Negative Identity

My latest article is now out in the Southern California Law Review! You can download the final version here.

The piece is about identities defined by the absence of something that much of society thinks is important — for example, lack of religion, sexual desire, partnership, and children. I consider the existing protection that federal and state laws provide for atheists, asexuals, single people, and people with no children. I then consider whether such antidiscrimination  protection is warranted, and whether it should be expanded.

In Progress: The New Public Accommodations

I’m still taking a break from blogging while I continue to try to fully resolve my hand issues. I have, however, posted a short summary of my work in progress relating to race discrimination in the sharing economy on SSRN. The piece is called “The New Public Accommodations.” Feedback is welcome, and if you would like to see a longer draft in progress — one I’m not quite ready to post publicly — please feel free to email me.

The RightsCast, Ep. 12, Pt. 2: Charlotte Garden, “Meta Rights”

I released this last week and just realized I forgot to post it on the blog. Part 2 of Charlotte Garden’s discussion of her article “Meta Rights.”

Due to the holiday this weekend, there will be no new episode of The RightsCast this week. It will return next week.

The RightsCast, Episode 12, Part 1: Charlotte Garden, “Meta Rights”

This week’s episode of The RightsCast features Professor Charlotte Garden (Seattle U), a scholar of labor law and constitutional law as well as Litigation Director at the school’s Korematsu Center for Law & Equality. (I am also proud to say that I have coauthored an article with Charlotte on the potential for coalitions between civil rights and labor interests —  it’s called “So Closely Intertwined: Labor and Racial Solidarity” and appeared in the George Washington Law Review in 2013.)

On The RightsCast, Charlotte discusses her article “Meta Rights,” which appeared in the Fordham Law Review and which examines when and why we’re entitled to be informed of our constitutional rights. As I’ve done with some other recent guests, I split our conversation into two parts; here is Part One:

Practicum Recap #2: Doctrinal Learning

As I noted in previous posts, I co-taught a new class called Constitutional Litigation Practicum this past semester. I’m now writing a series of reflections on teaching the class. In this post I’ll offer some general thoughts about how to prepare to teach the doctrinal component of a practicum-style class involving both doctrinal and skills-based learning, and a Constitutional Litigation Practicum class in particular.

The doctrinal portion of the Constitutional Litigation Practicum was integral to the class. We wanted students to have a strong foundation not only for the specific concepts they would be applying in the skills simulations throughout the class, but also to understand the overarching structure of litigation under 42 U.S.C. § 1983. We also wanted students to go into the skills simulations with most of this knowledge, rather than fumbling through depositions or motions without a solid grounding in the area in which they practice. Both Qusair and I have seen far too many lawyers whose understanding of the law is reasonably good as it relates to their specific case, yet who are thrown entirely off balance by a question linking the specific understanding of the case to the broader doctrinal architecture. Representing a client well requires both narrow and broad understandings. Continue reading

My New York Times Piece: “Racial Fluidity and the Value of Race”

I have a piece in the New York Times called “Racial Fluidity Complicates the Value We Assign to Race.” I link racial fluidity to the framework for assigning racial value that I discussed in my previous article “Racial Capitalism,” with a brief mention of Rachel Dolezal. (I am feeling pretty done with Rachel Dolezal, but as I wrote the piece it seemed odd not to mention her.) My piece is part of a “Room for Debate” including six essays on the topic of racial fluidity. Comments welcome, as always.

This Is Not a Post About Rachel Dolezal

This is not a post about Rachel Dolezal, the president of the Spokane NAACP whose story has received a great deal of attention in the media over the last few days. For anyone who is not entirely familiar with the story, the claim in a nutshell is that Dolezal has presented herself as black to the community for the past decade or so via her appearance and behavior, but was recently described by her parents in an interview as entirely “of Caucasian and European descent.”

A great deal of interesting commentary has examined Rachel Dolezal’s behavior. I recommend this Washington Post piece by Professor Osamudia James (Miami Law), this piece in Slate by Jamelle Bouie, and this interesting exchange between Latoya Peterson and Danielle Henderson on Fusion. For scholarly work discussing people who pass from white to black or who attempt to choose a racial identity, I recommend “Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification,” by Professor Camille Gear Rich (USC Law), and this fascinating article by Professor Robin Kelley (UCLA History) about Grace Halsell. Continue reading

The RightsCast, Episode 11, Part 2: Osamudia James, “White Like Me”

The second part of my conversation with Osamudia James (Miami Law) about her wonderful article “White Like Me” is now available! Check it out. Great material for those who teach affirmative action in Constitutional Law I and II, or for any upper level seminar relating to race.

On Hamilton & Griffin on Rights: “The Anticlimax of Elonis v. United States”

I have a belated post about Elonis v. United States on Hamilton & Griffin on Rights. I’ve seldom felt so little enthusiasm for writing about a Supreme Court decision. The Court refused to decide any of the hard questions and left open the question of whether a recklessness standard will suffice — a question sure to create chaos in the lower courts, not to mention in the lives of those charged with crimes and those targeted by threatening speech.

This is one of the least helpful Supreme Court decisions I’ve seen in a long time. Why didn’t the Court just say whether either the statute or the First Amendment allows a showing of recklessness for conviction? Or not? Both positions are reasonable, and I think almost everyone would be fine with either outcome. (I would.)