![Sample our Language & Literature journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5941/TOC-Subject-Sample-2021-Language-Literature.jpg"})
Abstract
Abstract, In 1964, Yoko Ono performed Cut Piece in New York’s Carnegie Hall. This performance art involved Ono sitting on a bare wood stage wearing dark stockings, a dress, and a cardigan. She sat still while largely white male and female members of the audience approached her and one by one cut off a piece of her clothing with a pair of scissors. In the years since Cut Piece was performed, it has attained a nearly mythic quality among feminist art historians; while Ono herself has not always embraced Cut Piece's illumination of sexual and racial violence, many art critics have recognized its capacity to express important aspects of sexual and racial violation that go unrecognized in legal and civil discourse. In this paper, I limn Cut Piece's relevance to a gendered and raced problem that law often confronts when a woman has experienced a sexual violation, but did not resist, did not complain during or afterwards, appears to have "invited it," and otherwise does not conform to the stereotype of what Susan Estrich has described as a "real rape" victim. I study Cut Piece in relationship to mainstream legal responses to sexual violation that occurs in this context, as well as feminist and intersectional and anti-essentialist approaches. I also examine the important relationship that exists between law, art, and feminist legal theory. In the end, I conclude that Cut Piece is resonant with intersectional, anti-essentialist, and radical feminist approaches to sexual violations that exhibit Cut Piece's complex dynamics: While the law does not now recognize these violations as illegal, these theories and Cut Piece together offer a new pathway toward understanding the connections between race and sexual violation.
Acknowledgments
David P. Leonard Professor of Law, Loyola Law School. Thanks to Joan Kee and Nikki A. Greene.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Thomas Crow, Mignon Nixon, Erica Levin, Martha Rosler & Katherine Markoski, Artists Respond: American Art and the Vietnam War, 1965–1975 43 (2019).
2 The following description of the performance is taken from Yoko Ono Performs Cut Piece, youtube.com, https://www.youtube.com/watch?v=-yqhSZsXIJQ (last accessed September 19, 2019).
3 Kevin Concannon, Yoko Ono's "Cut Piece": From Text to Performance and Back Again, 30 PAJ: A Journal of Performance and Art 82 (2008). https://books.google.com/books?id=D6bCBwAAQBAJ&pg=PA468&lpg=PA468&dq=concannon+%22cut+piece%22&source=bl&ots=IjNdTIektI&sig=ACfU3U0NU42REnTr6j0PEeFnw7tDUYE97Q&hl=en&sa=X&ved=2ahUKEwiOvNqn9N3kAhUXt54K HfzvA5w4ChDoATACegQICRAB#v=onepage&q=concannon%20%22cut%20piece%22&f=false
4 Yoko Ono Performs Cut Piece, youtube.com, https://www.youtube.com/watch?v=-yqhSZsXIJQ (last accessed September 19, 2019).
5 See Concannon, supra note 3 at 90, describing the review of a "New York gentleman's magazine" whose author described the piece as a striptease.
6 Marcia Tanner, Mother Laughed: The 'Bad Girls' Avant-Garde, in Bad Girls 61 (1994).
7 Id.
8 Thomas Crow, The Rise of the Sixties: American and European Art in the Era of Dissent 133 (1996).
9 Martha Schwendener, Yoko Ono, Artforum, 139 (2001).
10 Thomas Crow, Mignon Nixon, Erica Levin, Martha Rosler & Katherine Markoski, Artists Respond: American Art and the Vietnam War, 1965–1975 43 (2019).
11 See Roger Perry & Tony Elliott, Yoko Ono, Unit 26–27 (Dec. 1967) ("It was a form of giving, giving and taking. It was a kind of criticism against artists who are always giving what they want to give. I wanted people to take whatever they wanted to, so it was very important to say you can cut wherever you want to."). [eds., cited in Concannon at page 88, having trouble getting original source.]
12 Concannon, supra note 3 at 89, where he quotes Ono as saying "While I was doing it, I was staring into space. I felt kind of like I was praying. I also felt that I was willingly sacrificing myself.").
