LatCrit
Theory: Some Preliminary Notes Towards a Transatlantic Dialogue
by Elizabeth M. Iglesias*
I.
Introduction...
A.
A
(Brief) LatCritical Narrative: From Critical Legal Studies (CLS) to Critical Race Theory (CRT).
B.
Feminist
Critical Legal Theory and Critical Race Feminism.
C.
Asian
Pacific American Critical Legal Scholarship and Chicana/o Studies.....
D.
Queer
Legal Theory
II.
Conclusion.....
In June of 1999, American LatCrit scholars from law
schools throughout the United States and Spanish legal scholars from the
Universidad de Málaga gathered together for the first international colloquium
ever convened to explore points of intersection between LatCrit legal theory
and Spanish legal history, culture and institutions.1 The impetus for this initial exchange was a
two-fold objective. The first was to
introduce Spanish legal scholars to the evolving theoretical perspectives,
political aspirations, normative commitments and critical methodologies of
LatCrit legal theory as thus far articulated in the American legal academy.2 The second was to expand the scope and depth of LatCrit discourse
through a substantive exchange with Spanish legal scholars, who are
particularly well positioned to explain the role of law in Spanish society and to
provide Spanish perspectives on the way LatCrit theory takes up the many
questions raised by the impact of Spanish history and current-day projects on
the complex configuration of Latina/o identities and realities, both within the
United States and throughout Latin America.
That Spain, its history and current-day realities should
emerge as topics of profound interest to many LatCrit scholars is hardly
surprising. The term “LatCrit” is an
abbreviation for “Latina and Latino Critical Legal Theory” and references a
collective project initially launched in 1995 for the express purpose of combating
the relative invisibility of Latinas and Latinos in American critical legal
theory and discourse.3 In the “LatCrit” designation, the term “Lat”
reflects a commitment to examine law and legal institutions in a way that
seriously engages the particular histories and realities of Latinas/os, both
within and beyond the territorial boundaries of the United States. The term “Crit” reflects an equally central
commitment to perform this identity-based critique in solidarity with the
various pre-existing networks of scholars and activists, who seek to promote
progressive social change through the critical analysis of law and legal
discourse.4
Drawing on theoretical frameworks and conceptual
resources developed across many different disciplines, the LatCrit project
seeks to marshal critical analysis to expose and transform the ways in which
law institutionalizes relations of domination and subordination around
essentialist categories such as race, class, gender, sexual orientation,
language, national origin and immigration status. Increasingly, this project has called for a new kind of
coalitional theory – one that transcends the limitations of inherited
categories of essentialist identity and grounds the achievement of substantive
justice in an anti-essentialist vision of human interconnection, without
borders or boundaries.5 This is, in part, because the LatCrit
project has effectively revealed how the marginality of Latinas/os and other
intersectional and transnational identities, both within and beyond the U.S.
domestic legal system, is directly linked to the deployment of essentialist
categories of identity, in the articulation both of public policies and of
popular cultural understandings.6 Indeed, the impact of essentialism is also
reflected in the fact that international law, transnational identities and
solidarity networks, as well as the international human rights movement have
been relatively marginal to, and often completely absent from, the domestic
political and legal agendas pursued by key social justice movements within the
United States, including but not limited to the American civil rights movement,
the labor movement and the women’s rights movement.7
Against this backdrop, the LatCrit project emerged as a
collective effort to expand the depth of American critical legal theories and
the breadth of substantive topics marked for anti-subordination critique by
focusing on the particular realities confronting Latina/o communities. Latina/o communities and identities
constitute a useful point of departure for fostering an expansive
anti-essentialist agenda in and through the articulation of coalitional theory
because Latinas/os come from many different races, ethnicities, genders,
classes and national origins.8 Indeed, the transnationality and
intersectionality of Latina/o identities and communities makes the articulation
of an inclusive anti-subordination agenda both extremely difficult and
extremely important. This is precisely
because both elements trigger immediate confrontations with the realities of
intra-group differences.9 Transcending these differences within and
between Latina/o communities requires the production of a new political vision
of substantive justice because it requires a critical perspective that can
resist the tendency to fragment coalitional solidarities along the lines of
class, race, ethnicity, gender, national origin and other essentialist identity
constructions. 10
In this vein, the unique role of Spanish history and
culture in the configuration of Latina/o identities and communities makes Spain
a subject of obvious and increasing interest among many LatCrit scholars. Though the everyday realities currently
confronting Latinas/os in the United States and throughout Latin America may be
most directly and immediately determined by the impact of American domestic and
foreign policies, it should never be forgotten that today’s Latina/o
communities were spawned during Spain’s colonial supremacy and through the
physical and cultural impact of the Hispanic conquest on indigenous communities
in Latin America and throughout much of the southwestern United States. It is no surprise, therefore, that the
continuing legacy of the Hispanic conquest has already emerged as a central
theme and concern among some LatCrit scholars, nor that it continues to mark an
important field of inquiry worth further LatCrit attention.11
At the same time, as LatCrit scholars continue to
confront the consequences and to explore the implications of increasing
globalization, Spain, its legal system, history, culture and current-day
projects offer a relatively unexplored avenue through which to engage the
critical insights of post-colonial theory and cultural studies, to grapple with
the meaning and significance of Europe and Africa in the articulation of
LatCrit theory and its social justice agendas, and to excavate these new
insights in tandem with, and in relationship to, our critical analysis of
international and comparative law, legal institutions and procedures. From this
future oriented perspective, Spain offers a valuable point of reference for
examining a host of pending issues that are especially germane to Latinas/os
and to other political identity groups committed to the articulation of an
expansive anti-subordination agenda without borders or boundaries. These issues
include such matters as the continuing repercussions of Spanish colonialism and
the future of democracy in Latin America, the configuration of interstate power
relations within the European Union, and Spain’s role in current-day projects
to promote sustainable economic development, social justice and democratic
freedom in the countries of Africa and Latin America.12
Given the potential pay-offs of this transatlantic
dialogue, the purpose of this essay is to provide some preliminary notes for
facilitating a meaningful substantive dialogue between American LatCrit
scholars and Spanish legal scholars interested in exploring the implications of
LatCrit theory from a Spanish perspective.
The intellectual and political value of this transatlantic collaboration
is clearly evidenced by the essays in this Colloquium. Consistent with the exploratory purposes of
this initial dialogue, the essays span a broad range of important topics,
providing significant new insights into the comparative impact of regional
integration on national identities and the rights of citizenship,13 the status of gender in a comparative analysis of public/private
regimes,14 the objectives of legal education,15 and the relationship between Spain and Latin America in
redressing the impact and combating the impunity of military dictatorships and
colonial expropriations.16
The success of this project does, however, face
significant obstacles, not least of which is the matter of cross-cultural
translation. Fostering a genuine
understanding between American LatCrit and Spanish legal scholars means
successfully negotiating the vast range of historical, cultural and structural
differences that distinguish legal consciousness, practices and institutions in
Spain and the United States, as well as an equally vast range of relatively
unexplored differences in the way Spanish and American cultures configure
Hispanic/Latina/o identities. At the same time, understanding the emergence and
broader significance of LatCrit theory in the American legal academy requires
understanding both the genealogy of the series of conferences and events that
today constitute the recorded history of the LatCrit project, as well as the
broader historical backdrop of critical legal scholarship that preceded the
emergence of LatCrit theory. It also
requires a vision of the kinds of issues and substantive themes that can and
should be explored through a transnational, cross-cultural exchange of this
sort.
Accordingly, the purpose of this essay is to provide a
brief sketch of (some of) the critical legal discourses and theoretical
currents that preceded the emergence, and currently inform the articulation, of
LatCrit theory. More specifically, my
objective is to situate LatCrit theory in and against seven strains of critical
legal discourse, whose theoretical perspectives, analytical methodologies and
political aspirations are particularly relevant to, and evident in, the body of
LatCrit scholarship and discourse thus far produced. These seven strains are Critical Legal Studies, Critical Race
Theory, Feminist Legal Theory, Critical Race Feminism, Asian Pacific American
Critical Legal Scholarship, Chicana/o Studies and Queer Legal Theory. With the exception of Chicana/o Studies,
each of these discourses emerged in the American legal academy within the last
twenty-five years; each constitutes a critical intervention aimed specifically
at the production of legal scholarship; each subjects law and legal
institutions to critical analysis for the express purpose of producing a more
just and egalitarian society; and each articulates a different, though often — but not always — allied, perspective on what justice and equality ought to mean.
My purpose here is not to provide a comprehensive account
of any of these discourses, but rather to provide a much more controversial,
though I think, ultimately, more helpful account of the way each discourse
emerged in response to and as a reaction against perceived limitations in the
critical project mapped out by its predecessors. The purpose of this genealogy is to provide Spanish legal
scholars with an intelligible narrative of the intellectual and political
background that informs LatCrit theory.
This genealogy will be controversial among American critical legal
scholars precisely because it recounts the relationship between these various
strains of critical legal discourses from a specifically LatCrit perspective, that is, from a perspective that foregrounds
the ways in which LatCrit theory has sought to acknowledge and incorporate the
advances achieved by its predecessors, even as it seeks to identify and
transcend their limitations in order to produce a more inclusive, expansive and
distinctively LatCritical agenda.
There is no question that this genealogical narrative is
partial and incomplete; that it excludes important networks of scholars, whose
efforts have informed the understandings and assisted the professional
development of individual scholars now associated with the LatCrit movement;
nor that the genealogical relationship among these various strains of critical
legal scholarship would undoubtedly be told very differently by non-LatCrit
scholars, and even by other LatCritters.17 All these caveats are good reasons not to attempt a narrative project that
is so thoroughly doomed from the get-go to trigger criticisms from so many
different, though entirely predictable, directions; and yet, in this context,
at this moment, a story must be told.
It must be told for two reasons.
First, to introduce LatCrit theory in a cross-cultural,
transnational context without even trying
to explain the relationship between LatCrit theory and the substantial
tradition of critical legal discourses that informs and enabled its emergence
would be arrogant in the extreme.18 LatCrit theory is neither fully developed,
nor self-contained. It is profoundly
indebted to, enriched by, and invested in the continued evolution of the
critical discourses that predate it.
This is precisely because LatCrit theory is the collective work product
of a diverse array of scholars and activists, who are contributing to the
development of LatCrit discourse from a wide variety of positions and
perspectives, even as they remain grounded in and committed to the further
development of other critical discourses and transformative projects.19 Any effort to introduce LatCrit theory to scholars and activists
in another country must acknowledge and, at least, attempt to explain these
interconnections in an intelligible way because these interconnections are
substantively significant to an accurate understanding of the critical project
that is currently underway in LatCrit theory.
The second reason for doing this genealogy is more
abstract, but nevertheless compelling.
Undoubtedly, the relationship among these seven strains of critical
legal discourse is susceptible to multiple interpretations. I would venture,
however, that there is no American
legal scholar working in any of these seven strains of critical discourse, who
does not have some narrative
understanding of the historical and theoretical relationship between these
various discourses and projects —
however partial and incomplete, informed or uninformed, developed or
underdeveloped that narrative may be.
As a result, any cross-jurisprudential engagement among American
critical legal scholars is always potentially impacted by the degree to which
these pre-given understandings are activated, as well as by the way their
different perspectives are addressed and resolved in any particular encounter.
This essay is, however, specifically addressed to Spanish
legal scholars, whose points of reference and theoretical frameworks are as
unfamiliar to most LatCrit scholars as the historical development of critical
legal theories in the American legal academy may be to them. Therein precisely lie the anticipated
learning and new discoveries promised by this collaborative project of mutual
engagement and cross-cultural exchange.
Therein also lies the challenge of making LatCrit theory
intelligible. Since LatCrit theory does
not exist in a vacuum separate or apart from the advances already made, and the
obstacles already encountered, in and through the efforts of scholars working
in other critical discourses, it cannot be rendered intelligible except in relationship
to these prior movements. It is thus,
from this perspective — informed by a keen awareness of the inherent
contingency and partiality of any attempted genealogical narrative – that I
have nevertheless concluded that, in launching such a transnational and
cross-cultural project, it is more important at the beginning to get it
“wrong,” than to not get it at all.
