its authority to address them. The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government. The article closes by considering how this new, historically grounded approach to questions of sex discrimination under Sections One and Five of the Fourteenth Amendment would enable a different constitutional analysis of the portions of the Violence Against Women Act struck down in United States v. Morrison.

Peter Wallenstein, Law and the Boundaries of Place and Race in Interracial Marriage: Interstate Comity, Racial Identity, and Miscegenation Laws in North Carolina, South Carolina, and Virginia, 1860s-1960s, 32 Akron L. Rev. 557 (1999), HeinOnline

Table of Contents

Constitutional Law: Federalism and Same-Sex Marriage

Brian Bix, State of the Union: the States' Interest in the Marital Status of Their Citizens (Undated), SSRN

With the prominence of arguments for and against same-sex marriage and covenant marriage, the state regulation of marriage has again assumed prominence.

The claim, prominent in both judicial opinions and commentaries, that states have a substantial interest in the marital status of their citizens, reflects a usually unstated and unargued-for view of federalism. Additionally, the claim runs up against certain constitutional provisions (e.g., the right to interstate travel and the right to privacy), certain pieces of federal legislation, and the reality of a mobile society, which combine to undermine the ability of individual states to regulate marriage, as well as the justifications for their doing so. The paper also considers whether it is coherent for states to claim a substantial interest in their citizens' being married, while simultaneously making exit from marriage easy (through no-fault divorce) and creating no significant disincentives for cohabitation or raising children outside of marriage.

Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 68 S. Cal. L. Rev. 745 (1995), HeinOnline

Stanley E. Cox, Nine Questions about Same-Sex Marriage Conflicts, 40 New Eng. L. Rev. 361-408 (2006), HeinOnline, LexisNexis, Westlaw

Abstract (from Sexual Orientation and the Law bibliography):

This eminently readable article articulates the conflict of laws issues raised by same-sex marriage. Included are discussions of the obligations of states to respect other states' laws or judgments, and whether DOMA violates the Full Faith and Credit Clause.

Matthew L. M. Fletcher, Same Sex Marriage, Indian Tribes, and the Constitution, 61 U. Miami L. Rev. 53-85 (2006), SSRN, HeinOnline

Abstract: This Article explores the impact of a same-sex marriage amendment on the place of Indian tribes in the federal constitution. A same-sex marriage amendment, depending on the text, might serve to incorporate Indian tribes into the federal union as the third sovereign. The Constitution has not been amended to incorporate Indian tribes into the federal union, rendering their place in Our Federalism uncertain and unpredictable. A same-sex marriage amendment that applies to limit or expand tribal authority to recognize or authorize same-sex marriage could constitute an implicit recognition of Indian tribes as the third sovereign in the American system of federalism. Even an amendment that excludes mention of Indian tribes may have something to say about Indian tribes as the third sovereign.

Spencer J. Jenkins, 'Till Congress Do Us Part: The Marriage Protection Act, Federal Court-Stripping, and Same-Sex Marriage, 40 New Eng. L. Rev. 619-661 (2006), HeinOnline, LexisNexis, Westlaw

Abstract (from Sexual Orientation and the Law bibliography):

The Marriage Protection Act of 2004 (MPA), or House Bill 3313, would strip the federal courts of jurisdiction over same-sex marriage cases. This article provides some history of the MPA. It examines the federal courts' powers of judicial review, and Congress's power over the courts. It concludes that attempts to curtail judicial review through the MPA would be unconstitutional. Equal protection, full faith and credit, and due process analyses are all discussed.

Nancy J. Knauer, Same-Sex Marriage and Federalism, 17 Temp. Pol. & Civ. Rts. L. Rev. 421 (2008), HeinOnline, LexisNexis, SSRN, Westlaw

Abstract (from SSRN):
The increasing willingness of states to recognize same-sex relationships illustrates the central theme of this Symposium: federalism provides states the freedom to experiment with novel solutions to pressing social issues. The development of progressive policies seems to bear out Justice Brandeis' optimistic vision of federalism where "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

With respect to same-sex relationships, however, state level reform efforts have not been uniformly progressive. To the contrary, the vast majority of these efforts prohibit the legal recognition of same-sex relationships and, in many instances, have been downright hostile to same-sex couples and their families. This widespread anti-marriage and anti-recognition sentiment should serve as a valuable reminder that there is nothing inherently progressive about state-level attempts to address social issues. To the contrary, the mantle of federalism has been used to justify some of this country's most ignoble legal practices, specifically the Jim Crow laws. Federalism is an institutional alternative; it is not necessarily a political ideology. Federalism can facilitate both a progressive and a conservative impulse, and, in the case of same-sex relationships it does both.

The Essay makes three observations concerning the current legal status of same-sex relationships and the inadequacy of state and local reform measures to secure broad based minority rights. Part I of this Essay maps the current legal status of same-sex relationships and notes that, despite considerable gains, state level reform has been designed largely to deny legal recognition for same-sex couples. Part II establishes that federalism offers, at best, an imperfect institutional choice for those seeking broad based minority rights because state level protections currently are not portable and are particularly vulnerable to being overturned through majoritarian measures such as citizens' initiatives.

Finally, Part III explores the human cost of the existing lack of uniformity among the states regarding the recognition of same-sex relationships. The confusing and conflicting status of same-sex relationships weighs heavily on same-sex couples. Four out of five same-sex couples live in jurisdictions without relationship protection. These partners remain legal strangers to one another with no reliable way to designate their partners as family. The one in five couples who reside in a jurisdiction with relationship recognition enjoy a certain level of protection within the borders of their own state, but must travel at their own risk.

Abstract (from Sexual Orientation and the Law bibliography):
All too often the debate over same-sex marriage takes on an erudite, disinterested intellectual tone as constitutional issues are pondered, social trends reviewed, and judicial opinions summarized. Knauer, a frequent writer on the topic, does some of this in her brief article about the shortcomings of federalism for this topic. The eye is drawn, however, to the concluding section which points out the real human costs of the disparate state approaches concerning gay and lesbian relationships.

Andrew Koppelman, The Difference the Mini-DOMAS Make, 38 Loy. U. Chi. L. J. 265-278 (2007), LexisNexis, Westlaw, HeinOnline

Abstract (from Sexual Orientation and the Law bibliography):
This author examines some issues that arise under various state "defense of marriage" laws. He identifies a number of issues that aren't generally covered by those laws, such as persons migrating to the state, individuals attempting to avoid obligations incurred in other states, and litigation related to children of same-sex marriages who are now residing in the state. A number of attempts to deal with those situations, either by denying "contractual rights" to same-sex couples, by refusing to enforce judgments from other states related to same-sex unions, or by "blanket nonrecognition," are most likely unconstitutional, because they either violate the Equal Protection or Full Faith and Credit clauses of the U.S. Constitution.

Marc R. Poirier, Same-Sex Marriage, Identity Processes, and the Kulturkampf: Why Federalism Is Not the Main Event, 17 Temp. Pol. & Civ. Rts. L. Rev. 387 (2008), HeinOnline, LexisNexis, SSRN, Westlaw

Abstract (from SSRN):
Federalism is implicated in an important subset of arguments around issues of legal treatment of same sex marriage and other same sex unions. But federalism is not the main event. It fails to account for or address the goals of strategizing around the deep cultural conflict of which the struggle for marriage equality is a part. This essay labels "experimental federalism" one traditional justification for federalism as the laboratories of the states; and it labels "resource matching federalism" another traditional justification that seeks to find the best level of government to manage specific resources. The Kulturkampf over marriage, gender, sexuality and family is neither of these types of federalism. It is instead "beachhead federalism," in which deeply divided partisans seek to compel the entire polity to choose their approach from the outset, and a state-by-state patchwork is the contingent result of differential cultural and political forces, rather than of any rational, deliberate and stable choice of governmental level.