13 Quoted in Jonathan Kott, Time with John Lennon and Yoko Ono 125 (2013).
14 Yoko Ono. Cut Piece. 1964., MOMA.org, https://www.moma.org/audio/playlist/15/373 (last accessed December 30, 2019).
15 See Yoko Ono & John Lennon, Rape (1969), https://www.youtube.com/watch?v=ax9s09F3i-4 (last accessed April 23, 2020). The feminist meanings of Rape, a film about stalking avant la lettre, are actually complex, as there is evidence that the female subject of the film was followed without her consent. See Joan Kee, Art Chasing Law: The Case of Yoko Ono’s Rape, 28 Law and Literature 187, 193 (2016) ("Rape complicates the matter of consent, an issue primary to, and frequently dispositive in many rape cases. The following of Majlata was arranged through her sister without her knowledge.").
16 Id.
17 See, e.g. text accompanying infra notes 26–35.
18 See text accompanying infra notes 106–115.
19 See Caroline Davidson, Rape in Context: Lessons for the United States from the International Criminal Court, 39 Cardozo L. Rev. 1191, 1199 (2018) (assessing that it is a “settled cultural consensus: consent is now generally viewed as the essence of lawful sex.”) (quoting, Deborah Tuerkheimer, Rape on and off Campus, 65 Emory L.J. 1, 8 (2015)).
20 See, c.f. Rosanna Cavallaro, Rape Shield Evidence and the Hierarchy of Impeachment, 56 Am. Crim. L. Rev. 295, 314, n. 24 (2019) (reviewing different jurisdictions' approaches).
21 Betsy J. Grey, Ptsd, Biomarkers, and Rape Prosecutions, 48 Ariz. St. L.J. 935, 948–49 (2016) ("According to the ALI, of the 53 jurisdictions (50 States, the District of Columbia, the United States, and the military), only 32 define consent by statute, out of which 6 provide that consent exists in the absence of physical or verbal refusal, 13 require an affirmative expression of assent, and 9 view the complainant's conduct in the totality of the circumstances. In states that do not define consent by statute, many judicial formulations require some form of “voluntary agreement” or “affirmative permission,” as in Hawaii. Other states approach it negatively, through a common law definition of non-consent.").
22 See Caroline Davidson, Rape in Context: Lessons for the United States from the International Criminal Court, 39 Cardozo L. Rev. 1191, 1197 (2018).
23 Id. at 1199.
24 MPC 213.0(a)-(b).
25 Model Penal Code: Sexual Assault and Related Offenses ch. II (Am. Law Inst., Preliminary Draft No. 5 2015) [hereinafter ALI Preliminary Draft No. 5], § 213.0(3); see also Davidson, supra note 19 at 1203.
26 Stephen J. Schulhofer, The Feminist Challenge in Criminal Law, 143 U. Pa. L. Rev. 2151, 2181 (1995)
27 Id.
28 Aya Gruber, Not Affirmative Consent, 47 U. Pac. L. Rev 683, 706 (2016) ("[S]imply prohibit sex without consent as a baseline.").
29 Susan Estrich, Rape, 95 Yale L.J. 1087, 1132 (1986) ("We could seek to empower women, at least when they say no.").
30 Id. at 1120 (1986) ("It is almost certainly impossible to expect that the law could address all of the techniques of power and coercion which men use against women in sexual relations. I am not suggesting that we try. I am suggesting that we do something that is actually quite easy-prohibit fraud to secure sex to the same extent we prohibit fraud to secure money, and prohibit extortion to secure sex to the same extent we prohibit extortion to secure money. Many states already have criminal coercion or fraud provisions that are worded with sufficient breadth (e.g. 'engage in conduct') to be applied to prohibit such coerced sex.").
31 Jed Rubenfeld, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, 122 Yale L.J. 1372, 1380 (2013).
32 Corey Rayburn Yung, Rape Law Fundamentals, 27 Yale J.L. & Feminism 1, 3 (2015).
33 Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol'y Rev. 439, 440 (2016)
34 Id. at 440.
35 Peter Landsman, Does Removing the Force Element Matter?: An Empirical Comparison of Rape Statistics in Massachusetts and Colorado, 21 Wm. & Mary J. Women & L. 767, 768 (2015). Georgia, Florida, and Colorado have eliminated it. Id. New Jersey offers an example of one jurisdiction that has eliminated or softened the force requirement, through judicial interpretation. See Jourdan E. Moschitta Curet, All Rape Is Not Created Equal: A Cure for the Ambiguity of Consent in Louisiana's Third-Degree Rape Statute, 79 La. L. Rev. 479, 484 (2018).
