A Queer Story of Same Sex Marriage

Michael Boucai, Glorious Precedents: When Gay Marriage Was Radical, 12 Yale J.L. & Human. 101 (2015).

Michael Boucai’s new article, Glorious Precedents: When Gay Marriage was Radical, explores same-sex marriage in an era when “gay liberation” rather than “gay rights” described the aspirations of a movement aimed at revolutionizing American life. Through detailed archival and interview based research, Boucai offers a delightful recounting of the first three cases to produce reported judicial opinions denying gay marriage in the United States: Baker v Nelson, Jones v Hallahan, and Singer v Hara (all of which were decided in the early 1970s). His unfolding of marriage litigation in the post-Stonewall years captures the historical texture of these initiatives and the individuals that commenced them, but more importantly it reveals an account of the pursuit of gay marriage and its radical potential that differs significantly from the same sex marriage movement in its contemporary form.

According to Boucai, despite criticisms of the same sex marriage movement as assimilating for sexual minorities and reifying of problematic social institutions, these first cases were much more about gay liberation generally than gay marriage specifically. His documentation of the stated ambitions of the three couples, the legal arguments advanced by their lawyers, and details of the sexual and domestic lifestyles and the activist activities engaged in by many of the litigants persuasively disrupts the dominant account of early marriage litigation as out of step with the radical spirit of gay liberation at the time. Interestingly, Boucai’s account re-politicizes the litigant couples – as couples – by, in part, desexualizing them. For two of the couples, theirs was neither a story of romantic love, nor even a story of notable sexual attraction. Rather, it was coupledom based on political aspirations, friendship, and shared worldviews. For them the litigation – which everyone accepted “stood no chance of winning” – was rooted not in a desire to marry, nor a desire for state sanction and recognition of the value of their love and affinity for one another, but in efforts to challenge the gendered oppression perpetuated by the institution of marriage and to perform their same sex relationships in public and confrontational ways.

Part I of the article offers a review of the gay liberation movement in the early 1970s. Boucai highlights the movement’s focus during this period on not only gay equality but also on sexual freedom, disruption of class oppression and perhaps most importantly, challenges to gender roles, patriarchy, and sexism. The article proceeds, in Part II, to provide a detailed description of the plaintiffs, their commitment to the objectives of the gay liberation movement, and the context of the relationships for which these marriage licences were sought. Integrated into the stories of these couples are the legal arguments advanced by their lawyers. Boucai’s accessible writing and judiciously selected detail makes Part II a welcoming and fascinating read. Part III draws the connections between the lives and pursuits of these three couples and the aims and activities of the gay liberation movement at the time. Glorious Precedents readily reveals both the role of litigation, even that destined to fail, in social movements and the way in which the same legal strategy, or litigation target, can be motivated by very different aims depending on the era and context.

Here is something in particular that I liked (lots) about this article. Perhaps in the vein of Dale Carpenter’s telling of the story of Lawrence v Texas, Boucai embraces the messy facts that underlie these cases. He does not shy away from the discrepancies and inconsistencies between how these couples understood their project or engaged in their relationships. Instead, he allows the complexity of these stories to unfold as they do. The result is a compelling and vivid account of marriage litigation in the era of gay liberation – one which reveals as much about the scope of the intentions and achievements of its participants as it does about the limited horizons of those fighting for the right to same sex marriage today.

Cite as: Elaine Craig, A Queer Story of Same Sex Marriage, JOTWELL (February 17, 2015) (reviewing Michael Boucai, Glorious Precedents: When Gay Marriage Was Radical, 12 Yale J.L. & Human. 101 (2015)), http://equality.jotwell.com/a-queer-story-of-same-sex-marriage/.

Entering the Spaces of Power

What has happened to the vocabulary of justification associated with the welfare state – that language of need, equality and social justice so crucial for anchoring and grounding public action? Have the terms of justification become appropriated and re-aligned, articulated to neoliberal concepts of entrepreneurship, discipline and waste, or simply abandoned? And does anything remain of a more progressive set of significations (or chains of meaning)?

In a thoughtful, wide-ranging and nuanced article, the eminent public governance scholar, Janet Newman, explores some ways of diagnosing the present, situating contemporary strategies of governing, in nations such as Britain, in relation to concerns about the securing and unsettling of political consent. What causes people to sign up to or acquiesce in current governance arrangements, and what challenges to this often reluctant acquiescence are posed, as nations struggle to define, mobilise and respond to political moments of ‘crisis’?

Newman’s article focuses on the recent financial crisis and resulting austerity measures, particularly the disproportionate impact public sector cut-backs have had on women. Her analysis addresses the problematic of governance, consent and power in relation to gender, drawing on feminist work for analytical resources as well as critical texts.

At the heart of Newman’s account is the question of political contingency. This doesn’t deny the strength of dominant social relations to shape events but avoids a depiction of political and institutional life as fixed and predetermined. Newman draws on the conjunctural thinking of Stuart Hall, John Clarke and others to reveal the cluster of factors that have produced the current crisis, to show that it is more than an economically driven affair. Conjunctures identify specific space/ time configurations in which multiple forces, tendencies, pressures and possibilities combine. As a conceptual framework conjunctures have something in common with actor networks in the sense that they depict a cluster of processes and phenomena that converge and, for a while, sustain a particular shape. Conjunctures (like actor networks) are also productive. They produce particular projects as hegemonic – through the ways in which forces, discourses and tendencies get articulated together. As Stuart Hall (who Newman quotes) remarks, hegemony “is a process, not a state of being”. As such, it needs constant work to be sustained, even as sustaining hegemony also involves its ongoing revision.