To account for and strategize the current Kulturkampf, we must look elsewhere. The essay argues that the deep cultural division over marriage fundamentally is driven by disagreement over gender and sexual identity in individuals and gender and sexual identity as shared and replicated tradition. Gender and sexual identity depend on microperformances. Microperformances are either observed and contested in specific local places, or are visible and contested in an ageographic discursive space. These processes are at once very small scale and very large scale. But neither local place nor disembodied, media-dependent discursive space is fundamentally at the scale of state-by-state and state-local jurisdictional differentiation, which is at the center of standard discussions of federalism and localism. In sum, federalism raises tactical issues of considerable importance, but is not the main event, because the Kulturkampf is about microperformances of identity and their shared meaning.

Abstract (from Sexual Orientation and the Law bibliography):
Rather than a legitimate experiment in the laboratories of the states, federalism offers instead a stage of historical accident for the thrashing out of the same-sex marriage controversy. Poirier frames the struggle instead as a "kulturkampf," or culture war, a term invoked by U. S. Supreme Court Justice Scalia in his Romer v. Evans dissent (517 U.S. 620, 636 (1996)). The error of the first view is that the state is the proper level of analysis at which to frame the central arguments at issue in marriage adjudication. In contrast, Poirier points out that the "core dynamics are either local and place-based, or are universal and aterritorial." Resort to federalism is therefore "tactical" rather than central, a "beachhead" attempt to make opportunistic arguments. "Where Kulturkampf and cultural identity are concerned, federalism simply is not the main event."

Cynthia M. Reed, When Love, Comity, and Justice Conquer Borders: INS Recognition of Same-Sex Marriage, 28 Colum. Human Rights L. Rev. 97- 134 (1996), HeinOnline

Jeffrey L. Rensberger, Interstate Pluralism: The Role of Federalism in the Same-Sex Marriage Debate, 2008 B.Y.U.L. Rev. 1703, SSRN

Abstract: This paper discusses the role of federalism in the debate over interstate recognition of same-sex marriages. It examines and rejects as simplistic the argument that the role of full faith and credit is to promote greater national uniformity. Instead, full faith and credit requires a balancing between the policy of uniformity and its counterweight, state autonomy and particularism (which is termed interstate pluralism). The paper identifies how interstate pluralism is reflected in a wide variety of ways in the law. It then seeks to show the benefits to the individual of having different legal communities to choose from. It then uses extensive economic and demographic data to demonstrate just how pluralistic are states are. It concludes that state should generally apply forum law to decide whether to recognize same-sex marriages.

Gennaro Savastano, Comment, Comity of Errors: Foreign Same-sex Marriages in New York, 24 Touro L. Rev. 199 - 221 (2008), HeinOnline

Joan E. Schaffner, The Federal Marriage Amendment: To Protect the Sanctity of Marriage or Destroy Constitutional Democracy?, 54 Am. U. L. Rev. 1487- (2005), SSRN, HeinOnline

For the several years, primarily as a political ploy, the President and Republican Congress, proposed an amendment to the US Constitution to prohibit marriage between people of the same sex - the Federal Marriage Amendment. This article analyzed this proposed amendment in light of the constitutional principles that govern our society, individual rights, federalism, separation of powers, and judicial review. The article concludes that the FMA is itself constitutionally suspect and is more destructive, on balance, of the basic democratic constitutional principles than any amendment previously adopted or proposed. The amendment violates every tenet of constitutional democracy by: (1) expressly limiting the due process and equality interests of a minority group; (2) precluding the Supreme Court from fulfilling its role as the protector of individual rights; and, (3) foreclosing the states from experimenting with progressive laws designed to promote equality within an area uniquely reserved to the state governments.

Linda J. Silberman, Can the Island of Hawaii Bind the World? A Comment on Same-Sex Marriage and Federalism Values, 16 Quinnipiac L. Rev. 191 (1996), LexisNexis

Gary J. Simson, Beyond Interstate Recognition in the Same-Sex Marriage Debate, 40 U.C. Davis L. Rev. 313-383 (2006), LexisNexis, NELLCO (free), Westlaw

Abstract (from Sexual Orientation and the Law bibliography):
The author begins with a brief discussion of the federal Defense of Marriage Act, and the Full Faith and Credit Clause of the U.S. Constitution, and finds that neither is dispositive on the issue of whether a same-sex marriage in one state must be recognized in another. He then analyzes the New York state case In re May's Estate [148 N.E.2d 4 (N.Y. 1953)] to see whether a choice-of-law argument might help proponents of same-sex marriage to advance their claims. While the decision in May's Estate would seem to do so, the author finds the case to have been improperly decided. He concludes, however, that the Equal Protection, Due Process, and Establishment Clauses of the U.S. Constitution would require a state to recognize same-sex marriages performed in another state.

Lynn D. Wardle, From Slavery to Same-Sex Marriage: Comity Versus Public Policy in Inter-jurisdictional Recognition of Controversial Domestic Relations, 2008 B.Y.U.L. Rev. 1855- ,HeinOnline

Rhonda Wasserman, Are You Still My Mother?: Interstate Recognition of Adoptions by Gays and Lesbians, 58 Am. U. L. Rev. 1-83 (2008), HeinOnline, LexisNexis, Selected Works (free), Westlaw

Abstract (from Sexual Orientation and the Law bibliography):
Are states required by the U.S. Constitution to recognize an adoption degree in another state regardless of the parents' sexual orientation. At least one state -- Oklahoma -- and one high-profile commentator -- Lynn Wardle -- say no, that, in the latter's words, "in many situations nonrecognition of lesbigay adoption decrees would be proper and permissible." Wasserman examines four different rationales to support such a conclusion, finding all to be flawed. Wardle's antigay posture, she argues, is contrary to "both Supreme Court precedent and an overriding policy favoring permanency in parent-child relationships."

Adam Weiss, Federalism and the Gay Family: Free Movement of Same-Sex Couples in the United States and the European Union, 41 Colum. J.L. & SOC. Probs. 81- (2007), HeinOnline

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Constitutional Law: Fugitive Slave Clause

Ronald S. Sullivan Jr., Classical Racialism, Justice Story, and Margaret Morgan's Journey from Freedom to Slavery: The Story of Prigg v. Pennsylvania, in Race Law Stories 59-87 (Rachel F. Moran & Devon W. Carbado eds., 2008), KF4755 .R33 2008, Reference Area

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Constitutional Law: Immigration and Citizenship

Erika Lee, Birthright Citizenship, Immigration, and the U.S. Constitution: The Story of United States v. Wong Kim Ark, in Race Law Stories 90-109 (Rachel F. Moran & Devon W. Carbado eds., 2008), KF4755 .R33 2008, Reference Area

Janel Thamkul, The Plenary Power-Shaped Hole in the Core Constitutional Law Curriculum: Exclusion, Unequal Protection, and American National Identity, 96 Cal. L. Rev. 553 (2008), HeinOnline

[T]wo key constitutional cases involving immigration and citizenship, Chae Chan Ping v. United States and Fong Yue Ting v. United States, profoundly affect the development of the American national identity, but are notably absent from the legal curriculum. These two cases are the roots of Congress's plenary power over immigration, which maintains that "the power of Congress over the admission of aliens to this country is absolute."' This plenary power has effectively immunized the federal government's substantive immigration decisions from judicial scrutiny.

p. 555 (citations omitted)

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Constitutional Law: Indian Sovereignty

See Fletcher above.