A. A (Brief) LatCritical Narrative of the Evolution from
Critical Legal Studies [CLS] to Critical Race Theory [CRT]
Critical Legal Studies emerged as a loosely aligned and
radically progressive network of scholars working in the American legal academy
in the latter half of the 1970s. Since
then, CLS scholars have produced a rich and complex body of legal scholarship
that reflects a broad range of theoretical perspectives and critical
methodologies, including the influences of American legal realism, Marxian and
neo-Marxian social theory, phenomenology, semiotics, structuralism,
post-structuralism and the deconstructive techniques of post-modern literary
criticism.20 Early CLS scholars sought to inject these
diverse theoretical perspectives into the production of legal scholarship as
part of a broader political project to reveal the role of law in the social
production of class hierarchies and human alienation. Their critical analysis targeted a wide range of legal fields
and, in the process, launched a wholesale and highly controversial critique of
American style liberalism. Indeed,
their critiques profoundly challenged many received understandings in the
American legal academy precisely because they triggered significant doubts
about the transformative potential of liberal rights consciousness, the
objectivity of judicial interpretation, as well as the internal coherence and
normative legitimacy of the way public/private rights regimes have been
structured by the articulation of liberal theory in American legal discourse
and doctrine.21
For purposes of this genealogy, I want to focus
specifically on two key elements of CLS scholarship that are particularly
relevant to understanding LatCrit theory and its historical origins. The first is the CLS practice of applying
deconstructive techniques to the critical analysis of legal reasoning and
doctrine; the second is the CLS critique of liberal rights consciousness.22 These two elements are, for both substantive and historical
reasons, of particular relevance in understanding the genealogy and future
trajectories of LatCrit theory. At a substantive
level, this is because many LatCrit scholars today articulate their critical
interventions in terms that reflect the influence of CLS deconstructive
methodologies. At a historical level,
these two elements also played a central role in the ruptures and disjunctures
that provided the immediate impetus for, and gave initial shape to, the
emergence of Critical Race Theory.
Since LatCrit theory, itself, emerged most immediately and proximately
in response to perceived limitations of the Critical Race Theory Workshop,23 a narrative account of the
origins of Critical Race Theory in and against the CLS project is particularly
salient to understanding LatCrit theory’s genealogy, as well as to
understanding the many challenges awaiting our collective attention as we move
to launch this collaborative project of cross-cultural exchange between LatCrit
and Spanish legal scholars.
Initially, Spanish legal scholars may find it difficult
to understand what CLS deconstruction aims to accomplish because its political
and epistemological objectives are very much embedded in and, more importantly,
are reacting against a legal ideology that is particularly American. This
ideology projects an image of law as an apolitical medium for the objective
resolution of disputes. It casts law as the application of reason to limit the
exercise of arbitrary power and legal process as a vehicle through which
fundamental social conflicts and intergroup antagonisms are incrementally
resolved through the evolution of a well-reasoned and ever more comprehensive
body of rules developed in and through the careful adjudication of specific
cases.
Viewed against the civil law systems in countries such as
Spain and in Latin American countries that have incorporated Spanish civil
codes and legal traditions, this American legal ideology reflects the legacy of
the British common law tradition, which was transplanted to the American
colonies during the colonial period that preceded the American Revolution. In the common law tradition, the vast corpus
of private law doctrines evolves, not through the enactment of comprehensive
codes, but rather through a process of adjudication in which binding legal
precedents are judicially articulated to resolve specific cases and
controversies. In the United States,
the legal doctrines articulated through this process of adjudication are also
binding on all future cases within the relevant jurisdiction. As a result, in the U.S. legal system,
judges wield enormous power to decide what the law is and thus to define and
redefine the existing structure of rights and obligations in ways that have
profound impact on the organization of social relations within (and beyond)
American society. Judges in the U.S.
legal system also enjoy an unprecedented degree of independence from the
legislative and executive branches of government, and have the legal authority
to declare the actions of these other branches unconstitutional.
Given the unprecedented scope of judicial power, the
perceived legitimacy of the American judicial system and its ability to
effectively settle disputes depends importantly on a belief in the objectivity
of judicial interpretation and the process of adjudication. Indeed much of liberal legal theory is aimed
at fortifying this belief. Judicial
independence is cast as a fundamental prerequisite for institutionalizing “the
rule of law,” which is itself sharply distinguished from the exercise of
arbitrary power, otherwise known as “the rule of men,” and heralded as an
indispensable element of democratic self-government.
Against this backdrop, CLS scholars consciously and
deliberately imported deconstructive methodologies into the production of legal
scholarship in order to reveal the incoherence, arbitrariness and deeply rooted
biases of judicial interpretation — as reflected in the indeterminacy of
American legal doctrines and the structure of rights and obligations these
doctrines tend to institutionalize. In
particular, CLS scholars targeted the judicial practice of precedential
analysis through which the appropriate legal outcome of an adjudicated dispute
is supposedly determined by analogical reasoning from previously decided cases
raising similar issues under similar circumstances. Taking on a vast range of substantive legal fields, CLS scholars
developed a series of profoundly compelling critiques that effectively revealed
the indeterminacy of some of the most basic and foundational doctrines of
American property, contract and tort law;24
they exposed the role of judicial reasoning in “de-radicalizing” American labor
rights legislation and thereby suppressing the possibilities for progressive
social transformation embedded in the early New Deal labor laws; 25 and they revealed how the
indeterminacy of legal doctrine renders law an instrument through which the
fundamental contradictions and social antagonisms repeatedly reflected in
routine cases appearing before the courts, are displaced — rather than
resolved — through the process of
adjudication.26
This broad scale attack on the internal coherence and
purported objectivity of judicial interpretation challenged the liberal
distinction between law and politics in profound and material ways. The reaction was immediate and intense.27 Many CLS scholars were purged from elite law schools, attacked as
anarchists and declared unfit to teach law in the American legal academy. Despite these assaults and the individual
careers that were sacrificed to the forces of reaction, many CLS scholars today
remain tenured, though marginalized, in law schools throughout the
country. Though they have bequeathed no
institutional or programmatic legacy, the critical insights and methodologies
they pioneered continue to provide an important source of insight, inspiration
and direction to new scholars interested in a deeper understanding of the many
disjunctures between the aspiration for substantive social justice and human
solidarity, on the one hand, and the limits of positive law and legal process,
on the other. Indeed, CLS perspectives, methodologies and critical formulations
are readily apparent today in the work of various LatCrit scholars.28
Although the theoretical and political disjunctures that
produced the ruptures that, in turn, gave rise to the emergence of Critical
Race Theory are profoundly complex, multidimensional, and informed, as all
things human, by the strengths, weaknesses and personal idiosyncrasies of the
particular individuals involved at that particular moment in history, there is
no question that the CLS critique of liberal rights consciousness played a
central role in the CLS-CRT rupture.29 The reasons are easy to understand when the
CLS rights critique is read against the history of the American civil rights
movement and its historical struggles to combat the racial dictatorship of
white supremacy in the United States.
To reduce the civil rights movement to a series of legal
struggles over the constitutionality of racial segregation and the
Congressional enactment of civil rights legislation would be a gross
misrepresentation of the profound political, spiritual and moral awakening produced
by the non-violent protests and individual courage through which Black people
in this country rose up to challenge the gross injustices of American racial
apartheid.30 Nevertheless, this movement did have a
profound impact on American rights consciousness precisely because this
anti-racist movement also took the form of a struggle for civil and political
rights. As Black citizens sought
increasingly and proactively to assert their rights to freedom of speech and
assembly, to vote, to due process and to the equal protection of law, the sheer
lawlessness and impunity with which white citizens and State law enforcement
officials throughout the South conspired to deprive them of these rights
triggered a crisis in the perceived legitimacy of the state and the effective
viability of the rule of law.31 Through the symbolic power of non-violent
protest and effective legal and political advocacy, the civil rights movement
exposed a nation to itself, by revealing the systemic and effective hypocrisy
of its purported commitment to individual dignity, liberty and equality, and
even to the rule of law. The
Congressional enactment of civil rights legislation in the mid-1960s was thus
viewed by many as a significant victory, not only for the civil rights
movement, but also for liberal political aspirations to vindicate the American
experiment in democratic self-governance and to reaffirm the primacy of the
rule of law.
Against this backdrop, it is not surprising that the CLS
critique of legal indeterminacy and liberal rights consciousness would prove
profoundly disturbing to many legal scholars of color, particularly those whose
own personal commitment to the study and practice of law drew its energy and
inspiration from the history of the civil rights movement. Though many scholars of color could readily
appreciate the power of deconstructive legal analysis and its usefulness in
revealing the indeterminacy of legal reasoning and the ideological biases
reflected in judicial interpretation, these same scholars were understandably
hesitant to embrace the more radical implications of the CLS critique.
One particularly controversial implication drawn from the
CLS critique of legal indeterminacy was the notion that rights consciousness
was an obstacle to, rather than an instrument for, the
progressive transformation of society.32 The CLS critique of legal indeterminacy and
judicial subjectivity was so thoroughly devastating to the liberal vision of
law as a neutral instrument of rational dispute resolution and objective
justice precisely because it directly challenged the notion that fundamental
social change could, in fact, be effected through law. On the contrary, rather than limiting the
exercise of arbitrary power by dominant social interests, legal adjudication
was exposed as a process that enabled judicial ideology to disguise its own
complicity in the reproduction of social hierarchies through the interpretative
manipulation of a fundamentally indeterminate and ultimately incoherent body of
legal doctrines. Though “the law,”
understood specifically as judicial adjudication and enforcement of fundamental
legal rights, was purportedly above or beyond politics, CLS scholarship
repeatedly revealed that judicial adjudication was simply another forum and
venue of political contestation, a venue that was particularly elitist,
exclusionary and inaccessible to the kinds of claims truly democratic and
transformative social movements might want and need to demand.
Although the ruptures that produced the CRT break from CLS
span a much wider breadth of issues than those implicated in the debate over
the role of law and rights consciousness in the process of social
transformation, this perspective does provide a useful vehicle for articulating
points of theoretical convergence and divergence. These points, in turn, may illuminate some of the aspirations
invested in the current LatCrit project and may also help to guide its future
evolution, particularly at the threshold of this new initiative to produce a
collaborative cross-cultural, transnational dialogue between American LatCrit
scholars and Spanish legal scholars.33 In this vein and in the context of this very
brief genealogical narrative, it may suffice simply to note that LatCrit
scholars can neither abandon, nor fully embrace, the dominant civil rights
paradigm, nor the rule of law ideologies through which its limitations are
excused. Indeed, the emerging body of
LatCrit scholarship reflects precisely this dynamic tension.
Like CLS scholars, many LatCrit scholars have expressed
profound dissatisfaction with the U.S. domestic civil rights paradigm. This expressed dissatisfaction has thus far
centered on three key elements: (1) the
domestic myopia that truncates U.S. civil rights discourse and consciousness
within a domestic framework;34
(2) the failure of U.S. civil rights paradigm to incorporate social and
economic rights and to deal adequately with the realities of class
subordination and the centrality of poverty in the reproduction of racial
subordination both within and beyond the United States;35 and (3) the fact that the
U.S. civil rights paradigm is truncated by an ideology of color-blind
individualism36 and, more
particularly, by the tendency to view issues of racial inequality and
subordination through the limited framework of a Black/White binary of race and
race relations, which fails to address the cultural, economic and political
dimensions of white supremacy as it operates specifically in the subordination
of identities and communities that are neither black, nor white.37
Although the highly critical perspective with which
LatCrit scholars have assessed the viability and legitimacy of the current
civil rights paradigm marks important points of convergence with earlier CLS
critiques of legal indeterminacy and liberal rights consciousness, there are
significant divergences. As with CRT
scholars, many of the issues and concerns that have occupied LatCrit attention
counsel grave caution in the way we use, and the inferences we draw from, the
CLS critique of the role of law and legal rights consciousness in the process
of social transformation. To give just one example, LatCrit scholars have from
the very beginning sought to articulate LatCrit theory and social justice
agendas in ways that acknowledge and effectively respond to the transnational
dimensions of Latina/o identities and communities.38 As a result, LatCrit theory is interested in challenging both
the ways in which transnational identities are particularly oppressed by the
current structure of domestic U.S. legal regimes, as well as the realities of
subordination that are currently manifested in third world countries from which
these transnational identities originate.
The first interest is reflected in LatCrit challenges to
the failures of the domestic civil rights paradigm to incorporate social
justice issues like the struggle for language rights or to challenge the ways
in which U.S. immigration laws and policy legitimate the systematic violation
of basic human rights through the deployment of essentialist legal constructs
like the citizen/alien dichotomy.39 The second interest is reflected in the
attention LatCrit scholars have devoted to the problems confronting Latinas/os
and other transnational, intersectional and marginal identities throughout
Latin America and the third world.40
At the same time, the anti-subordination commitments at
the heart of the LatCrit movement counsel grave caution in addressing social
justice issues in countries other than the United States, “lest we are too quickly
seduced or reduced to thinking in terms of the readily available
blame-the-victim discourses of Third World corruption, authoritarian
traditions, and bureaucratic impotence.”41
In this vein, a LatCrit sensibility also warrants caution regarding any
proposal to transplant the more radical versions of the CLS rights critique to
third world countries where the “rule of law” is hardly a dominant ideology. The history and continuing instances of
gross human rights abuses, impunity, and corruption in countries such as
Guatemala, Nicaragua, Colombia, Peru, and Haiti provide a frightening window
into the possible consequences of the wholesale deconstruction and
delegitimation of rule of law ideologies.
