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Home4A: Inequality and Identity: Constructing and Masking Legal

4A: Inequality and Identity: Constructing and Masking Legal Power


Dredged and Submerged: Law, Race, and Visual Imagery

 

Dr. Mary Campbell, University of Tennessee School of Art – mcampb33@utk.edu

Prof. Lucy Jewel, University of Tennessee College of Law – ljewel@utk.edu

 

We propose to present our work on law and visual imagery. Our project theorizes that that the visual and the legal are intertwined in complex ways that have not yet been recognized or articulated. The visual, in the form of both art and photography, has the ability to persuasively reify cultural norms, in much the same way that formal law does.

 

Our topic fits broadly within the ClassCrits theme because it addresses how contemporary U.S. law tends to obscure the structural and cultural forces that reproduce and reinforce systems of oppression. On the other hand, visual images, operating apart from but also in tandem with law, can dredge these concepts to the surface and invite transformation and liberation. In this era, we have a lot to say about how visual rhetoric works as a potential engine of resistance, reform, and change.

 

Visual culture takes on attributes of the common law in ways that can either oppress or liberate. When raised to the surface, images can compel compliance with the existing social order. Or, in the hands of resistors, images can be rhetorically used to advocate for transformation. Because of their powerful affective qualities, images can foment resistance and change.  Images persuade in a way that formal law and legal process does not. However, when images become submerged, truth is obscured and social control is effected in a much more variegated way. Below the surface, injustice becomes impossible to target.

 

For instance, in the late 19th century and early 20th century, postcard photographs of celebratory lynchings, circulated via the U.S. postal service, legitimized white supremacy’s unspeakable, murderous violence. These images functioned similarly to a common-law process, canonizing precedent that authorized future terror. By the 1940s, after public celebrations of lynching came to be viewed as uncouth, the terroristic message was transmitted via silence and submersion.  The story was now told by the bodies that went missing. In 1954, under the control of the African American press, images of Emmett Till’s dredged-up corpse propelled passion that helped fuel the civil rights movement. Photographs of Till’s body (along with other images of violence upon African American bodies) were raised to the surface at a moment in U.S. jurisprudential history where law actively sought to shut down the roots and branches of racial oppression.  However, by the beginning of the 1970s, these terrifying and fearful images of death and maiming became submerged again.  The submersion occurred through the use of abstract rhetoric (i.e., the Southern Strategy) that focused on ostensibly neutral principles like urban crime, welfare entitlements, individual rights, and private choice.  With this submersion, U.S. jurisprudence turned away from progressive, active, and collective remedies and moved toward the much more passive approach that informs our law today.

 

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Dangerous or Benign Legal Fictions, Cognitive Biases and Consent in Contract Law

 

By Chunlin Leonhard

Loyola University New Orleans College of Law

 

 

Abstract

 

Even though scholars have expressed strong concerns about judges’ use of legal fictions and some have warned of potential “dangers” of legal fictions, no one has yet elaborated on exactly how we can recognize a “dangerous” legal fiction.  Building on existing scholarship on legal fictions and the empirical psychological research about human decision making processes, my article contributes to the discussion by offering a systematic approach to distinguishing a benign fiction from a dangerous one.  This article suggests that a benign fiction comes with some built in reminders of its fictional nature while a dangerous fiction does not.  A fiction may be benign or dangerous depending on the presence of any of the following characteristics: Whether or not (1) the fiction is labeled explicitly as a fiction; (2) the fiction rests on complete factual falsity instead of reduction of evidentiary proof; (3) the fiction allows the court to reach a result inconsistent with a relevant fundamental principle instead of consistency with well-established principles. The presence of those factors make the user aware that the doctrine is a fiction and offers a safeguard against its excessive use, making the legal fiction a benign one.  Without those reminders, a legal fiction can become “dangerous.”  Lack of reminders makes it more likely that judges may use legal fictions for purposes not intended to be served by the doctrine.  The article uses the consent fiction in contract law as an example of how a legal fiction can be dangerous. 


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Mapping the Muslim Category: An Examination of Race, Identity, Religion and the Black-White Paradigm

Neil Gotanda – June 1, 2017

 

                  The place of Islam and the Muslim in American society has moved from a question on the social margins into an urgent issue.  President Trump’s Executive Orders on immigration and refugees generated enormous controversy and have been challenged in federal court.  However, the density and complexity of the question of Muslims in the U.S. has meant that even when acknowledging the partial and incomplete nature of an examination, finding an entry point or frame for discussion is difficult. 

                  This work-in-progress examines ways that a legal cognizable category of “Muslim” has been, and might be used in multiple constitutional and legal doctrines.  Beginning with the litigation around Trump’s Executive Orders, we will survey and map the Muslim group category in such constitutional doctrinal areas as the First Amendment religion clauses, the Fourteenth Amendment equal protection and due process clauses, and federal legislation including the Civil Rights Act of 1964 and the Religious Freedom Restoration Act.