Conjunctural analysis is helpful for progressive and more radical scholarship. We can approach conjunctures, such as the current neoliberal ‘crisis’, in two ways: first by focusing on its conditions of production or assemblage; second by considering what counter-hegemonic strategies it might enable. In relation to the former, Newman considers critiques of current feminist and gender equality practice made by influential feminist scholars, Angela McRobbie and Nancy Fraser. Newman focuses on the claim that feminism has contributed to the current austerity crisis by helping to consolidate neo-liberalism. Struggling and campaigning to detach women from conventional social roles, feminism, it is argued, has helped women to enter post-Fordist economies. By focusing on identity politics, feminism has also become a target for capitalist commodification. What gets lost, in the process, is a direct attack on exploitative and unjust economic relations.

Newman’s account respects, but does not adopt wholesale, feminist critiques of feminism made by different academics and commentators over recent years. Arguing that they overstate the power and agency of capitalist economic relations and of neoliberalism as a cultural regime, she also suggests such arguments fail to give adequate recognition to the forms of agency and creativity refracted through dissent. Feminism may be vulnerable to resignification in ways that support the articulation of gender equality to market processes, but that is not all it offers.

The importance of recognising feminism’s far more complex character in order to avoid simple, overstated claims of co-option or hegemony, speaks to a different way of approaching a conjuncture. This focuses on the counter-hegemonic possibilities conjunctures make available – in part by providing a more nuanced account of the conjuncture itself. Thus, in discussing feminism’s contribution to state and governance politics, Newman draws on her own research – intensive interviews with four generations of British-based feminists “working the spaces of power”. By exploring how these activists straddle institutional and community activist spaces – simultaneously inside and out – Newman addresses the counter-hegemonic practices these feminists engage in. Such practices include bringing novel ways of working into state institutions (ways that subsequently become mainstreamed within state practice); taking advantage of new state paradigms to advance particular feminist agendas; and developing cutting-edge services both within and beyond the official state.

Engaged in ‘border work’, feminists working the spaces of power establish and combine new repertoires of governing. State governments may be criticised for appropriating and co-opting activist paradigms and practices, but feminist border workers takes activist frameworks and concerns into official apparatuses of government. Likewise, those engaged in community politics – including those ‘thrown out’ of state structures – take governmental concepts with them into the community sector, inflecting concepts such as entrepreneurship and localism with social justice values.

Throughout, Newman argues against binary accounts that draw a clear division between state and civil society; and between power and resistance. Instead, she focuses on three kinds of political labour, engaged in by those working across the multiple and divergent spaces of power. The first involves making visible the damaging effects of governmental policy measures, such as cut-backs, challenging in the process the naturalised status of necessary and responsible austerity. Second, Newman talks about the importance of forging new public conversations that shift the discursive repertoires of government and wider public culture – a process that also involves the production of new forms of publicness. Third, she discusses the work of creatively stitching together new alliances and new ways of performing politics.

In this article and her work more generally, Janet Newman makes a vital contribution to understanding governance. She combines a close understanding of public governance, particularly in its changing managerial form, with interdisciplinary scholarship – embracing organisational studies, political discourse, public policy and feminist analyses, among others. Newman’s work approaches governing as situated public processes and activities that embody contradictions and tensions; and it is through these dissonant encounters and connections that new directions for progressive practice are opened up. Thus, her work avoids the universalising tendencies sometimes found in radical political philosophy when it is insufficiently attentive to differences of time, place and context, and so generates totalising accounts organised around single axes or particular splits.

At the same time, Janet Newman’s engagement with social, cultural and political theorising allows for meanings and patterns to become evident that might be missed in more narrowly technical accounts of governance. For me, what emerges with particular prominence in Newman’s recent work is a hopeful orientation; one that identifies pathways for progressive politics, while holding onto a critical account of public governance as it manifests itself in countries, such as Britain, today.

Cite as: Davina Cooper, Entering the Spaces of Power, JOTWELL (January 16, 2015) (reviewing Janet Newman, Governing the present: activism, neoliberalism, and the problem of power and consent, 8 Crit. Pol. Stud. 133 (2014)), http://equality.jotwell.com/entering-the-spaces-of-power/.

The Careless Ideal Worker

Olivia Smith, Litigating Discrimination on Grounds of Family Status, 22 Fem. Legal Stud 175 (2014).

It will not surprise readers alive to anti-discrimination law’s limited capacity to transform systems that Ireland’s reform to protect workers in certain care relationships from discrimination based on their family status has reinforced gendered assumptions about care and workforce participation. However much its findings line up with our pessimistic hunches, Olivia Smith’s study is worth reading because it exemplifies an admirable kind of feminist scholarship: quantitatively and qualitatively empirical; theoretically grounded; alert to the intersection of gender with other grounds of disadvantage, such as class; and self-conscious of its limits.

Smith offers a “contextualized assessment” of a dozen years’ tribunal litigation under the “family status” discrimination ground. Prior to this ground’s adoption in the Employment Equality Acts 1998-2011, women had challenged discrimination associated with their care obligations under the ground of gender. As Smith notes, that tack had confirmed the gendered view of care as women’s work. Yet while the gender-neutral ground of “family status” might signal that care obligations bear on men as well as on women, the litigation record shows it to have reinforced the gendered dynamics of Irish work and family life.

Early in the paper, Smith sketches a sobering portrait of Irish family and workplace policy. She traces how it channels men away from care work at home or makes it much harder to do such work. Then she dives into the tribunal cases, the vast majority of them launched by women, to see how “family status” is playing out.

The study elaborates the distance between what “family status” and the related idea that employers must not discriminate against employees for their care responsibilities might have meant, and what they have come to mean. The decisions reveal that formal equality is the prevailing approach. In effect, employers cannot treat employees with care responsibilities worse than they treat employees without such responsibilities. In other words, the law sanctions treatment that singles out for special disadvantage employees who do care work. It does nothing, however, to challenge or modify evenly applied workplace expectations or requirements (schedules, travel obligations) that are incompatible with family life. Smith argues persuasively that this approach affirms the baseline of the ideal employee who, unencumbered by caring duties (someone at home may be shouldering them for him), responsibly prioritizes his investment in the labour market.

