Identity and Form

Identity and Form



Recent controversies over identity claims have prompted questions about who should qualify for affirmative action, who counts as family, who is a man or a woman, and who is entitled to the benefits of U.S. citizenship. Commentators across the political spectrum have made calls to settle these debates with evidence of official designations on birth certificates, application forms, or other records. This move toward formalities seeks to transcend the usual divide between those who believe identities should be determined based on objective biological or social standards, and those who believe identities are a matter of individual choice. Yet legal scholars have often overlooked the role of formalities in identity determination doctrines. This Article identifies and describes the phenomenon of “formal identity,” in which the law recognizes those identities individuals claim for themselves by executing formalities. Drawing on Lon Fuller’s classic work on the benefits of formality in commercial law contexts, it offers a theory explaining the appeal of formal identity. But it concludes that reformers should be skeptical of the concept. Formal identity may set traps for the unwary, eliminate space for subversive or marginal identities, and legitimize identity-based systems of inequality. Ultimately, this Article urges critical examination not merely of formal identity, but of the functions identity categories serve in the law.

PDF

More in this Issue

An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Black: A Response to Chua and Rubenfeld

The contrast between Amy Chua and Jed Rubenfeld’s The Triple Package (Chua & Rubenfeld 2.0) and Chua’s previous work, World on Fire (Chua 1.0), is striking. Chua & Rubenfeld 2.0 contends that particular ethnic and religious groups are spectacularly successful in the United States because of a “triple package” of traits that are largely cultural; […]

The Other War at Home: Chronic Nuisance Laws and the Revictimization of Survivors of Domestic Violence

This Note discusses the unlikely intersection of local chronic nuisance ordinances and domestic violence. It posits that chronic nuisance law grants law enforcement, or third parties acting in a police capacity, the ability to revictimize survivors of domestic violence, disproportionately impacting women of color and poor women. Using the example of Lakisha Briggs, a Black […]

When Neurogenetics Hurts: Examining the Use of Neuroscience and Genetic Evidence in Sentencing Decisions Through Implicit Bias

Courts increasingly use neuroscience and genetic evidence (“neurogenetic evidence”) to shed light on various aspects of a defendant’s mental state and behavior. The evidence is particularly prevalent in cases involving defendants with mental illnesses and is used to determine issues of mental capacity, personal responsibility, and treatability. However, using neurogenetic evidence risks framing mental illness […]

The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness

As the marijuana legalization movement advances, states face a jurisprudential dilemma in addressing the burgeoning public health issue of “drugged driving.” Zero-tolerance laws targeting drivers with any illegal drugs in their systems, currently justified under a “jurisprudence of prohibition” based on the blameworthiness of the drug itself, are no longer a good fit due to […]

Don’t Ask, Must Tell—And Other Combinations

The military’s defunct Don’t Ask, Don’t Tell policy has been studied and debated for decades. Surprisingly, the question of why a legal regime would combine these particular rules for information flow has received little attention. More surprisingly still, legal scholars have provided no systemic account of why law might prohibit or mandate asking and telling. […]