Although it is certainly true that the indeterminacy of
law and the limitations of liberal rights regimes render law of limited
instrumental value as a tool in the struggle for social and racial justice,
nevertheless the brutality and impunity of elites the world over makes law a
fundamental stake in any struggle that takes seriously the hopes and
aspirations of third world peoples, both within and beyond the United
States. Put differently, while law is
ultimately insufficient to change existing structures of power and privilege,
any emancipatory movement must seek to render power at least minimally
accountable, and to do so, it will need law, and more specifically, it will
need rights. As a result, the future of
LatCrit theory and its prospects for producing a theoretical intervention that
is truly relevant to the compelling problems facing third world peoples
throughout Latin America and elsewhere depends importantly on its ability to
invite collaborative dialogue with third world legal scholars and advocates,
who currently are deeply and practically invested in projects designed to
institutionalize the very same rule of law ideologies that CLS scholars have so
effectively debunked.42 At the same time, there is no question that
the substantive parameters of a LatCritical
rights consciousness must continue to expand our collective understanding of
the meaning and prerequisites of social justice beyond the current limitations
of the domestic U.S. civil rights paradigm.
B. Feminist Critical Legal Theory and Critical Race Feminism:
Intersectionality and Anti-Essentialism in the Configuration of a LatCritical Identity Politics
No genealogical narrative of the theoretical perspectives
and political commitments that currently are converging in the LatCrit project
would be complete without reference to the contributions of FemCrit legal
theory and Critical Race Feminism.43 Similar to CLS and CRT, these two
theoretical discourses produced a rich and complex body of scholarship, whose
contributions to the critical analysis of law, legal institutions and legal
process cannot fairly, nor fully, be captured by a genealogical narrative as
brief as this one aspires to remain.
Accordingly, rather than provide an abstract overview, my purpose here
is to offer a partial, and therefore unavoidably controversial, account of some
of the ways in which these two currents of critical legal discourse have
contributed to the theoretical perspectives and political commitments that
today inform the articulation of LatCrit theory.
FemCrit legal theory emerged in the American legal
academy shortly after the emergence of Critical Legal Studies and reflected a
self-conscious determination to advance two distinct but interconnected
projects: (1) to incorporate the
critical perspectives and methodologies of CLS into the evolving body of
feminist scholarship, so as to give liberal feminism a more critical edge in
the academy, and (2) to incorporate a feminist perspective into the
articulation of CLS scholarship, so as to center the issue of male supremacy
and the impact of male supremacist ideologies on legal interpretation and on
the reproduction of gender inequality across all legally mediated social
relations. Thus, FemCrit scholarship
was both a radical intervention in the development of mainstream feminist
theory and a feminist intervention in the CLS movement — in both instances
aimed at the deconstruction of male supremacy.44
Early FemCrit scholarship reflects this dual objective in
its application of CLS-style deconstructive methodologies to reveal the
limitations of liberal rights consciousness, legal doctrines and legal process
from a specifically feminist perspective.45 Mapping out a broad agenda of critical
analysis and law reform initiatives, feminist legal scholars worked to reveal
and combat the impact of male supremacist ideologies in virtually, and
increasingly, almost every field of law, including criminal law and procedure,46 family law,47 employment law,48 and public benefits.49 They also worked to develop new legal theories to address
incidents and practices of sex-based subordination and oppression that were not
then cognizable under existing legal doctrines. Three notable examples are reflected in feminist legal struggles
to expand the scope of federal anti-discrimination laws in order to allow new
causes of action for comparable worth claims, which challenge the suppression
of wage structures in jobs cast as “women’s work,”50 to create legal remedies
for instances of sexual harassment directed at women in the workplace,51 and to challenge the impact
of the production and dissemination of pornography on women’s equality rights.52
Though LatCrit theory draws more directly from the
theoretical perspectives articulated in and through the subsequent emergence of
Critical Race Feminism, early FemCrit theory made significant contributions to
the evolution of American critical legal discourse, and the conceptual power of
these contributions still resonates today in the theoretical perspectives
informing the LatCrit project. To understand
this connection between early FemCrit theory and the more recent advances in
LatCrit scholarship, it is important to remember the particular challenge
feminist legal theory directed at the settled understandings underpinning
American equal protection doctrine and anti-discrimination laws. Informed by a vision of formal rights
equality, American legal discourse and consciousness predicated
anti-discrimination laws on the liberal consensus that equals should be treated
equally. However, in defining
discrimination as the unequal treatment of similarly situated persons, liberal
rights consciousness produced a truncated vision of equality that ignored the
many ways in which sex and gender based subordination are organized around the
discriminatory treatment of difference, particularly the differences between
men and women.
Indeed, this truncated formulation of the equality norm
has produced truly absurd moments in the history of American equal protection
jurisprudence. In one particularly
ridiculous string of cases, the U.S. Supreme Court held that the exclusion of
pregnancy-related disabilities from an employer’s disability benefits plan did
not violate the Equal Protection Clause of the U.S. Constitution or Title VII’s
statutory prohibitions against sex-based employment discrimination, absent
evidence that the exclusion of pregnancy disability benefits was a pretext for
discriminating against women.53 Despite the fact that only women can become
pregnant, the Court refused to recognize pregnancy-related discrimination as
sex-based discrimination, arguing that pregnancy discrimination does not
discriminate between men and women, but rather discriminates only as between
pregnant persons and non-pregnant persons.54 Although Congress shortly thereafter
overruled the Court’s interpretation as applied to Title VII,55 the Court’s reasoning
reveals the profound obstacles confronting any feminist project to promote sex
equality through law, so long as the right to equal treatment and respect is
thought to depend upon and derive from women’s similarities to men.
Blind-sided by the superficial logic of this formalistic
equality norm and by the fact that women’s differences were often used to
justify their subordination and exclusion from the opportunities available to
men, many women initially responded by denying the “objective” reality and
ultimate relevance of sex and gender based differences. These differences were said to be socially
and culturally constructed differences that did not constitute fundamental or
necessary limitations on women’s ability to be equal to men. However, this approach — as evident from the
Supreme Court’s treatment of pregnancy discrimination — soon proved seriously
inadequate to the challenge of promoting women’s equality, particularly as
women began affirmatively to embrace and re-value their differences from men
and to articulate new demands for an equality of respect, rather than of
treatment.
Early FemCrit theory was absolutely central to this
gestalt shift in perspective.56 Admitting women’s differences from men,
FemCrit scholars launched a reasoned attack on the role that “women’s differences” were allowed to
play in legitimating women’s subordination and suppressing women’s
opportunities. After all, while women
are certainly different from men, so too are men different from women. Why then should women have to prove they are
like men? Perhaps men should have to
prove instead that they are like women.
Requiring women to be the same as men reduces the meaning of “equality”
to nothing less than a blatantly discriminatory demand that women assimilate to
a male norm. Thus was launched the
so-called “sameness/difference debate” in the struggle over the meaning
sex-discrimination and the requirements of equal protection.57 Its significance cannot be overstated, nor should its profound
relevance to the LatCrit project be overlooked.
Certainly, one reason why the sameness/difference debate
pioneered by FemCrit scholars is so relevant to LatCrit theory is because
LatCrit theory aspires to articulate a broad and inclusive vision of social
justice, which necessarily must, and already has, incorporated the struggle for
gender equality and the dismantlement of male supremacy as a key element of its
emancipatory project. However, this
debate has profound implications for a much wider array of LatCrit concerns
precisely because LatCrit theory grounds its commitment to anti-essentialist
intergroup justice on a respect for difference, rather than a requirement of
sameness. It could not do otherwise,
given the attention LatCrit scholars have devoted to matters like language
rights.58 This is because the struggle against the suppression of languages
other than English cannot effectively rebut the claim that different degrees of
language proficiency do constitute meaningful grounds for discriminating among
persons — absent a vision of equality and individual dignity that transcends
the requirement of sameness.59
Despite its significant contributions and its aspirations
to define a common agenda for the universal liberation of women, FemCrit theory
floundered on the racial, ethnic, class and cultural essentialisms of its
pre-dominantly white, upper-middle class, First World perspectives.60 Many Black and Third World feminists soon complained that matters
of particular significance to women of color were marginalized, in and by the
exclusive attention white feminist scholars directed at issues related to sex
and gender based oppression. Though
rape, sexual harassment, pregnancy discrimination, and pornography are
certainly matters of compelling concern to women of color, a genuinely
inclusive and universal feminism would have to join the struggle against the
racism, cultural imperialism and economic exploitation through which women of
color are particularly oppressed.
This type of criticism is well illustrated in accounts of
the United Nations’ Conference in Copenhagen in the mid-1980s.61 When First World feminists condemned the practice of female
genital mutilation, Third World feminists objected that problems of nutrition,
infant mortality, illiteracy, health care delivery, and skilled training were
as important to them as women as the
issue of female circumcision.
Addressing these problems would, however, require feminists to take an
anti-imperialist position, and according to at least one commentator, many
Third World women felt their self-defined needs were not addressed as priority
items in the international feminist agenda, which was dominated by a white
Western feminist perspective and inattentive to issues of imperialist
domination. 62
Closer to home, attention to the particular forms and
contexts of discrimination experienced by women of color provided significant
new insights into the limitations of American equal rights consciousness and
federal anti-discrimination laws. For
example, the process of proving a discrimination claim was particularly and
uniquely problematic for Black women alleging employment discrimination because
the prohibitions against employment discrimination based on race and sex failed
to take women of color into account as a distinct, legally cognizable
category. As a result, an employer who
discriminated by refusing to employ any Black women at all, nevertheless, might
easily escape Title VII liability by showing that he employed white women (and
therefore did not discriminate on the basis of sex) and that he employed black
men (and therefore did not discriminate on the basis of race). The failure to recognize women of color, as
such, in the classification of categories protected by federal
anti-discrimination statutes, meant that the systematic exclusion of Black
women from a place of employment could be done with virtual impunity.63
Although some white feminist scholars acknowledged the
need to expand the scope of the feminist legal agenda to enable new avenues and
possibilities for anti-racist solidarity with women of color, anti-imperialist
solidarity with Third World women and anti-classist solidarity with poor women
of all colors, others continued to propound a universal feminist agenda based
on abstract assertions about the common interest of all women in the
elimination of sex and gender-based oppression, even as they continued to
marginalize the particular forms of oppression experienced specifically by
women of color.64 Thus, Critical Race Feminism was born from
the felt need among women of color to articulate a feminist legal theory
grounded specifically in the particular experiences of women of color at the
intersection of multiple practices of oppression and the convergent impact of
racism, sexism and class exploitation.65
Like LatCrit theory, Critical Race Feminism challenges
the Black/White paradigm of American racial consciousness.66 It does so by interpolating issues of sex and gender into the
analysis of racial discrimination even as it invites all women of color to
develop a collective political identity and to forge an inclusive
anti-subordination agenda across the divisions of race, class and ethnicity.
C. Asian Pacific
American Critical Legal Scholarship and Chicana/o Studies
No genealogical account of the emergence of LatCrit
theory could fully and effectively convey the substantive scope of LatCrit
aspirations to articulate a broadly inclusive anti-essentialist,
anti-subordination theory without noting the contributions of Asian Pacific
American Critical Legal Scholarship [APACrit] and Chicana/o Studies. These two
movements made significant contributions, both within and beyond the
institutional and programmatic parameters of the LatCrit project. At the same time, each movement presents a
distinct, but ultimately inter-related, challenge because each movements calls
in different ways for LatCrit scholars to ensure that the future development of
LatCrit theory retains its substantive commitment to intra- and inter-group
justice. In this respect, the long tradition of Chicana/o studies and activism
challenges LatCrit scholars to attend to the particularities of intra-Latina/o
differences,67 even as the
more recent interventions of APACrit scholarship illustrate why LatCrit
scholars cannot limit the parameters of our theoretical concerns or
solidaristic commitments to an essentialist construction of Latina/o identity,
nor even to the more inclusive politics of Latina/o pan-ethnicity.68 Each movement, thus, presents LatCrit scholars with a ready
opportunity to ground the production of LatCrit theory on a genuine respect for
and engagement in the convergent liberation aspirations and struggles that have
thus far been truncated by the essentialist manipulation of intra- and
inter-group differences. A few brief
observations may illustrate these points.
