Practicing Queer Legal Theory Critically

This introduction to the Critical Analysis of Law special issue on queer legal studies excavates three conjugal artifacts: an academic manuscript delineating interracial and same-sex marriages as loci of state surveillance and unfreedom; a TED Talk on same-sex marriage as irrefutably queer; and the United States Supreme Court decision holding same-sex marriage a constitutional right. These artifacts, along with their singular referent (state-sanctioned marriage), point to what is or should be critical about the interdiscipline of queer legal studies: theorization not only of the subjectification of subjects of gender and sexual regulation (spouses, singles, you and me), but also theorization of the subjectification of power (here, state power and state formation). What kind of state, and what kind of power, materialize through the governance of sex, intimacy, and coupledom? This methodological imperative complements and productively conflicts with the contributions of this issue, all of which turn their gaze away from the subjectification, domestication, or normalization of the usual, sexual minoritarian suspects, but only some of which explicitly articulate the state-making power of sex and gender

A House Divided Against Itself: A Comment on Mastery, Slavery, and Emancipation

Hegel argues in the preface to the Philosophy of Right that every individual is a child of his time; so philosophy too is its own time apprehended in thoughts. It is just as absurd, he maintains, to fancy [the German word is einbilden: imagine, presume] that a philosophy can transcend its contemporary world as it is to fancy that an individual can overleap his own age, jump over Rhodes. This is a hard saying. It suggests that \u27[t]here is not one of our ideas or one of our reflexions which does not carry a date.\u27 The fact that a given philosophical project has a date does not, of course, mean that it is necessarily (out)dated. Nonetheless, if Hegel is right, if a philosophy is always already bound to its own time, we must squarely face the obstacles which stand in the way of the project undertaken in these pages: an examination of Hegel\u27s relevance for the theory and practice of law in the twentieth century. Several questions seem pertinent to our purpose: Can we expect to shed light on problems in contemporary legal theory and practice through analysis of the work of a man for whom the dependence of thought on the particular socio-historical conditions of its production was axiomatic? Can an audience of late twentieth century, (primarily) English-speaking American scholars hope meaningfully to translate the work of an early nineteenth-century German who described his project as an attempt to teach philosophy to speak in his native tongue? Given the difficulty of translation-both as a methodological and philosophical problem-is an effort to make (Hegel\u27s) German speak in (our) English doomed to end in aporetic babble? Have we any reason, in short, to believe that we can supersede or leap over (overleap) the temporal, socio-cultural, and linguistic distance which separates us from Hegel? These questions are not merely rhetorical. To view them as such would be to foreclose any prospect of opening up Hegel\u27s texts beyond their nineteenth-century European provenance. For my part, any serious engagement with Hegelian dialectical method in our time and place must take these questions seriously

The Political Economy of Recognition: Affirmative Action Discourse and Constitutional Equality in Germany and the U.S.A.

This paper undertakes a comparative exploration of affirmative action discourse in German and American constitutional equality law. The first task for such a project is to acknowledge an important threshold dilemma. The difficulty in question derives not so much from dissimilarities between the technical legal structures of German and American affirmative action policy. The problem stems rather from the different social grounds and groupings on which those legal structures have been erected. Because German positive action \u27 applies only to women, gender and its cultural meanings have constituted the paradigmatic subject of the policy. The legal discussion of positive action has always taken its point of reference from broader political debates about the position of women as a social group in contemporary German society. Indeed, in Germany, positive action discourse is a discourse about the status of and relations between men and women

Imagining Lesbian Legal Theory

It’s great to be here for this particular occasion to honor the work of Ruthann Robson, from whom I have, over the course of many years, learned so much. First, I’ve learned from her the critical importance of doing work that is based on and reflects a set of political and ethical commitments to people who live under regimes of domination and inequality. Her scholarship, to me, is a model of engaged adversary scholarship. She has never fallen into the trap, so common to those of us who are professionalized in the legal academy, of thinking that this work does not matter in the lives of real people. Secondly, through her work, specifically in lesbian legal theory, Ruthann has taught me the importance, to use Shane Phelan’s phrase, of “getting specific.” This sort of global, universal — the universal gay — term captures, or is supposed to capture, both men and women and those who see themselves on the very complex continuum between those two categories. That specificity is something that Ruthann’s work teaches to the degree that no other scholar writing has been able to achieve. Finally, because she writes in so many different polyvalent discourses, one of the things I’ve learned from Ruthann’s work is the necessity and the validity of writing in different voices. She is a fiction writer. She is a journalist. She is a scholar. The fluidity with which she has moved across these different discourses in an effort to tell the stories of lesbians in and outside the law is really admirable, and this refusal to be locked into the straitjacket of reigning modes of discourse is incredible. She understands that, again, better than any practicing scholar I know