Smith roots her study in work such as Joan Williams’s treatment of the ideal worker, Colleen Sheppard’s attention to inequality’s embeddedness in broader institutional contexts, and Judy Fudge’s attention to the gender contract. She is appropriately sensitive to the difficulty in conceptualizing family status. On her analysis, Irish law’s definition is “at once both an advance and a regression”: it shifts away from law’s privileging of the sexual family, but still fails to capture the full extent of family care. For instance, the focus on parent–child relationships and on carers for persons with disabilities offers no protection from discrimination for those who provide care for other family members, for kin, or for friends.

While drawing out the lessons discernible in the record of tribunal decisions, Smith notes the constraints that shaped her data set. In particular, although a tribunal process is supposed to be inexpensive and relatively easy, the lack of legal aid and other factors undoubtedly limit its accessibility.

This paper leaves me thinking about other areas of law where our usual focus on the judgments of a jurisdiction’s apex court overshadows attention to the nitty-gritty of first-instance decisions – as well as about other cases where using a logic of equality and comparison to recognize difference ends up further entrenching the privileged ideal.

Cite as: Robert Leckey, The Careless Ideal Worker, JOTWELL (December 5, 2014) (reviewing Olivia Smith, Litigating Discrimination on Grounds of Family Status, 22 Fem. Legal Stud 175 (2014)), http://equality.jotwell.com/the-careless-ideal-worker/.

Honouring the Capacity for Choice

Denise Réaume, Dignity, Choice, and Circumstances, in Understanding Human Dignity 33 (Christopher McCrudden, ed., Oxford University Press, 2013).

Denise Réaume is Canada’s foremost legal theorist on the concept of dignity. She has committed much of her scholarly work to elucidating its contours and teasing out its complexities. One of my favourite of her earlier pieces is “Indignities: Making a Place for Dignity in Modern Legal Thought”. In that piece, Réaume deduces a distinct dignity interest warranting legal protection in the common law through careful review of the evolving case law addressing intentional infliction of nervous shock.

Jump forward more than ten years and we find Réaume on to the interaction of dignity, choice, and circumstances. The title of her chapter is a little misleading, perhaps, since Réaume’s focus is more on the capacity for choice than its availability.

I was engaged by the piece in its early paragraphs, where Réaume invokes the typical dichotomy: “Either we honour the choices of those with the legal status to choose by imposing responsibility for them, and in so doing refrain from responding to real needs or doing something about the circumstances that foster bad choices, or we pay more attention to the circumstances of choice and give little weight to the exercise of agency, and thereby stigmatize certain people as incapable of choosing for themselves” (Para. 3).

She then challenges herself to work through how to honour, in law, the capacity for choice. Typical of Réaume’s work, she works backward into her interrogation of the potential of dignity by laying out three case examples and by using those as a way of deducing the work dignity might do to support the capacity of choice, given the circumstances of real people.

Insite, a decision about intravenous drug use in Vancouver’s Downtown East Side, offers the first illustration. Insite is a safe-injection site open to addicts. It provides people with drug addictions with a space to access clean needles and the benefit of medical supervision. Insite originally operated under a Ministerial exemption to the Controlled Drugs and Substances Act. When the Conservative government was elected, they rejected the renewal of the exemption. Insite staff and clients challenged the Minister’s decision under section 7 of Canada’s Charter (the right to life, liberty, and security of the person). The Minister’s defence was to blame the drug users – as summarized by Réaume: “whatever health risks drug users suffer in the absence of a safe injection site are not caused by the prohibition on the possession of drugs kept in force by the minister’s refusal but by their decision to use illegal drugs” (Para. 27). Réaume contrasts the Minister’s justification with the decision of the Supreme Court of Canada, and the actions of Insite itself, which support the ability of people with addictions to make choices that are as dignity-enhancing as possible under the circumstances.

Illustration two also takes as its foundation the actions of a legislature, although this time the government of Ontario. That government decided to redesign social service benefits by classifying potential recipients into two categories: one which was more financially supported than the other and one which did not require work-force preparation participation and one which did. In distinguishing between the people who fit each category, the Ontario government excluded people with alcohol and drug dependencies from inclusion in the high-benefit, fewer workplace requirement category, which included people with other types of disabilities. Again, the signal sent by the government was clear: those with addictions are personally responsible for their financially impoverished conditions in ways that those with other disabilities are not. In exploring the results of the litigation that surrounded this legislation, Réaume beautifully observes that the legislation in this area, generally, leaves people in a position where one mistake can have catastrophic results: surely not conditions that support dignity.

The last illustration looks to a cluster of legislative and court responses to women who kill or attempt to kill an abusive partner. In these circumstances, Réaume presses on the need for proactive engagement of police and other social service agencies in aid of supporting women’s dignity interests.

Ultimately, Réaume concludes by taking her theorizing of dignity to the concrete, which is a distinctive feature of much of her work. She urges state actors (presumably both courts and legislators) to make an effort to engage with the choices made by real people as the decision-makers have seen them with the hope that reorienting to supporting the capacity for choice in myriad circumstances will better facilitate our dignity interests.

It’s worth reading this chapter by Réaume. You’ll be catching a senior Canadian scholar, doing what she does so artfully: deductive explorations on the theme of dignity. And you build back into her previous work from this chapter and follower her into whatever comes next.

Cite as: Kim Brooks, Honouring the Capacity for Choice, JOTWELL (November 10, 2014) (reviewing Denise Réaume, Dignity, Choice, and Circumstances, in Understanding Human Dignity 33 (Christopher McCrudden, ed., Oxford University Press, 2013)), http://equality.jotwell.com/honouring-the-capacity-for-choice/.

By All Means Possible

Thomas Mitchell, Growing Inequality and Racial Economic Gaps, 56 How. L. J. 849 (2013).