Asian and Pacific American scholars have for some time
been examining the complex relationship between the U.S. legal system and the
particularities of Asian Pacific American experiences in and beyond the United
States. 69 Nevertheless, the proposal to launch “an
Asian American Moment” and, thereby, to initiate a collective project aimed
specifically and self-consciously at articulating common themes and points of
critical legal intervention around the particular experiences of Asian and
Pacific Americans was a profoundly significant moment in the development of
American critical legal discourse and, more specifically, in the subsequent
emergence of LatCrit theory. 70 Its significance to LatCrit theory derives
both from the new theoretical insights and the important intergroup
commonalities revealed by the emergence of APACrit scholarship and from the
generous contributions Asian and Pacific American scholars have been making to
the development of LatCrit theory since its inception.71
LatCrit theory and APACrit
scholarship share ready points of convergence.72 Both movements seek to reveal
historical and contemporary aspects of white supremacy that have thus far been
suppressed and marginalized by the Black/White paradigm of American racial
consciousness, even as each acknowledges and stands in opposition to the
particular and pervasive forms of racial discrimination suffered by Black
persons, both within and beyond the United States.73 Both movements, by definition, center marginal, transnational and
intersectional identities and attempt to articulate a common agenda for
progressive social transformation out of an imagined act of solidarity among
individuals and communities otherwise separated by profound differences of
language, culture, class, ethnicity and national origins. Both link the identities they center to a
profound critique of the limitations of the domestic U.S. civil rights paradigm
and seek to import issues arising out of U.S. immigration laws and policies,
the suppression of languages other than English, and the structural failures of
international law and institutions into the critical analysis of white
supremacy and its articulation in legal norms, process and institutions. As a
result, both have made significant contributions to the development of an
anti-essentialist moment in the production of Critical Race Theory and to the
evolution of American critical legal theory, even as each promises to reveal an
ever broader and more comprehensive understanding of the way relations of
domination and subordination are mapped across the globe and institutionalized
in American law and policy.
The long history of Chicana/o studies and activism, by
contrast, dates back to the 1960s and 1970s and informs the substantive themes
and concerns of LatCrit theory in profound and particular ways.74 Unlike other Latina/o groups, most Chicanas/os never crossed the
U.S. border; rather “the border” crossed over them. The history of Chicana/o subordination and dispossession is
directly linked to the history of Anglo-American settlers, whose westward
expansion was cast as Manifest Destiny and whose acquisition of the vast
territories of the southwestern United States marks a history of war, theft and
judicial lawlessness of unprecedented proportions.75 Thus, a Chicana/o perspective brings to
LatCrit theory a unique set of issues arising out of current legal struggles
over this history of stolen lands and U.S. treaty violations, even as the
struggle to combat Chicana/o poverty in cities along the U.S.-Mexico border
calls for proposals and strategies that address the current distribution and
regulation of land ownership, that promote enforcement of labor and
environmental standards in the Maquilladora industry across the Mexican border,
and that combat the militarization of the United States border patrol.76
D. Queer Legal Theory
Once again, as with other strains of critical discourse
that currently are contributing to and reflected in the evolving record of
LatCrit theory, no genealogy as brief as this can convey the full scope of
contributions made by QueerCrit scholars to the LatCrit project, both in
ensuring the authenticity of its asserted commitment to a broad and inclusive emancipatory
project, and in mapping out new sites of legal intervention in the struggle to
produce a more just and humane society.77 Although the richness and extensive
potential of the two-directional project, through which Queer LatCrit scholars
are seeking to articulate a QueerCrit intervention in LatCrit theory and a
LatCrit intervention in QueerCrit theory, is still at an embryonic stage of
development, it is important for Spanish legal scholars interested in
understanding the full scope and significance of the anti-essentialist,
anti-subordination commitments of the LatCrit project to understand the reasons
why QueerCrit discourse constitutes a central component in and for the future
development of LatCrit theory.
It is easiest to understand this jurisprudential
interconnection if one understands that “Queer” identity constitutes an
imagined political identity embraced primarily, but not exclusively, by gays and lesbians.78 Indeed, like “LatCrit” identity, “Queer” identity seeks to
articulate an anti-subordination position and perspective that is authentically
and broadly inclusive precisely insofar as it opposes all of the many ways in which the suppression, repression and
reglementation of the human capacity for sexual/spiritual interconnection is
culturally inscribed and legally enforced by straight, white, and male
supremacist ideologies and practices.
In this respect, the Queer liberation project marks
important points of solidarity and interconnection with LatCrit feminist
perspectives and emancipatory aspirations.
Women, in general, and Latinas, in particular, suffer significant
oppression as a result of the ways in which sexuality is culturally
represented, socially organized, and legally regulated.79 Because the regulation of sexuality is so central to the
particular ways in which women are subordinated in male supremacist regimes,
the substantial and increasing body of Queer scholarship criticizing the essentialist
and oppressive aspects of heterosexual institutions such as “marriage” and “the
family” constitute important theoretical resources for LatCrit theory.80 Though “marriage” is cast as a sacred institution, the bedrock of
Christian civilization, marriage also and often constitutes the site of
violence, abuse, and material exploitation of women (and their labor power) by
the men to whom they are married.81 Sexist representations of women also infuse
the adjudication of child custody disputes and the determination of welfare
eligibility in ways directly calculated to compel women’s conformity with male
supremacist notions of female dependence on and attachment to a heterosexual
male partner (preferably her husband).82 As a result, both Queers and women share a
common interest in deconstructing the sexist assumptions inscribed in current
understandings of the meaning and social, spiritual and psychological
significance of marriage and family.
At the same time, the pervasive and particularly virulent
forms of homophobic oppression expressed in and across all of the various
communities of color that are currently invested in the further evolution of
LatCrit anti-essentialist anti-subordination theory and praxis makes it
normatively and politically imperative that LatCrit scholars attend to the
problem of homophobia in Latina/o cultures and communities, and particularly to
the ways in which Queer Latinas/os are subordinated in and through the
limitations of American rights consciousness.
Although Queer activists achieved some successes in and through the
increasing recognition of the human rights implicated by homophobic practices,
institutions and ideologies,83
the struggle for a full recognition of the human dignity and equal rights of
Queer persons continues. LatCrit
scholars have a particular responsibility to participate in this struggle
precisely to the extent that LatCrit theory propounds a commitment to a broadly
inclusive, anti-essentialist vision of Latina/o liberation, specifically, and
human liberation in general.
LatCrit scholars also have a distinct perspective to
offer in ensuring that this struggle recognizes the particular ways in which
Latinas/os, and other transnational and intersectional identities, are doubly
burdened for being Queer, and for failing to embody the American cultural and
national identity that shields the white, Anglo-American citizen from such
particular forms of homophobic repression as those embedded in the failure of
domestic immigration laws and policies to recognize and accord equal treatment
to gay families.84 Although this brief narrative only sketches
the contested terrain negotiated by the project to produce legal theory at the
intersections of Queer/LatCrit positionalities and perspectives, it does
provide important insights into the ways in which this particular project
implicates, and is implicated in, other emancipatory projects within the
LatCrit movement, that is specifically, the project to dismantle the oppression
of male supremacy, as well as to achieve transborder justice for the marginal
and intersectional transnational identities at the center of LatCritical identity-based critiques of
law, legal process and legal institutions.
These preliminary notes have sought to orient Spanish
legal scholars interested in understanding the purposes, methodologies,
aspirations and future trajectories of American LatCrit legal theory. Despite the many challenges confronting any
effort for genuine dialogue and mutual understanding across cultural, national
and historical divides, the First Annual LatCrit/Spain Colloquium hosted by the
Universidad de Málaga Facultad de Derecho and co-sponsored by the University of
Miami Center for Hispanic and Caribbean Legal Studies in June of 1999, marked
the beginning of a rich and enriching exchange which inspired much excitement
and enthusiasm among American LatCrit scholars. It is my deepest hope that this admittedly brief overview of the
historical development of critical legal theory in the American legal academy
and the position and perspectives of LatCrit theory within that evolving tradition
will spark the interest and enthusiasm among Spanish legal scholars, as the
prospects of this cross-cultural exchange have inspired in LatCrit scholars.
* Professor of Law and Co-Director of the Center for Hispanic and
Caribbean Legal Studies, University of Miami School of Law. Special thanks to Dean Jose Manuel Ruíz-Rico
Ruíz of the Universidad de Málaga for generously convening this
Colloquium. Thanks also to the
Colloquium participants: Kevin Johnson, Juan Luis Millán Pereira, Ediberto
Román, Celina Romany, Ángel Rodríguez-Vergara Díaz, Lundy Langston, Yolanda de
Lucchi López-Tapia, Magdalena Maria Martín Martínez. Special thanks to Ana Salinas de Frías and to my friend and
colleague, Frank Valdes.
1 This Colloquium was hosted by the Universidad de Málaga Facultad de
Derecho and co-sponsored by the University of Miami Center for Hispanic and
Caribbean Legal Studies as a collaborative project to produce a first ever
simultaneous publication of LatCrit scholarship in Spain and the United
States. Accordingly, the colloquium
papers published by the Universidad de Málaga Press also appear in this volume
of the University of Miami International
and Comparative Law Review.
2 Although LatCrit Legal Theory is a relatively recent intervention in
the evolution of American critical legal scholarship, in the last five years,
LatCrit scholarship has developed at an unprecedented pace. See,
e.g., Symposium, LatCrit Theory,
Latinas/os and the Law, 85 Cal. L.
Rev. 1087 (1997), 10 La Raza L.J.
1 (1998); Colloquium, Representing
Latina/o Communities: Critical Race Theory and Practice, 9 La Raza L.J. 1 (1996); Symposium, LatCrit Theory: Naming and Launching a New
Discourse of Critical Legal Scholarship, 2 Harv. Latino L. Rev. 1 (1997) [LatCrit I]; Symposium, International Law, Human Rights and LatCrit
Theory, 28 U. Miami Inter-Am. L.
Rev. 1 (1997); Symposium, Difference,
Solidarity and Law: Building Latina/o Communities Through LatCrit Theory,
19 Chicano-Latino L. Rev. 1
(1998) [LatCrit II]; Symposium, Comparative
Latinas/os: Identity, Law and Policy in
LatCrit Theory, 53 U. Miami L. Rev.
575 (1999) [LatCrit III]; Symposium, Rotating Centers, Expanding Frontiers:
LatCrit Theory and Marginal Intersections, 33 U.C. Davis L. Rev. (forthcoming Spring 2000) [LatCrit IV];
Symposium, Class in LatCrit: Theory and
Praxis in a World of Economic Inequality (forthcoming U. Denver L. Rev.;
Harv. Latino L. Rev. 2001) [LatCrit V].
3 Francisco Valdes, Foreword:
LatCrit Theory: Naming and Launching a New Discourse of Critical Legal
Scholarship, 2 Harv. Latino L. Rev.
1, 3 n. 5 (1997) (tracing genealogy of “LatCrit” legal studies to initial
colloquium organized in conjunction with the 1995 Hispanic National Bar
Association’s Annual Conference in Puerto Rico and designed specifically to
explore the place of Latinas/os in Critical Race Theory).
4 LatCrit theory draws upon a rich and varied intellectual inheritance
because it is the evolving work product of a widely diverse group of critical
legal scholars. See Elizabeth M. Iglesias, Foreword:
Identity, Democracy, Communicative Power, Inter/National Labor Rights and the
Evolution of LatCrit Theory and Community, 53 U. Miami L. Rev. 575, 584 (1999) (noting that “LatCrit Theory
finds its intellectual roots in Critical Race Theory, Critical Race Feminism,
Chicana/o Studies, Law and Society and Critical Legal Studies precisely because
these various strains of critical discourse are the intellectual roots of the
individuals whose energy drives the LatCrit project and secures its continued
evolution.”) [hereinafter, Iglesias, Foreword:
LatCrit III].
5 “Essentialism” and “anti-essentialism” are key concepts in LatCrit
theory, however, both terms mean different things in different contexts. Generally, “essentialism” is a label applied
to claims that a particular perspective reflects the common experiences and
interests of a broader group, as when working class men purport to define the
class interests of “workers,” or white women purport to define the interests of
all “women,” without acknowledging intragroup differences of position and
perspective. Indeed, essentialist categories are routinely invoked precisely .in order to suppress attention to
intragroup differences, and thereby to consolidate a group’s agenda around the
preferences of the group’s internal elites.
By contrast, “anti-essentialist” theory seeks to reveal intragroup
differences precisely in order to expose relations of subordination and
domination that may exist within and among the members of any particular
group. See, e.g., Elizabeth M. Iglesias, Structures of Subordination: Women of Color at the Intersection of
Title VII and the NLRA. Not! 28 Harv. C.R.-C.L. L. Rev. 395 (1993)
(revealing how essentialist categories of race and class underpinning American
labor and employment law regimes enable women of color to be both excluded
from, and/or submerged within, majoritarian labor unions — thus making the
struggle for collective empowerment and recognition a matter of reunifying
collective political identities that have been fragmented and fragmenting
identities that have been unified through the deployment of race and gender
essentialist categories) [hereinafter Iglesias, Structures of Subordination].
