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2011 Conference Program (PDF) - Syracuse University College of Law

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4.7 Inevitability in Judicial Opinions<br />

Lately, it seems more homosexuals than heterosexuals are erasing bisexuals, and more<br />

overtly than at the time Yoshino identified the phenomenon <strong>of</strong> bisexual erasure. Because<br />

the fight for same-sex marriage recognition is a fight to fit into the guarded category <strong>of</strong><br />

marriage, members <strong>of</strong> same-sex relationships and their advocates have an interest in<br />

fitting into a stable sexual orientation category, which bisexuality is not. This Article, at<br />

the very least, hopes to make the bisexual slightly less invisible from legal scholarship at<br />

a time when the threat <strong>of</strong> bisexuality, and the erasure <strong>of</strong> bisexuals, seem to have<br />

intensified. More ambitiously, this Article introduces terminology that serves as a first<br />

step toward making bisexuals - along with other individuals along the continuum <strong>of</strong><br />

sexual orientation who are even more invisible than bisexuals - visible.<br />

This new terminology distinguishes between an individual’s “general orientation” and an<br />

individual’s “specific orientation.” An individual’s general orientation is the sex toward<br />

which the individual is attracted as a general matter. An individual’s specific orientation<br />

is the sex <strong>of</strong> the individual’s chosen partner. In many cases the two orientations are<br />

identical, but for bisexuals who partner with only one person the two orientations<br />

necessarily differ. While introducing new words will not solve the problem <strong>of</strong> bisexual<br />

invisibility, it might allow those who have struggled with asserting their bisexual<br />

orientations - those who were in a relationship with a member <strong>of</strong> the opposite sex and<br />

later wished to partner with a member <strong>of</strong> the same sex (or vice-versa) - to do so without<br />

having to recant their previous relationships. This terminology describes an individual’s<br />

sexual orientation with reference to her status as well as her conduct. It also describes her<br />

sexual orientation individually as well as relationally. Moreover, in addition to<br />

ameliorating the problem <strong>of</strong> bisexual invisibility, distinguishing between individuals’<br />

specific and general orientations will help to debunk commonly believed myths about<br />

bisexuals, bridge the gap between diametrically opposed sides <strong>of</strong> the stalemated same-sex<br />

marriage debate, and clarify the purpose <strong>of</strong> the LGBT rights movement by broadening the<br />

concept <strong>of</strong> sexual orientation.<br />

Jack Sammons<br />

Inevitability in Judicial Opinions Part I<br />

“Inevitability” is a common criterion for good art among art critics and a common<br />

description by artists <strong>of</strong> what they seek in their art. This “inevitability” is not inevitable in<br />

the sense <strong>of</strong> being predictable, predetermined, or providential. In fact, it is quite the<br />

opposite. For what is “inevitable” is perceived as such only in the revealing <strong>of</strong> it either in<br />

the performance or the creative act. We will briefly explore this idea in poetry, prose, and<br />

music, and especially within the compositions <strong>of</strong> Beethoven. Beethoven is a good choice<br />

because describing his later work as a search for the “inevitable” creates a revealing<br />

tension with the common understanding <strong>of</strong> Beethoven as romantic genius.<br />

The suggestion then arises that there may be something “inevitable” in this sense in the<br />

legal conversation both broadly considered and as manifested in good judicial opinions<br />

when considered as a form <strong>of</strong> literature or art.<br />

David Ritchie<br />

Inevitability in Judicial Opinions Part II<br />

In a beginning exploration <strong>of</strong> this possibility <strong>of</strong> uncovering inevitability in judicial<br />

opinions, we will turn first to the questions <strong>of</strong> what an approach to law as having<br />

“inevitability” would look like and, given this, what would this “inevitability” be about,<br />

that is, what would it be uncovering. In addressing both questions, and drawing generally<br />

upon Husserl, Heidegger, Merleau-Ponty, and others, we will suggest that the legal<br />

conversation and the judicial opinion are both forms <strong>of</strong> a social phenomenological<br />

investigation <strong>of</strong> a social identity. In other words, what “inevitability” uncovers in law is<br />

who we are in the resolution <strong>of</strong> a dispute that has raised anxieties about who we are.<br />

!<br />

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