Borders (en)gendered: Normativities, Latinas, and a LatCrit paradigm

New York University Law Review

Volumn 72, Issue 4, 1997, Pages 882-926

  Hernández Truyol, Berta Esperanza ^a,b,c,d  

^a ST JOHN'S UNIVERSITY   (United States)

^b Department of Obstetrics Gynecology   (United States)

^c ALBANY LAW SCHOOL   (United States)

^d NEW YORK UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 1542501205     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (186)

1. Gloria Anzaldúa, Borderlands/La Frontera: The New Mestiza 77 (1987).
2. Papusa Molina, Recognizing, Accepting and Celebrating our Differences, in Making Face, Making Soul/Haciendo Caras 326, 327 (Gloria Anzaldúa ed., 1990) [hereinafter Haciendo Caras].
3. Janice Mirikitani, Prisons of Silence, in Haciendo Caras, supra note 2, at 199, 199.
4. See, e.g., María Lugones, Playfulness, "World"-Travelling, and Loving Perception, in Haciendo Caras, supra note 2, at 390, 391-92. The author offers her perspective on world traveling. As outsiders to the U.S. mainstream, women of color practice "world"-travelling, mostly out of necessity. I affirm this practice as a skillful, creative, rich, enriching and, given certain circumstances, as a loving way of being and living. I recognize that we do much of our travelling, in some sense against our wills, to hostile White/Anglo "worlds." Id.
5. See Anzaldúa, supra note 1, Preface (defining psychic borderlands as "physically present wherever two or more cultures edge each other, where people of different races occupy the same territory, where under, lower, middle and upper classes touch, where the space between two individuals shrinks with intimacy").
6. As a Latina in the legal academy holding a tenure track, nonsegregated clinical position, I am one of but 43 in the country and, if one considers my tenured status, one of only 13 according to a 1996-97 list of Latina/o law professors prepared by Michael A. Olivas (on file with the New York University Law Review). The total number of tenured Latinas is based upon a September 27, 1996 conversation with Olivas, in the course of which we went through the list and identified the tenured Latinas. Our count includes only fulltime, tenure track, nonclinical (if the same constitutes a separate track) appointments. There are an additional 10 Latinas/os in separate track clinical and/or instructor/lecturer positions, of whom nine are women.
7. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, in Critical Race Theory: The Cutting Edge 253, 255 (Richard Delgado ed., 1995) [hereinafter Cutting Edge].
8. On essentialism, see generally bell hooks, Ain't I a Woman?: Black Women and Feminism (1981) (noting that, for black women, race and sex are not separable categories); Kimberlé 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 (noting inappropriateness of dominant single axis framework that treats race and sex as mutually exclusive); Harris, supra note 7 (criticizing gender essentialism for failing to account for black women's experience); see also infra note 121 (discussing consequences of essentialism in legal theory).
9. On essentialism, see generally bell hooks, Ain't I a Woman?: Black Women and Feminism (1981) (noting that, for black women, race and sex are not separable categories); Kimberlé 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 (noting inappropriateness of dominant single axis framework that treats race and sex as mutually exclusive); Harris, supra note 7 (criticizing gender essentialism for failing to account for black women's experience); see also infra note 121 (discussing consequences of essentialism in legal theory).
10. On essentialism, see generally bell hooks, Ain't I a Woman?: Black Women and Feminism (1981) (noting that, for black women, race and sex are not separable categories); Kimberlé 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 (noting inappropriateness of dominant single axis framework that treats race and sex as mutually exclusive); Harris, supra note 7 (criticizing gender essentialism for failing to account for black women's experience); see also infra note 121 (discussing consequences of essentialism in legal theory).
11. I use "American" in quotes to denote United States culture. The quotes serve to recognize and remind of the appropriation of a term that truly extends beyond U.S. borders, as Canadians, too, are North Americans. Furthermore, all of Central and South America also can claim the "American" moniker. In placing the word in quotes, I (re)create borders and at the same time eliminate them.
12. Non-Latina/o white. Throughout the Essay I will use NLW to refer to the aggregated non-Latina/o white as well as NLaW and NLoW to refer in a gender specific manner to non-Latina/o white females and males, respectively.
13. I teach property law to first-year students and thus do the obligatory wild animal stint. I try to make these cases (and through them the law) come alive by using cases where the animals are subjects rather than just objects of our discussion. One of those is Chester, a parrot. See Conti v. ASPCA, 353 N.Y.S.2d 288 (N.Y. Civ. Ct. 1974) (holding that escaped parrot was domesticated animal and thus not subject to rule of ferae naturae).
14. General Counsel, U.S. Department of Housing and Urban Development. He delivered the closing remarks at the Law Professors' Colloquium on International Law, Human Rights & LatCrit Theory that took place as part of the Hispanic National Bar Association's (HNBA's) 1996 Annual Convention in Miami Beach, Florida. He addressed issues of community and working together to achieve success.
15. "[T]he success of the White Man's control of the world is debatable; but his success in making other people act just like him is not. No culture that has come in contact with Western industrial culture has been unchanged by it, and most have been assimilated or annihilated, surviving only as vestigial variations in dress, cooking or ethics." Stephanie M. Wildman, Privilege Revealed 111-12 (1996) (quoting Ursula K. Le Guin, Feeling the Hot Breath of Civilization, N.Y. Times, Oct. 29, 1989, Book Review, at 11 (reviewing Mario Vargas Llosa, The Storyteller (1989)); see Richard Delgado, Legal Storytelling for Oppositionists and Others: A Plea for Narrative, in Cutting Edge, supra note 7, at 64, 64 (describing "stories . . . told by the ingroup . . . [that] provide it with a form of shared reality in which its own superior position is seen as natural");
16. "[T]he success of the White Man's control of the world is debatable; but his success in making other people act just like him is not. No culture that has come in contact with Western industrial culture has been unchanged by it, and most have been assimilated or annihilated, surviving only as vestigial variations in dress, cooking or ethics." Stephanie M. Wildman, Privilege Revealed 111-12 (1996) (quoting Ursula K. Le Guin, Feeling the Hot Breath of Civilization, N.Y. Times, Oct. 29, 1989, Book Review, at 11 (reviewing Mario Vargas Llosa, The Storyteller (1989)); see Richard Delgado, Legal Storytelling for Oppositionists and Others: A Plea for Narrative, in Cutting Edge, supra note 7, at 64, 64 (describing "stories . . . told by the ingroup . . . [that] provide it with a form of shared reality in which its own superior position is seen as natural");
17. "[T]he success of the White Man's control of the world is debatable; but his success in making other people act just like him is not. No culture that has come in contact with Western industrial culture has been unchanged by it, and most have been assimilated or annihilated, surviving only as vestigial variations in dress, cooking or ethics." Stephanie M. Wildman, Privilege Revealed 111-12 (1996) (quoting Ursula K. Le Guin, Feeling the Hot Breath of Civilization, N.Y. Times, Oct. 29, 1989, Book Review, at 11 (reviewing Mario Vargas Llosa, The Storyteller (1989)); see Richard Delgado, Legal Storytelling for Oppositionists and Others: A Plea for Narrative, in Cutting Edge, supra note 7, at 64, 64 (describing "stories . . . told by the ingroup . . . [that] provide it with a form of shared reality in which its own superior position is seen as natural");
18. "[T]he success of the White Man's control of the world is debatable; but his success in making other people act just like him is not. No culture that has come in contact with Western industrial culture has been unchanged by it, and most have been assimilated or annihilated, surviving only as vestigial variations in dress, cooking or ethics." Stephanie M. Wildman, Privilege Revealed 111-12 (1996) (quoting Ursula K. Le Guin, Feeling the Hot Breath of Civilization, N.Y. Times, Oct. 29, 1989, Book Review, at 11 (reviewing Mario Vargas Llosa, The Storyteller (1989)); see Richard Delgado, Legal Storytelling for Oppositionists and Others: A Plea for Narrative, in Cutting Edge, supra note 7, at 64, 64 (describing "stories . . . told by the ingroup . . . [that] provide it with a form of shared reality in which its own superior position is seen as natural");
19. see also Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 26-50, 245-54 (1987) (discussing myth of egalitarian, colorblind constitution);
20. Regina Austin, Sapphire Bound!, 1989 Wis. L. Rev. 539, 539-45 (discussing need for black women's voices so issues cease to be viewed from white middle class perspective);
21. Derrick Bell, White Superiority in America: Its Legal Legacy, Its Economic Costs, 33 Vill. L. Rev. 767, 768-79 (1988) (arguing that courts reflect white supremacy and discussing economic costs of racism);
22. Jerome McCristal Culp, Jr., Autobiography and Legal Scholarship and Teaching: Finding the Me in the Legal Academy, 77 Va. L. Rev. 539, 540-45 (1991) (arguing that failure to present personal experiences reinforces majoritarian perspective)
23. ; Adrienne D. Davis & Stephanie M. Wildman, The Legacy of Doubt: Treatment of Sex and Race in the Hill-Thomas Hearings, 65 S. Cal. L. Rev. 1367, 1367-78 (1992) (illustrating how congressional hearings regarding Anita Hill's accusations against then-nominee to the Supreme Court of the United States Clarence Thomas reflected patriarchal assumptions about women);
24. Richard Delgado, Norms and Normal Science: Toward a Critique of Normativity in Legal Thought, 139 U. Pa. L. Rev. 933, 937-62 (1991) [hereinafter Delgado, Norms] (critiquing dominant school of normative jurisprudence)
25. ; Richard Delgado, Shadowboxing: An Essay on Power, 77 Cornell L. Rev. 813, 814-24 (1992) [hereinafter Delgado, Shadowboxing] (discussing dominant culture preference for "objective" norms because they are of benefit to those empowered, as they define meaning of rules);
26. Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 Stan. L. Rev. 1, 2-7 (1991) (presenting theory that colorblind approach promotes white supremacy)
27. ; Linda S. Greene, Multiculturalism as Metaphor, 41 DePaul L. Rev. 1173, 1173-89 (1992) (arguing that Supreme Court's "normative vacuum" results in failure to enforce equality and inclusion);
28. Margaret M. Russell, Race and the Dominant Gaze: Narratives of Law and Inequality in Popular Film, 15 Legal Stud. F. 243, 243-54 (1991) (presenting images of movies reinforcing and replicating popular culture's view of racial subordination)
29. ; Robert A. Williams, Jr., Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, 8 Ariz. J. Int'l & Comp. L. 51, 56-75 (1991) (explaining Supreme Court jurisprudence dealing with American Indians as devolving from medieval European tradition and law of colonization brought by Columbus and as seeking to legitimate cultural racism).