Though anti-essentialist theory has routinely been attacked for
fragmenting, that is “Balkanizing,” group solidarity and undermining more
universal struggles for progressive social transformation, anti-essentialist
theory seeks rather to ground collective solidarity on substantive inter and
intragroup justice. Iglesias, Foreword:
LatCrit III, supra note 4, at 629.
To be sure, the fact that these terms are embedded in, and arise from,
the particular conflicts and controversies that have occupied the American
left, both within and beyond the legal academy, provides a ready reminder of
the challenges confronting any cross-cultural exchange. See,
e.g., Sharon K. Hom, Lexicon Dreams and Chinese Rock and Roll:
Thoughts on Culture, Language, and Translation as Strategies of Resistance and
Reconstruction, 53 U. Miami L. Rev.
1003 (1999) (on the cross-cultural difficulties of translating feminist legal
terms from English into Chinese).
6 For example, the Black/White paradigm of race and race relations
continues to reproduce a form of identity politics that is particularly
problematic for Latinas/os, both because many Latinas/os are neither Black, nor
White and because many Latinas/os are both.
See, e.g., Robert S. Chang, The Nativist’s Dream of Return, 9 La Raza L.J. 55 (1996); Rachel F.
Moran, Neither Black Nor White, 2 Harv. Latino L. Rev. 61 (1997); Juan F.
Perea, The Black/White Binary Paradigm of
Race: The “Normal Science” of American Racial Thought, 85 Cal. L. Rev. 1213 (1997); Deborah
Ramirez, Forging a Latino Identity, 9
La Raza L.J. 61 (1996); Francisco
Valdes, Foreword: Latina/o Ethnicities,
Critical Race Theory and Post-Identity Politics in Postmodern Legal Culture:
From Practices to Possibilities, 9
La Raza L.J. 1, 5-6 (1996) [hereinafter, Valdes, Foreword: Latina/o Ethnicities]. See also Elizabeth M. Iglesias, Out of the Shadow: Marking Intersections in
and Between Asian Pacific American Critical Legal Scholarship and Latina/o
Critical Legal Theory, 40 B.C. L.
Rev. 349, 371-72, 19 B.C. Third
World L.J. 349, 371-72 (1998) (reflecting on marginalization Black
immigrant identities within the Black/White paradigm of American race
consciousness) [hereinafter, Iglesias, Out
of the Shadow]; Iglesias, Foreword:
LatCrit III, supra note 4, at
597-600, 627-28 (same vis-à-vis
activation of nativist ideology among Black Americans and implications for
intergroup solidarity in context of U.S. refugee policies).
7 See, e.g., Christopher David Ruiz
Cameron, The Labyrinth of Solidarity: Why
the Future of the American Labor Movement Depends on Latino Workers, 53 U. Miami L. Rev. 1089 (1999) (urging
new strategies for global labor solidarity); Elizabeth M. Iglesias, Foreword: International Law, Human Rights,
and LatCrit Theory, 28 U. Miami
Inter-Am. L. Rev. 177 (1996-97) (urging need for greater collaboration
between domestic civil rights and international human rights activists)
[hereinafter Iglesias, Foreword:
International Law]; Enid Trucios-Haynes, LatCrit Theory and International Civil and Political Rights: The Role
of Transnational Identity and Migration, 28
U. Miami Inter-Am. L. Rev 293 (1996-97) (urging LatCrit attention to
regional advocacy groups and transborder women’s issues).
8 Berta Esperanza Hernández Truyol, Building
Bridges: Latinas and Latinos at the Crossroads, in The Latino/a Condition: A Critical Reader 30 (Richard Delgado
& Jean Stefanic eds., 1998); Francisco Valdes, Foreword: Under Construction – LatCrit Consciousness, Community and
Theory, 85 Cal. L. Rev. 1087,
1106 (1997) (noting that Latina/o communities are characterized by high degree
of mestizaje or racial intermixture
and internal diversity) [hereinafter, Valdes, Under Construction]. Cf. Iglesias, Foreword: LatCrit III, supra
note 4, at 621-22 (urging that LatCrit social justice agendas and
anti-essentialist politics must also continue to progress beyond the discourse
of mestizaje since “the struggles of
indigenous peoples, like the struggles of Black and Asian peoples, are matters
of LatCrit concern, not so much because Latinas/os are a hybrid people composed
of all these elements, but because recognizing and transforming the particularities
of injustice is the only viable strategy for achieving substantive justice.”).
9 See, e.g., Elizabeth M. Iglesias, Human
Rights in International Economic Law: Locating Latinas/os in the Linkage
Debates, 28 U. Miami Inter-Am. L.
Rev. 361 (1996-97) (noting that a LatCritical assessment of current
debates over whether and how to link human rights enforcement to international
economic law is exceedingly complex precisely because Latinas/os are divided by
differing degrees of cultural assimilation, by nationalist ideologies as well
as by race, class, and gendered hierarchies); Kevin R. Johnson, Some Thoughts on the Future of Latino Legal
Scholarship, 2 Harv. Latino L. Rev.
101 (1997) (exploring intra-Latina/o diversities and their implications for LatCrit
theory ).
10 See, e.g., George A. Martinez, African-Americans,
Latinos, and the Construction of Race: Toward an Epistemic Coalition, 19 Chicano-Latino L. Rev. 213 (1998)
(urging Latinas/os to seek commonalities with African Americans); Ediberto
Roman, Common Ground: Perspectives on
Latino-Latina Diversity, 2 Harv.
Latino L. Rev. 483 (1997) (urging Latinas/os to focus on commonalities
as way of promoting intra-group justice and solidarity); Iglesias, Out of the Shadows, supra note 6 (urging
collaborative agenda at intersection of LatCrit theory and Asian Pacific
American critical legal scholarship).
11 See, e.g., Kevin R. Johnson, “Melting Pot”
or “Ring of Fire?”: Assimilation and the Mexican-American Experience, 85 Cal. L. Rev. 1259, 1269-77, 10 La Raza L.J. 173, 183-91 (1997)
(recounting how the claim to a Spanish identity is oftentimes used to organize
Mexican-American assimilation into a racist Anglo culture through denial of
indigenous racial mixtures); Siegfried Wiessner, ¡Esa India! LatCrit Theory and the Place of Indigenous Peoples Within
Latina/o Communities, 53 U. Miami L.
Rev. 831, 840-52 (1999) (exploring the legacy of Hispanic conquest
through critical analysis of the current day legal status of indigenous peoples
in countries throughout Latin America).
12 The future of democracy in
Latin America and throughout the Caribbean, as well as the continuing impact of
colonialism and its relevance to LatCrit theory, have already commanded, and
continue to warrant, substantial LatCrit attention. See, e.g., Ivelaw Griffith,
Drugs and Democracy in the Caribbean,
53 U. Miami L. Rev. 869 (1999); Tayyab Mahmud, Colonialism and Modern Constructions of Race: A Preliminary Inquiry,
53 U. Miami L. Rev. 1219 (1999)
(introducing post-colonial theory and discourse); Mario Martínez, Property as an Instrument of Power in Nicaragua,53 U. Miami L. Rev. 907 (1999); Julie Mertus, Mapping Civil Society Transplants: A Preliminary Comparison of Eastern
Europe and Latin America, 53 U.
Miami L. Rev. 921 (1999); Ediberto
Román, Reconstructing Self-Determination:
The Role of Critical Theory in Positivist International Law Paradigm, 53 U. Miami L. Rev. 943 (1999); Irwin
Stotzky, Suppressing the Beast, 53 U. Miami. L. Rev. 883 (1999); Iglesias, Foreword: LatCrit III, supra
note 4, at 631- 46; Wiessner, supra
note 11.
13 Ana Salinas de Frías, Legal
Reforms, National Boundaries and the Free
Movement of Persons in the E.U., 9 U.
Miami Int’l and Comp. L. Rev. XXX
(2000-01); Juan Luis Millán Pereira,
Economic Restructuring, Increased Cross National Commerce and the EMU, 9 U. Miami Int’l and Comp. L. Rev. XXX (2000-01).
14 Ángel RodríguezVergara Díaz,
Human Rights and Gendered Identities in
Europe, 9 U. Miami Int’l and Comp.
L. Rev. XXX (2000-01).
15 Yolanda de Lucchi
LópezTapia, Legal Education: How to
Prepare Experts in the Law, 9 U.
Miami Int’l and Comp. L. Rev. XXX
(2000-01).
16 Magdalena Martín Martín
Martínez, Universal Jurisdiction and
Crimes Against International Law in Military Regimes, 9 U. Miami Int’l and Comp. L. Rev. XXX (2000-01); Francisco Valdes, Criminality, Accountability and Reparations:
Post-Pinochet Extrapolations, 9 U.
Miami Int’l and Comp. L. Rev. XXX
(2000-01).
17 See, e.g., Elvia R. Arriola, Foreword: March!, 19 Chicano-Latino L. Rev. 1, 9-11, 26-27
(1998); Francisco Valdes, Afterword:
Theorizing “OutCrit” Theories: Coalitional Method and Comparative
Jurisprudential Experience – RaceCrits, QueerCrits and LatCrits, 53 U. Miami L. Rev. 1265 (1999)
(recounting LatCrit origins as response to Critical Race Theory Workshop)
[hereinafter Valdes, Afterword:
“OutCrit”Theories]; Adrien K. Wing, Critical
Race Feminism and International Human Rights, of Women in Bosnia, Palestine and
South Africa: Issues for LatCrit Theory, 28 U. Miami Inter-Am. L. Rev. 337, 339-42 (1996-97); Valdes, Foreword: Latina/o Ethnicities, supra note 6.
18 Elizabeth M. Iglesias &
Francisco Valdes, Religion, Gender,
Sexuality, Race and Class in Coalitional Theory: A Critical and Self-Critical
Analysis of LatCrit Social Justice Agendas, 19 Chicano-Latino L. Rev. 503, 584 (1998) (noting that “LatCrit
theory must situate itself in a critical and self-critical fashion within the
broader discursive background that already has been created, through
substantial efforts and at great cost, by outsider scholarship.”); Kevin
Johnson & George Martínez, Crossover
Dreams: The Roots of LatCrit Theory in Chicana/o Studies, Activism and
Scholarship, 53 U. Miami L. Rev.
1143 (1999) (urging LatCrit scholars to build on long tradition of Chicano
studies).
19 In this respect, it bears
noting that LatCrit discourse is, in many ways, a crossroads for many different
critical discourses and perspectives precisely because the evolution of LatCrit
theory has been substantially enriched by the active and continuous
participation of a highly diverse and extraordinarily talented assortment of
Asian and Pacific American critical legal scholars, RaceCrits, QueerCrits,
FemCrits and other OutCrit scholars. See,
e.g., Keith Aoki, Language is a
Virus, 53 U. Miami L. Rev.
968 (1999) (noting extent of Asian American participation in LatCrit
conferences and community); Barbara J. Cox, Coalescing
Communities, Discourses and Practices:
Synergies in the Anti-Subordination Project, 2 Harv. Latino L. Rev. 473 (1997)
(reflecting on relevance of LatCrit project to white lesbians); Jerome
McCristal Culp, Jr., Latinos, Blacks, Others and the New Legal
Narrative, 2 Harv. Latino L. Rev.
479 (1997) (reflecting on relevance of LatCrit project to African Americans);
Stephanie M. Wildman, Reflections on
Whiteness & Latina/o Critical Theory, 2 Harv. Latino L. Rev. 307 (1997) (reflecting on significance
of LatCrit project from a white critical feminist perspective). These scholars have performed the
unprecedented act of solidarity of investing their intellectual capital and professional
resources in the creation and continued evolution of a discourse, whose initial
and immediate purpose has been to combat the relative invisibility of
Latinas/os in the production of critical legal discourse, even as they also
remain deeply involved in developing other strains of critical theory.
20 See, e.g., Mark Kelman, A Guide to
Critical Legal Studies (1987); Critical
Legal Studies (James Boyle ed., 1992) (collecting key essays of the
early Critical Legal Studies Movement); Symposium,
Critical Legal Studies, 36 Stan. L. Rev. 1 (1984). See
also Legal Studies as Cultural
Studies: A Reader in (Post) Modern Critical Theory (Jerry D. Leonard
ed., 1995).
21 See, e.g., Duncan Kennedy, Freedom and
Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518 (1986) (using
phenomenological narrative to challenge the ideology of interpretative
objectivity).
22 See, e.g., Peter Gabel, The Phenomenology of
Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563 (1984). See
generally, Mark Tushnet, Symposium,
A Critique of Rights An Essay on Rights, 62 Tex. L. Rev. 1363 (1984).
23 See
Arriola, supra note 17; Stephanie L.
