The answer to the first question is that this was not just racial profiling, but also a masculinity contest. The arrest can be conceived of as resulting from the ways the parties challenged each others’ masculinities, which resulted in a masculinity contest. Specifically, Gates’s violation of the unofficial rule of deference to the badge created a masculinity challenge for Crowley and resulted in a masculinity contest between the parties that Crowley resolved by arresting Gates.

The answer to the second question is that race was indeed the dominant factor, but because of post-racialism, not traditional racism. Whereas colorblind ideology presumed the best way to reach an egalitarian society was to pretend race does not matter, post-racial ideology assumes we have reached that state. The ironic result of Obama’s election was to make it harder for the mainstream to see Crowley as implicitly biased and easier for them to see Gates as the true racist for having called Crowley racist.

The complicated nature of the Gates arrest and controversy reveals the need for a scholarly program demonstrating that norms of masculinity, while invisible, strongly influence behavior and that post-racialism, while explicitly progressive, hides implicit bias from view.

The article demonstrates that risk by analyzing Terry v. Ohio doctrine, which allows officers to stop and frisk civilians whenever they have reasonable suspicion a crime may be afoot and weapons may be present. It shows that masculinities studies helps us better understand the doctrine. For instance, the Terry Court’s allowance for officers to “maintain the power image of the beat officer . . . by humiliating anyone who attempts to undermine police control of the streets . . .” is consistent with hegemonic masculinity. Further, 1960s social phenomena such as prevailing views about the police and an emerging law and order discourse help explain why the doctrine is masculinist. Finally, some contemporary uses of Terry discretion to racial profile may be re-read as also involving masculinity contests.

The article concludes by arguing that revamped training regimes are the best way to address the problem of police use of Terry authority to initiate masculinity contests.

The essay suggests that our current Fourth Amendment jurisprudence fails to adequately curtail surveillance because it improperly defines the threshold issue of when the government’s use of new surveillance technology constitutes a search. It thus critically reviews the Olmstead protected areas model, the Katz protected interests model, and the Kyllo hybrid model of the Fourth Amendment.

Ultimately, the essay argues that Butler’s theories help us think about the appropriate model. Butler’s basic idea is that masculine or feminine actions do not express an essential self. Instead, we take our cues from cultural norms for how people who are masculine or feminine should act. That process is intersubjective, since the behaviors of others influence how our own identity will be perceived. Since performance constitutes identity, safeguarding the ability of individuals to behave as they see fit is crucial to allowing the possibility of self actualization. As the FBI surveillance of King demonstrates, surveillance can prevent people from performing as they see fit. The essay concludes that we should adopt a Fourth Amendment model that assures that new surveillance technology comes under Fourth Amendment scrutiny.

To do so, I explicate and apply insights from the fields of identity performance theory, critical race theory, and masculinities studies. With respect to race, the essay confirms my prior theory of "bipolar black masculinity." That is, the media tends to represent black men as either the completely threatening and race-affirming Bad Black Man or the completely comforting and assimilationist Good Black Man. For Obama, this meant he had to avoid the stereotype of the angry black man. Meanwhile, though, the association of the Presidency with the hegemonic form of masculinity presented difficulties for Obama. He was regularly called upon to be more aggressive in responding to attacks and more masculine in general. As a result, Obama could not be too masculine because that would have triggered the Bad Black Man stereotype but he could not be too feminine because that would have looked unpresidential.

Obama solved that dilemma by adopting a "unisex" style. He was a candidate who was designed to be suitable to either gender. I believe Obama's unisex performance on the world's biggest stage suggests that we are all more free to perform our race and our gender as we see fit than we had previously believed.

The Supreme Court is not the first court to fall prey to the persuasive power of film. It is typical for courts and advocates to naively treat filmic evidence as a transparent window revealing the whole truth, as a presentation of unambiguous reality. But film has a history in art as a constructed medium. As filmmakers and critics have known since the beginning of cinema, film’s appearance of reality is an illusion, an illusion based on conventions of representation.

How could Mr. Scott have countered the weight of the film and its persuasive power? When faced with prejudicial filmic evidence, how does an advocate undermine the assertive nature of film and its overwhelming appearance of exposure? The advocate must cross-examine the film the way she cross-examines witnesses. Because films are assertive in nature, an advocate faced with filmic evidence must treat it the way she treats other testimonial evidence, critically and with careful scrutiny. She must cross-examine the film. This article will set forth certain examination techniques using a piece of filmic evidence (linked to the article) from a recent case as an example. By doing so, it aspires to be a teaching tool for other courts and advocates in their treatment and consideration of filmic evidence.

Forthcoming in 8 U. Md. L. J. Race, Rel., Gender & Class (2009). This version of the article is a submission draft and does not reflect any final edits from the author or the law review editors.

A modified version of this paper was published at 17 Legal Reference Services Quarterly 85-99 (1999).