30. Slavery existed in Cuba, see Carlos Márquez Sterling & Manuel Márquez Sterling, Historia de la Isla de Cuba 67-75 (1975), and Puerto Rico,
31. see Gordon K. Lewis, Puerto Rico: Freedom and Power in the Caribbean 38-39 (1968). In fact, Cuba and Puerto Rico were among the last countries to abolish slavery - Puerto Rico in 1873, see Lewis, supra, at 38, and Cuba in 1880, see Sterling, supra, at 119 - both after the United States had ratified the Thirteenth Amendment in 1865.
32. See Richard B. Bernstein and Jerome Agel, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? 100 (1993).
33. Some do, however, and internalize notions of what is the "norm" in amusing ways. For example, one female Chinese-Cuban law student who was raised in Miami and enrolled in the author's "Latinas/os and the Law" course, during a class on the intersection of race, gender, and ethnicity, raised her hand and stated, "[Y]ou have me totally confused. . . . All my life I thought I was white." Berta Esperanza Hernández-Truyol, Indivisible Identities: Culture Clashes, Confused Constructs and Reality Checks, 2 Harv. Latino L. Rev. (forthcoming 1997) (manuscript at 11, on file with the New York University Law Review). The confused student obviously felt normative and, as the desired norm is white, viewed and identified herself as such even within the United States. See infra notes 29-35 and accompanying text for discussion of desirability of whiteness. The student was just starting her travels in the NLW world that would on at least three counts - race, sex, and ethnicity - see her as "other."
34. The terms "outsider" and "outsider jurisprudence" have been widely used by Professor Mari J. Matsuda. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2323-26 (1989). Professor Matsuda uses the term "outsider" to avoid the label "minority," which she believes "belies the numerical significance of the constituencies typically excluded from jurisprudential discourse." Id. at 2323 n.14.
35. See Ian F. Haney López, White by Law: The Legal Construction of Race 39 (1996) (discussing whiteness requirement for citizenship). See generally Wildman, supra note 13 (discussing historic white male privilege).
36. See Ian F. Haney López, White by Law: The Legal Construction of Race 39 (1996) (discussing whiteness requirement for citizenship). See generally Wildman, supra note 13 (discussing historic white male privilege).
37. See Haney López, supra note 17, at 39.
38. See Clara E. Rodríguez, Puerto Ricans Born in the U.S.A. 66 (1989) (stating that "Hispanics have a different conception of race, one that is as much cultural or 'social' as it is racial"). To be sure, this is all consonant with the recent literature positing that race is a social construct allowing for distinctions between biologic/taxonomic and social definitions as well as the consequences of perceived socially constructed racial differences.
39. See, e.g., Haney López, supra note 17, at 111-33 (discussing legal construction of white racial identity and arguing that regardless of powerful and pervasive role race plays in our society, races are still only human inventions);
40. Rodríguez, supra, at 73 (discussing race as social category); Cornel West, Race Matters (1993) (discussing race in America and flaws in American society as rooted in historic inequalities and longstanding cultural stereotypes).
41. See supra note 15.
42. 347 U.S. 475 (1954) (referring to toilets on courthouse grounds, one marked "colored men," other marked "hombres aquí" (men here)). This instance of discrimination was invoked by petitioner Hernández in order to establish a showing of discrimination against Mexicans in the context of a jury exclusion discrimination claim.
43. SeeHaney López, supra note 17, at 27 (describing court constructed definition of "'white' through process of negation, systematically identifying who was non-White").
44. Gunnar Myrdal, An American Dilemma 113 (2d ed. 1962).
45. Morrison v. California, 291 U.S. 82, 85-86 (1934) (emphasis added).
46. See Eduardo Seda Bonilla, Requiem Por Una Cultura 52 (1970) (noting that in Latin America there is tacit acceptance of notion of blanqueamiento).
47. See Lewis, supra note 14, at 226, 227 ("whereas in the United States one drop of 'colored' blood designates one as a Negro, in Latin America and the Caribbean one drop of 'white' blood can launch an individual . . . to social acceptance as white" and results in "an amalgative process between the races").
48. Statistical Handbook on U.S. Hispanics 2 (Frank L. Schick & Renee Schick eds., 1991) (providing no basis for estimate).
49. Gerado Marín & Barbara Van Oss Marín, Research with Hispanic Populations 2 (1991). In the 1980 census, only 3% of Latinas/os identified themselves as black. See id.
50. Compare O'Loughlin v. Procon, Inc., 627 F. Supp. 675 (E.D. Tex. 1986) (treating black Cuban's claim as race-based under 42 U.S.C. § 1981), aff'd mem., 808 F.2d 54 (5th Cir. 1986), with Mouriz v. Avondale Shipyards, Inc., 428 F. Supp. 1025 (E.D. La. 1977) (dismissing white Cuban's § 1981 claim for lack of racial basis).
51. See Cubas v. Rapid Am. Corp., 420 F. Supp. 663 (E.D. Pa. 1976) (holding that Cuban-born American citizen stated cause of action under civil rights statute protecting nonwhites).
52. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (invalidating state medical school affirmative action admissions policy on grounds that such policies violated white male plaintiff's constitutional rights under Equal Protection Clause); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (asserting state university affirmative action admissions program violated equal protection rights of nonminority white applicants).
53. Interestingly, it appears that the status of Cubans has generated confusion even within la comunidad Latina. See Berta Esperanza Hernández-Truyol, Building Bridges -Latinas and Latinos at the Crossroads: Realities, Rhetoric and Replacement, 25 Colum. Hum. Rts. L. Rev. 369, 411 (1994) (recounting how author was told another "cubana" law professor did not count as Latina).
54. Piri Thomas, Down These Mean Streets (Vintage Books 1991) (1967).
55. Rodriguez, supra note 19, at 57-58.
56. See id. at 62 ("Puerto Ricans in the United States appear to be adopting the North American conception of race for their own racial self-definition.").
57. Id. at 60. "[A] substantial proportion of respondents did not see themselves as the interviewer saw them. Objective perceptions - how they were seen - did not correspond with subjective perceptions - how they saw themselves." Id.
58. Id. at 61.
59. See id. at 60-61.
60. For example, just like in English, kinky hair is pelo malo (bad hair). In fact, as a colleague described at a recent conference, we even have a "test" to see if hair "passes": the ceiling-fan test. Only in a tropical climate does this make sense. If you sit under a ceiling fan, and your hair "moves" - blows with the created wind - your hair is good. See Gloria Anzaldúa, En rapport, In Opposition: Cobrando cuentas a las nuestras, in Haciendo Caras, supra note 2, at 142, 143. And it is exactly our internalized whiteness that desperately wants boundary lines (this part of me is Mexican, this Indian) marked out and woe to any sister or any part of us that steps out of our assigned places, woe to anyone who doesn't measure up to our standards of ethnicity. Id. The development of the notions of racism within the Latina/o community, however, is beyond the scope of this Essay.
61. See id. at 142, 143 (noting that in "neocolonialist" phase, while colonizers no longer assert direct control over native cultures, Latinas/os have internalized white system of values, attitudes, morality, and modes of production). We have been indoctrinated into adopting the old imperialist ways of conquering and dominating, adopting a way of confrontation based on differences while standing on the ground of ethnic superiority. . . . External oppression is paralleled with our internalization of that oppression. . . . They have us doing to those within our own ranks what they have done and continue to do to us - Othering people. . . . The internalization of negative images of ourselves, our self-hatred, poor self-esteem, makes our own people the Other. Id.; see also Margaret Montoya, Máscaras, Trenzas y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women's L.J. 185, 192-96 (1994) (citing pressures on Latinas/os to assimilate into and adopt norms of Anglo culture yet still retain links to own culture and heritage).
62. See supra notes 22-28 and accompanying text for discussion of NLW perspective on race.
63. David E. Hayes-Bautista, Identifying "Hispanic" Populations: The Influence of Research Methodology Upon Public Policy, 70 Am. J. Pub. Health 353, 354 (1980).
64. See id. at 354; Rodríguez, supra note 19, at 49 (discussing emphasis on racial superiority of white Europeans during Spanish colonization period).
65. See id. at 354; Rodríguez, supra note 19, at 49 (discussing emphasis on racial superiority of white Europeans during Spanish colonization period).