Rennard Strickland, The Tribal Struggle for Indian Sovereignty: The Story of the Cherokee Cases, in Race Law Stories 37-57 (Rachel F. Moran & Devon W. Carbado eds., 2008), KF4755.R33 2008 at Reference Area

  • Discusses Cherokee Nation v. Georgia, 30 U.S. 1 (1831) and Worcester v. Georgia, 31 U.S. 515 (1832).

Table of Contents


Contracts: General

Anthony R. Chase, Race, Culture, and Contract Law: From the Cottonfield to the Courtroom, 28 Conn. L. Rev. 1-66 (1995), LexisNexis

The intent of this Article is to heighten the level of consciousness through a form of cultural critique that explores the ways in which our collective and individual beliefs about and practices concerning race influence the development of contract doctrine: how we interpret it, how we apply it, and how such interpretations and applications reciprocally influence what we believe about race. Through heightened consciousness of racial beliefs we can, as Americans, begin to free our nation, our legal system, and our people from perpetuating the "inexorable plot of racism" bequeathed to us by our history.

[T]his Article first explores the history of U.S. contract law and theory and relates it to the experience of African Americans during the period of slavery and immediately thereafter. [Next it] analyzes the modern problem of race discourse by comparing the theories of race consciousness and race neutrality and their connection to Critical Race Theory and Critical Legal Studies. The next part addresses the role of race in legal scholarship by focusing on the impact of racism on legal theory and teaching. [This part] reviews the treatment of African-Americans by major contract casebooks and offers suggestions for implementing race and cultural consciousness into a legal education's core curriculum. Finally, this Article concludes that implementing race consciousness in the legal classroom and beyond is the only effective means of eliminating the role that past injustices have played in African-American contracts and contacts in our society.

p. 6

Clare Dalton, Deconstructing Contract Doctrine, 94 Yale L.J. 997-1114 (1985), excerpted in Feminist Legal Theory: Readings in Law and Gender 287-304 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), K644.Z9 F46 1991 at Classified Stacks

David R. Dow, Law School Feminist Chic and Respect for Persons: Comments on Contract Theory and Feminism in "the Flesh-Colored Band Aid", 28 Hous. L. Rev. 819 (1991), HeinOnline

Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 Am. U.L. Rev. 1065-1140 (1985) (discussing J. DAWSON, W. HARVEY & S. HENDERSON, CASES AND COMMENT ON CONTRACTS (4th ed. 1982)), HeinOnline

First, I want to demonstrate that readers' views about gender affect their understanding of a law casebook. Second, I want to demonstrate that gendered aspects of a casebook affect readers' understanding of the law and of themselves. If these endeavors are successful, I hope that casebook readers will be liberated from some of their opinions about gender, opinions that casebooks foster and sustain. Indeed, this Essay is designed to contribute to the feminist effort to diminish the power that ideas about gender exercise over our lives. I also hope, somewhat paradoxically, that exposing and examining gender in a casebook will liberate and vitalize qualities within readers, as well as approaches to contract doctrine, that are currently linked with women.

p. 1065

Michele Goodwin, The Body Market: Race Politics & Private Ordering, 49 Ariz. L. Rev. 599-636 (2007), HeinOnline

Gillian K. Hadfield, An Expressive Theory of Contract: From Feminist Dilemmas to a Reconceptualization of Rational Choice in Contract Law, 146 U. Pa. L. Rev. 1235-85 (1998), HeinOnline

Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. Cin. L. Rev. 269-315 (1994), HeinOnline

Peter D. Feaver, Robert Kling & Thomas K. Plofchan Jr., Sex as Contract: Abortion and Expanded Choice, 4 Stan. L. & Pol'y Rev. 211-20 (1992), HeinOnline

Blake D. Morant, The Relevance of Race and Disparity in Discussions of Contract Law, 31 New Eng. L. Rev. 889-939 (1997), HeinOnline

Marjorie Maguire Shultz, The gendered curriculum: of contracts and careers, 77 Iowa L. Rev. 55-71 (1991), HeinOnline

Barbara Sullivan, 'It's all in the contract': rethinking feminist critiques of contract, 18 Law in Context 112-28 (2001) [check: consecutively paginated?]

Debora L. Threedy, Feminists & contract doctrine, 32 Ind. L. Rev. 1247-65 (1999), HeinOnline

Patricia A. Tidwell and Peter Linzer, The flesh-colored band aid - contracts, feminism, dialogue, and norms, 28 Hous. L. Rev. 791-817 (1991), HeinOnline

David R. Dow, Law school feminist chic and respect for persons: comments on contract theory and feminism in 'The Flesh-Colored Band Aid,' 28 Hous. L. Rev. 819-59 (1991), HeinOnline

Peter Linzer and Patricia A. Tidwell, Letter to David Dow - friendly critic and critical friend, 28 Hous. L. Rev. 861-66 (1991), HeinOnline

Kellye Y. Testy, Whose Deal is it?: Teaching about Structural Inequality by Teaching Contracts Transactionally, 34 U. Tol. L. Rev. 699 (2003), HeinOnline, SSRN

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Contracts: Duress

Deborah Waire Post, Outsider Jurisprudence and the "Unthinkable" Tale: Spousal Abuse and the Doctrine of Duress, 26 U. Haw. L. Rev. 469-87 (2004), HeinOnline

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Contracts: Empirical Studies

Ian Ayres, Further Evidence of Discrimination in New Car Negotiations and Estimates of Its Cause, 94 Mich. L. Rev. 109-47 (1995), HeinOnline

Abstract: An extensive study of new car sales negotiations reveals both that dealers continue to discriminate based on race and gender and that different discriminatory motives can be isolated using game-theoretic parameterization. The survey studied the prices faced by white males, white females, black males and black females. Differing discriminatory motives can be divined from distinguishing initial offering price differences and differing concession rates. Consumer protection laws should promote price information for consumers and no-haggle car sales.

Lawrence M. Kahn & Malav Shah, Race, Compensation and Contract Length in the NBA: 2001-2002, 44 Indus. Rel. 444-63 (2005), Ejournal

Authors' abstract: We study race and pay in the NBA for 2001u2002. For players who were neither free agents nor on rookie scale contracts, there were large, statistically significant ceteris paribus nonwhite shortfalls in salary, total compensation, and contract duration. But for players under the rookie salary scale (first-round draft picks) and free agents, race effects were small and insignificant. These results suggest discrimination against marginal nonwhite players.

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Contracts: Enforceability

David Delaney, Geographies of Judgment: The Doctrine of Changed Conditions and the Geopolitics of Race, The Annals of the Association of American Geographers 83.n1 (March 1993): pp48(18). JSTOR

Abstract: Ideological conceptions of space influence legal thought, leading to geographies of power enforced by law. The spatial character of a legal rule can yield different outcomes depending on its manipulation. Various legal interpretations of the doctrine of changed conditions (principles that allow judges to not enforce contracts) from 1917 to 1945 shed light on, and influenced, the geopolitics of race.

