Personhood and identity in American law

This study examines the ways that American law manages concepts of personhood and identity in contexts of competing theoretical accounts of the meaningful traits that persons under the law supposedly bear. The term "personhood" refers to the concatenation of law's accounts of what matters about legal subjects, from descriptions of what traits ought to determine hiring decisions, to the common law's reliance upon the ability of persons to think reasonably about social obligations, and to determinations of risk that certain aggregations of persons may cause. This project identifies and separates out four frameworks for personhood that are most important for determining social justice in U.S. law: transcendental personhood (the civil rights-based image of the true self "beneath" irrelevant traits such as race or gender); functional personhood (the embodied subject of capacities and dysfunctions); communal-rational personhood (the legal subject of the common law, socially embedded and judged by local norms); and actuarial personhood (the entity conceptualized through statistical distributions and judged through practices such as insurance underwriting and risk profiling). In addition, civil rights laws and interpretive jurisprudence often address people through categorization by identity traits: race, gender, age, and disability, for example. The primary sites for adjudicating personhood are civil rights statutes and their interpretive jurisprudence---the Civil Rights Acts, the Americans with Disabilities Act, the Fair Housing Act, and the Age Discrimination in Employment Act---but this study also examines disputes over damages for personal injury, insurance classifications, legislative debates, and popular discourse. This inquiry approaches all four frameworks for personhood as they intersect with law's interpretation of named "identity scripts," and also compares each one to the more legally shaky status of fatness (a trait to which very little legal protection attaches). The kinds of justifications judges and legislators give for the extension or withholding of legal protections depend upon the framework for personhood and the presence and coherence of an identity script. Ideas about personhood and identity may be deeply fragmented and even contradictory, but they regulate and produce the conditions of persons' lives nonetheless.