66. See Hayes-Bautista, supra note 42, at 354 (discussing how in colonial Latin America, purity of blood had to be maintained in order to prevent Indians and mestizos from claiming rights of governance).
67. See Rodríguez, supra note 19, at 52-53 (discussing "black-white continuum" that exists in Latin America).
68. Id. at 51.
69. See, e.g., id. at 52. [I]n Puerto Rico, racial identification was subordinate to cultural identification, while in the United States, racial identification, to a large extent, determined cultural identification. . . . This is not to say that Puerto Ricans did not have a racial identification, but rather that cultural identification superseded it. The system of racial classification in Puerto Rico was based more on phenotypic and social definitions of what a person was than on genotypic knowledge about a person. In other words, physical and social appearance were the measures used to classify, rather than the biological-descent classifications . . . used in the United States. Id. (footnotes omitted).
70. See Gloria Sandrino-Glasser, Los Confundidos: De-Conflating Latinas'/os' Race and Nationality 42-65 (1996) (unpublished manuscript, on file with the New York University Law Review) (discussing how majority's tendency to universalize categories of selves and foreign others warps perceptions of those foreign categories).
71. See Marín & Marín, supra note 28, at 20 (noting that "'Hispanic' as an ethnic label is the product of a decision by the Office of Management and Budget (OMB) in 1978 to operationalize the labels as '[a] person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race'").
72. See Gary A. Greenfield & Don B. Kates, Mexican Americans, Racial Discrimination and the Civil Rights Act of 1866, 63 Cal. L. Rev. 662, 683, 699 n.197 (1975) (discussing change in census category).
73. Id. at 683.
74. 347 U.S. 475 (1954).
75. See id. at 479.
76. Immigration from Countries of the Western Hemisphere, 1928: Hearings on H.R. 6465, H.R. 7358, H.R. 10955, H.R. 11687 Before the House Comm. on Immigration and Naturalization, 70th Cong. 28 (1928) (remarks of Rep. Box of Texas) (quoting Lothrop Stoddard, Re-Forging America (1927)), cited in Greenfield & Kates, supra note 50, at 698; see also Haney López, supra note 17, at 49-77 (discussing "prerequisite cases" that imposed racial restrictions on naturalizations); id. at 111-53 (discussing legal construction of race).
77. Immigration from Countries of the Western Hemisphere, 1928: Hearings on H.R. 6465, H.R. 7358, H.R. 10955, H.R. 11687 Before the House Comm. on Immigration and Naturalization, 70th Cong. 28 (1928) (remarks of Rep. Box of Texas) (quoting Lothrop Stoddard, Re-Forging America (1927)), cited in Greenfield & Kates, supra note 50, at 698; see also Haney López, supra note 17, at 49-77 (discussing "prerequisite cases" that imposed racial restrictions on naturalizations); id. at 111-53 (discussing legal construction of race).
78. See Greenfield & Kates, supra note 50, at 683 (referring to classification of Mexicans under state statutes as white).
79. See infra Part I.D. for a discussion of how this conflation renders Latinas/os alien. Interestingly, and most likely because of the dominance of the United States and Western Europe in crafting international human rights documents, this collapse of race and ethnicity also occurs in the international human rights sphere. See, e.g., International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Dec. 21, 1965, art. 1, § 1, 5 I.L.M. 352 (entered into force 1969). The Covenant defines racial discrimination as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Id. Of course, the proposed LatCrit paradigm should avoid such inappropriate conflation of ethnicity and national origin with race.
80. See St. Francis College v. Al-Khazrazi, 481 U.S. 604, 613 (1987) (recognizing Arab woman's racial discrimination claim under 42 U.S.C. § 1981); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) (finding that Congress intended to protect Jews through adoption of 42 U.S.C. § 1982).
81. Scott Shepard, One Nation, Indivisible? The Answer May Not Simply Be Black-And-White, Atlanta Const., Aug. 3,1997, at 1R (referring to U.S. Census forms); see also Marín & Marín, supra note 28, at 20 (pointing out that Hispanic label attaches to certain nationalities regardless of race); Sam Roberts, Who We Are: A Portrait of America Based on the Latest U.S. Census 74 (1993) (noting that "[p]eople of Hispanic heritage are clustered according to which country they came from").
82. Scott Shepard, One Nation, Indivisible? The Answer May Not Simply Be Black-And-White, Atlanta Const., Aug. 3,1997, at 1R (referring to U.S. Census forms); see also Marín & Marín, supra note 28, at 20 (pointing out that Hispanic label attaches to certain nationalities regardless of race); Sam Roberts, Who We Are: A Portrait of America Based on the Latest U.S. Census 74 (1993) (noting that "[p]eople of Hispanic heritage are clustered according to which country they came from").
83. Scott Shepard, One Nation, Indivisible? The Answer May Not Simply Be Black-And-White, Atlanta Const., Aug. 3,1997, at 1R (referring to U.S. Census forms); see also Marín & Marín, supra note 28, at 20 (pointing out that Hispanic label attaches to certain nationalities regardless of race); Sam Roberts, Who We Are: A Portrait of America Based on the Latest U.S. Census 74 (1993) (noting that "[p]eople of Hispanic heritage are clustered according to which country they came from").
84. Sarah Williams, a feminist anthropologist of anthropologists, calls silhouettes experiences that are not "representations of objective reality" but rather "shadows." Sarah Williams, Abjection and Anthropological Praxis, 66 Anthropological Q. 67, 71 (1993). In this article, Williams relates a silhouette of her fieldwork at an Australian university anthropology department seminar that is pertinent to a study of Latinas/os. Williams's shadow involved a noted New York anthropologist who was making a presentation. The presenter had "mediated the politics surrounding the anthropological representation of a so-called 'lost tribe' of Australian Aborigines who were 'discovered' in the Central Desert in 1984." Id. at 71. Someone from the audience challenged the utility of the report, inquiring who would read it and questioning why an academic would write "that the so-called 'lost tribe' of Australian Aboriginals was not a lost tribe nor, contrary to media belief, 'a people walking out of the Paleolithic.'" Id. Noting that probably only academics would read his report, as it was not "media worthy," the presenter nonetheless told the audience that there was a "young Aboriginal man who [was] reading his book - the anthropologist's ethnography of the young man's culture." Id. At that juncture the moderator "joke[d] about more Trobriand Islanders reading Malinowski to determine who they are." Id. While other attendees laughed at the joke, Williams became "lost in the conflicting affects of the joke and the laughter," as she saw the student who was a Trobriand Islander. Id. So Williams, the ethnographers' ethnographer, embraces her silhouette: Am I to envision this Trobriand Islander dangling another anthropological simulacrum . . . ? Or, is the moderator being dangled by Malinowski, who from his grave literally (that is, textually) does dangle "the Trobriand Islander?" How can this joke be a joke? The laughter evokes abjection. For me, an anthropologist of anthropologists, the images and words and people surrounding me are: divisible, foldable, and catastrophic. . . . The department is supposedly proud to be training the first native Trobriand Islander anthropologist. Furthermore, this student's principal advisor is a Malinowski expert. Is this would-be native anthropologist of the Trobriand Islands reading the texts of Malinowski to determine his identity? Or is he reading Malinowski to learn how anthropologists have represented his culture? Is there a difference? Does it matter? Id. at 71-72. I thank Margaret Montoya, Professor of Law at University of New Mexico and a dear friend, for introducing me to Williams, Trobrianders, and Malinowski.
85. See id. at 67 (expressing concern about how anthropologists "produce, use and disseminate" knowledge).
86. Jesus Colon, A Puerto Rican in New York (1975) (containing vignettes based on author's experiences in New York).
87. See Rodríguez, supra note 19, at 56-58 (relating reminiscences of one Puerto Rican who migrated to New York as adult). Still others have responded to the racial categorizations in the United States with anger, resistance, and confusion, depicting the tension between their self-perceptions and others' perceptions of them as "other." See id. at 58 (discussing Edward Rivera's Family Installments: Memories of Growing Up Hispanic (1983), in which friendship between Santos, a puertorriqueño, and another puertorriqueño with "black" features cools after Santos insults "black" friend with racial remark, and after both are accosted by gang of black youths that allows "black" Puerto Rican to go, but not Santos).
88. Williams, supra note 59, at 68.
89. See Haney López, supra note 17, at 37-47 (discussing historical nativism and discrimination inherent in United States immigration and naturalization laws and effects of laws on both racial composition and racial definitions in United States); see also 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) (analyzing how term "alien" is used to refer to noncitizens, suggesting that terminology is used to justify harsh treatment, and contending that the term has become "code" for noncitizen of color); Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1190-92 (1985) (reviewing Peter Irons, Justice at War (1983)) (noting linkage of nonblack persons of color with foreignness). The othering of Latinas/os is, in part, history repeating itself. In the 1880s a new tide of immigrants from Eastern and Southern Europe, namely Italians, Slavs, Poles, Russians, Hungarians, Greeks, and Jews, broke the Nordic circle of Western and Northern Europeans, triggering antiforeign sentiments centering on cultural prejudice and intolerance. See John Higham, Send These to Me: Jews and Other Immigrants in Urban America 39-41 (1975) (discussing prejudicial attitudes toward new immigrant masses). By then-accepted standards, "the masses of southern and eastern Europe were educationally deficient, socially backward, and bizarre in appearance." John Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925, at 65 (2d ed. 1988). It is interesting, for example, that Italians, foreigners once derided, now blend into the cultural "melting pot" being described most marginally as ethnic whites. See, e.g., id. at 66 (noting how derisive term "Dago" used to refer to Italians). Italians, Irish, and Jews bore the brunt of early nativism. Italians, for example, were often derisively described: The Italians were often thought to be the most degraded of the newcomers. They were swarthy, more than half of them were illiterate, and almost all were victims of a standard of living lower than that of any of the other prominent nationalities. . . . Also, they soon acquired a reputation as bloodthirsty criminals. Id. Also perjoratively referred to as "WOPs" (without papers), Italians were sometimes victims of lynching parties, mob beatings, and riots. See id. at 90.