Origin stories serve both ontological and epistemological functions. They infuse everyday life and relations with significance by explaining why things are as they are and by providing guidance for how things should evolve based on what we already understand about our world. Origin stories also literally give a culture life by designating a beginning and a history. Finally, most origin stories are political, legitimating or justifying certain relations of power in society. This Article is a comparative analysis of the "origin stories" that structure several branches of United States intellectual property protection: copyright, trademark and patent law. When contrasting the three statutory intellectual property regimes for their structured valuation and reification of their own origin myth, the Article shows how the origin myths structuring intellectual property protection articulate a well-worn story about the origins and continuing vitality of the American republic (rugged individualism and the American dream). Each part also draws on popular cultural stories about intellectual property and a recent intellectual property dispute to illuminate how origin myths structure the respective discourses of these intellectual property systems and explain adjudicative results.

** MIRCEA ELIADE, MYTH AND REALITY 2 (1963) (trans. W.R. Trask).

This article proceeds in five parts. Part I outlines a brief history of interdisciplinary legal studies, in particular law and cultural studies. Part II discusses the subfield within law and cultural studies of law and film, as a way to set the stage for a longer discussion in Parts IV and V of two truth tales, "Compulsion" and "Swoon." Part III more specifically describes the parameters of the "truth tale" as a subgenre of courtroom drama that affects a particular kind of popular legal consciousness, one that accepts as futile law's presumed search for unconditional truth and embraces instead the legal system's promise of due process as based on normative values of fairness. Parts IV and V are close readings of the two films by way of application of the interpretive methodology and conceptual framework outlined in Parts II and III.

This article reviews the federal district court decisions subsequent to eBay with regard to whether permanent injunctions were granted for patent infringement. An analysis of the post-eBay decisions supports the following conclusions: (1) The district courts continue to grant permanent injunctions in most cases; (2) Typically, permanent injunctions continue to issue when the patent owner and the infringer are direct marketplace competitors; (3) Typically, permanent injunctions are denied if the patent owner is a non-practicing entity; and, (4) Other factors such as willful infringement, venue, the existence of a complex invention incorporating a patented feature, the willingness of the patent owner to license the invention and the likelihood of future infringement are not overly predictive with regard to whether patent infringement will result in issuance or denial of a permanent injunction.

An uneasy tension arises from obligations in the WTO’s Agreement on Technical Barriers to Trade (“TBT Agreement”) to use relevant international standards, and the possibility that their adoption will entail payment of royalties to foreign IP owners. The claim against China has been that it is focusing on home-grown standards, to the detriment of existing international standards. China has responded that the mandatory adoption of international standards does not come without cost, particularly for developing countries. It has complained of unfair treatment when seeking to participate in the international standards system, contending that IP rights create obstacles to trade.

The WAPI case illustrates standards’ indeterminate nature as trade facilitators and indispensable elements of the ICT industry, on the one hand, or potential measures of protectionism when applied inappropriately, on the other. It also highlights the IP dimension to international standards, identifying a source of friction within the system. How do we balance the rights of IP owners to receive compensation against the interests of those seeking to achieve harmonization by implementing international standards? My claim is that to balance and achieve these objectives, the framework of the TBT Agreement should be extended so that IP rights are properly addressed in the standards development process. In particular, two basic principles – early disclosure of IP rights and declaration of position concerning licensing of those rights – should be integrated into the TBT Agreement as part of its guidelines for international standards. A balanced policy governing IP rights will strengthen international standards and promote harmonization, while supporting the rights of IP owners to receive reasonable compensation.

This paper evaluates the role, function, and definition of the state action exemption in the context of transforming regulated energy markets into competitive ones. In examining the manner in which lower courts have applied the state action antitrust exemption, this paper concludes that a broad application of the state action would hinder state efforts to open up the electrical markets for competing new entrants. The challenge for policymakers in establishing pro-competition policies is in implementing them within old regulatory structures originally intended to delegate authority to regulatory entities such as utilities which have traditionally dominated the electrical market. In effect, broad application of state action would interfere with any competitive efforts because it would continue to preserve old regulatory structures and protect traditionally dominant suppliers in the market.

Careful analysis of major state action cases helps illuminate the problem and reveals a window into the possible solution. In applying the Midcal test, courts have used the foreseeability standard first established in the landmark Supreme Court case, Town of Hallie v. City of Eau Claire, inconsistently. This paper suggests that this Hallian foreseeability standard, if tied to the clearly-articulated state policy prong of the Midcal test, could help courts narrow the application state action.

Ultimately, state action represents a federalism issue and it raises jurisdictional paradoxes. On the one hand, it stands for a state's right to regulate domestic public policy; on the other, it exempts a defendant from federal antitrust liability if the Midcal test is satisfied. Finally, delegated authority to regulatory agencies allows for another means of jurisdictional scrutiny - that of the declaratory rulings from the state commissions.