Thomas Mitchell’s article, “Growing Inequality and Racial Economic Gaps,” argues that reforms to the technicalities through which law constitutes real estate assets and relations may provide a foundation for progressive steps towards racial equality. Published in 2012 as part of a Howard Law Journal symposium on Protest and Polarization, this article starts with a sobering account of the intensification of racialized economic inequality in the US, within a general trend of increasing economic inequality since the 1970s. The first part of the article shows these developments are largely attributable to the large and growing wealth differentials between non-Hispanic whites and the Hispanic and African American populations. By 2009, according to Mitchell, the net worth of the median non-Hispanic White household was 20 times larger that of the median Black household (as compared to the 12:1 ratio in 1988 reported in Oliver and Shapiro’s landmark study1 and 18 times larger than the net worth of the median Hispanic household). Moreover, Mitchell reports that despite their losing some wealth during the Great Recession, White non-Hispanic households in 2009 generally owned more wealth than they had “for many if not most years between 1984 and 2009” whereas Black and Hispanic households owned “less wealth … than in any year since … 1984” (P. 860).

The second part of the article traces the relationship between rising economic inequality and shrinking intergenerational economic mobility in the US. Again Mitchell synthesizes some potent data to cast doubt on conventional wisdom. It transpires that the American education system no longer enhances social mobility (if ever it did) and indeed “may well be contributing to growing income and wealth inequalities” (P. 865); that the extent of occupational mobility in the United States is no more than average amongst industrialized countries; and that the level of intergenerational income mobility is demonstrably worse than that of neighboring Canada and below the norm for industrialized countries (P. 867).

It should not be forgotten that the 20th century witnessed considerable economic mobility gains for African Americans, thanks largely to the mass social movements that secured hard won civil and labor rights. By 2000 the African American poverty rate, although still an atrocious 30 percent, was more than 60 percentage points lower than its 90 percent level in 1940, and black men in full-time work earned 73 percent of the wage of comparable white men– up from the derisory 43 percent of the white male dollar they had earned in 1940 (P. 867-8). Today, however, as Growing Inequality reports, rates of intergenerational upward mobility of income are considerably lower and rates of intergenerational downward mobility of income are much higher for African Americans than white Americans (P. 868).

After surveying ideological, institutional and interest based barriers to the success of a mass social movement capable of mounting a substantial and sustained material attack on economic inequality and the power structures that maintain it, Growing Inequality suggests that strategies that rely on mass mobilization or that directly target equality enhancing legislative change are unlikely effectively to address racial inequality under present conditions. Mitchell advocates, by contrast, creative strategizing and coalition building for reforms to “technical” laws and legal institutions that have been under-utilized in civil rights struggles. The article’s most interesting example of deploying “lawyers’ law” and legal processes against racialized economic inequality is the recent development of a uniform act on partition law as it applies to “heirs’ property”. Mitchell has published elsewhere on how the default rules of partition law have caused extensive dispossession of land in many areas of the US, with a particularly devastating impact on African Americans’ efforts to achieve economic security and build family assets.2 More than forty years of policy activism directed at legislatures made very little headway on changing the rules on forced partition sales, but a recent strategy of targeting the organization responsible for developing national model law statutes has had more success. Some three years after first accepting a proposal to reform partition law on forced sales, the National Conference of Commissioners on Uniform State Laws (generally known as the Uniform Law Commission) in 2010 promulgated a model act on the partition of heirs’ property. This model act was drafted by a committee chaired by Mitchell and builds on the work of civil rights organizations, public interest groups and others representing the interests of the rural poor who have suffered considerable economic harm from the default partition rules. Approved by the American Bar Association in 2011, the Uniform Partition of Heirs Property Act has been enacted in Alabama, Georgia, Montana and Nevada and is under consideration in another four states.

Mitchell reports that in addition to changing the legal regime in a way that should slow down land loss through partition sales, this strategy of engaging with the technicalities of property law has generated new coalitions and increased access to knowledge of how to effect law reform through the NCCUSL process. Given that knowledge about how “lawyers’ law” reform processes work is usually tightly held within the circle of the more powerful interests that repeatedly use such processes, this widening of access has potentially significant consequences.

Beyond the data and its case studies, the article offers plenty of scope to debate the meanings and aspirations of racial economic equality as well as strategy, tactics and goals. And in this 50th anniversary year of the U.S. Civil Rights Act, Growing Inequality and Racial Economic Gaps is a telling reminder of how much change must occur to bring into view Dr King’s goal of “genuine equality, which means economic equality”.3

  1. P. 858, citing to Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White Wealth: A new perspective on racial equality (1997). []
  2. E.g. Thomas W. Mitchell, From Reconstruction to deconstruction: undermining black ownership, political independence and community through partition sales of tenancies in common, 95 Nw. U. L. Rev. 505 (2000-2001). []
  3. March 18, 1968 speech to supporters of a sanitation workers strike in Memphis, Tennessee, quoted in United for a Fair Economy, State of the Dream 2014: Healthcare for Whom? – Enduring Racial Disparities, available at http://faireconomy.org/dream/2014. []
Cite as: Toni Williams, By All Means Possible, JOTWELL (October 6, 2014) (reviewing Thomas Mitchell, Growing Inequality and Racial Economic Gaps, 56 How. L. J. 849 (2013)), http://equality.jotwell.com/by-all-means-possible/.

Crime, Surveillance, and Communities

Crime, Surveillance and Communities, 40 Fordham URB. L.J . 959 (2013).

Timing is everything. I started reading Crime, Surveillance and Communities in the midst of the unrest in Ferguson, Missouri. The community north of St. Louis was the site of civil unrest in the wake of the shooting of Michael Brown, an unarmed black teenager. I could say that Prof. Capers’ article, which explores the use of technological surveillance as a mechanism to police the police, is prescient. However, given the number of such shootings, especially those that have risen to national attention, I would instead describe the article as a thoughtful effort to assess how technology might be used to assist and address interactions between police and community members, especially interracial interactions. Let me explain.