90. See Haney López, supra note 17, at 37-47 (discussing historical nativism and discrimination inherent in United States immigration and naturalization laws and effects of laws on both racial composition and racial definitions in United States); see also 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) (analyzing how term "alien" is used to refer to noncitizens, suggesting that terminology is used to justify harsh treatment, and contending that the term has become "code" for noncitizen of color); Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1190-92 (1985) (reviewing Peter Irons, Justice at War (1983)) (noting linkage of nonblack persons of color with foreignness). The othering of Latinas/os is, in part, history repeating itself. In the 1880s a new tide of immigrants from Eastern and Southern Europe, namely Italians, Slavs, Poles, Russians, Hungarians, Greeks, and Jews, broke the Nordic circle of Western and Northern Europeans, triggering antiforeign sentiments centering on cultural prejudice and intolerance. See John Higham, Send These to Me: Jews and Other Immigrants in Urban America 39-41 (1975) (discussing prejudicial attitudes toward new immigrant masses). By then-accepted standards, "the masses of southern and eastern Europe were educationally deficient, socially backward, and bizarre in appearance." John Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925, at 65 (2d ed. 1988). It is interesting, for example, that Italians, foreigners once derided, now blend into the cultural "melting pot" being described most marginally as ethnic whites. See, e.g., id. at 66 (noting how derisive term "Dago" used to refer to Italians). Italians, Irish, and Jews bore the brunt of early nativism. Italians, for example, were often derisively described: The Italians were often thought to be the most degraded of the newcomers. They were swarthy, more than half of them were illiterate, and almost all were victims of a standard of living lower than that of any of the other prominent nationalities. . . . Also, they soon acquired a reputation as bloodthirsty criminals. Id. Also perjoratively referred to as "WOPs" (without papers), Italians were sometimes victims of lynching parties, mob beatings, and riots. See id. at 90.
91. See Haney López, supra note 17, at 37-47 (discussing historical nativism and discrimination inherent in United States immigration and naturalization laws and effects of laws on both racial composition and racial definitions in United States); see also 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) (analyzing how term "alien" is used to refer to noncitizens, suggesting that terminology is used to justify harsh treatment, and contending that the term has become "code" for noncitizen of color); Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1190-92 (1985) (reviewing Peter Irons, Justice at War (1983)) (noting linkage of nonblack persons of color with foreignness). The othering of Latinas/os is, in part, history repeating itself. In the 1880s a new tide of immigrants from Eastern and Southern Europe, namely Italians, Slavs, Poles, Russians, Hungarians, Greeks, and Jews, broke the Nordic circle of Western and Northern Europeans, triggering antiforeign sentiments centering on cultural prejudice and intolerance. See John Higham, Send These to Me: Jews and Other Immigrants in Urban America 39-41 (1975) (discussing prejudicial attitudes toward new immigrant masses). By then-accepted standards, "the masses of southern and eastern Europe were educationally deficient, socially backward, and bizarre in appearance." John Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925, at 65 (2d ed. 1988). It is interesting, for example, that Italians, foreigners once derided, now blend into the cultural "melting pot" being described most marginally as ethnic whites. See, e.g., id. at 66 (noting how derisive term "Dago" used to refer to Italians). Italians, Irish, and Jews bore the brunt of early nativism. Italians, for example, were often derisively described: The Italians were often thought to be the most degraded of the newcomers. They were swarthy, more than half of them were illiterate, and almost all were victims of a standard of living lower than that of any of the other prominent nationalities. . . . Also, they soon acquired a reputation as bloodthirsty criminals. Id. Also perjoratively referred to as "WOPs" (without papers), Italians were sometimes victims of lynching parties, mob beatings, and riots. See id. at 90.
92. That there is a negative connotation to non-Western European alienness (as noted above, regardless of real citizenship) is not a myth. I was working with a lawyer on litigation involving French and Swiss clients. I was the only Latina/o out of over 400 lawyers. My name, if nothing else, is a dead giveaway that I am Latina, which, by the way, got me great services from the secretaries and the photocopy, mail delivery, and litigation support departments - all of which were staffed with Latinas/os or other persons of color. I worked closely with another lawyer - let's call him Jack. There were frequent overseas calls to France and Switzerland that I conducted primarily because I parle Français. Jack understood some French and I translated a great deal for him. Interestingly enough, after several weeks of working together in this environment, he stopped the shop talk after one of these phone calls and without transition - just when I thought he was going to ask whether we should arbitrate in Holland or sue here - he looked at me squarely in the eye and said, "Now, Berta, you don't really consider yourself Hispanic, do you?" I, uncharacteristically enough, was speechless. Before I had recovered sufficiently to respond, he said, "I mean, I don't think of you as Hispanic; I think of you more as European, you know, Spanish," clearly distinguishing between an exotic, Western European foreigner and an undesirable one from the South. I guess that nexus to Europe created the legitimacy he needed to accept me in his world of European practice, the legitimacy to account for my successful interaction with European clients in their tongues and nations.
93. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009 (codified in scattered sections of 15 U.S.C.) (strengthening border patrols to curb undocumented immigration and denying more public aid to documented immigrants).
94. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified in scattered sections of 8 U.S.C. and 42 U.S.C.) (limiting legal immigrants' access to medical services and public assistance).
95. Asian American citizens also encounter this "foreignness" border. See Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243, 1258-64 (1993) (discussing Asian American stereotype as "model minority"); Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 33-38 (1994) (describing white Americans' classification of Asian Americans as foreigners); Gotanda, supra note 64, at 1188-92 (tracing history of cases concerning racial classification of Asian Americans). The exclusion of Asian Americans and anti-Asian sentiments also have deep historic roots. Japanese were vilified as untrustworthy outsiders to the extent of being interned in camps. Anti-Asian sentiments led to their exclusion. See, e.g., Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (as amended and extended in 1884, 1888, 1892, 1902, and 1904), repealed by Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat. 600. The constitutionality of such exclusion was upheld by the Supreme Court in the Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 581 (1889). For a critical review of such exclusion, see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 859 (1987) ("The Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension."). For a general discussion of nativistic trends, see Berta Esperanza Hernández-Truyol, Natives, Newcomers and Nativism: A Human Rights Model for the Twenty-First Century, 23 Fordham Urb. L.J. 1075 (1996).
96. Asian American citizens also encounter this "foreignness" border. See Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243, 1258-64 (1993) (discussing Asian American stereotype as "model minority"); Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 33-38 (1994) (describing white Americans' classification of Asian Americans as foreigners); Gotanda, supra note 64, at 1188-92 (tracing history of cases concerning racial classification of Asian Americans). The exclusion of Asian Americans and anti-Asian sentiments also have deep historic roots. Japanese were vilified as untrustworthy outsiders to the extent of being interned in camps. Anti-Asian sentiments led to their exclusion. See, e.g., Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (as amended and extended in 1884, 1888, 1892, 1902, and 1904), repealed by Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat. 600. The constitutionality of such exclusion was upheld by the Supreme Court in the Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 581 (1889). For a critical review of such exclusion, see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 859 (1987) ("The Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension."). For a general discussion of nativistic trends, see Berta Esperanza Hernández-Truyol, Natives, Newcomers and Nativism: A Human Rights Model for the Twenty-First Century, 23 Fordham Urb. L.J. 1075 (1996).
97. Asian American citizens also encounter this "foreignness" border. See Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243, 1258-64 (1993) (discussing Asian American stereotype as "model minority"); Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 33-38 (1994) (describing white Americans' classification of Asian Americans as foreigners); Gotanda, supra note 64, at 1188-92 (tracing history of cases concerning racial classification of Asian Americans). The exclusion of Asian Americans and anti-Asian sentiments also have deep historic roots. Japanese were vilified as untrustworthy outsiders to the extent of being interned in camps. Anti-Asian sentiments led to their exclusion. See, e.g., Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (as amended and extended in 1884, 1888, 1892, 1902, and 1904), repealed by Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat. 600. The constitutionality of such exclusion was upheld by the Supreme Court in the Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 581 (1889). For a critical review of such exclusion, see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 859 (1987) ("The Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension."). For a general discussion of nativistic trends, see Berta Esperanza Hernández-Truyol, Natives, Newcomers and Nativism: A Human Rights Model for the Twenty-First Century, 23 Fordham Urb. L.J. 1075 (1996).