Andrew Gilden, Sexual (Re)Consideration: Adult Entertainment Contracts and the Problem of Enforceability, 95 Geo. L.J. 541-63 (2007), HeinOnline

Contracts: Equitable Orders

Lea S. VanderVelde, The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, 101 Yale L.J. 775-852 (1992), HeinOnline, reprinted in Contracts Stories 229-64 (Douglas G. Baird ed., 2007) (discussing Lumley v. Wagner), KF801.A2 C66 2007 at Reference Area

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Contracts: Good Faith

Emily M.S. Houh, Critical Race Realism: Re-Claiming the Antidiscrimination Principle Through the Doctrine of Good Faith in Contract Law, 66 U. Pitt. L. Rev. 455-520 (2005), HeinOnline

Emily M.S. Houh, Critical Interventions: Toward an Expansive Equality Approach to the Doctrine of Good Faith in Contract Law, 88 Cornell L. Rev. 1025- (2003), HeinOnline

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Contracts: Impossibility

Mary Joe Frug, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law, 140 U. Pa. L. Rev. 1029-47 (1992), HeinOnline

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Contracts: Slavery and Peonage

Diane J. Klein, Paying Eliza: Comity, Contracts, and Critical Race Theory - 19th Century Choice of Law Doctrine and the Validation of Antebellum Contracts for the Purchase and Sale of Human Beings, 20 Nat'l Black L.J. 1-41 (2006), HeinOnline

Benno C. Schmidt Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era: Part 2: The Peonage Cases, 82 Colum. L. Rev. 646-718 (1982), HeinOnline

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Contracts: Surrogacy Contracts

Anita L. Allen, The Socio-Economic Struggle for Equality: the Black Surrogate Mother, 8 Harv. BlackLetter J. 17-31 (1991), HeinOnline, excerpted in Applications of Feminist legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 1117-25 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

Lori B. Andrews, Surrogate Motherhood: The Challenge for Feminists, 16 Law, Med. & Health Care 72-80 (1988), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 1092-1104 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

Martha A. Field, Surrogacy Contracts - Gestational and Traditional: The Argument for Nonenforcement, 31 Washburn L.J. 1-17 (1991), HeinOnline

Joan Mahoney, An Essay on Surrogacy and Feminist Thought, 16 L. Med. & Health Care 81-88 (1988), HeinOnline

Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. Contemp. Health L. & Pol'y 21-31 (1989), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 1105-11 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

Carol Sanger, Developing Markets in Baby-Making: In the Matter of Baby M, 30 Harv. J. L. & Gender 67-97 (2007), HeinOnline , ,reprinted in Contracts Stories 127-59 (Douglas G. Baird ed., 2007), KF801.A2 C66 2007 at Reference Area

Patricia J. Williams, On Being the Object of Property, 14 Signs: J. Women in Culture & Soc'y 5-24 (1988), JSTOR, Literature Online, excerpted in Feminist Legal Theory: Readings in Law and Gender 165-80 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), K644.Z9 F46 1991 at Classified Stacks

  • Personal essay touching on many topics; discusses Baby M case at 13-16.

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Contracts: Unconscionability

Eben Colby, Note, What Did the Doctrine of Unconscionability Do to the Walker-Thomas Furniture Company?, 34 Conn. L. Rev. 625 (2002), HeinOnline

Muriel Morisey, Teaching Williams v. Walker-Thomas Furniture Co., 3 Temple Pol. & Civ. Rts. L. Ref 89 (1993), HeinOnline

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Criminal Law

Criminal Law: General

David Cole, Two Systems of Criminal Justice, in The Politics of Law: A Progressive Critique 410-33 (David Kairys ed., 3d ed. 1998), KF8700 .P65 1998 at Reference Area

On its surface, the American criminal justice system is predicated on equality. . . . Yet at the same time, the American criminal justice system is predicated on race and class inequality.

p. 428

Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 Fordham L. Rev. 13- (1998), HeinOnline

Henry F. Fradella, Stephen S. Owen & Tod W. Burke, Integrating Gay, Lesbian, Bisexual, and Transgender Issues into the Undergraduate Criminal Justice Curriculum, 20 J. Crim. J. Educ. 127 (2009), available at

Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. CIN. L. REV. 269-315 (1994), HeinOnline

Randall Kennedy, Race, Crime, and the Law (1997), KF9223 .K43 1997 at Classified Stacks

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Criminal Law: Bias Crimes

Megan Sullaway, The Psychology of Hate Crime Law, Victims, and Offenders, in Critical Race Realism: Intersections of Psychology, Race, and Law 235-45, 329-33 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks

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Criminal Procedure

Note: The first-year course addresses substantive criminal law rather than criminal procedure. So this list also focuses on substantive criminal law, but it does include some criminal procedure materials.

David C. Baldus et al., McCleskey v. Kemp (1987): Denial, Avoidance, and the Legitimization of Racial Discrimination in the Administration of the Death Penalty, in Death Penalty Stories 229-75 (John H. Blume & Jordan M. Steiker eds., 2009), KF9227.C2 D43 2009 at Reference Area.

Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, in Critical Race Realism: Intersections of Psychology, Race, and Law 271-84, 335-37 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks

Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677- (1995), HeinOnline , excerpted in CRITICAL RACE THEORY: THE CUTTING EDGE 194-203 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Sheri Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611 (1985), LexisNexis, excerpted in Critical Race Theory: The Cutting Edge 152-62 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Studies the effects of racial prejudice on black defendants. Shows that prejudice does exist among jurors because black defendants consistently have higher conviction rates than similarly-situated whites when tried by white jurors. Examines current mechanisms designed to reduce racial biases of a jury, exposing some of the inadequacies inherent in the system. Proposes a plan for comprehensive protection for defendants of color against racially biased juries, by applying a "strict scrutiny standard."

Sheri Lynn Johnson, Confessions, Criminals and Community, 26 Harv. C.R.-C.L. L. Rev. 327 (1991). HeinOnline

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Examines the principle of voluntariness in criminal confessions and the rights guaranteed to all defendants. Juxtaposes the examination of rights with the debate raging in the CLS and CRT camps about listening to the voices of color. Argues that scholars should examine the area of criminal procedure to explore the rights afforded, but often denied, defendants, and, conversely, that scholars of criminal procedure and law should enter the rights debate. This cross-exploration could expand understanding of the function of criminal rights and bring illumination to the many violations of those rights.

Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Explores the phenomenon of cross-racial misidentification in which defendants of color are mistakenly identified as perpetrators of crimes that were actually committed by an unrelated person of color. Demonstrates that the incidence of misidentification increases sharply when the perpetrator is a person of color and the witness or victim belongs to the majority group. Criticizes the adequacy of current safeguards and proposes additional measures to protect persons of color from false identification.

Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214 (1983), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Studies the association between the race of a suspect and the decision by officers to detain that suspect. Demonstrates that race is often a crucial factor in that decision and that courts use race as a factor in establishing probable cause. Argues that the use of race as a factor in determining probable cause is unconstitutional and illustrates how "casually both probabilistic and equal protection constraints are violated."

Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016 (1988), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Argues that the Supreme Court has a "blindspot" in that it is unable to identify unconscious racism as the source of racial disparities in criminal law, particularly in capital cases. Presents possible reasons for this blindness, including ignorance, fear, and denial. Once these sources are recognized, the problem can be examined more closely, yielding tools and a base of information with which to eliminate unconscious [*497] racism in other areas of law, particularly equal protection analysis.

Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 Mich. L. Rev. 48 (2000), HeinOnline, SSRN


This article takes a close look at four of the landmark criminal procedure cases of the 1920s and 1930s--Moore v. Dempsey, Powell v. Alabama, Norris v. Alabama, and Brown v. Mississippi. The article claims that it was no fortuity that modern criminal procedure originated in cases involving southern black defendants. For the Supreme Court to assume the function of superintending the state criminal process required a departure from a century and a half of tradition and legal precedent, both grounded in federalism concerns. The Justices were willing to take that leap only in cases of flagrant injustice--cases that by the 1920s and 1930s arose mainly in the South and involved black defendants charged with serious interracial crimes, usually rape or murder.

Part I makes three related points about these egregious exemplars of Jim Crow justice, which provided the occasion for the birth of modern criminal procedure. . . .