Capers argues that because the Fourth Amendment does protect some actions in public from technological surveillance, reasonable privacy intrusions must be balanced with the public good. Thus, technological surveillance in public is legitimate only so long as the surveillance is reasonable. Capers begins by introducing the many ways in which surveillance technology is already being used to watch our public movement and activities, be it through video cameras, biometric technology, zoom and movement capabilities, license plate readers, car trackers, CCTV, facial recognition technology, or apps. All of these, he says, combine to amount to “warrantless mass surveillance.”1 Thus, the Big Brother possibility, and the Foucauldian panoptican, are already a part of our lives. (P. 964.)

Capers then reviews the conventional reading of the Fourth Amendment’s protection against technological surveillance. This jurisprudence centers around the question of what are reasonable expectations of privacy in the public sphere, and is largely driven by the notion that knowing exposure to the public gaze defeats the argument that monitoring conducted through surveillance technologies is a “search”. After reviewing the seminal cases, notably United States v. Knott,2 Capers concludes that, “…the general notion [is] that what one exposes in public is not protected by the Fourth Amendment…the use of surveillance cameras to monitor activity that occurs in public is reasonable and therefore does not violate the Fourth Amendment.” (P. 961.)

As a counter-consideration to the logic of “it’s not a Fourth Amendment violation if ‘…a passerby would easily have been able to observe,’” (P. 969.) Capers then offers an unconventional reading of the Fourth Amendment. Despite the fact that conventional Fourth Amendment jurisprudence is predicated on movement in public being unprotected, Capers re-reads the line of cases from Katz,3 to Alderman to White and reaches the conclusion that, “the use of surveillance cameras in public does implicate reasonable expectations of privacy, and thus is subject to Fourth Amendment protection, thereby requiring reasonableness.” (P. 970.) Drawing on a distinction between an invited ear, “for which citizens assume some risk,” (P.972) and an uninvited ear,4 “for which they do not,” (P.972) and extrapolating the latter to encompass the uninvited eye, Capers teases out a distinction in the Fourth Amendment jurisprudence between nonconsensual and consensual monitoring. He states:

It is precisely this interstitial space that provides a foundation for subjecting covert public surveillance to Fourth Amendment protections. Even though the Court has made clear that a person must assume the risk that an ear is duplicitous, the Court has also drawn a line. The crucial factor in determining whether eavesdropping is a Fourth Amendment search is not only whether the ear was invited or not. It is also important to inquire whether the ear is actually, physically, or corporeally present. (P. 973).

In reaching the conclusion that reasonableness will suffice in such Fourth Amendment regulation, Capers undertakes a balancing assessment. He argues that “…mass surveillance neither restricts the movement of individuals nor interferes with any tangible property rights.”… further, while “overt surveillance [] may chill movement….that intrusion is de minimis, and with respect to covert surveillance, “the intrusion is non-existent. ” (P. 975) Capers then juxtaposes the “substantial public interest” served by overt surveillance, such as deterrence of crime, assistance in crime-solving, public safety (especially post 9/11), and the potential for non-discriminatory applications, to assert that, “cities and towns would have some flexibility in using cameras as tools of crime control and public safety.” (P. 975-76.) Before reaching the most timely assertion, however, Capers states, that there is, “a strong argument [that] can be made that camera surveillance in public is in fact subject to Fourth Amendment regulation. In addition, a balancing of the intrusion to the individual, and the needs of the public, suggest that such surveillance will comply with the Fourth Amendment so long as such surveillance is reasonable.” (P. 977).

In the penultimate section, Capers notes the binary opinions in legal scholarship addressing the implications of the fourth amendment to mass surveillance, including the significant criticism of “mass surveillance as ‘an insidious assault on our freedom’ that threatens our ability to “express what we believe, to do what we want to do, to be the type of person we really are,”5 and the counter position that “mass surveillance is a necessary tool in deterring crime and apprehending criminals.” (P. 978.) Instead of picking a side or attempting to weigh into this debate, Capers sets out an additional consideration – he suggests that in addition to the deterrence and crime solving potential of mass surveillance, it “can also function to monitor the police, reduce racial profiling, curb police brutality, and ultimately increase perceptions of legitimacy.” (P. 978.)

I found the arguments relating to the utility of mass surveillance in racialized community policing interactions particularly compelling. Capers articulates a position that is important, especially as the nation again struggles with the killing of an unarmed black teenager, Michael Brown, in Ferguson, Missouri. I cannot help but think, would mass surveillance have been of assistance in assessing the competing narratives of what happed on August 9, 2014 as stories become concretized, and as more information, including the autopsy results are revealed. Caper’s article would suggest that mass surveillance would indeed be helpful at a time like this.

Capers explains how technological surveillance can assist with combatting racial profiling, which he underscores as “citizenship diminishing,”6 and also police the use of excessive force, which many in minority communities view as endemic. If these realities are addressed through mass surveillance, it would decrease the “…perception that officers themselves operate in a zone of underenforcement,” (P. 984) free police to do the real police work, while “ha[ving] the advantage of being racially neutral …[as it] treats all offenders alike and therefore [is] citizenship-enhancing.” (P. 984-85) Thus,

…just as cameras deter criminal and other inappropriate behavior, cameras likely will deter police from engaging in stops and frisks that cannot be justified by reasonable suspicion that cannot be well-articulated. In short, it may deter them from engaging in inefficient, racialized policing, and induce them to engage in more efficient policing. (P. 986).

The enhancements that could flow from “monitory democracy”7 include efficient internalized regulations, scrutiny of state actors, and contemporaneous visual documentation of the use of force which, “can be another tool in leveling the playing field.” (P. 986-87.) The sum total of these benefits leads to enhanced legitimacy, and “individuals are more likely to voluntarily comply with the law when they perceive the law to be legitimate and applied in a non-discriminatory fashion.” (P. 987). Capers suggests that camera surveillance can also be helpful in addressing the binary complaints from members of minority communities about over and under-policing. Specifically, if surveillance becomes witness to excessive policing and brutality, as well as playing a role in crime solving and identification of suspects, Capers opines that “… the possibility that Big Brother will watch us does not have to be frightening.” (P. 989.)