98. Asian American citizens also encounter this "foreignness" border. See Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243, 1258-64 (1993) (discussing Asian American stereotype as "model minority"); Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 33-38 (1994) (describing white Americans' classification of Asian Americans as foreigners); Gotanda, supra note 64, at 1188-92 (tracing history of cases concerning racial classification of Asian Americans). The exclusion of Asian Americans and anti-Asian sentiments also have deep historic roots. Japanese were vilified as untrustworthy outsiders to the extent of being interned in camps. Anti-Asian sentiments led to their exclusion. See, e.g., Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (as amended and extended in 1884, 1888, 1892, 1902, and 1904), repealed by Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat. 600. The constitutionality of such exclusion was upheld by the Supreme Court in the Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 581 (1889). For a critical review of such exclusion, see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 859 (1987) ("The Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension."). For a general discussion of nativistic trends, see Berta Esperanza Hernández-Truyol, Natives, Newcomers and Nativism: A Human Rights Model for the Twenty-First Century, 23 Fordham Urb. L.J. 1075 (1996).
99. Asian American citizens also encounter this "foreignness" border. See Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243, 1258-64 (1993) (discussing Asian American stereotype as "model minority"); Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 33-38 (1994) (describing white Americans' classification of Asian Americans as foreigners); Gotanda, supra note 64, at 1188-92 (tracing history of cases concerning racial classification of Asian Americans). The exclusion of Asian Americans and anti-Asian sentiments also have deep historic roots. Japanese were vilified as untrustworthy outsiders to the extent of being interned in camps. Anti-Asian sentiments led to their exclusion. See, e.g., Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (as amended and extended in 1884, 1888, 1892, 1902, and 1904), repealed by Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat. 600. The constitutionality of such exclusion was upheld by the Supreme Court in the Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 581 (1889). For a critical review of such exclusion, see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 859 (1987) ("The Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension."). For a general discussion of nativistic trends, see Berta Esperanza Hernández-Truyol, Natives, Newcomers and Nativism: A Human Rights Model for the Twenty-First Century, 23 Fordham Urb. L.J. 1075 (1996).
100. Asian American citizens also encounter this "foreignness" border. See Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243, 1258-64 (1993) (discussing Asian American stereotype as "model minority"); Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 33-38 (1994) (describing white Americans' classification of Asian Americans as foreigners); Gotanda, supra note 64, at 1188-92 (tracing history of cases concerning racial classification of Asian Americans). The exclusion of Asian Americans and anti-Asian sentiments also have deep historic roots. Japanese were vilified as untrustworthy outsiders to the extent of being interned in camps. Anti-Asian sentiments led to their exclusion. See, e.g., Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (as amended and extended in 1884, 1888, 1892, 1902, and 1904), repealed by Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat. 600. The constitutionality of such exclusion was upheld by the Supreme Court in the Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 581 (1889). For a critical review of such exclusion, see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 859 (1987) ("The Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension."). For a general discussion of nativistic trends, see Berta Esperanza Hernández-Truyol, Natives, Newcomers and Nativism: A Human Rights Model for the Twenty-First Century, 23 Fordham Urb. L.J. 1075 (1996).
101. See Elvia Arriola, LatCrit Theory, International Human Rights, Popular Culture and the Faces of Despair in INS Raids, 28 U. Miami Inter-Am. L. Rev. 244 (1996-97) (discussing border town raids and indiscriminate rounding up of people who look Mexican, without regard for citizenship).
102. See, e.g., Santiago v. Steinhart, No. 89 Civ. 2069 (RPP), 1993 WL 106302, at *1 (S.D.N.Y. Apr. 5, 1993) (alleging discrimination, including employer asking for green card after being told applicant was born in Puerto Rico).
103. See Wildman, supra note 13, at 9 (discussing use of language to categorize race and relating story that shows interchangeability of Spanish surnames, resulting in invisibility).
104. See Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1333-48 (1991) (discussing prejudice against persons with different accents).
105. See Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism and Official English, 77 Minn. L. Rev. 269, 278-79 (1992) (identifying myth that English is only real language for "American" identity as one of many myths underlying American nativism movement).
106. See Gloria Anzaldúa, Haciendo Caras, una entrada, in Haciendo Caras, supra note 2, at xxii ("To speak English is to think in that language, to adopt the ideology of the people whose language it is and to be 'inhabited' by their discourses."); Wildman, supra note 13, at 9. Language contributes to the invisibility and regeneration of privilege. To begin the conversation about subordination, we sort ideas into categories such as race and
107. See Gloria Anzaldúa, Haciendo Caras, una entrada, in Haciendo Caras, supra note 2, at xxii ("To speak English is to think in that language, to adopt the ideology of the people whose language it is and to be 'inhabited' by their discourses."); Wildman, supra note 13, at 9. Language contributes to the invisibility and regeneration of privilege. To begin the conversation about subordination, we sort ideas into categories such as race and gender. These words are part of a system of categorization that we use without thinking and that seems linguistically neutral. Race and gender are, after all, just words. . . . We place people into these categories because our world is gendered. Similarly, our world is also raced. . . . But the problem does not stop with the general terms "race" and "gender." Each of these categories contains the images, like an entrance to a tunnel with many passages and arrows pointing down each possible path, of subcategories. Id.
108. See Anzaldúa, supra note 1, at 59 ("Ethnic identity is twin skin to linguistic identity - I am my language. Until I can take pride in my language, I cannot take pride in myself.").
109. See Hernández v. New York, 500 U.S. 352 (1991) (causing Spanish to disappear from courtroom by making translated testimony official version; putting Latina/o jurors in second class by excluding them when they state they do not know if they will be able to ignore original Spanish language testimony in favor of translated version).
110. See Norma Alarcón, The Theoretical Subject(s) of This Bridge Called My Back and Anglo-American Feminism, in Haciendo Caras, supra note 2, at 356, 363 ("The silence and silencing of people begins with the dominating enforcement of linguistic conventions, the resistance to relational dialogues, as well as the disenablement of peoples by outlawing their forms of speech."); see also Kit Yuen Quan, The Girl Who Wouldn't Sing, in Haciendo Caras, supra note 2, at 212, 214-15 (describing how her parents insisted that she "master" English to fulfill "Chinese American dream," how she "was lonely for someone to talk to who could understand how [she] felt, but [she] didn't even have the words to communicate what [she] felt," and how, in an attempt to effect that communication, she "had to learn feminist rhetoric," which, while providing words to express oppression, "still reflects the same racist, classist standards of the dominant society," making author feel she is "being put down for what [she says] or how [she] talk[s]").
111. See Norma Alarcón, The Theoretical Subject(s) of This Bridge Called My Back and Anglo-American Feminism, in Haciendo Caras, supra note 2, at 356, 363 ("The silence and silencing of people begins with the dominating enforcement of linguistic conventions, the resistance to relational dialogues, as well as the disenablement of peoples by outlawing their forms of speech."); see also Kit Yuen Quan, The Girl Who Wouldn't Sing, in Haciendo Caras, supra note 2, at 212, 214-15 (describing how her parents insisted that she "master" English to fulfill "Chinese American dream," how she "was lonely for someone to talk to who could understand how [she] felt, but [she] didn't even have the words to communicate what [she] felt," and how, in an attempt to effect that communication, she "had to learn feminist rhetoric," which, while providing words to express oppression, "still reflects the same racist, classist standards of the dominant society," making author feel she is "being put down for what [she says] or how [she] talk[s]").
112. See Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 Harv. J. L. & Pub. Pol'y 419, 426-27 (1995) (stressing that "full, first-class" citizenship should mean "equality of political rights"
113. (quoting Judith N. Sklar, American Citizenship: The Quest for Inclusion 1 (1991))).
114. Octavio Paz, El Laberinto de la Soledad 35-36 (1980). Translation: Like almost all other peoples, the Mexican considers woman as an instrument, sometimes of masculine desires, sometimes of the ends assigned to her by morality, society and the law. It must be admitted that she has never been asked to consent to these ends and that she participates in their realization only passively, as a "repository" of certain values. Whether as prostitute, goddess, grande dame or mistress, woman transmits or preserves - but does not believe in - the values and energies entrusted to her by nature or society. In a world made in man's image, woman is only a reflection of masculine will and desire. When passive, she becomes a goddess, a beloved one, a being who embodies the ancient, stable elements of the universe: the earth, motherhood, virginity. When active, she is always function and means, a receptacle and a channel. Womanhood, unlike manhood, is never an end in itself. Octavio Paz, The Labyrinth of Solitude 35-36 (Lysander Kemp trans., Grove Press 1985).
115. Octavio Paz, El Laberinto de la Soledad 35-36 (1980). Translation: Like almost all other peoples, the Mexican considers woman as an instrument, sometimes of masculine desires, sometimes of the ends assigned to her by morality, society and the law. It must be admitted that she has never been asked to consent to these ends and that she participates in their realization only passively, as a "repository" of certain values. Whether as prostitute, goddess, grande dame or mistress, woman transmits or preserves - but does not believe in - the values and energies entrusted to her by nature or society. In a world made in man's image, woman is only a reflection of masculine will and desire. When passive, she becomes a goddess, a beloved one, a being who embodies the ancient, stable elements of the universe: the earth, motherhood, virginity. When active, she is always function and means, a receptacle and a channel. Womanhood, unlike manhood, is never an end in itself. Octavio Paz, The Labyrinth of Solitude 35-36 (Lysander Kemp trans., Grove Press 1985).
116. See Ruth Burgos-Sasscer & Francis Hernández Giles, La Mujer Marginada: For la Historia: Guia de Estudio 83 (1978) (noting, for example, that traditionally, Latina's role is reproductive, domestic, one of homemaking and child raising, subordinate to men).