36 Deborah Tuerkheimer, Rape on and Off Campus, 65 Emory L.J. 1, 15 (2015)
37 Mass. Ann. Laws ch. 265, § 22 (LexisNexis 1998).
38 Suliveres v. Com., 449 Mass. 112, 113, 865 N.E.2d 1086, 1087 (2007)
39 See People v. Griffin, 33 Cal. 4th 1015, 1027, 94 P.3d 1089, 1096 (2004)
40 See U.S. v. Allery, 139 F.3d 609, 612 (8th Cir. 1998).
41 See State v. Lopez-McCurdy, 266 S.W.3d 874, 877 (Mo. Ct. App. 2008) ("Physical force simply means force applied to the body.").
42 State v. Elias, 157 Idaho 511, 516, 337 P.3d 670, 675 (2014) (quoting State v. Johnes, 154 Idaho 412, 421 (2013) (emphasis added)).
43 Id. at 675 (2014).
44 See State v. Jones, 154 Idaho 412, 422, 299 P.3d 219, 229 (2013).
45 In re M.T.S., 609 A.2d 1266, 1276–77 (1992).
46 See David P. Bryden, Redefining Rape, 3 BUFF. CRIM. L. REV. 317, 322 (2000) ("[v]irtually all modern rape scholars want to modify or abolish the force requirement as an element of rape.”).
47 See, e.g. Susan Estrich, Real Rape 69 (1987).
48 Leslie J. Harris, Book Review of Real Rape, 66 Tex. L. Rev. 905, 913–14 (1988).
49 See Donald A. Dripps, Why Rape Should Be A Federal Crime, 60 Wm. & Mary L. Rev. 1685, 1710 at fn. 169 (2019), citing Model Penal Code § 213.1(2) statutory commentary (Am. Law Inst., Discussion Draft No. 2 2015) and Bradford Richardson, American Law Institute Rejects Affirmative Consent Standard in Defining Sexual Assault, Wash. Times (May 17, 2016), http://www.washingtontimes.com/news/2016/may/17/american-law-institute-rejects-affirmative-consent/ [https://perma.cc/27FJ-PSYV].).
50 See Caroline Davidson, Rape in Context: Lessons for the United States from the International Criminal Court, 39 Cardozo L. Rev. 1191, 1199 (2018) (quoting Model Penal Code: Sexual Assault and Related Offenses ch. II (Am. Law Inst., Preliminary Draft No. 5 2015) (footnote omitted)) ("[i]n recognition of this development, the FBI recently eliminated all reference to force in the criteria it uses to define rape for statistical purposes, changing the definition from 'vaginal penetration by physical force' to '[t]he penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.'”).
51 Id. at 1194 ("ALI appears to be contemplating a model code that would criminalize at least some forms of sexual contact stemming from coercion, but it remains to be seen what the coercion provision will include.").
52 See, e.g. ALI Preliminary Draft No. 5, supra note 25, § 213.0(3), distinguishing exploitation from force ("(e) Consent is not 'freely given' when it is the product of force, restraint, threat, coercion, or exploitation under any of the circumstances described in this Article, or when it is the product of any force or restraint that inflicts serious bodily injury.") See also Caroline Davidson, Rape in Context: Lessons for the United States from the International Criminal Court, 39 Cardozo L. Rev. 1191, 1203 (2018) (quoting ALI Preliminary Draft No. 5, supra note 25, § 213.0(3)); Model Penal code: Sexual Assault and Related Offenses, Reporters' Memorandum at 15 (Am. Law Inst., Tentative Draft No. 2, 2016) (identifying exploitation as existing, for example, where the offender misrepresents their identity or pretends to treat the victim medically).
53 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, 149.