                  Using this mapping of the Muslim group category, we will use methodologies from Critical Race Theory, Asian American Jurisprudence and Asian American Religious Studies to interrogate the Muslim group category in two prevalent framings for the Muslim – race and religion. 

                  This survey will not attempt to develop specific policy proposals or suggestions for doctrinal reforms.  There is, not, however a claim to neutral objectivity.  The normative basis of this examination is religious pluralism, religious accommodation and anti-subordination critiques of American society. 

 

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Donald Trump, the Supreme Court, and the Culture of White Grievance

 

Professor Terry Smith

 

Abstract: 

Politicians are duty-bound to portray the American voter as wise, even as their campaign tactics and votes on legislation belie that portrayal.  Abundant social science research confirms that on significant metrics, most importantly those concerning the economy, voters as a group are in fact irrational.  Situating the reality of voter irrationality within the United States Supreme Court’s voting jurisprudence poses innumerable challenges, as the Court, like politicians, has presumed (at least publicly) that voters are wise and rational.  Within the specific political context of racially polarized voting (RPV), however, this presumption interferes with congressional efforts under the Voting Rights Act of 1965 to ensure that voters of color have equal access to the political process and equal opportunity to elect their preferred candidate.  More particularly, as evidence emerges that white bloc voting in the American South is as attributable to racial animosity as partisan preferences, a presumption of voter rationality collides with the suspect voting behavior of white southerners, and thus undermines a central premise of the Supreme Court’s vitiation of Section 5 of the Voting Rights Act in Shelby County, Alabama v. Holder.

 

The Court in Shelby held that Section 5’s coverage formula, which effectively forced most states of the Old Confederacy to account to the federal government for their voting systems, had become stale-dated in view of advances in minority voter turnout and registration in the South.  Yet the majority in Shelby declined to address the compelling evidence of continuing and heightening racially polarized voting in this region, evidence that was apparent in the congressional record reauthorizing Section 5 and in the expert briefs before the Court.  The conservative majority’s lacunae fits comfortably with the narrative of voter rationality as propagated in the oft-repeated defense of white political conservatives that their votes reflect political rather than racial preferences. 

 

This chapter uses a case study of the archetypical southern, conservative bastion of Mississippi to challenge the presumption of voter rationality as it is applied to racially polarized voting to explain this phenomenon away as partisan rather than race-based behavior.  Specifically, the Article uses the existence of white southern conservative voter ideological inconsistency in rejecting the Democratic Party as too liberal while simultaneously rejecting a central premise of the party they embrace, Republicans, by feeding at the teat of the federal government to a much greater extent than even most Democratic states.  The Article situates this ideological discursiveness within the relevant context of social science data demonstrating that white southern voters exhibit the highest anti-black animus based on a number of metrics.  Taken together, then, this evidence suggests that southern white voter irrationality within the context of racially polarized voting not only is consistent with social science evidence of voter irrationality but is highly probative of racially discriminatory intent.  This conclusion should guide policy makers and the Supreme Court in attending to the redrafting of a new Section 5 of the Voting Rights Act.

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McKay Cunningham and Jalila Jefferson

McKay Cunningham, Concordia University School of Law, 
mccunningham@cu-portland.edu

 

 

 The Political Question Barrier as Proxy for Judicial Review in Partisan Gerrymandering Disputes 

 

In November 2016, a federal court struck as unconstitutional Wisconsin’s redistricting map under both the First Amendment and the Equal Protection Clause. The court’s decision in Whitford v. Gill marks the first time a federal court invalidated a redistricting map as unconstitutional for partisan gerrymandering in over 30 years. Wisconsin has appealed the decision to the Supreme Court. The Supreme Court has long held that extreme partisan gerrymandering violates equal protection but has simultaneously refused to determine the merits of gerrymandering disputes, instead labeling them as non-justiciable political questions. In particular, the Court has maintained that no manageable standard yet exists by which the Court could implement the promise of equal protection to partisan redistricting.

This proposal suggests that the Supreme Court’s characterization of gerrymandering as a political question due to lack of a judicially manageable standard is really a proxy for the Court’s timeless pre-occupation with judicial review and judicial legitimacy. Viewed in this way, the Court should no longer hide behind the prudential barrier because court intervention for purposes of clearing channels of democratic governance was (1) anticipated by the Framers, (2) memorialized in the Constitution’s form and structure, and (3) exercised without political blow-back by the Court itself in analogous contexts.

Allowing legislators to draw their own districts and choose their own electorate carries a host of negative impacts on the franchise, that core right preservative of all others. In the 2016 elections for the House of Representatives, for example, the average electoral margin of victory was 37.1 percent. Of 435 contests, only 17 were decided by a margin of 5 percent or less. Such landslide elections, insuring that those in power remain so, might be expected of autocratic nations that are democracies in name only. This proposal argues that intervention to unblock the avenues of political change is one of the Court’s central responsibilities, that in similar contexts the Court has recognized as much, and that it should do so again in Whitford.