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Abstract:
In recent years, feminist scholars and activists have demonstrated the ways that U.S. slavery functioned as a system of gender supremacy. It entailed the dominance of men over women as well as whites over blacks. Adding the gender lens has shed immense light on the ways that sex, law, and power operated in the racially supremacist enslaving South. In recent years, this literature has emphasized the ways that slavery's sexual and racial subordination converged around the bodies of enslaved black women. One project within this literature characterizes slavery as a "sexual political economy" to make explicit the connections between its markets, labor structure, and sexual exploitation. It designates slavery a sexual economy to foreground slavery's gender hierarchies and mechanisms of subordination as well as to show how slavery offered early illustrations of the social construction and fluidity of gender and the false dichotomy between public and private relations.

Taking those insights to their logical conclusion, this essay frames enslaved women's sexual coercion through their roles as captive workers to cast the institution of slavery in a new light: as an early and particularly virulent strain of institutionalized sexual harassment. In the process, it shows how we gain better purchase on sexual harassment when we look at antecedents in U.S. slavery. Conceiving slavery as sexual harassment sheds light on how slave law was labor law, plantations were workplaces, and enslaved women's resistance constituted gender activism. Critically, such a framework also recovers the sexual dimension of both slavery and sexual harassment. Casting slavery in this way hopefully yields a richer and more nuanced understanding not only of slavery, but of feminist history, theory, and contemporary activism.

Slavery, Sexual Harassment, Legal History, Subordination

Abstract:
Through a series of letters, Professors Robert Chang and Adrienne Davis examine the politics of positionality in law and literary criticism. They use the scholarly debates and conversations around critical race theory and feminist legal theory as a starting point to formulate some thoughts about Critical Race Feminism ("CRF") and its future. The authors use the epistolary form as a literary device to allow them to collaborate on this project while maintaining their own voices. Thus, the letters are not dated.

The letters pay particular attention to various border crossings: male attempts to engage in feminist literary criticism, white attempts to engage in African American literary criticism, and attempts to engage in black male, black feminist criticism. The racial politics of identity, boundaries, and theory are ones that the late Professors Jerome Culp, Trina Grillo, and Marilyn Yarbrough dedicated much of their lives to pursuing. This is reflected in their scholarship, which challenged existing modes of legal reasoning about race, gender, and theories of justice, and thus effected paradigm shifts in all areas. Moreover, Professors Culp, Grillo, and Yarbrough encouraged progressive legal scholars of color to think about the issues raised over the meaning and politics of black feminism, the role of theory in reasoning about race and the law, the fluidity of racial identity and its political implications, the transcendence of binary legal models, the importance of community and collaboration, and above all, an abiding disrespect for boundaries.

The letters are wide-ranging with regard to the texts that they engage, moving from Toni Morrison's Song of Solomon to monuments to the film Monster's Ball. The letters examine some contentious academic debates, such as those between "race men" and black feminists and between critical race theorists and their critics. In all of this, the central questions relate to who speaks and, as corollaries, who is allowed to speak and what is remembered. These questions may be methodological entry points for those doing critical race feminism.

critical race theory, feminist theory, law and literature

Abstract:
This exchange of letters picks up where Professors Adrienne Davis and Robert Chang left off in an earlier exchange that examined who speaks, who is allowed to speak, and what is remembered. Here, Professors Davis and Chang explore the dynamics of race, gender, and sexual orientation in the law school classroom. They compare the experiences of African American women and Asian American men in trying to perform as law professors, considering how makeup and other gender tools simultaneously assist and hinder such performances. Their exchange examines the possibility of bias that complicates the use of student evaluations in assessing teaching effectiveness. It hypothesizes that the mechanism by which this bias manifests itself is a variant of stereotype threat, one that they call projected stereotype threat, where stereotypes of incompetence or accent are projected onto the bodies of teachers marked by difference. They examine how institutions respond or, as is more typically the case, fail to respond to these problems. They conclude with some suggestions for change, asserting that if institutions want to pay more than lip service to the goal of diversity, the success and employment conditions of women and minorities will improve only through the hiring of more women and minorities and by addressing directly the issue of bias to educate students about bias and its discriminatory effects on instructors whose bodies are marked by perceived differences and how such bias interferes with their learning.

critical race theory, civil rights, legal education, sexuality and the law, women

Abstract:
Most legal scholarship about polygamy has approached it in one of two ways. Some have framed it as a question of how far constitutional protection for religious freedom and privacy rights extends, including what we might think of as “intimacy liberty,” particularly in light of Lawrence v. Texas. Others have debated decriminalization, based on the contested effects of polygamy on matters ranging from women’s subordination to fraudulent behavior to democracy. This Essay shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social norms. It argues that the gay marriage analogy, invoked on both the “left” and the “right,” is a red herring, a distraction from the real challenge polygamy raises for law - how plural marriage transforms the conventional marital dyad and whether law is up to regulating marital multiplicity. Both of the gay analogies, the slippery slope invocation and the alternative lifestyles defense, distract us from the fact that polygamy’s distinctive feature lies not in the spouses’ gender (as is the case for same-sex couples marriage) but rather in its departures from the two-person marital model. Polygamy’s defining feature, marital multiplicity, generates specific costs and vulnerabilities, as well as opportunities for exploitative and opportunistic behavior, some of which we have seen played out in distressing fashion in recent high-profile conflicts. Hence, this paper approaches polygamy as a problem of bargaining, cooperation, strategic behavior, and, forgive the pun, the problems it engenders. No one, including others who have considered polygamy from a bargaining perspective such as Gary Becker and Richard Posner, has confronted polygamy as a regulatory matter, instead assuming it is merely dyadic marriage multiplied. Is the law up to regulating marital multiplicity? This Essay contends that, in contemplating the design of a plural marriage regime, we are not starting from scratch. While conventional family law, with its assumptions of the marital dyad, may not be up to the task, other legal regimes have addressed polygamy’s central conundrum: ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes. In particular, commercial partnership law has addressed precisely these concerns through a robust set of off-the-rack rules. The Essay contrasts polygamy with aspects of partnership law to derive a set of default rules that might accommodate polygamy’s marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered. The point is not to use partnership law as a “map,” but rather to make the point that there are already conceptual models for what might be thought of as plural marital associations.

polygamy, feminist theory, marriage, law and economics, bargaining, gay and lesbian rights

Abstract:
In this article, Professor Adrienne D. Davis traces the interaction of race, sex, and estate law in the antebellum and postbellum South. Through a close analysis of intestate succession and testamentary transfers involving the formerly enslaved, she unearths the role of private law in reconciling and preserving both property rights and racial hierarchy. The article centers on a series of historical case studies involving the rights of formerly enslaved women and their children to postmortem transfers of wealth. While the law of private property generally served to reinforce racial hierarchy, these cases involved the use of property rights--specifically, testamentary freedom--to transfer wealth from whites to blacks. Furthermore, honoring the postmortem transfers in such cases could be read as moral tolerance or approval of the underlying interracial liaisons. Southern courts moved gingerly through this terrain of race, gender, and property rights, struggling to maintain racial hierarchy while reaffirming the system of private property. Through these case studies, the article illuminates more generally the nature of the antebellum sexual economy. With this historical study as an illustration, Professor Davis concludes that private law may play at least as significant a role as public law in the construction, recognition, and reinforcement of racial and sexual relationships.