54 See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1989).
55 Id. at 598.
56 Dorothy E. Roberts, Rape, Violence, and Women's Autonomy, 69 Chi.-Kent L. Rev. 359, 364 (1993) (footnote omitted).
57 Id. at 363–64.
58 Id. at 369.
59 Jennifer C. Nash, Black Women and Rape: A Review of the Literature 8–9 (June 12, 2009), https://www.brandeis.edu/projects/fse/slavery/united-states/slav-us-articles/nash2009.pdf.
60 Celine Parreñas Shimizu, Queens of Anal, Double, Triple, and the Gang Bang: Producing Asian/american Feminism in Pornography, 18 Yale J.L. & Feminism 235, 241 (2006) (citing Kandice Chuh, Rape and Asian American Women, in Privileging Positions: The Sites of Asian American Studies (Gary Y. Okihiro et al. eds., 1995).).
61 Id.
62 Id. at 246.
63 Id. at 241.
64 Sunny Woan, White Sexual Imperialism: A Theory of Asian Feminist Jurisprudence, 14 Wash. & Lee J. Civil Rts. & Soc. Just. 275, 299 (2008) (quoting Peter Kwan, Invention, Inversion and Intervention: The Oriental Woman in The World of Suzie Wong, M. Butterfly, and The Adventures of Priscilla, Queen of the Desert, 5 Asian L. J. 99 (1998)).
65 Id. at 287.
66 See infra text accompanying notes 67–84.
67 Professor Balkin is famous for his theories of popular constitutionalism. See, e.g. Lee J. Strang, Originalism As Popular Constitutionalism?: Theoretical Possibilities and Practical Differences, 87 Notre Dame L. Rev. 253, 261 (2011) (“According to Balkin, fidelity to the Constitution requires interpreters to adhere to its text's original meaning and the principles underlying that meaning. However, the Constitution's original meaning and principles will regularly not determine the outcome of constitutional issues, making them subject to constitutional construction. It is in this zone of construction that popular constitutionalism takes over and constructs meaning.”).
68 Siegel, in her work with Robert Post, helps define democratic constitutionalism, which affirms the role of “representative government and mobilized citizens in enforcing the Constitution at the same time that it affirms the role of courts in using professional legal reason to interpret the Constitution.” See Reva Siegel & Robert Post, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 379 (2007).
69 Id.
70 See id. See also Jack M. Balkin, How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure, 39 Suffolk U. L. Rev. 27, 57–8 (2005). See also Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA, 94 Calif. L. Rev. 1323, 1331 (2006) (“ERA debate guided the Court. . .”).
71 Lani Guinier, Courting the People: Demosprudence and the Law/Politics Divide, 89 B.U. L. Rev. 539, 545 (2009).
72 Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2799 (2014). Professor Torres is recognized as co-creating the language required to recognize popular constitutionalism. See Stacey L. Sobel, Culture Shifting at Warp Speed: How the Law, Public Engagement, and Will & Grace Led to Social Change for LGBT People, 89 St. John's L. Rev. 143, 152 (2015) (“Torres and Guinier developed the concept of demosprudence, or the jurisprudence of social movements.”).
73 Mark Tushnet, Taking the Constitution Away from the Courts 174 (1999). Professor Tushnet is celebrated as a populist and an interdisciplinary scholar. See Mark A. Graber, Thick and Thin: Interdisciplinary Conversations on Populism, Law, Political Science, and Constitutional Change, 90 Geo. L.J. 233, 235 (2001) (“Professor Tushnet is celebrated in the portion of the academic universe inhabited by PhDs interested in constitutional development as the most distinguished law professor actively promoting conversations between law professors and members of other academic disciplines.”).
74 Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 249 (2004). Professor Kramer is one of the most influential theorists of popular constitutionalism. See Michael Serota, Popular Constitutional Interpretation, 44 Conn. L. Rev. 1637, 1644 (2012) (“Arguably, no theorist has been more influential in guiding the debate than Larry Kramer.”).
75 See supra note 15 at 188 ("The film subsequently offers the law a critical opportunity to recognize situations in need of its attention, but only after it recognizes the importance of slow and close looking.").
76 Adrienne D. Davis, Bad Girls of Art and Law: Abjection, Power, and Sexuality Exceptionalism in (Kara Walker's) Art and (Janet Halley's) Law, 23 Yale J.L. & Feminism 1, 34 (2011).
