This essay examines how the operation of background rules and institutions provided by law leads to the expulsion of individuals under racial capitalism based upon gender. Aligning itself with anti-capitalist work by critical theorists of social reproduction and intersectionality, it contributes to perspectives on racial capitalism that regard gender, in the way it creates subjects and differentiates between workers, as a co-constituting force with race under racial capitalism. Women and transgender persons, because of gender, are precariously situated on the edge of exile from the economic order. It makes this argument by weaving feminist insights-particularly those articulated in scholarship on social reproduction and intersectionality-with perspectives on racial capitalism.
This Article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial three to six month period after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, antidiscrimination law has failed to acknowledge the demands of the fourth trimester; it operates from the presumption that pregnancy begins at conception and ends at birth. Without employing a fourth trimester framework, the current federal antidiscrimination regime will continue to permit pregnancy discrimination against women because employers can discriminate on the basis of activities that typify the fourth trimester of the pregnancy. Judges, administrative actors, movement lawyers, and other policy makers should recognize that the law should prohibit discrimination on the basis of fourth trimester activities like breastfeeding, caring for newborn infants, or recovery. As a matter of law and policy, discrimination arising from these activities during the fourth trimester should be regarded as pregnancy discrimination.
This article argues that the culture and practice of legal education in the United States functions to dehumanize law students and potentially produce one-dimensional lawyers in the service of corporate interests and the capitalist status quo. These lawyers are trained to serve not only as the guardians of legal rights, social entitlements and privileges of citizenship but also as the vested producers and protectors of the unjust institutions and systems that deny these rights, entitlements and privileges to certain groups and ensure them to others. Drawing on the work of Freire, Gramsci, and Marcuse, critical legal scholars like Lani Guinier and the history of legal education and the legal profession in the United States, this article uses theory and critical scholarship to read and interrogate the ways in which the current practices and the historical evolution of legal education have functioned and continue to function in the service of capitalism and to the disservice of many of its clients. It also proposes Freirean reforms to the structure of legal education that utilize mandatory clinical education as a means to ensure that legal education and lawyers are multidimensional in their orientation to law and social justice.
LatCrit theory is a relatively recent genre of critical “outsider jurisprudence” – a category of contemporary scholarship including critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian American legal scholarship and queer theory. This paper overviews LatCrit’s foundational propositions, key contributions, and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. The paper organizes this conversation highlighting Latcrit’s theory, community and praxis.
In this Foreword, we strive to contextualize “LatCrit XXI: What’s Next?” against the backdrop of two crises: the current political crisis in the United States and the continuing crisis of scarcity that impacts the legal academy. Through an examination of these crises, we will reveal how LatCrit scholars, in their efforts to build community and in their commitment to critical outsider scholarship, are part of the constellations of resistance that struggle against el mundo malo. We will argue that LatCrit has become a necessary institution for those seeking to engage in persistent resistance and dissent in the critical and progressive community of scholars at home and abroad. While there are many real material improvements in the lives of subordinated persons in the United States, there is no doubt that the Presidential Election of 2016, with its embrace of a candidate who spoke what dog whistles only alluded to, is part of a violent and destructive backlash against minorities who have long been subject to the violence of exclusion and disenfranchisement.
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