I like this article because it seeks to carve a path for community interactions with police that could be perceived as untainted by societal biases, prejudices, and “isms.” If, as Capers posits, camera surveillance can assist policing by being “more egalitarian and race-neutral,” we should seriously consider his suggestions. Indeed, in the context of the controversy around the shooting of Michael Brown, I learned of a related initiative in Rialto, Texas, where police began to use wearable cameras.8 According to one report, this town with a population of approximately 100,000 and a police force of 115 saw “a plunge in incidents involving use of force, from 60 in 2011 to 25 the following year. Complaints from citizens dropped from 28 to three, with just four in the past twelve months.”9 No doubt unresolved civil liberties issues remain. In the wake of yet another killing of an unarmed black man, amidst contested narratives, I think we need to weigh the potential benefits of camera surveillance in this context, and in others.

For these reasons, and more, I like Crime, Surveillance, and Communities a lot.

  1. Laura Donohue, Technological Leap, Statutory Gap, and Constitutionals Abyss: Remote Biometric Identification Comes of Age, 97 Minn. L. Rev. 407, 409, cited in Crime, Surveillance and Communities , supra note 1 at 963. []
  2. 460 U.S. 276, 281-82 (1983) (holding that because visual surveillance from public places was voluntarily conveyed to anyone who wanted to look, there could be no reasonable expectation of privacy). []
  3. State v. Katz, 389 U.S. 347 (1967); Alderman v. United States, 394 U.S. 165 (1969); United States v. White, 401 U.S. 745 (1971). []
  4. Supra note 1 at 970 citing United States v. White, 401 U.S. 745 (1971) and United States v. Katz, 389 U.S. 347 (1967). []
  5. Supra note 1, at 977, citing Chris Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment. []
  6. Supra note 1 at 981, referring to his earlier work, I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L Rev. 1, 14 (2011). []
  7. Supra, note 1 at 986, citing Richard V. Ericson, Patrolling the Facts: Secrecy and Publicity in Police Work, 40 Brit. J. Soc. 205 (1989). []
  8. James O’Toole, Cameras on cops: Coming to a town near you, CNN (March 14, 2014), http://money.cnn.com/2014/03/14/technology/security/cameras-on-cops/. []
  9. James O’Toole, Cameras on cops: Coming to a town near you, CNN (March 14, 2014), http://money.cnn.com/2014/03/14/technology/security/cameras-on-cops/. []
Cite as: Camille Nelson, Crime, Surveillance, and Communities, JOTWELL (September 3, 2014) (reviewing Crime, Surveillance and Communities, 40 Fordham URB. L.J . 959 (2013)), http://equality.jotwell.com/crime-surveillance-and-communities/.

Empiricism and Equality: Studying Fathers’ Rights

Kelly A. Behre, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J.  Women & L. (forthcoming 2014), available at SSRN.

The fathers’ rights movement relies on the rhetoric of equality. Men, it seems, are discriminated against because the law has come under the sway of feminists. Feminists have prevailed upon the law to intrude in areas where the government has no business, such as the home. Moreover, feminists have convinced policy makers that there is an epidemic of domestic violence perpetrated by men upon women and that adult intimate partner violence should be considered in issues of custody of children. The correct view according to the fathers’ rights movement, is that true equality means gender-neutrality.

While discussions, critiques, and analysis of the equality rhetoric of the international fathers’ rights movements are not novel, Kelly Behre’s article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, does – – – as the title promises – – – “dig beneath.” The article’s first section is an excellent overview of the equality narratives of the fathers’ rights movement, including the appeal to civil rights movements and the use of both discrimination and gender-neutral tropes. But the real contribution of Behre’s article is her exploration of the relationship between empiricism and equality.

Behre focuses on a year-long study of civil protective order petitions in Cabell County, West Virginia, authored by a fathers’ rights activist. The “evaluation” coded the 1303 protective order cases in the county by gender of petitioner, respondent, and judge, and by outcome. It determined that in 76% of petitions, the case was eventually dismissed, and at the same rate for men and women petitioners. Given this data, the evaluation proclaimed several conclusions. It concluded that the courts waste a great deal of time on domestic violence. It concluded that most claims of intimate partner violence are false, thus confirming the “suspicions” of court personnel who believe that protective order petitions are filed to “gain leverage in divorce, child custody or relationship battles and a coercive tactic to gain power and control over another.” And it concluded that men and women are equally likely to commit verified domestic violence.

Even assuming that one could make such generalizations from a year’s observation from a single county in West Virginia, these determinations do not necessarily follow from the data. Behre shows how the “conclusions” involve various mistakes (e.g., denominating petitions dismissed for a failure of the petitioner to appear as petitions dismissed for false allegations), misapprehensions (e.g., the overall rate of 24% of cases that proceed to final resolution in protective order cases is generally greater than the less than 10% of cases that proceed to trial in civil cases); and misinterpretations (e.g., the percentage of petitions granted to women may be the same as men, but there are three times as many petitions filed by women than by men). She also notes the introduction of the beliefs of anonymous court personnel, the use of a particular vocabulary (“coercive,” “power” and “control”), and the subtle invocation of stereotypes of women.

However faulty, the Cabell Evaluation’s “conclusions” were recirculated as empirically-supported truths. Behre details how the conclusions occur in a “Report to the Governor” issued by the state fathers’ rights group, in an article in an economics journal by a fathers’ rights advocate, in a family and economics journal by that same advocate, and in conferences and on websites sponsored by fathers’ rights groups. This is not surprising. But these conclusions drawn from a one year in Cabell County, West Virginia, also appeared as “facts” in the state’s legal newspaper, other media, law review articles, a brief, legislative committee reports, and in policy speeches by politicians in various states. And both the facts and their sources morphed: the failure to proceed to final determination became “ 81% of domestic violence protection orders were false or unnecessary” and this conclusion was no longer based on a single county in West Virginia but was made the “Virginia Crime Commission.”