77 Amy Adler, What's Left?: Hate Speech, Pornography, and the Problem for Artistic Expression, 84 Cal. L. Rev. 1499, 1526 (1996) (Studying artists who "have turned to a different type of feminist use of pornography that MacKinnon has apparently not considered. These feminists use pornography not as a celebration of sex, but rather to express views on feminism, sexuality, and sometimes even pornography that bear much in common with MacKinnon's.").
78 Carol Jacobsen, Anti-Porn Feminism v. Feminist Art: Notes on the Censorship of Porn'im'age'ry: Picturing Prostitutes, 38 N.Y.L. Sch. L. Rev. 63, 73 (1993) ("I cannot fail to acknowledge our debt to the years of struggle by veteran women artists who have long paid too high a price for fighting censorship alone or in small groups. They have been ridiculed and written off, have lost jobs, job opportunities, funding, exhibits and lectures, and have incurred untold personal costs. Many women deserve recognition for their groundbreaking work in art and against censorship, including Martha Wilson, Carolee Schneemann, Anita Steckel, Howardena Pindell, Jacqueline Livingston, Paulette Nenner, Hannah Wilke, Ana Mendieta, Rachel Rosenthal, Faith Ringgold, and Clarissa Sligh. Several of these women actively joined our battle.").
79 John Tehranian, Copyright's Male Gaze: Authorship and Inequality in A Panoptic World, 41 Harv. J. L. & Gender 343, 366 (2018) ("The Guerilla Girls, a feminist art group, once famously created a poster that wondered, 'Do women have to be naked to get into the Met Museum?' Their query, unfortunately, was no whimsical exaggeration. At the time, while 85% of the humans depicted nude at the Metropolitan Museum in New York were female, less than five percent of the modern artists exhibited at the Museum were women. The pattern repeats itself in a variety of artistic milieus and fields: women continue to find themselves disproportionately in front of the artistic lens rather than behind it, at least in the works most celebrated by the cognoscenti.").
80 See, e.g. Yxta Maya Murray, The Takings Clause of Boyle Heights, 43 N.Y.U. Rev. L. & Soc. Change 109, 125 (2019) (“I call their legal thought a form of Community Constitutionalism, and in the following sections, seek to introduce it to mainstream constitutional thought.”).
81 Yxta Maya Murray, Rape Trauma, the State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631 (2012)
82 Id. at 1694 (describing women’s “divorce from the state.”). It is important to note that I am not the first to study art in the demosprudential project: Guinier and Torres, too, describe interactions among Latino farmworkers involved in Luis Valdes’s Teatro Campesino in their analysis of the birth and development of rights-thought in 1960’s California. See Changing the Wind, at 2793.
83 Yxta Maya Murray, Rape Trauma, the State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631, 1636 (2012)
84 Kathryn Abrams & Hila Keren, Who's Afraid of Law and the Emotions?, 94 Minn. L. Rev. 1997, 2000 (2010)
85 See text accompanying supra note 4.
86 See text accompanying supra note 3.
87 Ibid. On white American racism and the myth of Asian "inscrutability," see Miriam Kim, Discrimination in the Wen Ho Lee Case: Reinterpreting the Intent Requirement in Constitutional and Statutory Race Discrimination Cases, 9 Asian L.J. 117, 131 (2002) (describing "the entrenched stereotyping of Asian Americans as inscrutable, perpetual foreigners.").
88 Yoko Ono Performs Cut Piece, youtube.com, https://www.youtube.com/watch?v=-yqhSZsXIJQ (last accessed September 19, 2019).
89 See supra note 21.
90 See text accompanying note 26, supra.
91 See text accompanying supra note 25.
92 See Roger Perry & Tony Elliott, Yoko Ono, Unit 26–27 (Dec. 1967) ("It was a form of giving, giving and taking. It was a kind of criticism against artists who are always giving what they want to give. I wanted people to take whatever they wanted to, so it was very important to say you can cut wherever you want to.") (cited in Concannon, supra note 3 at 88).
