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Addressing Asian (In)Visiblity in the Academy
No full textTo be Asian American in the legal academy is to be caught between a paradox and a dichotomy, with both marked by silencing and erasure. The paradox exists within the term Asian American itself, as \u27Asian\u27 and \u27American\u27 have historically been posed as antithetical identities in U.S. history and jurisprudence. On one side is a representation of unassimilable perpetual foreignness with Asian bodies targeted for violence and unequal protection of the law often justified by their perceived threat to national security. On the other is the lure of assimilation, where the model minority myth offers a purported path into acceptance at the price of complicity with the status quo and fractured solidarity. This paradox exists simultaneously within a binary, an American racial hierarchy traditionally painted in only black and white. This binary obscures the experiences of Asian Americans which are under-reported, under-examined, and under-addressed while their claims for inclusion are framed as zero-sum battles over a small or shrinking slice of the pie.
These dynamics are replicated in and impact the legal academy as well. Asian American faculty, staff, and students in U.S. law schools must navigate the paradox of simultaneous invisibility and visibility while battling against the labels and stereotypes it perpetuates. The consequences of the liminal position of Asian American lawyers and law professors can negatively impact not only individuals but also the legal academy and the profession as a whole.
In this Essay, we first examine these dynamics of representation and how they impact and circumscribe the experiences, opportunities, and advancement of Asian American law faculty. We aim to draw attention to the real rather than perceived problems facing Asian American law faculty as well as Asian Americans in the legal profession more generally. We argue that while Asian Americans are, in fact, diverse in their identities and experiences, the predominant perception about them in the legal academy is that they are a monolithic group assimilated to the dominant culture and reflect various iterations of the model minority myth. This narrative not only obscures the complexity of the discrimination against Asian American law faculty but also allows the academy to blame individuals for their own marginalization, ignoring the systemic forces at work. Together, these factors elide and mischaracterize the challenges Asian American law faculty face and create obstacles to effective solutions-all with a high human cost, as Professor Deo so evocatively captures in Unequal Profession.
We then explore the law school responses to racial exclusion in the aftermath of the George Floyd murder and the Atlanta massacre, arguing that these responses are insufficient to resolve the underrepresentation of Asian Americans and other minority groups. We conclude with suggestions for avoiding the common traps that constrict Asian American representation and advancement. We also address the ways we might forge solidarity among different groups to foster change that moves the legal academy towards greater inclusion. While we discuss Asian Americans generally in this Essay, we recognize the intersectional raceXgender subordination that Asian American women face in particular. We use Professor Deo\u27s insights to expand our understanding of the invisibility of the group more broadly
States Can Infringe upon Your Intellectual Property Rights with Impunity in the Era of New Federalism
Get PDFAntagonized by half a century of insouciance toward federalism boundaries, the New Federalism revival began under Chief Justice Rehnquist. As part of this revival, the Rehnquist Court substantially restrained Congress\u27s authority to regulate commerce, abrogate sovereign immunity, fashion remedies pursuant to Section 5 of the Fourteenth Amendment, and commandeer state officials. The New Federalism has continued in the Roberts Court Era, most recently in a case weighing congressionally enacted copyright policy against the sovereignty of individual states to disregard copyright. In Allen v. Cooper, a unanimous Supreme Court held that Congress\u27s express power under Article I is not a sufficient warrant to overcome a State\u27s sovereign immunity.
In this article, we argue that Allen is wrongly decided. In particular, the Allen Court made three key errors. We arrive at this debate primarily as intellectual property law scholars surprised by the dismissive approach that the Supreme Court took in Allen. The outcome leaves copyright holders without a cause of action for remedy even in cases of clear and deliberate infringement by States
Taking the Fight Out of Fighting Words on the Doctrine’s Eightieth Anniversary: What “N” Word Litigation Today Reveals About Assumptions, Flaws and Goals of a First Amendment Principle in Disarray
Get PDFAnalyzing a trio of recent rulings involving usage of the “N” word by white people directed at Black individuals, this Article explores problems with the United States Supreme Court’s fighting words doctrine on its eightieth anniversary. In the process of examining these cases and the troubles they illuminate, including the doctrine’s dubious reliance on racial and gender-based stereotypes, this Article calls for the Supreme Court to do more than merely refine its amorphous contours that lower courts now are fleshing out for themselves. Specifically, this Article contends that the Court must reconsider the foundational goals that animate this aging, often-criticized facet of First Amendment jurisprudence initially articulated in Chaplinsky v. New Hampshire. If those goals no longer pivot on preventing fights that might arise due to utterance of personally abusive epithets, then the doctrine should be reconceptualized. Specifically, it might be refashioned to thwart possible First Amendment-based speech defenses to crimes such as disorderly conduct or torts such as intentional infliction of emotional distress or, perhaps more ambitiously, to help safeguard the realm of civil discourse from hate speech as the nation wrestles anxiously with racial justice. This Article avers that Connecticut Supreme Court Justice Steven Ecker’s concurrence in one of the “N” word cases appraised here, Connecticut v. Liebenguth, lays the groundwork for this latter reconceptualization that simultaneously would promote civil discourse and shield targets of personally vicious epithets from emotional injury. In short, such a doctrinal reformulation would restore focus on Chaplinsky’s concern with “insulting” words that “by their very utterance inflict injury” while deemphasizing its other fret regarding “fighting” words that “tend to incite an immediate breach of the peace.
