Making the Critical Moves: A Top Ten in Progressive Legal Scholarship

July 29, 2021 by Jorge L. Esquirol
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Good people say that we must not flee, that to escape is not good, that it isn’t effective, and that one must work for reforms. But the revolutionary knows that escape is revolutionary—withdrawal, freaks—provided one sweeps away the social cover on leaving, or causes a piece of the system to get lost in the shuffle. – Gilles Deleuze & Felix Guattari (1977)[1] PDF: Esquirol,* Making the Critical Moves.  Introduction If comparative law has any one thing to say to legal theory, it is that legal constructs are Continue reading →

Past Prescient

July 16, 2021 by Christopher Tomlins
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Capital is dead labour which, vampire-like, lives only by sucking living labour, and lives the more, the more labour it sucks.[1] Truth may not convince, knowledge passes in the act.[2] Introduction Our times are times of crisis, states the circular announcing this Symposium. They are times “of malaise, of exhaustion and immobilization, of impotence.” In such times, it asks, what should critical legal theory become? The circular emphasizes becoming, a refusal of what it terms nostalgia for something “vastly more capacious,” a yearning for new Continue reading →

The Future of Facts: The Politics of Public Health and Medicine in Abortion Law

July 16, 2021 by Aziza Ahmed
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While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries Continue reading →

Migrant Justice Now

July 12, 2021 by Leti Volpp
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I began drafting this Essay on the eve of the 2020 U.S. presidential election, not knowing its outcome. Some might argue that this is no time for critique, given the threat of fascism posed by the Trump Administration and the civil unrest the nation faced (and is still facing as of this writing). But even with the advent of a new administration in January 2021, we cannot relax into quiescence. To that end, I engage here with critique as articulated in a document called the Continue reading →

The Theory of Legal Characters

July 11, 2021 by Mikhail Xifaras
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For decades, we took for granted that jurists just “spoke the law.” This was good news: the law, thanks to the continuous efforts of legal science to systematize it in a coherent manner, was rational after all. Yet, legal realism has been there along the way, raising along the way ideas of partial or absolute indeterminacy, associated or not with a thesis of the predetermination of law by sociological or ideological factors. Finally, post-realist approaches convinced us that jurists do not just “speak the law.” Continue reading →

The Common Law and Critical Theory

July 11, 2021 by Charles L. Barzun
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Before I got out of bed this morning, I had an exchange on Facebook Messenger, which began this way: Aunt Lucy: Question for you. Do you actually think there is no Marxist attempt, ongoing for years, to undermine and destroy America? Now most clearly involving China, but a la Gramsci, also in virtual total control of the media, universities, and Hollywood, seen most particularly in the denigration of religious people and the natural family? Me: No, I don’t, at all. But I understand why you Continue reading →

Conversations After Class: ‘Becoming Critical,’ or the Steps Necessary to Achieve Critical Thought for Law Students

July 8, 2021 by Daniel J. Sequeira
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When Gregor Samsa awoke from troubled dreams one morning, he found that he had been transformed in his bed into an enormous bug.[2] PDF: Sequeira, ‘Becoming Critical.‘ Introduction The first wave of Critical Legal Studies (CLS) folks saw legal education in a state of crisis. On the one hand, the potential was clearly there: law school was something animating—something that could construct and move new generations of critical lawyers toward upending the social and legal hierarchies that plagued both legal education and the law writ large. On Continue reading →

Not Your Mule? Disrupting the Political Powerlessness of Black Women Voters

June 7, 2021 by Chinyere Ezie
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On the one hundredth anniversary of the Nineteenth Amendment, this Article reflects on the legacy of Black women voters. The Article hypothesizes that even though suffrage was hard fought, it has not been a vehicle for Black women to meaningfully advance their political concerns. Instead, an inverse relationship exists between Black women’s political participation and their relative level of socioeconomic and political well-being. Taking recent national elections as a case study, the Article identifies two sources of Black women’s political powerlessness: “caretaker voting” and the Continue reading →

Contesting the Legacy of the Nineteenth Amendment: Abortion and Equality from Roe to the Present

June 2, 2021 by Mary Ziegler
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Beyond the question of suffrage, the Nineteenth Amendment raised the issue of what it would take for women in America to achieve equal citizenship. The meaning of both the Nineteenth Amendment and equality for women remain especially contested in broader conflicts about abortion—and of how those conflicts have changed in fundamental ways in the decades since Roe v. Wade. For some time, fetal rights were pitted against the kinds of concerns about equality for women that drove reformers to seek the vote in 1920. But Continue reading →

Working Mothers and the Postponement of Women’s Rights from the Nineteenth Amendment to the Equal Rights Amendment

June 1, 2021 by Julie C. Suk
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The Nineteenth Amendment’s ratification in 1920 spawned new initiatives to advance the status of women, including the proposal of another constitutional amendment that would guarantee women equality in all legal rights, beyond the right to vote. Both the Nineteenth Amendment and the Equal Rights Amendment (ERA) grew out of the long quest to enshrine women’s equal status under the law as citizens, which began in the nineteenth century. Nearly a century later, the ERA remains unfinished business with an uncertain future. Suffragists advanced different visions Continue reading →