It is a remarkable fact that rhetorically the state is gendered male, while state-on-state violence is continually represented as sexual violence. This Article applies the insights of queer theory to examine this rhetoric of sexual violation. More specifically, it analyzes the injury of colonialism as a kind of homoerotic violation of non-Western states’ (would-be) sovereignty. It does so by...
The Dissident Citizen
We have arrived at a crossroads in terms of the intersection between law, sexuality, and globalization. Historically, and even today, the majority of accounts of LGBT migration tend to remain focused, in one scholar’s words, on “a narrative of movement from repression to freedom, or a heroic journey undertaken in search of liberation.” Within this narrative, the United States is usually cast as a...
Sticky Intuitions and the Future of Sexual Orientation Discrimination
As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as “sticky intuitions,” to consider both their sustained influence and...
Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive
Sexuality, gender, and the law now constitutes an important field of legal inquiry and scholarship. This Article traces the evolution of the “big idea” in this area: Contrary to natural law assumptions, the nation is moving decisively toward the norm that sexual and gender variation are typically benign and not malignant. Today, this liberal norm is hotly contested by both traditionalists who...
In Support of a Referendum on the Golan Heights
On December 9, 2009, the Knesset voted to advance legislation requiring that the handover of any land under the administrative and judicial authority of the State of Israel pass a national referendum. The legislation—termed the Golan Heights and Jerusalem Referendum Bill—passed its first reading by a margin of sixty-eight to twenty-two (with one abstention). It now returns to committee for...
Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking
Judicial and scholarly descriptions of the deterrent power of civil rights damages actions rely heavily on the assumption that government officials have enough information about lawsuits alleging misconduct by police officers that they can weigh the costs and benefits of maintaining the status quo. But no one has looked to see if that assumption is true. Drawing on extensive documentary evidence...
The False Promise of the Mixed-Income Housing Project
Since 1970, mixed-income (inclusionary) housing projects have proliferated in the United States. In a community of this sort, only some of the dwelling units, perhaps as few as 10 to 25 percent, are targeted for delivery of housing assistance. Eligible households that successively occupy these particular units pay below-market rents, while the occupants of the other units do not. This article...
The Upside of Intellectual Property’s Downside
Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders...