Social Justice Movements and LatCrit Community: On Making Social Constructionist and Anti-Essentialist Arguments in Court

Suzanne B. Goldberg, Columbia Law School


This article examines the difficulties associated with identity-based arguments in litigation. In particular, the article considers the ways in which anti-essentialist and social constructionist framings of identity clash with judicial preferences for fixed identity categories. I review cases in which courts have addressed anti-essentialist and social constructionist arguments (both positively and negatively) and offer preliminary hypotheses to explain the limits on courts' willingness to accept these types of arguments