Part II evaluates the impact of these Supreme Court decisions, in terms of both the precise issues involved (e.g., black service on juries) and the general treatment of blacks in the southern criminal justice system. . . .

Part III connects these criminal procedure decisions to broader themes in constitutional and civil rights history, . . . .

Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 (1998), HeinOnline

William T. Pizzi et al., The Influence of Criminal Defendants' Afrocentric Features on Their Sentences, in Critical Race Realism: Intersections of Psychology, Race, and Law 259-70, 334-35 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks

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Criminal Law: Defenses

Richard Delgado, "Rotten Social Background": Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 Law & Ineq. 9- (1985)

Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471-566 (2008), HeinOnline, LexisNexis, SSRN, Westlaw

Abstract (from Sexual Orientation and the Law bibliography):

The author examines the historical and doctrinal background of the "gay panic defense," a variety of strategies that suggest a criminal defendant should be excused or justified if his violent actions were in response to a (homo)sexual advance. Drawing lessons from the Matthew Shepard trial, this article supports generally permitting gay panic defense arguments, since they are less harmful when made to a jury in open court than when forced underground. It proposes strategies for prosecutors to minimize homophobic juror bias and foster enlightened deliberations.

Cynthia Kwei Yung Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 Minn. L. Rev. 367 (1996), HeinOnline, excerpted in Critical Race Theory: The Cutting Edge 204-10 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Elizabeth M. Schneider, Battered Women, Feminist Lawmaking, Privacy, and Equality, in Women and the United States Constitution: History, Interpretation, and Practice 197, 201 (Sibyl A. Schwarzenbach & Patricia Smith eds., 2003).

Elizabeth Schneider, Battered Women Who Kill Their Abusers, 106 Harv. L. Rev. 1574- (1993), HeinOnline

Michael A. Smyth, Queers and Provocateurs: Hegemony, Ideology and the "Homosexual Advance" Defense, 40 Law & Soc'y Rev. 903-30 (2006), (free), HeinOnline, LexisNexis, Westlaw

Abstract (from Sexual Orientation and the Law bibliography):

This article reviews 14 homicide cases in California from the years 1949 and 2000 that involved a "homosexual advance" defense. The author expostulates "four classic scripts of homosexuality" – the effeminate, the sick or mentally ill, sexually predatory, and violent, and considers how each figured in the homicide cases involving the homosexual advance defense. Finally, the prevalence of the four scripts in the popular press over the same time period is examined, and the author concludes that the scripts have survived longer in the legal setting than in the popular culture.

Susan S. Kuo, Culture Clash: Teaching Cultural Defenses in the Criminal Law Classroom, 48 St. Louis L.J. 1297-1311 (2004), LexisNexis

There are a bunch of articles on cultural defenses. This one might be helpful because it explains how to fit the issue into a general criminal law class and why. -- mw

Table of Contents

Criminal Law: Domestic Violence

Melissa Hamilton, The Intersection of Gender and Sexuality on Arrest Outcomes for Intimate Partner Violence (July 2, 2007), SSRN

Elizabeth M. Schneider, Battered Women and Feminist Lawmaking, 23 Women's Rts. L. Rep. 243 (2002), HeinOnline

Kathleen Waits, The Criminal Justice System's Response to Battering: Understanding the Problem, Forging the Solutions, 60 Wash. L. Rev. 267- (1985), HeinOnline, excerpted in FEMINIST JURISPRUDENCE 188-209 (Patricia Smith ed.1993), K644.Z9 F457 1993 at Classified Stacks

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Criminal Law: Drug Policy

Dwight L.Greene, Abusive Prosecutors: Gender, Race & Class Discretion and the Prosecution of Drug-Addicted Mothers, 39 Buff. L. Ref. 737 (1991), HeinOnline

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Criticizes the lack of information available on prosecutorial discretion, a mechanism that often leads to gender and race biases in choosing which suspects are prosecuted. The plight of mothers of color who are prosecuted for delivering drugs to their unborn children is highlighted as an area that is particularly prone to bias. Advocates creation of Prosecutorial Research, Information, and Reporting Boards that would gather information on prosecutorial discretion and provide a means of minimizing the effects of bias in this area.

Dwight L. Greene, Drug Decriminalization: A Chorus in Need of Masterrap's Voice, 18 Hofstra L. Rev. 457 (1990), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Develops a taxonomy of the four major approaches to drug policy ranging from decriminalization to increased reliance on the criminal [*490] law. Critiques these policies from certain perspectives of the disenfranchised through the voice of a partially fictionalized man of color, a New York Dominican named Masterrap. Concludes most current approaches to drug policy are ineffective and antidemocratic because they fail to take into account key constituents in communities of color, particularly young males, drug-sellers and users, and their families.

Powell, john a. & Eileen B. Hershenov, Hostage to the Drug War: The National Purse, the Constitution and the Black Community, 24 U.C. Davis L. Rev. 557 (1991), HeinOnline

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Argues that the Reagan and Bush administrations' war on drugs has been a failure. Demonstrates that the law-and-order approach has served to turn many poor communities into occupied territories. Argues that the disproportionate number of black men prosecuted for drug-related crimes is evidence that arrests target the black community and are a form of institutionalized racism. Urges that problems associated with drug abuse be addressed primarily as a health rather than a crime problem.

Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Examines the current trend of prosecuting women for using drugs during pregnancy. Demonstrates that this trend in prosecution weighs heavily on poor black women, who are much more likely than others to be reported to government authorities. Argues that this higher incidence must be challenged as a perpetuation of black subjugation and the devaluation of black motherhood. Holds that women of color cannot achieve equality unless their humanity is ensured by autonomy over their reproductive lives.

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Criminal Law: Racial Profiling

Roger G. Dunham and George Wilson, Prejudice and Police Profiling, in Critical Race Realism: Intersections of Psychology, Race, and Law 246-58 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks

Randall Kennedy, Suspect policy: racial profiling by the police isn't necessarily motivated by bigotry, New Republic, Sept. 13 & 20, 1999, at 30-35

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Criminal Law: Rape

Michele Alexandre, "Girls gone wild" and rape law: revising the contractual concept of consent & ensuring an unbiased application of "reasonable doubt" when the victim is non-traditional, 17 Am. U. J. Gender, Soc. Pol'y & L. 41-79 (2009), HeinOnline

Kevin Brown, The Social Construction of a Rape Victim: Stories of African-American Males About the Rape of Desiree Washington, 1992 U. ILL. L. Rev. 997-

Joshua Dressler, Criminal Law, Moral Theory, and Feminism: Some Reflections on the Subject and on the Fun (and Value) of Courting Controversy, 48 St. Louis U. L.J. 1143-66 (2004), HeinOnline

  • Discussing his three favorite criminal law topics to teach, the author "noticed certain commonalities: (1) two of the topics allow me to sensitize my students to moral theories of criminal responsibility and punishment, and to show even the most pragmatic of my students why they should care about these theories;2 (2) they are all hot-button topics that regularly get students excited and agitated; (3) relatedly, all three topics involve feminist challenges to prevailing (or once prevailing) law, and (4) although I am sympathetic to many feminist goals, I disagree in part with feminist critiques in these areas and I enjoy expressing those doubts in class." p. 1144.
  • Topics are: provocation, battered women self-defense, rape

Susan Estrich, Rape, 95 Yale L.J. 1087-1184 (1986), HeinOnline, JSTOR, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 431-54 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks, and in Feminist Jurisprudence 158-87 (Patricia Smith ed.1993), K644.Z9 F457 1993 at Classified Stacks