The “evaluation” thus became the empirical basis supporting the need to address men’s inequality. Beher discusses the legislative bills introduced in West Virginia and other states, including ones creating new criminal sanctions for false allegations of domestic violence or child abuse during custody cases. Another bill seeks to create statutory presumptions in favor of equal (50-50) physical custody of children (which eliminate child support) rather than judicial determinations of best interests of the child, even in cases of domestic violence. As Behre notes, the popularity of these measures is not only buoyed by values masquerading as data, but also by stereotypes: women are untrustworthy, manipulative, and greedy.

Behre’s article is worth reading for its “deep dig” into the reality, rhetoric, and social science of “fathers’ rights.” Gender equality in family law remains worthy of our attention. But Behre’s article is also worth reading for its applicability to issues involving “reverse discrimination,” “color-blindness,” or formal equality, in which similar empirical underpinnings promote continued subordination. Digging beneath the equality rhetoric does not only unearth profound differences in the meanings of equality, it may also surface a dirty study.

Cite as: Ruthann Robson, Empiricism and Equality: Studying Fathers’ Rights, JOTWELL (July 22, 2014) (reviewing Kelly A. Behre, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J.  Women & L. (forthcoming 2014), available at SSRN), http://equality.jotwell.com/empiricism-and-equality-studying-fathers-rights/.

Against Equality

There appears to be a certain irony in writing in the Equality Section about a book produced by a group called “Against Equality”. But while their name may initially create an image of a reactionary conservative group trying to stem the tide of progressive social change, their agenda is to highlight and critique the inherent conservatism of the apparently liberal “gay rights” claims of equal marriage, equal military service, and equal protection under the law in the form of hate crime statutes. There is a great deal of feminist and queer scholarship making similar points but it has been too easy for gay rights campaigning groups, such as the deeply conservative Human Rights Campaign in the US, to by-pass any real engagement with this scholarship, much of which is inaccessible to the general public due to expensive paywalls. With this anthology, which includes both activist and academic writers, the Against Equality collective seeks to “be sure that our voices of resistance are not erased and written out of history“.

The anthology brings together three books, previously self-published: Against Equality: Queer Critiques of Gay Marriage (2010); Against Equality: Don’t Ask to Fight Their Wars (2011); and Against Equality: Prisons Will Not Protect You (2012). In each volume Conrad brings together a diverse collection of essays drawn from a variety of sources from zines, to blogs, to Facebook posts, and journal articles. Some of these contributions would already be familiar to an academic audience, others may not be, but all are interesting and impassioned refutations of a liberal reformist agenda that fails to properly challenge the underlying economic as well as gender, race, and class power structures.

In Queer Critiques of Gay Marriage, the authors highlight different aspects of the queer (and feminist) critiques of marriage. However, as significant as these substantive critiques, are the broader concerns about how the gay marriage movement has been co-opted by individuals and organisations that are trying to reach out to the LGBT communities or rehabilitate their own image through this campaign. Similarly, a number of chapters critique the ways in which those campaigning for gay marriage have appropriated the language of civil rights to further their own ends without acknowledging or fighting the continuing existence of structural and institutional racism and racial inequalities. As Farrow notes in his chapter, “Is Gay Marriage Anti Black???”, “any close examination reveals that histories of terror imposed upon generations of all black people in this country do not in any way compare to what appears to be the very last barrier between white gays and lesbians’ access to what bell hooks describes as ‘christian capitalist patriarchy’.”

The chapter from Kaufman and Miles, “Queer Kids of Queer Parents Against Gay Marriage!” highlights the policies of San Francisco Mayor, Gavin Newsom, which they note had torn some families apart (including disregard for affordable housing, attacks on welfare, and deporting minors who have been accused but not necessarily convicted of crimes), whilst photos of him with newly married gay couples and their children supposedly represent his support for families. Similarly, in “Who’s Illegal Now?: Immigration, Marriage, and the Violence of Inclusion”, Nair critiques the Human Rights Campaign/American Apparel “Legalize Gay” campaign, which she argues, “allows the wearer to smugly pose as ‘illegal’ while cluelessly erasing the reality that millions are actually made illegal in the terms dictated by draconian laws around immigration and the prison industrial complex, which create new and ever-shifting categories of illegality for immigrants”.

The concern here is not only the co-optation in itself but rather the consequences for those already on the margins of queer communities as well as immigrant and poor families, people of colour, and single parents, amongst others, who may or may not also be members of queer communities. There is also, as Conrad notes in his chapter “Against Equality, In Maine and Elsewhere”, a huge financial cost to the marriage campaigns, which spend millions of dollars at the same time as essential services such as community health clinics and AIDS service organisations, and queer/trans youth organisations are cutting their budgets.

The value of this anthology is bringing together these important queer and feminist arguments, in relation to hate crimes and military service as well as marriage, in a format that is accessible and affordable to people outside academia. Kaufman and Miles sum up the conservatising promise of the gay families depicted in the images of the marriage campaigns: “Instead of dancing, instead of having casual sex, instead of rioting, all of the ‘responsible’ gays have gone and had children. And now that they’ve had children, they won’t be bothering you at all anymore. There’s an implicit promise that once gays get their rights, they’ll disappear again. Once they can be at home with the kids, there’s no reason for them to be political, after all!”.

As well as critique, this collection offers hope that this promise will not be fulfilled, at least not by all queers.

Cite as: Nicola Barker, Against Equality, JOTWELL (June 27, 2014) (reviewing Ryan Conrad, Against Equality: Queer Revolution Not Mere Inclusion (2014)), http://equality.jotwell.com/against-equality/.

It is Not Open Season on Men

“Why should women live in anticipatory dread and hypervigilence?” Elizabeth Sheehy writes in the concluding chapter of her important new book Defending Battered Women on Trial: Lessons from the Transcripts. Instead, she argues, the legal system should “shift the risk of death to those men whose aggressions have created such dehumanizing fear in their female partners”.