Remarks at Memorial Service for Professor Kellis E. Parker

Seventeen years ago, I came to New York and Columbia University to begin a career in the legal academy. Seventeen years ago, I met Kellis Parker. The two moments run together in my mind, quite simply because my life in New York and at Columbia are inseparable from my relationship with Kellis Parker. If I had the time, I\u27d stand here and testify. I\u27d testify about the man who was my colleague, my mentor, my model, and my big-brother-in-the-law. I\u27d testify about the Kellis Parker who was my careful and generous critic. If I had time, I\u27d testify about Kellis, my neighbor around the corner, at home and at the office. I\u27d tell you about the Kellis who was my jam session partner, my most entertaining dinner guest (he could always be counted on to come with his slide trombone),my one-man pep rally, my always sympathetic after-hours confidant. I\u27d tell you about the Kellis Parker who was my teacher and about the Kellis who was, quite simply, my friend

\u3ci\u3eRouge et Noir\u3c/i\u3e Reread: A Popular Constitutional History of the Angelo Herndon Case

In 1932, Eugene Angelo Braxton Hemdon, a young Afro-American member of the Communist Party, U.S.A., was arrested in Atlanta and charged with an attempt to incite insurrection against that state\u27s lawful authority. Some five years later, in Herndon v. Lowry, Herndon filed a writ of habeas corpus asking the U.S. Supreme Court to consider the constitutionality of the Georgia statute under which he had been convicted. Two weeks before his twenty-fourth birthday, the Court, voting 5-4, declared the use of the Georgia political-crimes statute against him unconstitutional on the grounds that it deprived Herndon of his rights to freedom of speech and assembly and because the statute failed to furnish a reasonably ascertainable standard of guilt. Herndon v. Lowry is generally acknowledged as one of the great civil liberties decisions of the 1930s, one of the notable success stories of the Supreme Court\u27s First Amendment jurisprudence. It marked the first time the Supreme Court had mentioned the Holmes-Brandeis clear and present danger formula in the ten years since its decision in Whitney v. California. It was also the first case in which the Supreme Court used the test to uphold the civil liberties claims of an individual against censorial state action, the first time the Supreme Court reviewed a sedition conviction from the South, and the first political-crimes conviction reviewed by the Court that involved an African-American defendant

Reading Clarence Thomas

Several years ago, a special issue of The New Yorker entitled Black in America included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas\u27s interventions in two of the most important cases decided during the Court\u27s previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City\u27s public schools through salary increases and the creation of magnet programs. In the second case, Adarand v. Pena, the Court was asked to determine the constitutionality of race-based affirmative action requirements in federal construction contracts. Those of you who follow the Court\u27s work will recall that in both cases the Supreme Court struck down the programs in question on the ground that the affirmative action and school desegregation plans violated the equal protection components, respectively, of the Fifth and Fourteenth Amendments to the United States Constitution. Rosen reports that in each case, Clarence Thomas played a crucial role in shaping both the Court\u27s reasoning and its result. Although Thomas had declined to engage the lawyers in oral argument before the Court in the school desegregation case, when the Justices took up the case in private discussion, he intervened vigorously

William T. Kendall to Senator James O. Eastland, 31 December 1975

Typed letter signed dated 31 December 1975 from William T. Kendall to Eastland, re: 18 December letter opposing user fees for traffic on inland waterways.https://egrove.olemiss.edu/joecorr_g/1055/thumbnail.jp

William T. Kendall to Senator James O. Eastland, 21 January 1975

Typed letter signed dated 21 January 1975 from William T. Kendall to Eastland, re: federal assistance for Mississippi after recent tornadoes. Attached: White House press release dated 18 January 1975, re: disaster relief for Mississippi.https://egrove.olemiss.edu/joecorr_g/1032/thumbnail.jp