The most unique disadvantage of formal identities, relative to ascriptive and elective ones, is that they are confounded by dynamic identities: identities that change over time or depend on context.

Posted in Excerpts/Quotes on 2015-09-16 18:28Z by Steven
The most unique disadvantage of formal identities, relative to ascriptive and elective ones, is that they are confounded by dynamic identities: identities that change over time or depend on context. Formalities leave documentary traces that “inhibit forgetting.” The idea that a past formality might estop an individual from claiming a different identity is based on an understanding of identity as impervious to change or reformulation depending on context. But people do not always experience identity in this static and acontextual way. Researchers have found that many multiracial individuals change their racial identifications in different situations and over their lifetimes. For example, consider a multiracial woman who is only willing to identify as such if she believes her employer’s diversity program is genuine as opposed to tokenizing. The effects can be passed down through the generations, as one whose ancestors did not sign the Dawes Rolls may not have a claim to tribal membership. Or a person whose parents brought her to the United States without pursuing immigration formalities may find herself estopped from claiming U.S. citizenship. This estoppel problem is a growing risk as technology facilitates better collection and retention of records.

Jessica A. Clarke, “Identity and Form,” California Law Review, Volume 103, Number 4 (August 2015), 882. http://www.californialawreview.org/1identity_form/.

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Identity and Form

Posted in Articles, Law, Media Archive, United States on 2015-09-14 18:43Z by Steven

Identity and Form

California Law Review
Volume 103, Number 4 (August 2015)
pages 747-838

Jessica A. Clarke, Associate Professor of Law
University of Minnesota

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.

  • Introduction
  • I. Models of Identity
    • A. Ascriptive Identity
    • B. Elective Identity
    • C. Formal Identity
  • II. Functions of Formal Identity
    • A. Formal Citizenship
    • B. Formal Family
    • C. Formal Sex
    • D. Formal Race
  • III. Dysfunctions of Formal Identity
    • A. Commodification
    • B. Bureaucratization
    • C. Discrimination
    • D. Pigeonholing
    • E. Legitimation
  • IV. Rethinking the Legal Functions of Identities
    • A. Questioning Channels
    • B. Inducing Proportionate Caution
    • C. Assessing the Role of Evidence
  • Conclusion

Read the entire article here.

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