117. Author's translation: dolls, kitchen sets, homemaker games.
118. Sociologist Rhoda Howard makes the following observation about sex: The easiest and clearest social distinction to make is between men and women; in many societies, as our own language reflects, the male is the standard of humanness and the female is the deviation. As Simone de Beauvoir put it in her classic feminist meditation, to be female is to be the existential "Other." . . . The female possessed of knowledge threatens the orderly acquisition and delimitation of society's cognitive symbols created - in most cultures - by her male status superiors; thus from Eve to medieval wise-women and beyond, Judeo-Christian culture has punished the woman who exercises the human capacity for self-reflection with its attendant threat of making claims upon society. Rhoda E. Howard, Dignity, Community, and Human Rights, in Human Rights in Cross-Cultural Perspectives 81, 88 (Abdullahi Ahmed An-Na'im ed., 1992) (footnote omitted).
119. See, e.g., Simone de Beauvoir, The Second Sex (Vintage Books 1989) (1949) (scrutinizing facts and myths of women's lives, using literature, history, biology, and philosophy to examine problems women encounter and possibilities open to them); Sandra Lipszits Bern, The Lenses of Gender (1993) (arguing that masculinity and femininity are merely constructions of cultural schema that polarizes gender).
120. See, e.g., Simone de Beauvoir, The Second Sex (Vintage Books 1989) (1949) (scrutinizing facts and myths of women's lives, using literature, history, biology, and philosophy to examine problems women encounter and possibilities open to them); Sandra Lipszits Bern, The Lenses of Gender (1993) (arguing that masculinity and femininity are merely constructions of cultural schema that polarizes gender).
121. See, e.g., Catharine A. MacKinnon, Feminism Unmodified (1987). Men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other - their wars and rulerships - defines history, their image defines god, and their genitals define sex. Id. at 36 (footnote omitted).
122. See Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought 4 (1988) ("A measure of the depth of white middle-class privilege is that the apparently straightforward and logical points and axioms at the heart of much of feminist theory guarantee the direction of its attention to the concerns of white middle-class women.").
123. See Wildman, supra note 13, at xi (noting how white privilege interacts with other systems of privilege, including those based on economic wealth, physical ability, and sexual orientation); Harris, supra note 7, at 255 ("[I]n feminist legal theory, as in the dominant culture, it is mostly white, straight, and socioeconomically privileged people who claim to speak for all of us.").
124. See Wildman, supra note 13, at xi (noting how white privilege interacts with other systems of privilege, including those based on economic wealth, physical ability, and sexual orientation); Harris, supra note 7, at 255 ("[I]n feminist legal theory, as in the dominant culture, it is mostly white, straight, and socioeconomically privileged people who claim to speak for all of us.").
125. See Harris, supra note 7, at 255 (defining gender essentialism as "the notion that there is a monolithic 'women's experience' that can be described as independent of other facets of experience like race, class, and sexual orientation").
126. See Anzaldúa, supra note 74, at xv-xxvi. Anzaldúa calls for the development of new theories which incorporate race, class, ethnicity, and sexual difference: In our literature, social issues such as race, class and sexual difference are intertwined with the narrative and poetic elements of a text, elements in which theory is embedded. In our mestizaje theories we create new categories for those of us left out or pushed out of the existing ones. Id.; see also Gloria Bonilla-Santiago, Breaking Ground and Barriers 21, 24, 44 (1992) (noting shortcomings in current social science and feminist research with regard to race and class, and calling on Latina women to develop independent movement and critical theory). In a study conducted from 1989 to 1991 with women from a barrio in New York City, the researchers found that class and gender position were the issues of greatest concern to women "with education as a potentially empowering strategy." Rina Benmayor et al., Centro de Estudios Puertorriqueños, Hunter College, Responses to Poverty Among Puerto Rican Women: Identity, Community, and Cultural Citizenship 10 (1992).
127. See Anzaldúa, supra note 74, at xv-xxvi. Anzaldúa calls for the development of new theories which incorporate race, class, ethnicity, and sexual difference: In our literature, social issues such as race, class and sexual difference are intertwined with the narrative and poetic elements of a text, elements in which theory is embedded. In our mestizaje theories we create new categories for those of us left out or pushed out of the existing ones. Id.; see also Gloria Bonilla-Santiago, Breaking Ground and Barriers 21, 24, 44 (1992) (noting shortcomings in current social science and feminist research with regard to race and class, and calling on Latina women to develop independent movement and critical theory). In a study conducted from 1989 to 1991 with women from a barrio in New York City, the researchers found that class and gender position were the issues of greatest concern to women "with education as a potentially empowering strategy." Rina Benmayor et al., Centro de Estudios Puertorriqueños, Hunter College, Responses to Poverty Among Puerto Rican Women: Identity, Community, and Cultural Citizenship 10 (1992).
128. See Anzaldúa, supra note 74, at xv-xxvi. Anzaldúa calls for the development of new theories which incorporate race, class, ethnicity, and sexual difference: In our literature, social issues such as race, class and sexual difference are intertwined with the narrative and poetic elements of a text, elements in which theory is embedded. In our mestizaje theories we create new categories for those of us left out or pushed out of the existing ones. Id.; see also Gloria Bonilla-Santiago, Breaking Ground and Barriers 21, 24, 44 (1992) (noting shortcomings in current social science and feminist research with regard to race and class, and calling on Latina women to develop independent movement and critical theory). In a study conducted from 1989 to 1991 with women from a barrio in New York City, the researchers found that class and gender position were the issues of greatest concern to women "with education as a potentially empowering strategy." Rina Benmayor et al., Centro de Estudios Puertorriqueños, Hunter College, Responses to Poverty Among Puerto Rican Women: Identity, Community, and Cultural Citizenship 10 (1992).
129. See Bonilla-Santiago, supra note 88, at 11 (noting ways in which Latinas are taught they are inferior to Latinos); Mary Backer, Strength in Diversity: Feminist Theoretical Approaches to Child Custody and Same-Sex Relationships, 23 Stetson L. Rev. 701, 707-10 (1994) (discussing "dominance feminism" and its assessment that women's work in private sphere is systematically devalued); see also MacKinnon, supra note 84, at 55 ("We notice in language as well as in life that the male occupies both the neutral and the male position . . . whereas women occupy the marked, the gendered, the different, the forever-female position."); Lucinda M. Finley, Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, in Feminist Legal Theory: Foundations 571-79 (D. Kelly Weisberg ed., 1993) (arguing that legal language and reasoning reflect male-based perspective, and discussing limitations of this perspective in various areas of law); supra notes 82-84 and accompanying text (discussing male as norm).
130. See Bonilla-Santiago, supra note 88, at 11 (noting ways in which Latinas are taught they are inferior to Latinos); Mary Backer, Strength in Diversity: Feminist Theoretical Approaches to Child Custody and Same-Sex Relationships, 23 Stetson L. Rev. 701, 707-10 (1994) (discussing "dominance feminism" and its assessment that women's work in private sphere is systematically devalued); see also MacKinnon, supra note 84, at 55 ("We notice in language as well as in life that the male occupies both the neutral and the male position . . . whereas women occupy the marked, the gendered, the different, the forever-female position."); Lucinda M. Finley, Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, in Feminist Legal Theory: Foundations 571-79 (D. Kelly Weisberg ed., 1993) (arguing that legal language and reasoning reflect male-based perspective, and discussing limitations of this perspective in various areas of law); supra notes 82-84 and accompanying text (discussing male as norm).
131. See Bonilla-Santiago, supra note 88, at 11 (noting ways in which Latinas are taught they are inferior to Latinos); Mary Backer, Strength in Diversity: Feminist Theoretical Approaches to Child Custody and Same-Sex Relationships, 23 Stetson L. Rev. 701, 707-10 (1994) (discussing "dominance feminism" and its assessment that women's work in private sphere is systematically devalued); see also MacKinnon, supra note 84, at 55 ("We notice in language as well as in life that the male occupies both the neutral and the male position . . . whereas women occupy the marked, the gendered, the different, the forever-female position."); Lucinda M. Finley, Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, in Feminist Legal Theory: Foundations 571-79 (D. Kelly Weisberg ed., 1993) (arguing that legal language and reasoning reflect male-based perspective, and discussing limitations of this perspective in various areas of law); supra notes 82-84 and accompanying text (discussing male as norm).
132. See Bonilla-Santiago, supra note 88, at 11 (noting ways in which Latinas are taught they are inferior to Latinos); Mary Backer, Strength in Diversity: Feminist Theoretical Approaches to Child Custody and Same-Sex Relationships, 23 Stetson L. Rev. 701, 707-10 (1994) (discussing "dominance feminism" and its assessment that women's work in private sphere is systematically devalued); see also MacKinnon, supra note 84, at 55 ("We notice in language as well as in life that the male occupies both the neutral and the male position . . . whereas women occupy the marked, the gendered, the different, the forever-female position."); Lucinda M. Finley, Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, in Feminist Legal Theory: Foundations 571-79 (D. Kelly Weisberg ed., 1993) (arguing that legal language and reasoning reflect male-based perspective, and discussing limitations of this perspective in various areas of law); supra notes 82-84 and accompanying text (discussing male as norm).
133. See Anzaldúa, supra note 1, at 19-20 (noting that lesbians of color make "ultimate rebellion" against native culture and often fear rejection by family and culture); Bonilla-Santiago, supra note 88, at 31-32 (citing Latinos' homophobia and unilateral focus on race as sole oppression facing Latinas).