This Article examines rape within the criminal law tradition in order to expose and understand that tradition's attitude toward women. It is, first and foremost, a study of rape law as an illustration of sexism in the criminal law. A second purpose is to examine the connections between the law as written by legislators, as understood by courts, as acted upon by victims, and as enforced by prosecutors. Finally, this Article is an argument for an expanded understanding of rape in the law.

p. 1090

  • The article was one of the first to use a personal narrative in addition to traditional legal analysis. It was startling to have a law professor open an article in the Yale Law Journal with "Eleven years ago, a man held an ice pick to my throat . . ."
  • Estrich later published the article as a book: Susan Estrich, Real Rape (1987), KF9329 .E87 1987 at Classified Stacks

Susan Estrich, Teaching Rape Law, 102 Yale L. J. 509 (1992), HeinOnline

Susan Griffin, Rape: The All-American Crime, Ramparts Magazine, Sept. 1971, at 26-35, reprinted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 422-30 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

Aya Gruber, Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581- (2009), HeinOnline, Westlaw

Abstract: Over the past several years, feminism has been increasingly associated with crime control and the incarceration of men. . . . [F]eminists have advocated a host of reforms to strengthen state power to punish gender-based crimes. . . . [T]he time is ripe for feminists to reassess continued involvement in rape reform. This Article cautions feminists to weigh carefully any purported benefits of reform against the considerable philosophical and practical costs of criminalization strategies . . . . [T]he Article systematically catalogues the existing intra-feminist critiques of rape reform and discusses reasons why these critiques have proven relatively ineffective at reversing the punitive course of reform. The Article then crafts a separate philosophical critique of pro-prosecution approaches by exposing the tension between the basic tenets of feminism and those animating the modern American penal state. Finally, it discusses why purported cultural and utilitarian benefits from rape reform cannot outweigh the destructive effect criminalization efforts have on feminist discourse and the feminist message. The Article concludes that feminists should begin the complicated process of disentangling feminism's important stance against sexual coercion from a criminal justice system currently reflective of hierarchy and unable to produce social justice.

Lynn Huffer, Queer Victory, Feminist Defeat? Sodomy and Rape in Lawrence v. Texas, in FEMINIST AND QUEER LEGAL THEORY: INTIMATE ENCOUNTERS, UNCOMFORTABLE CONVERSATIONS 410-31 (Martha Albertson Fineman et al. eds., 2009), K349.F455 2009 at Classified Stacks

Catharine A. MacKinnon, Rape: On Coercion and Consent, in APPLICATIONS OF FEMINIST LEGAL THEORY TO WOMEN'S LIVES: SEX, VIOLENCE, WORK, AND REPRODUCTION 471-83 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks (excerpting CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE (1989), K644 .M33 1989 at Classified Stacks)

If sexuality is central to women's definition and forced sex is central to sexuality, rape is indigenous, not exceptional to women's social condition.

p. 471

Kevin C. McMunigal, Reducing the Risks and Realizing the Rewards: An Approach to Teaching Rape Law, 34 San Diego L. Rev. 519 (1997), HeinOnline

Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387-432 (1984), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 460-70 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks, and excerpted in Feminist Legal Theory: Readings in Law and Gender 305-17 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), K644.Z9 F46 1991 at Classified Stacks

This Article focuses primarily upon the rights debate, but it also necessarily implicates the debate about sexuality. It uses statutory rape laws to examine rights analysis and the critique of rights in a concrete context and to evaluate the relevance of both to women's struggles. I have chosen this example for two reasons: first, statutory rape laws raise in a rich context issues of equal protection, paternalistic protection, sexuality, and privacy; second, the Supreme Court upheld a gender-based statutory rape provision three years ago in Michael M. v. Superior Court, a decision that has generated a good deal of scholarly comment. The feminist criticism of the case illustrates both the appeal of rights analysis and its very serious limitations. Parts II and III survey feminist attitudes toward rights and toward statutory rape laws. Part IV analyzes Michael M. and demonstrates the negative effects the case has had upon feminist use of rights theory and upon feminist analysis of sexuality. Part V speculates about new approaches to sexuality and the legal problems associated with it.

p. 390 (footnotes omitted)

Lois Pineau, Date Rape: A Feminist Analysis, 8 Law & Phil. 217-43 (1989), JSTOR, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 484-94 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

Robin West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 Fla. L. Rev. 45- (1990), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reporduction 511-27 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

Jennifer Wriggins, Rape, Racism and the Law, 6 Harv. Women's L.J. 103-41 (1983), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 495-510 (D. Kelly Weisberg ed., 1996), K349.A67 1996 at Classified Stacks

James J. Tomkovicz, On Teaching Rape: Reasons, Risks, and Rewards, 102 Yale L. J. 481 (1992), HeinOnline

Table of Contents


Property: General

Regina Austin, Nest Eggs and Stormy Weather: Law, Culture, and Black Women's Lack of Wealth, in Feminism Confronts Homo Economicus: Gender, Law, and Society 131-46 (Martha Albertson Fineman & Terence Dougherty eds., 2005), K349.F453 2005 at Classified Stacks

Derrick Bell, Racism: A Major Source of Property and Wealth Inequality in America, 34 Ind. L. Rev. 1261-71 (2001), LexisNexis

Derrick A. Bell, Jr., Property Rights in Whiteness: Their Legal Legacy, Their Economic Costs, 33 Vill. L. Rev. 767- (1988), excerpted in Critical Race Theory: The Cutting Edge 71-79 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Sheryll D. Cashin, Middle-Class Black Suburbs and the State of Integration: A Post-Integrationist Vision for Metropolitan America, 86 Cornell L. Rev. 729-76 (2001), LexisNexis

Part I presents an overview of black suburbanization and the status of residential integration in the United States. It then analyzes the origins and extent of affluent black suburbs. Finally, Part I surveys the normative theories offered to justify these communities, including black separatism, black classism, and "localist" theories offered by civic republicans and public choice scholars. Part II examines why middle-class black suburbs are likely to fall short of the suburban ideal. Canvassing the economic isolation, poor schools, higher crime rates, and higher poverty associated with black middle-class communities, Part II clarifies the costs of such separatism. Part II then critiques the normative arguments offered in favor of black suburban enclaves in light of the empirical realities. It concludes that even affluent African Americans are harmed in some respects by racial isolation. Accepting the inevitability of residential segregation of African Americans, Part III presents a post-integrationist vision for metropolitan America.

p. 735

Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707-91 (1993), LexisNexis

My Article investigates the relationships between concepts of race and property and reflects on how rights in property are contingent on, intertwined with, and conflated with race. . . .In Part II, I examine the emergence of whiteness as property and trace the evolution of whiteness from color to race to status to property as a progression historically rooted in white supremacy and economic hegemony over Black and Native American peoples. I . . . argue that whiteness shares the critical characteristics of property even as the meaning of property has changed over time. In particular, whiteness and property share a common premise -- a conceptual nucleus -- of a right to exclude. . . .

Part III examines the two forms of whiteness as property -- status property and modern property -- that are the submerged text of two paradigmatic cases on the race question in American law, Plessy v. Ferguson and Brown v. Board of Education. . . .

Part IV considers the persistence of whiteness as property. . . .

Finally, in Part V, I offer preliminary thoughts on a way out of the conundrum created by protecting whiteness as a property interest. . . .

pp. 1714-15 (citations omitted)

Elizabeth Mayes, Private Property, the Private Subject, and Women, in Feminism Confronts Homo Economicus: Gender, Law, and Society 117-30 (Martha Albertson Fineman & Terence Dougherty eds., 2005), K349.F453 2005 at Classified Stacks

Powell, John A., New Property Disaggregated: A Model to Address Employment Discrimination, 24 U.S.F. L. Rev. 363 (1990), HeinOnline

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Analyzes Charles Reich's theory of the nature and function of property as detailed in The New Property. Argues for a more nuanced approach that would distinguish different types of property. Discusses several other modifications to Reich's theory, including recognition of the link between property and relationships, and of the rightholder's power over nonrightholders. Applies powell's "Revised New Property Model" to several cases.

