Monday, May 20, 2019


Excerpted from: Neil Gotanda, New Directions in Asian American Jurisprudence, 17 Asian American Law Journal 5 (2010) (207 Footnotes) (Full Document)


NeilGotandaOne difficulty in describing Asian American Jurisprudence is that there is a large body of significant intellectual material that seems to be connected, but defies simple theorizing. There is no single legal methodology or tradition that encompasses the interdisciplinary efforts of Asian American legal scholars writing about Asian Americans. This Essay is therefore divided into three sections.Part II pursues the theme of Asian American Jurisprudence as a locale for identity, interrogation, and praxis. I review each of these concepts as locales to see how authors have developed each area. Part III develops a racial analysis of Asian Americans in legal materials. Part IV provides a short review of five authors who have developed themes that represent new directions for Asian American Jurisprudence. I attempt to introduce the concepts in broad strokes below and provide greater detail in the body of the article.

In Part II, I discuss Asian American Jurisprudence as a locale for identity, interrogation, and praxis. The first location theme for Asian American Jurisprudence is identity. Identity, especially as developed in the work of Anthony Appiah, describes the implicit motivation behind much of these scholarly efforts. Further, Appiah's distinction between collective and ascriptive identity corresponds to the traditional notions of ethnic identity and imposed racial profiles. This distinction provides a means of linking our efforts to describe Asian American ethnic communities in legal materials with our opposition to the racially subordinating imposition of stereotypes. As a methodology, assertions of identity continue to be at the heart of Asian American Jurisprudence.

The second location theme, interrogations, encompasses our reinterpretation of cases, statutes, and legal histories into three intertwined narratives: immigration, citizenship, and race. In many respects, this is the most familiar terrain of Asian American Jurisprudence. The immigration narrative is the legal history of Asian immigration to the United States. This story begins with Chinese immigration before Exclusion, and continues through the many peoples and communities who have come to America since. The immigration narrative is one of the most thorough and well-developed narratives in our scholarship.

The legal intricacies of the immigration story are closely linked to the citizenship narrative. The citizenship narrative begins where the immigration narrative leaves off. It is not only about coming to America, but facing discrimination and exclusion in America. Beginning with the statutory requirement that only “white persons” could become naturalized citizens, Asian immigrants have faced barriers to participation in the economic, social, and political life of America.

The third narrative is the racial narrative. Within a few years of arrival, Chinese immigrants began to face organized opposition to their presence. Those attacks were racial, but in a form different from existing racial subordinations. By the time the Chinese Exclusion Act was passed in 1882, the Chinese were characterized as a permanently foreign race that was incapable of becoming Americans. The stereotype of foreignness became a regular dimension to the racialization of Asian Americans. In the mid-1960s, an additional stereotype, the Model Minority, was imposed onto Asian Americans. Finally, after 9-11, the face of the enemy in the War on Terror became anyone who looked vaguely “Arab,” which included individuals from many regions of the world such as West Asia, South Asia, or the Middle East. After 9-11, the stereotype of someone who “looks like a terrorist” became firmly implanted as an additional dimension to the racialization of Asian Americans.

The third location theme, praxis, links Asian American Jurisprudence to its roots in social and student struggles. Asian American Jurisprudence is a literature of social struggle against racial subordination and is directly related to Asian American Studies. The origins of modern Asian American Studies were in student strikes of the 1960s and 1970s. Many of the current courses on Asian Americans and the Law and Asian American Jurisprudence are the result of student activism. The substantive content of Asian American Jurisprudence includes three important politics that arise from these activist roots. First, on the terrain of legal studies, identity assertions are a challenge to social stereotypes. Second, identity is a challenge to the invisibility of Asian American ethnicities in legal materials. Third, the intellectual and theoretical claims of identity are grounded in community issues. This link is identified and articulated by Eric Yamamoto's critical race praxis, which calls for “enhanced attention to theory translation and deeper engagement with frontline action.”