93 See text accompanying infra note 120.
94 See text accompanying supra note 12.
95 See text accompanying supra note 14.
96 See, e.g. State v. Flynn, 299 Kan. 1052, 1056, 329 P.3d 429, 432 (2014) ("Flynn testified that during the intercourse on the ground, A.S. told him, ‘No. Just stop. No. Not here on the ground.’”); United States v. Rouse, 78 M.J. 793, 795 (A. Ct. Crim. App. 2019), review denied, No. 19-0306/AR, 2019 WL 5106669 (C.A.A.F. Sept. 11, 2019) ("NM told appellant to 'get off' of her. She told him 'no' around ten times. She pounded his chest to get him to stop."); Flores v. People, No. CR 2017-0070, 2019 WL 1421174, at *6 (V.I. Mar. 28, 2019) ("Importantly, we note that J.A.'s testimony demonstrates grounds from which the jury could conclude that J.A. rescinded her consent when she exclaimed 'you are not Melvin.'”).
97 Lynn Phillips, Flirting with Danger: Young Women's Reflections on Sexuality and Domination 161 (2000), https://books.google.com/books?id=Gl7trg3JoV8C&pg=PA161&dq=rape+%22I+said+all+right%22&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwjNlKWqx67lAhWMqZ4 KHWfLAaEQ6AEwBnoECAgQAg#v=onepage&q=rape%20%22I%20said%20all%20right%22&f=false.
98 Id.
99 State v. Lopez-McCurdy, 266 S.W.3d 874, 877 (Mo. Ct. App. 2008) ("Physical force simply means force applied to the body.").
100 Id.
101 People v. Griffin, 33 Cal. 4th 1015, 1027, 94 P.3d 1089, 1096 (2004)
102 U.S. v. Allery, 139 F.3d 609, 612 (8th Cir. 1998).
103 Id.
104 See text accompanying supra note 42.
105 Stephen J. Schulhofer, The Feminist Challenge in Criminal Law, 143 U. PA. L. REV. 2151, 2181 (1995).
106 Id.
107 See text accompanying supra note 3.
108 See text accompanying supra note 27.
109 Aya Gruber, Not Affirmative Consent, 47 U. Pac. L. Rev. 683, 692 (2016) ("Those with a healthy skepticism of carceral authority should be very circumspect about forcing compliance with emerging sexual norms through criminal punishment.").
110 See supra note 29.
111 See supra note 30.
112 See Susan Estrich, Rape, 95 Yale L.J. 1087, 1102 (1986) ("My view is that such a 'negligent rapist' should be punished, albeit-as in murder-less severely than the man who acts with purpose or knowledge, or even knowledge of the risk.").
113 See text accompanying supra note 98.
114 See text accompanying supra note 46.
115 See text accompanying supra note 31.
116 Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol'y Rev. 431, 440 (2016)
117 See supra note 4.
118 See text accompanying supra note 14.
119 Id.
120 See Cut Piece.1964., MOMA, at https://www.moma.org/audio/playlist/15/373 (last visited January 10, 2020).
121 Anthony Read & David Fisher, The Proudest Day: India's Long Road to Independence 229 (1999).
122 Id.
123 Nick Johnstone, Yoko Ono 'Talking,' 46 (2010).
124 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, 149.
125 In 1976, the New York Times reported that Ono was a Japanese citizen. See Leslie Maitland, John Lennon Wins His Residency in U.S., N.Y.T., July 28, 1976, https://www.nytimes.com/1976/07/28/archives/john-lennon-wins-his-residency-in-us.html.
126 See text accompanying supra note 15.
127 See supra note 3.
128 See text accompanying supra note 57.
129 See text accompanying supra note 59.
130 See text accompanying supra note 13.
131 Rhoda J. Yen, Racial Stereotyping of Asians and Asian Americans and Its Effect on Criminal Justice: A Reflection on the Wayne Lo Case, 7 Asian L.J. 1, 6 (2000) ("The yellow peril stereotype refers to a view of Asian Americans as foreigners who have different (generally inferior) cultural practices, as well as lower moral and ethical standards from white Americans, and who therefore constitute a threat to American stability."). See also id. (tracing the term to the 1800s).
132 In 1871, white Los Angelenos massacred 16 Chinese men and one woman, purportedly in response to hearing gunfire. See Jean Pfaelzer, Driven Out: The Forgotten War Against Chinese Americans 49 (2008).