Joseph William Singer, Re-Reading Property, 26 New Eng. L. Rev. 711-29 (1992), LexisNexis

What would property law look like if we took gender issues as central, rather than peripheral, concerns? Mary Joe Frug's analysis of the role of gender in contracts casebooks suggests that we would learn a great deal about property if we ask this question. But why only gender? Why not also ask about other differences that have been made to matter? What about race? Or class, disability, sexual orientation, religion? In fact, if the social treatment of women and men has differed significantly along these lines, it seems that if we talk about gender without noticing these cross-cutting differences, we will only be talking about some women and some men and therefore failing to notice the different social constructions that gender takes with men and women of different races and classes.

p. 712

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Property: Native American Title

Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 Cal. L. Rev. 1512-97 (1991), HeinOnline.

  • Property class
    • Roots of title in the New World – pp.1521-23
    • Slavery – pp. 1523-26
  • Race and the Constitution – pp. 1539-54

Elizabeth Loeb, As "Every Schoolboy Knows": Gender, Land, and Native Title in the United States, 32 N.Y.U. Rev. L. & Soc. Change 253-83 (2008), HeinOnline

This article begins with an obvious but necessary premise: the U.S. state has historically produced itself as sovereign over a specific territorial mass through the violent conquest and continuing occupation of lands to which Native Americans also lay and have laid sovereign claim. At its core, this article seeks to ask how a Liberal conception of law legitimates and maintains this foundational violence within its own texts. . . .

Put less obtusely, this article will provide a close reading of two Supreme Court cases that continue to shape and ground the nature of sovereign relations between the United States and Native American peoples: Tee-Hit-Ton Indians v. United States and Santa Clara Pueblo v. Martinez.

. . .

The bulk of this article will analyze the relationships between gender, property, and sovereignty that Tee-Hit-Ton and Santa Clara continue to enforce.

p. 253-54

Joseph William Singer, Property and Coercion in Federal Indian Law: The Conflict Between Critical and Complacent Pragmatism, 63 S. Cal. L. Rev. 1821 (1990), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Discusses the dangers of "complacent pragmatism," which often amounts to unreflective common sense. Uses the recent case of Lyng v. Northwest Indian Cemetery Protective Ass'n, in which California was allowed to build a highway through sacred Native American land, to illustrate that non-Critical analysis can lead to injustice for those outside mainstream "common sense." Suggests pragmatic analysis can become more successfully critical by struggling to understand a problem's context, and by engaging it from multiple perspectives, especially those of the oppressed.

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Property: Native Hawaiian Land Rights

Maivan Clech Lam, The Kuleana Act Revisited: The Survival of Traditional Hawaiian Commoner Rights in Land, 64 Wash. L. Rev. 233-88 (1989), LexisNexis

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Analyzes the historical context of the Kuleana Act of 1850 and cases interpreting it. The Act was designed by King Kamehameha III to give native commoners fee simple rights to land. Points out that although the Act may have been well intentioned, authorities ignored traditional Hawaiian land use, which regarded all commoners as tenants in common to all land, and frustrated the goals of Kamehameha's government. Further, the commoners were only apportioned a small amount of the available land to divide into fee simple holdings. Argues that the old regime of land rights survives the system imposed by Western demands, and that Hawaiian land must now be reassessed and granted to the descendants of the earlier commoners.

Table of Contents

Property: Slavery

Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 Cal. L. Rev. 1512-97 (1991), HeinOnline.

  • Property class
    • Roots of title in the New World – pp.1521-23
    • Slavery – pp. 1523-26
  • Race and the Constitution – pp. 1539-54

Cheryl I. Harris, Finding Sojourner's Truth: Race, Gender, and the Institution of Property, 18 Cardozo L. Rev. 309-409 (1996), HeinOnline

  • Uses Sojourner Truth's famous "Ain't I a Woman" speech as a jumping off point. Contrasts the legal status of enslaved black women (who were property and could not marry) with white women (whose property rights were limited by marriage law).
  • Sorts through conflicting accounts of Truth's speech recorded by whites, develops the theme of the narrative as property.

Patricia J. Williams, On Being the Object of Property, 14 Signs: J. Women in Culture & Soc'y 5-24 (1988), JSTOR, Literature Online, excerpted in Feminist Legal Theory: Readings in Law and Gender 165-80 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), K644.Z9 F46 1991 at Classified Stacks

  • Personal essay touching on many topics, including slavery.

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Torts: General

Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3-37 (1988), HeinOnline

The following essay is intended to be both a primer that introduces a few of the major components of feminist theory and an example of how feminist theory might be used to examine a particular area of law. . . . I hope that the essay increases your understanding so that you will think about how feminism's insights might benefit your teaching, writings, and practice, and that it piques your curiosity so that you will seek out the rich scholarship that feminists are producing.

Feminist insights and methodology have guided my thinking in the area of tort law, especially in examining negligence law to see how it perpetuates traditional male values and perspectives. Tort law needs to be more of a system of response and caring than it is now. Its focus should be on interdependence and collective responsibility rather than on individuality, and on safety and help for the injured rather than on "reasonableness" and economic efficiency. . . . My reflections on negligence law are interwoven with a primer on feminist theory in order to suggest how feminist theory can help us think about the traditional structures of our laws, legal analyses, and legal system.

pp. 3-4

W. Jonathan Cardi, The Search for Racial Justice in Tort Law, in Critical Race Realism: Intersections of Psychology, Race, and Law 115-24, 303-06 (Gregory S. Parks et al. eds., 2008), KF4755.C749 2008 at Classified Stacks

Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. Cin. L. Rev. 269-315 (1994), HeinOnline

Anne Bloom, Regulating Middlesex, in Fault Lines: Tort Law as Cultural Practice ___ (David M Engel & Michael W McCann eds., 2009), K923 .F37 2009 at Classified Stacks

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Torts: Consent: O'Brien v. Cunard S.S. Co., 154 Mass. 272 (1891)

Richard W. Bourne, Introduction, 57 Mo. L. Rev. 351 (1992), HeinOnline (introducing symposium in which five law professors look at one case from perspectives of critical legal studies, critical race theory, feminist theory, law and economics, and the "traditional" law school approach).

Jay M. Feinman, The Ideology of Legal Reasoning in the Classroom, 57 Mo. L. Rev. 363 (1992), HeinOnline (critical legal studies)

Ann C. Shalleck, Feminist Legal Theory and the Reading of O'Brien v. Cunard, 57 Mo. L. Rev. 371 (1992), HeinOnline

Robert H. Lande, A Law & Economics Perspective on a "Traditional" Torts Case: Insights for Classroom and Courtroom, 57 Mo. L. Rev. 399 (1992), HeinOnline

Taunya Lovell Banks, Teaching Laws with Flaws: Adopting a Pluralistic Approach to Torts, 57 Mo. L. Rev. 443 (1992), HeinOnline (critical race theory)

Richard W. Bourne, A "Traditionalist" Approach to Teaching O'Brien and to Ideology in the Classroom, 57 Mo. L. Rev. 455 (1992), HeinOnline

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Torts: Defamation

Richard Delgado and Jean Stefancic, Understanding Words That Wound (2004), KF9345 .D45 2004 at Classified Stacks

Mari J. Matsuda et al., Words That Wound: Critical Race Theory, Assulttive Speech, and the First Amendment (1993), KF9345 .W67 1993

Lisa R. Pruitt, "On the Chastity of Women All Property in the World Depends": Injury from Sexual Slander in the Nineteenth Century, 78 Indiana L.J. 965- (2003), SSRN


In this Article, Professor Pruitt discusses conceptions of the injury associated with defamation law, focusing in particular on sexual slander cases that were brought in the early nineteenth century, before statements that impugned a woman's chastity were deemed slander per se. During this time, women had to prove so-called special damages in order to state a cause of action. Courts showed some flexibility in what they recognized as constituting special damages, even stretching to recognize pecuniary harm in damaged personal relationships. Nevertheless, courts refused to recognize injuries stemming from and related to emotional distress injuries, and they were often skeptical that a variety of harms claimed by women were the direct and natural consequences of the offending statement.