In Part III, I examine race and racialization more closely. After examining the locales for Asian American Jurisprudence, I next pursue a closer examination of how Asian Americans are racialized. I begin with an examination of the core racial narrative in American law--the Black-White narrative. I examine how the Black-White narrative has limited racial discussion and rendered other races invisible. I also suggest additional influences that create racial and ethnic invisibility. Finally, I suggest that the Black-White model is inadequate to describe the racialization of Asian Americans. To better capture the actual experience of race as encountered by Asian Americans, I examine how Asians have been categorized. I argue that three different Asian American racial categories have emerged that correspond to the three dominant stereotypes of Asian Americans: foreignness, Model Minority, and 9-11 terrorist.

I next articulate a three-part analytical framework for comparing and contrasting Asiatic racialization and Black-White racialization. The three elements I have discerned are i) body primitives, ii) racial categories, and iii) racial stereotypes. I conclude by suggesting how this three-part analysis improves our understanding of racial profiling and stereotypes.

In Part IV, I review five authors who bring new perspectives to Asian American Jurisprudence. They assert the new social categories of the diaspora and the Middle Easterner, extend our discussion to the Pacific Colonies, and bring gendered religious identity into our discussions. By way of conclusion, I make some suggestions for new directions for Asian American Jurisprudence. I also offer in an appendix, a methodology for investigation in Asian American Jurisprudence. This methodology is not a test for authenticity--rather, it raises questions to provoke additional thinking about the space and locale of Asian American Jurisprudence.

Finally, I note crucial omissions from this paper. Several colleagues, including Lisa Ikemoto, Sumi Cho, Adrienne Davis and Robert Chang have noted the absence of discussions of Asian American women and Asian American sexuality. I decided after considerable thought that those analyses were beyond the scope of this presentation. I look forward to future scholarship on these questions.

. . .

The themes of the authors discussed under New Directions suggest an important shift in the focus of Asian American Jurisprudence. All of the authors have significant Asian American identity elements in their work. Each author writes from an American subject position and critically examines aspects of American economic, political, and social life. Their discussions, however, are not limited by the earlier Asian American Jurisprudence narratives of immigration, citizenship, and racialization. In particular, the examinations of the diaspora category, the Marianas, and organizing by international women are not readily encompassed by our three traditional narratives.

Within the racialization narrative and its tropes of foreignness, Model Minority, and 9-11 terrorist, these authors can be seen as offering alternative responses. In particular, since several of the authors are immigrants, their answer to the charge of foreignness might well be, “yes . . . and your point?” Since a large part of the Asian American population is foreign-born, the subordinating power of the foreignness stereotype is diluted. Over time, we can expect usage of the three stereotypes to change. Our narratives and stereotypes remain open for further analysis and critique.

We have begun explorations of international law, transnational law, the law of the American colonies, and our imperial presence in Asia. The open question is the value of identity-based examinations of these materials. Further, it is unclear whether their study will reveal ruptures or continuities with our developed historical narratives of immigration, citizenship, and racialization. A survey of our writings suggests areas for additional study. In the existing literature, the areas least addressed are gender and sexuality. There is little to analyze, so I only observe that such methodologies as intersectionality, queer theory, and the many dimensions of feminist thought remain available to examine Asian American legal materials.

Whatever the difficulties of the new directions for analysis, I am confident about the social dimensions. There will continue to be racial discrimination and subordinating discursive treatments of Asian Americans, and our political activism to address this racism will continue. As part of those efforts, we must continue to make building racial coalitions a central part of our political strategy. The complexities of building racial coalitions will continue. But even with those difficulties, we should never lose sight of the foundational nature of slavery, segregation, and the centrality of Black-White racialization in all of our struggles.

There is a certain element of closure in this examination. Immigration laws and policies will continue to change, but the part of our immigration and citizenship narratives prior to 1965 is passing from social analysis to historical review. Similarly, as we understand the nature of foreignness and Model Minority tropes and their role in racialization, we can turn our attentions to the new threats of the 9-11 terrorist stereotype. Observations of the speed and breadth of globalization are commonplace. Less frequent critical examination of these events is needed to pursue and advance social justice.