Phillips, The Convergence of the Critical
Race Theory Workshop with LatCrit Theory: A History, 53 U. Miami L. Rev. 1247 (1999); Valdes, Afterword: Theorizing “OutCrit” Theories,
supra note 17 (recounting LatCrit origins as response to Critical Race
Theory Workshop); Valdes, Foreword:
Latina/o Ethnicities, supra note
6.
24 See
James Boyle, Introduction, in Critical
Legal Studies xxvi-xxviii
(James Boyle ed., 1992).
25 Karl Klare, Judicial Deradicalization of the Wagner Act
and the Origins of Modern Legal Consciousness, 1937-1941, 62 Minn. L. Rev. 265 (1978).
26 See, e.g., Gerald E. Frug, The City as A
Legal Concept, 93 Harv. L. Rev.
1059 (1980); Gerald E. Frug, The Ideology
of Bureaucracy in American Law, 97 Harv.
L. Rev. 1276 (1984).
27 See
Gerald E. Frug, McCarthyism and Critical Legal Studies 22 Harv. C.R.-C.L. L. Rev. 665 (1987) (reviewing Ellen W. Schrecker, No Ivory Tower:
McCarthyism and the Universities (1986)).
28 LatCrit scholarship reflects
the influence of CLS deconstructive methodologies and the CLS critique of legal
indeterminacy and liberal rights consciousness and applies these insights to
substantive legal controversies of particular relevance to the LatCrit
project. See, e.g., Jose E. Alvarez, North
American Free Trade Agreement’s Chapter Eleven, 28 U. Miami Inter-Am. L. Rev 303 (1996-97) (criticizing formal
rights equality of the NAFTA investment regime given material inequalities
between U.S. and Mexican investors and the levels of economic development in
the United States and Mexico); Christopher David Ruiz Cameron, How the Garcia Cousins Lost Their Accents:
Understanding the Language of Title VII Decisions Approving English Only Rules
as the Product of Racial Dualism, Latino Invisibility and Legal Indeterminacy,
85 Cal. L. Rev. 1347, 10 La Raza 261 (1997) (prohibition against
national origin discrimination indeterminately applied in English-only cases as
a result of Title VII’s ambiguous statutory language, which provides no real
resolution to the normative and fundamentally political questions at stake in
controversies over English-only); Ileana M. Porras, Reflections on Environmental Rights as Third Generation Solidarity
Rights, 28 U. Miami Inter-Am L. Rev.
413 (1996-97) (questioning the viability and effectiveness of a rights-based
approach to promoting environmental justice);
Daria Roithmayr, Deconstructing
the Distinction Between Bias and Merit, 85 Cal. L. Rev. 1449, 10 La
Raza L.J. 363 (1997) (using deconstructive methodology to challenge
exclusionary law school admissions standards).
29 See, e.g., Richard Delgado, The Ethereal
Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-C.L. L. Rev. 301 (1987);
Joel F. Handler, Postmodernism, Protest
and the New Social Movements, 26 Law
& Soc’y Rev. 697, 707-710 (1992); Mari J. Matsuda, Looking to the Bottom: Critical Legal
Studies and Reparations, 22 C.R.-C.L.
L. Rev. 323 (1987); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,
22 Harv. C.R.-C.L. L. Rev. 401
(1987); Robert A. Williams, Jr. Taking
Rights Aggressively: The Perils and Promise of Critical Legal Theory for
Peoples of Color, 5 Law & Ineq.
J. 103 (1987). See generally, Kimberle Crenshaw, Race, Reform and Retrenchment:
Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331 (1988); Harlon L. Dalton, The Clouded Prism, 22 Harv.
C.R.-C.L. L. Rev. 435 (1987); Symposium, Minority Critiques of the Critical Legal Studies Movement, 22 Harv. C.R.-C.L. L. Rev. 297 (1987).
30 See, e.g., Anthony E. Cook, Beyond
Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King,
Jr., 103 Harv. L. Rev. 985
(1990).
31 See
United States Commission on Civil
Rights, Law Enforcement: A Report of Equal protection in the South
(1965) (documenting evidence of law enforcement complicity in private racially
motivated violence and the deprivation of basic civil and political rights);
Elizabeth M. Iglesias, Designing the
Institutional and Legal Structure of Prosecutorial Power in the Transition to
Democracy, in Transition to Democracy in Latin America: The
Role of the Judiciary (Irwin P. Stotzky ed., 1993) (noting that “[t]he
history of the American civil rights and other grass roots social movements is,
in part, the history of this country’s effort to wrest state power from the
control of dominant social interests, based on class, race and gender
privilege, and to submit that power to the rule of law.”) [hereinafter
Iglesias, Transition to Democracy].
32 See, e.g., Gabel, supra note 22
(providing a compelling account of the way rights consciousness and discourse
can truncate the collective processes and aspirations of emancipatory social
movements).
33 For an alternative
perspective on the CLS/CRT rupture see Sumi K. Cho, Essential Politics, 2 Harv.
Latino L. Rev. 433, 449 (1996) (recounting CLS attacks on CRT for
fomenting fracture of universalist agenda on the left during 1995 Critical
Networks Conference and reflecting on implications of CLS attack for the then
embryonic LatCrit project). See also
Elizabeth M. Iglesias, Confronting Racial
Inequality: LatCrit Reflections on Law, Class and the Anti-Political Economy
(unpublished work-in-progress, on file with author) (recounting CLS/CRT debates
over the relative priority of class and race in the struggle for social
justice).
34 Mari J. Matsuda, Foreword: McCarthyism, the Internment and
the Contradictions of Power, 40 B.C.
L. Rev. 9; 19 B.C. Third World
L.J. 9 (1998) (providing historical perspective linking current-day
domestic orientation of U.S. civil rights establishment to the virulent
McCarthyite repression directed at Black internationalist patriots); Celina
Romany, Claiming a Global Identity:
Latina/o Critical Scholarship and International Human Rights, 28 U. Miami Inter-Am. L. Rev. 215
(1996-97); Natsu Taylor Saito, Beyond
Civil Rights: Considering “Third Generation” International Human Rights Law in
the United States, 28 U. Miami
Inter-Am. L. Rev. 387 (1996-97) (domestic civil rights paradigm neglects
second generation social, economic and cultural rights and third generation
group rights recognized in international human rights discourse); Berta
Esperanza Hernandez-Truyol, Building
Bridges: Bringing International Human Rights Home, 9 La Raza L. J. 69 (1996) (illustrating
how incorporation of human rights can expand parameters of domestic civil
rights paradigm); Iglesias, Foreword: International Law, supra note 7, at 179-82 (noting how the
fragmentation of domestic and international law in American legal consciousness
and discourse undermines possibilities for collaboration between domestic civil
rights and international human rights advocates and suppresses emergence
of transnational solidarity networks so
crucial in an era of increasing globalization); Iglesias, Out of the
Shadow, supra note 6, at 362 (criticizing domestic myopia of U.S. civil
rights paradigm in favor of a broader more inclusive framework focusing on the
centrality of international law and relations, national security ideology and
political economy in the production of racial subordination both within and
beyond the United States).
35 Iglesias, Global Markets, Racial Spaces and the Role
of Critical Race Theory in the Struggle for Community Control of Investments:
An Institutional Class Analysis, 45 Vill.
L. Rev. (forthcoming 2000) (arguing that institutionalization of more
just and inclusive order of power and knowledge requires “a new vision of
social justice that engages, rather than ignores the international dimensions
of racial subordination [and] the centrality of poverty in the subordination of
peoples of color throughout the world.”); Saito, Beyond Civil Rights, supra
note 34, at 402-05 (providing
historical perspective linking the stagnation of U.S. civil rights law within a
first generation civil and political rights framework to the timing and effect
of the assassinations of Dr. Martin Luther King and Malcolm X). Indeed, class inequality has been a central
and recurrent theme in LatCrit scholarship since its inception. See,
e.g., Christopher David Ruiz Cameron, The
Labyrinth of Solidarity: Why the Future of the American Labor Movement Depends
on Latino Workers, 53 U. Miami L.
Rev. 1089 (1999) (arguing that the future of the American labor movement
and Latinas/os are inextricably interconnected); Rachel F. Moran, Foreword - Demography and Distrust: The
Latino Challenge to Civil Rights and Immigration Policy in the 1990s and Beyond,
8 La Raza 1, 10 (1995) (noting
that Latinas/os “often have been attuned to questions of class, rather than
race or ethnicity, in formulating a reform agenda”). For the Substantive
Program Outline of the LatCrit V Annual Conference, which is devoted
specifically to addressing class inequality in LatCrit theory, see Class in LatCrit: Theory and Praxis in a
World of Economic Inequality,
http://nersp.nerdc.ufl.edu/~malavet/latcrit/lcvdocs/substantiveprogram.htm.
36 See, e.g., Saito, Beyond Civil Rights, supra note 34, at 420 (recounting
how in the 1880’s U.S. government programs to divide and transfer Indian lands
to individual Indians resulted in loss of land, resources, communities and
access to culture and history because of failure of individual rights paradigm
to protect group interests). For an
extensive critical deconstruction of the way judicial ideologies of
_color-blind equality produced systematic marginality and disempowerment of
racial minorities within majoritarian unions through the biased and
indeterminate manipulation of the relative priority of individual and
collective group rights in interpreting the relationship between U.S.
employment discrimination and labor laws see Iglesias, Structures of Subordination, supra note 5.
37 See supra note 6 (providing relevant LatCrit cites on the Black/White paradigm
and its implications for Latinas/os in the United States).
38 See, e.g., Iglesias, Foreword:
International Law, supra note 7,
at 192-93; Iglesias, Out of the Shadows,
supra note 6; Porras, supra note 28; Trucios-Haynes, supra note 7.
39 See, e.g., Elvia R. Arriola, LatCrit
Theory, International Human Rights, Popular Culture, and the Faces of Despair
in INS Raids, 28 U. Miami Inter-Am.
L. Rev. 245 (1996-97) (using narrative methodology in ways that reveal
significant similarities between state-sponsored disappearances and the
realities of INS raids and deportation practices directed at illegal “aliens”);
Kevin R. Johnson, “Aliens” and the U.S.
Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. Miami Inter-Am. L. Rev. 263
(1996-97) (revealing ways in which U.S. immigration law subordinates the
enjoyment of fundamental civil and political rights to the enforcement of
citizen/alien dichotomy such that the denial of the right to vote, to engage in
otherwise protected political activities and to challenge indefinite terms of
detention are viewed as legitimate and appropriate). See also__ Iglesias, Foreword:
LatCrit III, supra note 4, at 592-94 (noting that citizen/non-citizen
dichotomy constitutes a common context for struggle against the constitution
and deployment of imperial state power both domestically and internationally).
40 LatCrit scholars have, since
the beginning, sought to address the compelling justice issues confronting
Latina/o communities outside the United States. See, e.g., Enrique R.
Carrasco, Opposition, Justice,
Structuralism, and Particularity: Intersections Between LatCrit Theory and Law
and Development Studies, 28 U. Miami
Inter-Am. L. Rev. 313 (1996-97) (urging LatCrit attention to impact
of policies and practices of IMF and
World Bank on vulnerable groups in Latin America); Raúl M. Sánchez, Mexico’s El Cuchillo Dam Project: A Case
Study of Nonsustainable Development and Transboundary Environmental Harms,
28 U. Miami Inter-Am. L. Rev. 425
(1996-97) (exploring impact of development project on impoverished Mexican
community); Alvarez, supra note 28
(examining impact of NAFTA investment chapter on Mexican poor); Porras, supra note 29 (critiquing environmental
rights advocacy from Costa Rican perspective). See also Iglesias & Valdes, supra
note 18, at 555-61(focusing on the plight of Guatemalan women under Guatemalan
Family Code and reflecting on significance of this particularity to the
articulation of a universal LatCritical
anti-essentialist social justice agenda). Indeed, the significance accorded to
social justice agendas beyond the United States is directly evident in the way
LatCrit scholars have sought to articulate a distinctively LatCritical perspective on the substantive meaning of democracy — a
central theme of the LatCrit III conference. See, e.g., supra note 12.
41 Iglesias, Foreword: LatCrit III, supra note 4, at 638; Porras, supra note 28, at 419-20 (urging a
LatCrit perspective sensitive to both sameness/difference that can mediate
USLat/OtroLat perspectives).
42 See
Iglesias, Global Markets, Racial Spaces,
supra note 35 (noting limited
potential of collective action by emancipatory social movements in absence of
fundamental legal change that effectively institutionalizes movement’s
emancipatory vision); Iglesias, Transition
to Democracy, supra note 31, at
270-71 (reflecting on the role of prosecutorial power in consolidating “rule of
law” in the Guatemalan transition to democracy and proposing institutional
design to render prosecutorial power accountable to victims and witnesses of
gross human rights violations).