In studying what courts viewed to be special damages and therefore worthy of redress in this context, Professor Pruitt's work reveals several insights. First, we learn something of the nature of the reputational interest protected by defamation law. In particular, Professor Pruitt argues that courts viewed these slandered women's reputations as a form of property, and they ignored the dignitary nature of the injury. In addition, these cases provide an opportunity to see another example of the gendered trends in tort law that have been identified by scholars such as Professor Martha Chamallas. Professor Chamallas has argued that tort law values property and economic injury over relational and emotional injury, and that injuries may be judicially characterized as one or the other based upon the gender of the sufferer. Professor Pruitt's analysis points out the presence of these value hierarchies in sexual slander cases, just as Professor Chamallas has established their presence elsewhere in tort law.

Finally, Professor Pruitt argues that sexual slander law was an additional way in which women's sexual propriety was commodified, ultimately to the benefit of their fathers and husbands. She argues that a preferable scheme would have permitted courts more expansive jurisdiction over sexual slander claims, as well as power to provide a more expansive array of remedies. That is, drawing on the remedies of apology and repentance that had been available in English ecclesiastical courts - remedies remarkably similar to retraction and declaratory judgment remedies that are associated with contemporary defamation reform - nineteenth-century courts could have avoided propertizing women's virtue. At the same time, they could have provided appropriate remedies to more of the women who had been injured by sexual slander.

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Torts: Domestic Violence, Rape, Sexual Assault

Ellen M. Bublick, Tort Suits Filed by Rape and Sexual Assault Victims in Civil Courts: Lessons for Courts, Classrooms and Constituencies, 59 SMU L. REV. 55-122 (2006),HeinOnline.

[T]his article is organized into three discrete sections. Section I provides information about recent appellate court rulings in tort suits that stem from rape and sexual assault. The section notes changes in the case law over the last thirty to forty years, and takes a particular look at cases in which tort actions are being used as an alternative to criminal trials and convictions. It also identifies some broad characteristics of current third-party litigation. Section II looks at the potential procedural and substantive advantages to victims of filing tort as opposed to criminal claims. This section notes also potential obstacles that victims may encounter in the tort law. Finally, Section III identifies important unresolved issues presented in the third-party case law that warrant further thought and coordinated analysis by decision-makers.

pp. 57-58.

Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413-90 (1999), LexisNexis

Abstract: In this Article, Professor Bublick examines the generally accepted practice of allowing third parties like hotels and landlords, and occasionally rapists themselves, to take advantage of broad defenses of rape victim fault in civil law rape cases. As the law currently stands, whatever limits courts have placed on rape victim comparative fault defenses arise solely from the moral culpability of the defendants. Bublick argues that courts' exclusive focus on defendant culpability overlooks a second, equally compelling factor for deter mining whether courts should allow defenses of rape victim fault - - citizen entitlements. She argues that regardless of defendants' culpability, citizens have independent interests in not being legally required to shape their conduct around the reality of pervasive rape and fear of rape in our society. Those interests stem from concerns for citizen freedom and equality, and are not outweighed by deterrence considerations. She then outlines three ways in which the law could be changed to incorporate both plaintiff-entitlement and defendant-culpability considerations. Specifically, the Article advocates judicial creation of citizen "no-duty rules" in the context of civil rape cases. The concept of no-duty rules was recently endorsed by the newly-enacted Restatement (Third) of Torts: Comparative Apportionment.

Merle H. Weiner, Domestic Violence and the Per Se Standard of Outrage, 54 Md. L. Rev. 183-241 (1995), HeinOnline

This Article . . . inquires whether the tort of intentional infliction of emotional distress can provide a viable remedy for domestic violence victims. . . . Under traditional doctrine, there are four factors that arguably support a finding of outrageousness in cases involving domestic violence: a special relationship exists between the parties; domestic violence typically involves a pattern of harassment; an abuser usually exploits a known hypersensitivity of his victim; and a historic and gendered distinction between public and private spheres persists, which should make violence in the private sphere seem particularly outrageous.

Notwithstanding these considerations, the use of the tort by domestic violence victims is problematic under current law. . . .

This Article argues for a per se standard of outrage whereby the defendant's conduct would be outrageous as a matter of law if he violated an injunction issued for a woman's protection.

p. 188-89.

Jennifer Wriggins, The First-Year Curriculum - Domestic Violence in First-Year Torts, 54 J. Legal Educ. 511 (2004), HeinOnline

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Torts: Intentional Infliction of Emotional Distress, Fright-Based Injuries, Outrage

Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 Stan. L. Rev. 1-59 (1988), HeinOnline

The focus of concern throughout this article will be the working conditions and experiences of black and Latino employees of both sexes, and female workers, black, brown and white, all of whom occupy the lower tiers of the labor force. . . . [M]inority and female low status workers appear to have little economic clout with which to combat such supervisory abuse. They do, however, criticize their work situations and resist them to a limited extent. This article explores how the law might be useful in maximizing the affirmative politically progressive potential of their informal, local, and largely defensive cultural opposition to mistreatment on the job.

pp. 3-4

Martha Chamallas with Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 Mich. L. Rev. 814-64 (1990), HeinOnline, excerpted in Robert L. Rabin, Perspectives on Tort Law 305-21 (4th ed. 1995), KF1249.R3 1995 at Reference Area

The law has often failed to compensate women for recurring harms - serious though they may be in the lives of women - for which there is no precise masculine analogue. This phenomenon is evident in the history of tort law's treatment of fright-based physical injuries, a type of claim historically brought more often by female plaintiffs. There are two paradigm cases of fright-based physical injury: the pregnant plaintiff who suffers a miscarriage or stillbirth as a result of being frightened and the mother who suffers nervous shock when she witnesses her child's injury or death. These claims were classified in the law as emotional harms and a number of special doctrinal obstacles were created to contain recovery in such cases.

88 Mich. L. Rev. at 814.

Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133-81 (1982), HeinOnline, excerpted in Critical Race Theory: The Cutting Edge 131-40 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

Early article on discourse, focusing on hate-speech. Analyzes harms stemming from such speech and tort law's inadequate response. Outlines a proposed course of action against such speech.

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Torts: Measure of Injury

Martha Chamallas, Discrimination and Outrage: Exploring the Gap Between Civil Rights and Tort Recoveries, in Fault Lines: Tort Law as Cultural Practice 119 (David M. Engel & Michael W. McCann eds., 2009), K923 .F37 2009 at Classified Stacks

Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law (2010) [forthcoming, May 2010]

Jennifer B. Wriggins, Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949, in Fault Lines: Tort Law as Cultural Practice 156 (David M. Engel & Michael W. McCann eds., 2009), K923 .F37 2009 at Classified Stacks

Table of Contents

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