134. See Bonilla-Santiago, supra note 88, at 4. In addition to structural barriers such as lack of positive role models and mentors, and economic hardship, Hispanic girls and women face the constraining sex-role expectations ingrained in Hispanic culture. The typical sex-role stereotypes of the macho male and the submissive female still pervasive in society today seem even more powerful in Latina/o culture. The associated attitude is extremely debilitating. It hinders and precludes Latina women from leaving the domestic domain of home and family, entering the labor force, gaining leadership roles, or acquiring a formal education. Id.
135. Significantly, 85% of Latinas consider themselves Catholic, and many hold political and social views that are influenced by religious doctrine. See Bonilla-Santiago, supra note 88, at 15. The imagery of the Virgin Mary as the female ideal is firmly rooted in and praised by culture. As one author stated, "Some Chicanas are praised as they emulate the sanctified example set by (the Virgin) Mary. The woman par excellence is mother and wife. She is to love and support her husband and to nurture and teach her children. Thus, may she gain fulfillment as a woman." Id. at 11.
136. Id. at 11 (emphasis added); see also Pierrette Hondagneu-Sotelo, Gendered Transitions: Mexican Experiences of Immigration 9 (1994) ("The ideological corollary [to machismo] for women, . . . marianismo (marianism), is modeled on the Catholic Virgin Madonna, and prescribes dependence, subordination, responsibility for all domestic chores, and selfless devotion to family and children.").
137. Rosa María Gil & Carmen Inoa Vázquez, The María Paradox 7 (1996).
138. See Burgos-Sasscer & Giles, supra note 80, at 85 (observing that woman's most important function is to marry and serve her family).
139. Bonilla-Santiago, supra note 88, at 11. "[M]any Latin males are expected to show their manhood by behaving in a strong fashion, by demonstrating sexual powers, and by asserting their authority over women." Id. at 12. The author notes that both gender role descriptives are socio-cultural phenomena. See id. at 11.
140. Gil & Vázquez, supra note 94, at 6 ; see also Hondagneu-Sotelo, supra note 93, at 9 ("Machismo calls for men to be sexually assertive, independent, and emotionally restrained, to wield absolute authority over their wives and children, and to serve as family breadwinners.").
141. Gil & Vázquez, supra note 94, at 6 ; see also Hondagneu-Sotelo, supra note 93, at 9 ("Machismo calls for men to be sexually assertive, independent, and emotionally restrained, to wield absolute authority over their wives and children, and to serve as family breadwinners.").
142. Gil & Vazquez, supra note 94.
143. See id. at 5.
144. see id.
145. See id. at 5-6.
146. See Burgos-Sasscer & Giles, supra note 80, at 85 (observing that dichotomy between Hispanic mothers and wives and Hispanic prostitutes allows men to maintain moral system while sustaining latent polygamy of which they are proud).
147. See generally Berta Esperanza Hernández-Truyol, Las Olvidadas-Gendered in Justice/Gendered Injustice: Latinas, Fronteras, and the Law, 1 Iowa J. Gender, Race & Just. (forthcoming 1997) (manuscript at 10-15, 52-59, on file with the New York University Law Review) (providing demographics of Latina population that establish Latinas as poorest, least educated, and most economically marginalized of all ethnic groups).
148. See Bonilla-Santiago, supra note 88, at 8 ("Many [Latinas] still tend to pursue the more feminine occupations as a way to enter the work setting because they do not understand the organizational cultures.").
149. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that denial of partnership to woman for being aggressive, unladylike, and not wearing makeup is permissible under employment laws).
150. See Burgos-Sasscer & Giles, supra note 80, at 84 (citing Jorge Gissi, Mitología de la Femineidad [sic], in Mujer en el Orden Social Machista (Ander Egg et al. eds., 1972)).
151. María Lugones, Hablando cara a cara/Speaking Face to Face: An Exploration of Ethnocentric Racism, in Haciendo Caras, supra note 2, at 46, 50.
152. This is a separate (and additional) language-based concern for Latinas beyond those that affect the community as a whole.
153. Anzaldúa, supra note 1, at 80-81.
154. Anzaldúa, supra note 74, at xxv ("Necesitamos teorías that will rewrite history using race, class, gender and ethnicity as categories of analysis, theories that cross borders, that blur boundaries - new kinds of theories with new theorizing methods.").
155. These terms are borrowed from the international human rights construct. See, e.g., World Conference on Human Rights: The Vienna Declaration and Programme of Action, pt. 1., para. 5, U.N. Doc. A/CONF.157/23 (1993) ("All human rights are universal, indivisible, and interdependent and interrelated."); Report of the International Conference on Population and Development, principle 4, U.N. Doc. A/CONF.171/13 (1994) ("The human rights of women and the girl-child are an inalienable, integral and indivisible part of universal human rights."). For a discussion of how substantive international human rights can assist in the practice of LatCrit theorizing, see Berta Esperanza Hernández-Truyol, Building Bridges: Bringing International Human Rights Home, 9 La Raza L.J. 69 (1996) (discussing how incorporation of substantive human rights into our domestic law can help condition and position of Latinas/os in United States, including with regard to welfare and immigration "reform" legislation); see also Symposium: International Law, Human Rights and LatCrit Theory, 28 U. Miami Inter-Am. L. Rev. 223 (1996-97); Berta Esperanza Hernández-Truyol, International Law, Human Rights and LatCrit Theory: Civil and Political Rights - An Introduction, 28 U. Miami Inter-Am. L. Rev. 223, 224 (1996-97) (discussing human rights laws' positive view of acceptable treatment for all people and how that view allows all people to participate in "global society").
156. These terms are borrowed from the international human rights construct. See, e.g., World Conference on Human Rights: The Vienna Declaration and Programme of Action, pt. 1., para. 5, U.N. Doc. A/CONF.157/23 (1993) ("All human rights are universal, indivisible, and interdependent and interrelated."); Report of the International Conference on Population and Development, principle 4, U.N. Doc. A/CONF.171/13 (1994) ("The human rights of women and the girl-child are an inalienable, integral and indivisible part of universal human rights."). For a discussion of how substantive international human rights can assist in the practice of LatCrit theorizing, see Berta Esperanza Hernández-Truyol, Building Bridges: Bringing International Human Rights Home, 9 La Raza L.J. 69 (1996) (discussing how incorporation of substantive human rights into our domestic law can help condition and position of Latinas/os in United States, including with regard to welfare and immigration "reform" legislation); see also Symposium: International Law, Human Rights and LatCrit Theory, 28 U. Miami Inter-Am. L. Rev. 223 (1996-97); Berta Esperanza Hernández-Truyol, International Law, Human Rights and LatCrit Theory: Civil and Political Rights - An Introduction, 28 U. Miami Inter-Am. L. Rev. 223, 224 (1996-97) (discussing human rights laws' positive view of acceptable treatment for all people and how that view allows all people to participate in "global society").
157. These terms are borrowed from the international human rights construct. See, e.g., World Conference on Human Rights: The Vienna Declaration and Programme of Action, pt. 1., para. 5, U.N. Doc. A/CONF.157/23 (1993) ("All human rights are universal, indivisible, and interdependent and interrelated."); Report of the International Conference on Population and Development, principle 4, U.N. Doc. A/CONF.171/13 (1994) ("The human rights of women and the girl-child are an inalienable, integral and indivisible part of universal human rights."). For a discussion of how substantive international human rights can assist in the practice of LatCrit theorizing, see Berta Esperanza Hernández-Truyol, Building Bridges: Bringing International Human Rights Home, 9 La Raza L.J. 69 (1996) (discussing how incorporation of substantive human rights into our domestic law can help condition and position of Latinas/os in United States, including with regard to welfare and immigration "reform" legislation); see also Symposium: International Law, Human Rights and LatCrit Theory, 28 U. Miami Inter-Am. L. Rev. 223 (1996-97); Berta Esperanza Hernández-Truyol, International Law, Human Rights and LatCrit Theory: Civil and Political Rights - An Introduction, 28 U. Miami Inter-Am. L. Rev. 223, 224 (1996-97) (discussing human rights laws' positive view of acceptable treatment for all people and how that view allows all people to participate in "global society").
158. As a group, Latinas are the poorest, least educated, lowest skilled, and least likely to hold jobs or obtain training that will facilitate the means of emerging from poverty, of any ethnic or racial group in the United States. See generally Hernández-Truyol, supra note 103. However, Latinas' marginalization is not limited to poor, uneducated Latinas; rather, it reaches all levels. This phenomenon is powerfully established by the fact that Latinas with a college degree earn less than NLoWs with only a high school diploma. See Derrick Z. Jackson, Clinton's Affirmative Action Speech: The Boldest Move of His Presidency, Boston Globe, July 21, 1995, at 17 (noting, as "ongoing disparity," that white men with only high school degrees make more than Hispanic women with college degrees);
159. Joseph Torres, Clinton's stance on affirmative action heartens Hispanics, Idaho Statesman, July 29, 1995, at 9A (same).
160. See Hernández-Truyol, supra note 103 (manuscript at 6-15) (analyzing demographics of Latinas in United States and impact of their many-layered differences from normative mold).
161. Gayarati Chakravorty Spivak, The Making of Americans, the Teaching of English, and the Future of Cultural Studies, 21 New Literary Hist. 781-89 (1990).