43 LatCrit theory has, since
its very inception, reflected the perspectives and critical concerns of LatCrit
feminist scholars and their determination to ensure that LatCrit theory engages
and incorporates a political commitment to gender equality and to the
transformation of male supremacist, machista ideologies, practices and
institutional arrangements. For
examples of LatCrit feminist interventions at LatCrit I see Elvia R. Arriola, Welcoming the Outsider to an Outsider
Conference: Law and the Multiplicities of Self, 2 Harv. Latino L. Rev.
397, 403-12 (1997) (thematizing Latina identities at intersection of
race, class and ethnicity); Berta
Esperanza Hernández-Truyol, Indivisible
Identities: Culture Clashes, Confused Constructs and Reality Checks, 2 Harv. Latino L. Rev. 199, 209 (1997)
(recounting and reflecting on particularities of Latina subordination);
Margaret E. Montoya, Academic Mestizaje:
Re/Producing Clinical Teaching and Re/Framing Wills as Latina Praxis, 2 Harv. Latino L. Rev. 349 (1997). For
examples of LatCrit feminist interventions in the October 1996 Symposium see
Iglesias, Foreword: International Law,
supra note 7, at 201-03 (reflecting on significance of Critical Race
Feminism for LatCrit project); Wing, supra
note 17. For examples at LatCrit II see
Ariolla, Foreword, supra note 17; Iglesias &
Valdes, supra note 19, at 546-61
(incorporating feminist and queer perspectives to develop LatCritical analysis
of religion and its impact on the cultural and legal reproduction of machismo
as particularly virulent form of straight male supremacy). For examples at LatCrit III see Virginia P.
Coto, LUCHA, The Struggle for Life: Legal
Services for Battered Immigrant Women, 53 U.
Miami L. Rev. 749 (1999); Mary Romero, Immigration, the Servant Problem, and the Legacy of the Domestic Labor
Debate: “Where Can You Find Good Help These Days!” 53 U. Miami L. Rev. 1045 (1999) (challenging
race and class essentialism of mainstream American-style feminism through
Latcritical analysis of “the domestic labor debate”). See also Berta Esperanza Hernandez-Truyol, Borders (En)Gendered: Normativities,
Latinas, and a LatCrit Paradigm, 72 N.Y.U.
L.Rev. 882 (1997).
44 Carrie Menkel-Meadow, Feminist Legal Theory, Critical Legal
Studies, and Legal Education or “The FemCrits Go to Law School,” 38 J. Legal Educ. 61 (1988); Deborah L.
Rhode, Feminist Critical Theories, 42
Stan. L. Rev. 617 (1990) (noting
that the difference between CLS and feminism is that “[f]eminism takes gender
as a central category of analysis, while the core texts of critical legal
studies do not.”); Robin West, Deconstructing
the CLS-Fem Split, 2 Wis. Women’s L.
J. 85 (1986).
45 For examples of early
FemCrit scholarship see Mary Joe Frug, Re-Reading
Contracts: A Feminist Analysis of the First Year Casebook, 34 Am. U. L. Rev. 1065 (1985); Catherine
MacKinnon, Feminism, Marxism, Method and
the State: An Agenda for Theory, 7 Signs
515 (1982); Frances Olsen, The Family and
the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1496 (1983); Elizabeth M.
Schneider, The Dialectic of Rights and
Politics: Perspectives from the Women’s Movement, 61 N.Y.U. L. Rev. 589 (1986); Stephanie M.
Wildman, The Legitimation of Sex
Discrimination: A Critical Response to Supreme Court Jurisprudence, 63 Or. L. Rev. 265 (1984).
46 See, e.g., Susan Estrich, Rape, 95 Yale L. J. 1087 (1986); Frances Olsen, Statutory Rape: A Feminist Critique of Rights
Analysis, 63 Tex. L. Rev. 387
(1984); Elizabeth M. Schneider, Equal
Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15 Harv. C.R.-C.L. L. Rev. 623 (1980).
47 See, e.g., Marjorie Maguire Shultz,
Contractual Ordering of Marriage: A New Model for State Policy, 70 Cal. L. Rev. 204 (1982).
48 See, e.g., Lucinda M. Finley, Transcending
Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 Colum. L. Rev. 1118 (1986).
49 See, e.g., Sylvia A. Law, Women, Work, Welfare and the Preservation of
Patriarchy, 131 U. Pa. L. Rev.
1249 (1983) (analyzing the ways in which welfare eligibility and work
requirements encourage female dependence on a male wage earner, while
simultaneously undermining and penalizing female independence).
50 See, e.g., Ruth Gerber Blumrosen, Remedies
for Wage Discrimination, 20 Mich. J.
L. Reform 99 (1986);
Judith Olans Brown, Phyllis Tropper Baumann & Elaine Millar Melnick, Equal Pay for Jobs of Comparable Worth: An
Analysis of the Rhetoric, 21 Harv.
C.R.-C.L. L. Rev. 127 (1986); Carin Ann Clauss, Comparable Worth— The Theory, Its Legal Foundation, and the Feasibility
of Implementation, 20 Mich. J. L.
Reform 1 (1986).
51 Catharine
A. MacKinnon, Sexual Harassment of Working Women (1979).
Both comparable worth and sexual harassment claims were forwarded, with
differing degrees of success, as logical extensions of existing causes of
action then available under the federal Title VII statute, which prohibits
employment discrimination on the basis of sex.
Both reflected the creative and emancipatory possibilities of
incorporating a feminist consciousness and perspective into the production of
legal theory and the practice of legal advocacy, as well as the profound
limitations and inevitable frustrations awaiting any effort to achieve
fundamental social transformations through the adjudication of equality rights.
52 Catharine
A. MacKinnon, Feminism Unmodified: Discourses on Life and Law 163-97 (1987) (recounting
the feminist legal and social theory driving efforts to regulate pornography as
a practice of sex discrimination).
53 Geduldig v. Aiello, 417 U.S. 484 (1974) (upholding exclusion of pregnancy disabilities
under Equal Protection Clause); General
Electric Co. v. Gilbert, 429 U.S. 125 (1976) (upholding exclusion of
pregnancy disabilities under Title VII).
54 In the Court’s words:
"The lack of identity between the excluded [pregnancy-related] disability
and gender as such under this insurance program becomes clear upon the most
cursory analysis. The program divides potential recipients into two groups
pregnant women and nonpregnant persons. While the first group is exclusively
female, the second includes members of both sexes." Gilbert, 429 U.S. at 135 (quoting Geduldig, 417 U.S. at 496-497, n. 20).
55 Congress overruled this
interpretation of Title VII in the Pregnancy Discrimination Act of 1978, 42
U.S.C. §2000(e)(k), however, Congress does not have the power to
overrule the Court’s interpretation of the Equal Protection Clause of the U.S.
Constitution.
56 MacKinnon, supra note 52, at 32-45.
57 Id. See
also Deborah L. Rhode, Justice and
Gender 117-25 (1989); Drucilla Cornell, Sexual Difference, the Feminine and Equivalency: A Critique of
MacKinnon’s Toward a Feminist Theory
of the State, 100 Yale L.J.
2247 (1991); Finley, supra note 48;
Christine A. Littleton, Reconstructing
Sex Equality, 75 Cal. L. Rev.
1279 (1987); Wildman, supra note 45.
58 See, e.g., Steven W. Bender, Direct
Democracy and Distrust: The Relationship Between Language, Law, Rhetoric and
the Language Vigilantism Experience, 2 Harv.
Latino L. Rev. 145 (1997); Cameron,
supra note 28.
59 See, e.g., William Bratton, The Law and
Economics of English Only, 53 U.
Miami L. Rev. 973 (1999) (recounting and criticizing economic arguments
for English Only); Drucilla Cornell, The
Imaginary of English-Only, 53 U.
Miami L. Rev. 977 (1999) (grounding language rights in the moral right
of personality of non-English speaking and bilingual persons); Catherine Peirce
Wells, Speaking in Tongues: Some Comments
on Multilingualism, 53 U. Miami L.
Rev. 983 (1999) (grounding language rights in respect for difference);
Iglesias, Foreword: LatCrit III, supra note 4, at 651-54 (reflecting on
the significance of “difference” in the articulation of language rights).
60 See, e.g., Angela P. Harris, Race and
Essentialism in Feminist Legal Theory, 42 Stan.
L. Rev. 581 (1990) (criticizing white feminist theory for its failure to
address the particular forms of subordination experienced by Black women in the
United States); Elizabeth M. Iglesias, Rape,
Race and Representation: The Power of Discourse, Discourses of Power and the
Reconstruction of Heterosexuality, 49 Vand.
L. Rev. 869 (1996) (critiquing white feminist theory for its failure to
address significant class and cultural differences among women in designing
feminist anti-rape agenda); Hernandez-Truyol, Borders Engendered, supra
note 43 (noting that early FemCrits were race essentialists); Romero, supra note 43 (criticizing white
feminist theory for its failure to address particular forms of subordination
experienced by racially subordinated immigrant women in context of domestic
labor policies).
61 Cheryl Johnson-Odin, Common Themes, Different Contexts: Third
World Women and Feminism, in Third
World Women and the Politics of Feminism (Chandra T. Mohanty, Ann Russo,
& Lourdes Torres, eds. 1991).
62 Id. See
also Hope Lewis, Between Irua and
“Female Genital Mutilation”: Feminist Human Rights Discourse and the Cultural
Divide, 8 Harv. Hum. Rts. 1
(1995) (seeking to bridge intra-feminist impasse marked by polarization of
feminist positions across the two ideological extremes of cultural relativism
and universal feminism, through genuine respect for the value and integrity of
cross-cultural differences, as well as for the critical agency and autonomy of
Third World women).
63 See, e.g., Degraffenreid v. General Motors Assembly Div., 413 F.Supp. 142, 145
(E.D. Mo. 1976), aff’d in part, rev’d in
part on other grounds, 558 F.2d 480 (8th Cir. 1977) (denying
black women independent standing as Title VII plaintiffs on ground that “[t]he
prospect of the creation of new classes of protected minorities, governed only
by mathematical permutation and
combination, clearly raises the prospect of opening the hackneyed Pandora’s
box”); Kimberle Crenshaw, Demarginalizing
the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 (1989); Cathy
Scarborough, Conceptualizing Black
Women’s Employment Experiences, 98 Yale
L. J. 1457 (1989); Elaine W. Shoben, Compound
Discrimination: The Interaction of Race and Sex in Employment Discrimination,
55 N.Y.U. L. Rev. 793 (1980).
64 Compare Catharine A. MacKinnon, From
Practice to Theory, Or What is a White Woman Anyway?, 4 Yale J. L. & Feminism 13, 15-17
(1991) (arguing that feminism ought
to be about sexual oppression because that is what is left in common among
women once you bracket the differences between women) with Martha A. Fineman, Feminist
Theory in Law: The Difference it Makes, 2 Colum.
J. Gender & L. 1, 15-23 (1992) (grounding solidarity among women on
notion of a “gendered life”); Dorothy E. Roberts, BlackCrit Theory and the Problem of Essentialism, 53 U. Miami L. Rev. 855, 857 (1999)
(criticizing way some white feminists have responded to the anti-essentialist
critique).
65 Some FemCrits responded to
the emergence of Critical Race Feminism in much the same way as some CLS
scholars responded to the emergence of CRT (and ironically of FemCrit theory)
and the way liberal scholars tend to respond to all variations of critical
legal theory, that is, by decrying the Balkanization of their own more
“universal” perspective; however, this so-called Balkanization is not produced
by Critical Race Feminism, CRT, or LatCrit theory. It is produced by real and material inequalities and the
ideologies of difference that legitimate these inequalities. These inequalities cannot simply be ignored
out of existence. For this reason, the
relentless repetition of this tired old refrain of Balkanization reflects the
complete arrogance with which the relevant elites at any given moment continue
to criticize whole bodies of scholarship they do not bother to read, much less
to understand; for had they understood this scholarship, they might long ago
have changed their tune — or at least changed their song to a new key. See,
e.g., Iglesias, Foreword: LatCrit III,
supra note 4, at 625-29
(positioning “the anti-essentialist critique beyond rather than, as often is charged, at the center of the
political fragmentation and Balkanization that threatens to sunder every
universal into a proliferation of increasingly atomized and ineffectual
particularities”); Iglesias, Structures
of Subordination, supra note 5, at 400-03 (affirming the potential
universality of “women of color” as shared political identity and rejecting
notion that collective solidarity can be built on the suppression of
difference).
66 Iglesias, Foreword: International Law, supra note
4, at 201 (reflecting on relationship between Critical Race Feminism and
LatCrit theory).