Pool Houses and Public Policy: The Uncollectability of Contractual Attorney Fees in Missouri
Get PDFHomeowners associations (“HOAs”) are a foundational piece of life in the United States for people of all socioeconomic backgrounds. These planned communities provide stable living arrangements that many homeowners desire, and protect buyers’ expectations of a neighborhood’s character. Despite the ostensibly beneficial goals of HOAs, they have generated substantial controversy. Columbia, Missouri, was the backdrop of a garden-variety HOA dispute between Ajay Aggarwal and Megha Garg (“the Homeowners”) and the Arrowhead Lake Estates Homeowners Association (“Arrowhead”). The Homeowners submitted a plan for several outdoor improvements but failed to include a small shed that would cover pool equipment. After a trial judge’s denial of a substantial sum of attorney fees, the parties litigated whether the HOA should receive its attorney fees. What originally seemed like a petty dispute over a small shack became a four-year march through all three levels of Missouri’s judicial system to arrive at a result that may frustrate future litigants and harm homeowners
State Rejection of Federal Law
Get PDFSometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to reject a decision of the U.S. Supreme Court, because no sound reasons justif[ied] following it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought at the very least to freeze\u27 the state\u27s ... law to prevent state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious attempts by states to reject or nullify federal court decisions, these state laws and decisions remain in effect. How can this be?
The reason is simple enough: the Supremacy Clause is not a binary switch. Without complete preemption, our system of federalism leaves room for state law to supplement or stand alongside federal law. States often use that freedom to depart from federal law by passing laws or issuing judicial opinions that explicitly reject specific opinions issued by the U.S. Supreme Court.
This Article documents and analyzes that phenomenon of state rejection of federal caselaw, which has not received systematic scholarly attention. Analyzing states\u27 reactions to three federal cases-Illinois Brick Co. v. Illinois, Kelo v. City of New London, and Lujan v. Defenders of Wildlife-allows for a novel analysis of the causes and consequences of this phenomenon. These varied examples show that there is no single explanation for state law rejecting federal law, nor is it even always carried out by the same institutional actor. Similarly, the pathologies and virtues that result from divergent state and federal law vary considerably across legal contexts.
That states reject the decisions of federal courts has both practical and theoretical consequences for our understanding of federal courts\u27 influence on state law. As a practical matter, the examples comprise a playbook for state decisionmakers seeking to extend, supplement, or transcend the limitations of federal law. In an era of increasing and anticipated clashes between courts and legislatures, rejecting federal caselaw is one way that democratic majorities can reduce the practical impact of federal court decisions.
More broadly, this phenomenon resonates with theoretical accounts of how legal systems\u27 rejection of precedent from other jurisdictions can shape domestic law. The act of defining law aversively to that of another sovereign leaves a lasting mark. States that reject the decisions of federal courts exhibit difference from federal law as an important strain of state law. Rejection of federal law therefore sows the seeds of its own future growth
Charles Dickens\u27 Novels in the Courts
Get PDFThis article examines written judicial opinions that contain references to novels by Charles Dickens (1812-1870), the British novelist and social critic who is widely regarded as one of the greatest writers of the Victorian Age. Americans today still read Dickens’ best-known novels, and the U.S. Supreme Court and the lower federal and state courts have cited and quoted from them
Legal Citations: A Foundation of Written Advocacy
Get PDFThe article advanced this formula for achieving effective appellate advocacy: “First, you seek to persuade the court of the merit of the client’s case, to create an emotional empathy for your position. Then you assist the court to reach a conclusion favorable to the client’s interest in terms of the analysis of the law and the procedural posture of the case.