162. International human rights documents provide a model for and support such an approach. While treaties consistently address culture as a basis upon which protections must be afforded, not one cites to culture as the grounds upon which other protected rights may be abridged. See, e.g., Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 180, U.N. GAO, 34th Sess., Supp. No. 46, at 195, Annex at art. 2(f), U.N. Doc. A/34/46 (1979) (mandating that States Parties "take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women" (emphasis added)). The Women's Convention goes so far so as to require that States Parties take all appropriate measures . . . [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. Id. art. 5(a) (emphasis added). In fact, the Women's Convention is noteworthy because it even proscribes stereotyping. See, e.g., id. art. 10(c) (requiring that States Parties ensure "the elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education"); see also Charter on the Rights and Welfare of the African Child, July 11, 1990, art. 21, OAU Doc. CAB/LEG/24.9/49. The African Charter on the Rights and Welfare of the African Child expressly balances cultural rights and cultural pretexts to disempower or harm persons simply because of their sex. The Charter requires member states of the Organization of African Unity to "abolish customs and practices harmful to the welfare, normal growth and development of the child, and in particular . . . those customs and practices discriminatory to the child on the grounds of sex or other status." Id. (emphasis added).
163. International human rights documents provide a model for and support such an approach. While treaties consistently address culture as a basis upon which protections must be afforded, not one cites to culture as the grounds upon which other protected rights may be abridged. See, e.g., Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 180, U.N. GAO, 34th Sess., Supp. No. 46, at 195, Annex at art. 2(f), U.N. Doc. A/34/46 (1979) (mandating that States Parties "take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women" (emphasis added)). The Women's Convention goes so far so as to require that States Parties take all appropriate measures . . . [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. Id. art. 5(a) (emphasis added). In fact, the Women's Convention is noteworthy because it even proscribes stereotyping. See, e.g., id. art. 10(c) (requiring that States Parties ensure "the elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education"); see also Charter on the Rights and Welfare of the African Child, July 11, 1990, art. 21, OAU Doc. CAB/LEG/24.9/49. The African Charter on the Rights and Welfare of the African Child expressly balances cultural rights and cultural pretexts to disempower or harm persons simply because of their sex. The Charter requires member states of the Organization of African Unity to "abolish customs and practices harmful to the welfare, normal growth and development of the child, and in particular . . . those customs and practices discriminatory to the child on the grounds of sex or other status." Id. (emphasis added).
164. See Berta Esperanza Hernández-Truyol, Women's Rights as Human Rights - Rules, Realities and the Role of Culture, 21 Brook. J. Int'l L. 605, 668 (1996) (proposing that, in order to ensure women's full membership and participation in their communities, critical inquiries into lawmaking must include analysis of cultural implications).
165. The basis of the concept of Latina/o panethnicity is "the pan-Latino[/a] consciousness emerging in this country" conjoined with the realization that Latinas/os "must never obscure the uniqueness of the experiences of these various Latino[/a] groups." Angelo Falcón, Viewpoints: Through the Latin Lens, Newsday, Sept. 3, 1992, at 106. The idea of panethnicity is centered on the notion that, in the United States, "more brings [Latinas/os] together than separates them within the political process." Id. Panethnicity is sometimes cited as a raison d'être for LatCrit discourse (i.e., our common problems are many, and together we can ensure the power to find a solution). Other times it is the source of skepticism as to whether such a theoretical construct can exist (i.e., our differences are many and will impede a common perspective from which to launch cohesive discourse).
166. See, e.g., Crenshaw, supra note 8, at 160-67 (urging integration of feminist theory with black liberation and antiracist political theory); Harris, supra note 7, at 256-63 (arguing that feminist legal theory, despite its expressed desire to reflect experiences of all women, largely ignores nonwhite women or relegates them to footnotes).
167. See, e.g., Crenshaw, supra note 8, at 160-67 (urging integration of feminist theory with black liberation and antiracist political theory); Harris, supra note 7, at 256-63 (arguing that feminist legal theory, despite its expressed desire to reflect experiences of all women, largely ignores nonwhite women or relegates them to footnotes).
168. See Davis & Wildman, supra note 13, at 1381-82 (discussing "de-rac[ing]" of Anita Hill during the hearings, making her only a woman within a "white racist conspiracy"); Delgado, Norms, supra note 13, at 934 (questioning normative analysis as covering actual injustice and oppression and maintaining unfair status quo); Delgado, Shadowboxing, supra note 13, at 817 (discussing how outsiders can tell counterstories to overturn dominant narratives); Gotanda, supra note 13, at 61-62 (pointing out that whiteness is social construct ignoring ethnicity as aspect of race).
169. See Davis & Wildman, supra note 13, at 1381-82 (discussing "de-rac[ing]" of Anita Hill during the hearings, making her only a woman within a "white racist conspiracy"); Delgado, Norms, supra note 13, at 934 (questioning normative analysis as covering actual injustice and oppression and maintaining unfair status quo); Delgado, Shadowboxing, supra note 13, at 817 (discussing how outsiders can tell counterstories to overturn dominant narratives); Gotanda, supra note 13, at 61-62 (pointing out that whiteness is social construct ignoring ethnicity as aspect of race).
170. See Davis & Wildman, supra note 13, at 1381-82 (discussing "de-rac[ing]" of Anita Hill during the hearings, making her only a woman within a "white racist conspiracy"); Delgado, Norms, supra note 13, at 934 (questioning normative analysis as covering actual injustice and oppression and maintaining unfair status quo); Delgado, Shadowboxing, supra note 13, at 817 (discussing how outsiders can tell counterstories to overturn dominant narratives); Gotanda, supra note 13, at 61-62 (pointing out that whiteness is social construct ignoring ethnicity as aspect of race).
171. See Davis & Wildman, supra note 13, at 1381-82 (discussing "de-rac[ing]" of Anita Hill during the hearings, making her only a woman within a "white racist conspiracy"); Delgado, Norms, supra note 13, at 934 (questioning normative analysis as covering actual injustice and oppression and maintaining unfair status quo); Delgado, Shadowboxing, supra note 13, at 817 (discussing how outsiders can tell counterstories to overturn dominant narratives); Gotanda, supra note 13, at 61-62 (pointing out that whiteness is social construct ignoring ethnicity as aspect of race).
172. See generally Wildman, supra note 13 (discussing how language, social patterns, and laws privilege whiteness).
173. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
174. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
175. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
176. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
177. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
178. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of
179. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
180. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
181. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
182. Essentialism has been the tragic flaw of earlier critical movements. For example, the Crits evolved as mostly race-and sex-essentialist normativos. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (1987); Harlon L. Dalton, The Clouded Prism, 22 Harv. C.R.-C.L. L. Rev. 435 (1987) (criticizing Critical Legal Studies movement for silencing voices of color); Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 Am. U. L. Rev. 939 (1985) (presenting four essays discussing the role of law in different aspects of nineteenth-century economic thought); Mark V. Tushnet, Perspectives on Critical Legal Studies: Introduction, 52 Geo. Wash. L. Rev. 239 (1984) (examining critical legal studies' attack on formalism). The FemCrits turned out to be race essentialists who criticized the normativos - Crits and non-Crits alike - for their exclusion from discourse simply because of their sex (meaning gender). See Crenshaw, supra note 8, at 162-63 (noting that for African Americans, distinct experience of "racial otherness" is so dominant that interests of black women are relegated to periphery in public policy discussions); Harris, supra note 7, at 255 (referring to notion of monolithic women's experience independent of other facets of experience, like race, class, and sexual orientation, as "gender essentialism"). Similarly (and simultaneously), the RaceCrits, while criticizing the FemCrits for their lack of cognizance as to the role race played (and plays) in the marginalization and "othering" of persons of color, overlooked sex. Thus, by necessity, Critical Race Feminism was born, because in the RaceCrit discourse, somehow, somewhere the notion of gender subordination and marginalization was lost - much like the normativity of race subordination was lost in the FemCrit discourse - and had to be brought back to center by the critical race feminists. See Critical Race Theory: The Key Writings That Formed The Movement (Kimberlé Crenshaw et al. eds., 1996); Harris, supra note 7, at 255 (noting that feminist legal theory is dominated by white, straight, and socioeconomically privileged people, whose story about women does not describe experience of black women); see also Critical Race Feminism (Adrian Katherine Wing ed., 1997). Although one of the prominent leaders of critical theory is a Latino, all the Crit movements included very few Latinas/os, as shown in the modest representation of Latinas/os in an extensive, comprehensive, and inarticulably valuable annotated critical race bibliography published in 1993. Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993). This bibliography included only seven writers who, based upon their names, were identifiable as Latinas/os, of whom only four had focused on the Latina/o experience and only two of whom were women. To be sure, one possible explanation for this early absence of Latina/o voices in the critical legal movement could be the result of the small number of Latinas/os in the academy. In the 1996-97 year, there were only 117 Latinas/os of whom 43 were Latinas. See supra note 6. The latest available data indicates that there is a total of 5,504 law professors in U.S. law schools. See Richard A. White, Variations in the Success Rates of Minority and Nonminority Candidates In the AALS Faculty Appointments Register, AALS Newsletter, Mar. 1996 (reporting that only 755, or 13.7%, of the 5,504 law professors who provided ethnic information in the 1995-96 Directory are members of minority groups).
183. See supra notes 7, 8, 121 and accompanying text for a discussion of essentialism.
184. See Wildman, supra note 13, at xi-xii (discussing social construction of race and privilege of whiteness through different devices, social patterns, and laws).
185. See id. at 142-47 (discussing relation between rule of law and justice and role of rule of law in perpetuating oppression).
186. Of course, this analysis also applies to non-Latina/o blacks and non-Latina/o Asians. Significantly, the Latina/o category includes Latina/o blacks and Asians.