California Law Review
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.
Jessica A. Clarke, Identity and Form, 103 Cal. L. Rev. 747 (2015), available at https://scholarship.law.umn.edu/faculty_articles/419.