133 Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58. The Chinese Exclusion Act forbade Chinese workers from coming to the United States, and forbade the Chinese immigrants' naturalizations.
134 See, e.g. Douglas S. Massey, Racial Formation in Theory and Practice: The Case of Mexicans in the United States, 1 Race Soc Probl. (2009), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2931357/ ("Th[e] status quo was upset in 1907. In that year, the United States and Japan concluded a 'Gentlemen’s Agreement' under which Japanese authorities agreed to prevent the departure of its citizens for the United States, in return for which the United States agreed not to inflict upon Japan the indignity of prohibiting their entry.").
135 See, e.g. Keith Aoki, No Right to Own?: The Early Twentieth-Century "Alien Land Laws" As A Prelude to Internment, 19 B.C. Third World L.J. 37, 39, 57 (1998) (describing these two laws that forbade land ownership of "aliens ineligible for citizenship" and describing its anti-Japanese emphasis).
136 James McDonald, Democratic Failure and Emergencies: Myth or Reality?, 93 Va. L. Rev. 1785, 1800 (2007) ("Census records reveal that in 1890, only 2,039 Japanese resided in the United States; about 25,000 immigrated during the 1890s; 125,000 immigrated during the high water mark of 1901 through 1908; and about 10,000 Japanese immigrated each year thereafter until the Immigration Act of 1924, which prohibited subsequent immigration from Japan.").
137 José R. Almonte, For the Sake of National Security: The Scope of the United States Attorney General's Authority in Light of 8 C.F.R. S 236.6, 56 Rutgers L. Rev. 817, 831 (2004) ("The Japanese interment camps are perhaps the starkest historical examples of the United States government's blunt violations of civil rights in times of national security fears.").
138 Won Kidane, The Alienage Spectrum Disorder: The Bill of Rights from Chinese Exclusion to Guantanamo, 20 Berkeley La Raza L.J. 89, 128 (2010) ("United States citizens of Japanese ancestry who resisted the internment measure challenged the constitutionality of the military and legislative actions that made the internment of hundreds of thousands of innocent people possible. The seminal case that condoned the constitutionality of this race-based measure is none other than the infamous Korematsu v. United States.").
139 Usha Mahajani, The Question Indira Gandhi Asked, Women on the March, Vol. 17, at 50 (1973), https://books.google.com/books?id=IAZDAAAAYAAJ&pg=RA1-PA50&dq=vietnam+war+anti-asian+bias&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwjnp-emwvzlAhU1GTQIHZD9AfgQ6AEwAXoECAI QAw#v=onepage&q=vietnam%20war%20anti-asian%20bias&f=false
140 See text accompanying supra notes 121–122.
141 See text accompanying supra note 98.
142 Mecca Jamilah Sullivan, Glad Past Words, in Indelible in the Hippocampus: Writings from the Me Too Movement 77 (2019).
143 Aya Gruber, Not Affirmative Consent, 47 U. Pac. L. Rev. 683, 692 (2016) ("Those with a healthy skepticism of carceral authority should be very circumspect about forcing compliance with emerging sexual norms through criminal punishment.").
144 Sandee Lamotte, How #MeToo Could Move from Social Campaign to Social Change, CNN, Nov. 9, 2017, http://www.cnn.com/2017/10/30/health/metoo-legacy/index.html.
145 See text accompanying supra note 98.
146 See text accompanying supra note 3.
147 Id.
148 See text accompanying supra note 142.
149 Yxta Maya Murray, Rape Trauma, the State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631, 1636 (2012)
150 Kathryn Abrams & Hila Keren, Who's Afraid of Law and the Emotions?, 94 Minn. L. Rev. 1997, 2000 (2010)
Additional information
Notes on contributors
Yxta Maya Murray
Yxta Maya Murray is a novelist, art critic, playwright, and law professor. The author of nine books, her most recent are the forthcoming story collection, The World Doesn’t Work That Way, but It Could (University of Nevada Press, 2020), and the novel, Art Is Everything (TriQuarterly Press, 2021). She has won a Whiting Award, an Art Writer's Grant, and has been named a fellow at the Huntington Library for her work on radionuclide contamination in Simi Valley, California.