67 Margaret E. Montoya, LatCrit Theory: Mapping Its Intellectual and
Political Foundations and Future Self-Critical Directions, 53 U. Miami L. Rev. 1119 (1999)(cautioning
LatCrit scholars against repeating errors of Chicano movement); Johnson &
Martínez, Crossover Dreams, supra
note 18 (urging LatCrit scholars to study and learn from the significant
history of Chicana/o studies and activism).
68 Iglesias, Foreword: LatCrit III, supra note 4, at 622 (urging that “the
logical and political implications of the LatCrit commitment to
anti-essentialist intergroup justice, both encompass and transcend the politics
of Latina/o pan-ethnicity and hybridism”); Id.
at 623-29, 674-79 (explaining why this is so).
69 See, e.g., Keith Aoki, The Scholarship of
Reconstruction and the Politics of Backlash, 81 Iowa L. Rev. 1467, 1477-79 (1996) (citing broad range of
Asian American scholarship on “such diverse legal fields as the dynamics of
faculty hiring and affirmative action; the “cultural defense” and racialized
constructions of dangerous “others” in criminal law, the current and historical
immigration laws, legal history and the lessons to be learned from the Japanese
American internment [during World War II]; as well as exploring problematic
constructions of Asian and Asian American “Others” in U.S. law”).
70 Robert S. Chang, Toward an Asian-American Legal Scholarship:
Critical Race Theory, Post-Structuralism and Narrative Space, 81 Cal. L. Rev. 1241, 1 Asian L.J. 1 (1993) (announcing an
“Asian American Moment” marked by the increasing presence of Asian Americans in
the legal academy and calling for the development of a distinctively Asian
American legal scholarship). See also Keith Aoki, Critical Legal Studies, Asian Americans in
U.S. Law & Culture, Neil Gotanda and Me, 4 Asian L.J. 19 (1997); Colloquy,
81 Iowa L. Rev. 1467 (1996)
(collection of reflections on, and responses to attacks directed against,
Professor Chang’s call for an Asian American Legal Scholarship).
71 For the contributions of Asian and Pacific American scholars to LatCrit
I see Keith Aoki, (Re)Presenting
Representation, 2 Harv. Latino L.
Rev. 247 (1997); Robert S. Chang, Racial
Cross-Dressing, 2 Harv. Latino L.
Rev 423 (1997); Eric K. Yamamoto, Conflict
and Complicity: Justice Among Communities of Color, 2 Harv. Latino L. Rev 495 (1997); Cho, supra note 32. For LatCrit
II see Robert S. Chang, Who’s Afraid of
Tiger Woods? 19 Chicano-Latino L.
Rev. 223 (1998); Pat K. Chew, Constructing
Our Selves/Our Families: Comments on LatCrit Theory, 19 Chicano-Latino L. Rev. 297 (1998);
Nancy K. Ota, Falling From Grace: A
Meditation on LatCrit II, 19
Chicano-Latino L. Rev. 437 (1998). For LatCrit III see John Hayakawa
Torok, Finding the Me in LatCrit Theory:
Thoughts on Language Acquisition and Loss, 53 U. Miami L. Rev 1019 (1999); Eric K. Yamamoto, Introduction: The Politics of Theory in
Action and Policy, 53 U. Miami L.
Rev. 683 (1999); Aoki, Language is
a Virus, supra note 19; Hom, supra note 5. Asian and Pacific American
scholars have also participated in each of the three LatCrit symposia published
apart from and in addition to the LatCrit Annual Conference Symposia. See supra note 2 (delineating LatCrit
symposia).
Conversely,
Latina/o scholars have also participated in the conferences and symposia
organized as part of the emergent body of APACrit scholarship. See, e.g., Symposium, Citizenship and its Discontents: Centering the Immigrant in the
Inter/National Imagination (Part I), 76 Or.
L. Rev. 207 (1997); Symposium,
Citizenship and its Discontents: Centering the Immigrant in the Inter/National
Imagination (Part II), 76 Or. L. Rev.
457 (1997); Symposium, The Long Shadow of
Korematsu, 40 B.C.L.Rev. 1;
19 B.C. Third World L. J. 1
(1999). For Latina/o contributions to these symposia see Tanya Katerí
Hernández, The Construction of Race and
Class Buffers in the Structure of Immigration Control Laws, 76 Or. L. Rev. 731 (1997); Kevin R.
Johnson, Racial Hierarchy, Asian
Americans and Latinos as “Foreigners,” and Social Change: Is Law the Way to Go?,
76 Or. L. Rev. 347 (1997); Victor
C. Romero, The Congruence Principle
Applied: Rethinking Equal Protection Review of Federal Alienage Classifications
After Adarand Constructors, Inc. v. Pena, 76 Or. L. Rev. 425 (1997); Enid Trucios-Haynes, The Legacy of Racially Restrictive
Immigration Laws and Policies and the Construction of the American National
Identity, 76 Or. L. Rev. 369
(1997); Iglesias, Out of the Shadow, supra note 6.
72 Aoki, Language is a Virus, supra
note 19 (noting the “extremely permeable conceptual boundary between LatCrit
and Asian Pacific American Legal Scholarship”); Iglesias, Out of the Shadow, supra
note 6, at 358-72 (mapping out common context of struggle for Latinas/os and
Asian Pacific Americans around three points of reference: (1) the centrality of international
relations; (2) national security ideology; and (3) the structure of the
inter/national political economy).
73 See, e.g., Chris K. Iijima, The Era of
We-Construction: Reclaiming the Politics of Asian Pacific American Identity and
Reflections on the Black/White Paradigm, 29 Colum. Hum. Rts. L. Rev. 47, 50 (1997) (warning that moves
beyond the Black/White paradigm may be co-opted by racist status quo “unless
racial identity continues to be a conscious and explicit rejection of white
supremacist ideology manifesting through specific political positions.”);
Martinez, supra, note 10 (urging
Latinas/os to seek commonalities with African Americans); Iglesias, Foreword: LatCrit III, supra note 4, at 623-24 (noting that
“the objective must be to move our understanding of white supremacy
progressively beyond the Black/White binary of race, even as we acknowledge the
particular and virulent forms of anti-Black racism that are institutionalized
and expressed in virtually every society across the globe, including Latina/o
communities.”); Iglesias, Out of the
Shadow, supra note 6, at 354.
74 See, e.g., Guadalupe T. Luna, Chicana/Chicano
Land Tenure in the Agrarian Domain: On the Edge of a Naked Knife, 4 Mich. J. Race & L. 39 (1998); Guadalupe T. Luna, Zoo Island: LatCrit Theory, Don Pepe and Señora Peralta, 19 Chicano-Latino L. Rev. 339 (1998);
Laura M. Padilla, Social and Legal
Repercussions of Latinos’ Colonized Mentality, 53 U. Miami L. Rev. 769 (1999).
75 See, e.g., Guadalupe T. Luna, On the
Complexities of Race: The Treaty of Guadalupe Hidalgo and Dred Scott v.
Sandford, 53 U. Miami L. Rev.
691 (1999).
76 For further thoughts on the
particularities of Chicana/o realities and their implications for LatCrit
theory see Iglesias, Foreword: LatCrit
III, supra note 4, at 673-76;
Iglesias & Valdes, supra note 18,
at 574-82 (comparing and contrasting different legal reforms needed to deal
with “Latina/o” poverty and economic marginalization given the particularities
of intra-Latina/o differences that distinguish the structures of economic
relations among “Nuyoricans,” Chicanas/os in the southwestern United States,
and Miami Cubans in the ethnic enclave); Johnson & Martínez, supra note 18 (calling for particular
attention to Chicana/o studies); Montoya, supra
note 67.
77 Many prominent LatCrit scholars embrace and articulate an avowedly
Queer perspective and seek affirmatively to ensure that LatCrit theory attends
to Queer reform agendas from a distinctively LatCritical perspective. See, e.g., Elvia R. Arriola, Faeries, Marimachas, Queens and Lezzies: The
Construction of Homosexuality Before the 1969 Stonewall Riots, 5 Colum. J. Gender & L. 33 (1995);
Berta Esperanza Hernández-Truyol, Latina
Multidimensionality and LatCrit Possibilities: Culture, Gender, and Sex, 53 U. Miami L. Rev. 811 (1999); Francisco
Valdes, Sex and Race in Queer Legal
Culture: Ruminations on Identities and Interconnectivities, 5 So. Cal. L. Rev. & Women’s Stud. 25
(1995); Francisco Valdes, Below All
Radars: An Ethnographic Portrait of Latinas/os Sexual Orientation and the Law
in the Making of Miami’s “New Enclave,” (unpublished work-in-progress, on
file with author) [hereinafter Valdes, Below
All Radars]; Arriola, supra note
39; Valdes, Afterword: Theorizing “OutCrit”
Theories, supra note 17.
78 See, e.g., Valdes, Afterword: Theorizing
“OutCrit” Theories, supra note
17, at 1294-95 (noting that “Queer Nation flyers posted in New York ...
declared that ‘Being queer ... means everyday fighting oppression: homophobia,
racism, misogyny, the bigotry of religious hypocrites and our own self-hatred.’ Thus, the distinction between “Queer” and
“lesbian” or “gay” is that the former signifies — and constantly searches for —
a postmodern political identification while the latter at times amounts to
essentialized, single-axis identities” — as, for examples when gay white men or
women passionately advocate the elimination of the sexual-orientation
discrimination they endure, even as they ignore the discrimination suffered by
other groups, both gay and straight).
79 See, e.g., Harris, supra note 60, at
590-605 (reviewing the relationship between dominant images of Black female
sexuality and the history of rape laws); Iglesias, Rape, Race and Representation, supra
note 60 (exploring how women’s autonomy, both sexual and social, is coercively
repressed and rendered highly vulnerable to male attack as a result of
circulation of sexist, racist, machista representations of femininity and
masculinity and the impact of these cultural representations on the processing
of rape cases involving women of color generally and white women who defy
dominant social norms that distinguish “good girls” (who should not be raped) and “bad girls” (who ask for it)).
See also Peter Wade, Man the Hunter: Violence in Music and
Drinking in Colombia, in Sex and Violence: Issues in Representation and
Experience 115, 126-34 (Penelope Harvey & Peter Gow eds., Routledge
1994) (analyzing domestic violence in Colombian culture as a product of male
failure to negotiate successfully the different value systems of competing masculinities). The “imperatives” of being “a man” in a
sexist, racist and homophobic society are equally at the root of the sexual
subordination of women and the vicious oppression of gays, lesbians and other
sexual minorities.
80 Cox, supra note 19, at 476 (discussing marriage as “a basic human right
and individual personal choice” in the context of ongoing struggle of the
Lambda Legal Defense and Education Fund to achieve the recognition of same-sex
marriages on a state-by-state basis); Iglesias & Valdes, supra note 18, at 549-61 (marking
Feminist and Queer positions in LatCrit theory in and through a LatCritical
critique of the intersecting structures of domination inscribed in and through
the regulation of sexuality, the cultural deployment of hypocritical
religiosity and essentialist constructions of “the family” that ignore the
substantial human need for social recognition and respect for one’s affective
relationships).
81 See, e.g., Martha A. Fineman, The Neutered
Mother, The Sexual Family and Other Twentieth Century Tragedies (1995); Iglesias,
Rape, Race and Representation, supra
note 60, at 968-90 (noting how the organization of “families” around the
male-dominated nuclear family restricts women’s autonomy both within marriage
as well as women’s freedom to make choices about whether to marry and when or
how to leave a marriage, but critiquing from a cross-cultural perspective the
conclusions drawn and policy positions promoted by mainstream feminist analysis
in responding to these dynamics).
82 Iglesias, Rape, Race and Representation, supra
note 60, at 968-90 (critically examining the impact of American child custody
laws and welfare eligibility rules on women’s sexual and social autonomy).
83 See
Laurence R. Helfer & Alice M. Miller, Sexual
Orientation and Human Rights: Toward a United States and Transnational
Jurisprudence, 9 Harv. Hum. Rts. J.
61 (1996) (homosexuals' fundamental rights increasingly recognized in
international human rights law) and
U.N. Hum. Rts. Comm., No. 488, U.N. Doc. CCPR/c/50/D/488 6/1992 (1994), cited
in Donna E. Young, Culture Confronts
the International, 60 Alb. L. Rev. 907,
914-15 (1997) (noting that although “[i]n parts of Latin America crimes against
lesbians and gays are committed and/or condoned by police and other
governmental officials ... [c]ountries throughout the world are modifying their
domestic laws to protect the rights of gays and lesbians. Furthermore, in a
1994 decision by the United Nations Human Rights Committee, the anti-sodomy law
of the Australian State of Tasmania was struck down as violative of the privacy
and non-discrimination provisions of the International Covenant on Civil and
Political Rights.”).
84 See, e.g., Valdes, Below All Radars, supra note 77.