In Defending Battered Women on Trial: Lessons from the Transcripts, Sheehy offers a compelling and startling account of the criminal justice system’s failure to protect women from the men who batter them. She begins the book by situating the issue in its historical legal context. Making the work accessible to an audience much broader than just those well-versed in criminal law, Sheehy provides the reader with ample background to understand the legal context in Canada both prior to and in the years following the Supreme Court of Canada’s 1990 recognition of battered women syndrome in R. v Lavallee.

“I could feel him coming out of my pores.” Sheehy opens Chapter 2 with the words Bonnie Mooney used to describe her intense fear of the abusive former common-law partner who broke into her home, murdered her best friend, shot her 12-year-old daughter, set her house on fire, and then shot himself. Mooney sued the federal and provincial attorneys general responsible for the police force that had ignored her complaints about the threat that this man posed.

What makes Sheehy’s examination of the legal response to women who defend themselves against their batterers so powerful is the way in which she chose to structure the project. Relying heavily on trial transcripts, Sheehy develops her analysis through faceted exploration of the legal stories of eleven women—Bonnie Mooney and ten other women, each of whom killed their abusive partners. The level of detail she provides, generated through her meticulous (and I can only imagine painstakingly laborious) use of transcripts and other available material, allows a textured analysis of these cases that would not  be possible from the judicial reasons alone.

Remarkably, she does this without drowning the reader in detail or obfuscating the humanity of the women whose stories she tells. Indeed, one of the many strengths of the book is the way in which legal critique is seamlessly woven into those stories. The book is beautifully written. It is honest and genuine and self-admittedly limited in its ability to both further our knowledge of battered women on trial while also protecting the integrity and respect of women whose lives would be once more cast into the public spotlight.

Sheehy insightfully reveals the systemic incentives for battered women to plead guilty of manslaughter rather than proceed to trial, the limits of the legal system’s ability to respond to women who use violence to escape, and the significant roles that defence counsel’s competence and strategy play in the outcome of murder cases against battered women.

Sheehy closes with an unapologetic conclusion in which she offers several well-reasoned recommendations for reform. These include reforms aimed at protecting women’s right to counsel, clarifying the legitimate boundaries of self-defence including the measures women may take to avert spousal rape, and refining prosecutorial guidelines for the prosecution of battered women. She does not advocate for homicide, notwithstanding the disturbingly imbalanced and personalized critique the work and the author were subjected to in the media when Defending Battered Women on Trial was launched. Professor Sheehy certainly does not need me to defend Defending Battered Women (she does an eloquent job of that herself).

However, I cannot help but observe the similarities between the mischaracterizations (of Sheehy’s argument) and misassumptions (about battered women) reflected in much of the media critique, and in the social and judicial attitudes that perpetuated profound injustices against battered women prior to Lavallee: Attitudes that continue to present obstacles to the adoption of a just response to the problem of domestic violence in Canada. Sheehy’s rigorous, detailed challenge to received wisdom about the legal circumstances and impact of violence faced by women like Bonnie Mooney makes Defending Battered Women on Trial an important and valuable contribution.

Cite as: Elaine Craig, It is Not Open Season on Men, JOTWELL (May 30, 2014) (reviewing Elizabeth Sheehy, Defending Battered Women on Trial: Lessons from the Transcripts (2014)), http://equality.jotwell.com/it-is-not-open-season-on-men/.

Oral History and Perceptions of Subjectivity

Robert Alan Hersey, Jennifer McCormack, & Gillian E. Newell, Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past, Ariz. Legal Stud. Discussion Paper 14-01 (2014), available at SSRN.

I strongly recommend this paper not only for its immediate subject—the struggles that indigenous peoples face in proving land claims due to colonial governments’ distrust of evidence on oral history—but also because it helped me understand the limitations of my own perspective.

Robert Alan Hershey, Jennifer McCormack, and Gillian E. Newell describe the disconnect between Western notions of cartography and spatial theory and those of indigenous peoples, particularly indigenous peoples located in North America, Australia, and New Zealand. They then explain that some of these groups, such as the Ngurrara in Australia have had success in getting their rights recognized by creating maps that incorporate oral history, thus adopting a hybrid form of evidence that is both documentary and respectful of indigenous ways of knowing such as through oral history.

In order to illustrate the differences between Western, colonial notions of space and time and those of many indigenous cultures, the authors begin by describing some conceptions of space and time among indigenous peoples. For example, Hershey et al. tell us that there are no separate words for space and time in the Maori language, whereas, for the Tohono O’odham, “the past exists alongside the present, and people interact with spaces . . . .” This contrast helps to illuminate one of the main points of the authors: namely that the linear notions of space and time that dominate in Western cultures are not neutral and objective. Rather, these notions, like the oral histories that courts distinguish them from, have a “particular perspective and history in mind.” It’s just that Western assumptions are so ubiquitous and familiar as to be taken for granted by members of the dominant culture.

The authors then go on to explain the common phenomenon that, even when indigenous peoples are successful in gaining the admission of oral history in litigation, usually through an exception to the hearsay rule, judges tend to discount or undervalue the evidence if it is not supported by other corroborating evidence. This practice poses a huge problem for Native peoples, who, given their historical reliance on oral history, tend to lack such corroborating evidence.

One of the things that I love about this article is that it helped me to see biases in the rules of evidence and in the way I, myself, evaluate information that I hadn’t been conscious of before. For example, I tended to assume, without even noticing that I was doing so, that basic Western conceptions of time and space were neutral and that it was not too much to ask indigenous peoples must adapt to Western-style legal systems in order to have any hope of securing justice. It may be because I spent several years practicing law before entering academia or it just may be part of my general outlook, but I’ve noticed that I tend to accept parts of the status quo without realizing it, and I view scholarship that unpacks and reveals these underlying assumptions—and the harm they are causing—as very important.

Another aspect of the article that I really appreciated was its interdisciplinary perspective. The authors include a lawyer/ professor, a geographer, and an archaeologist/professor, and a significant portion of the article is focused on mapping and the potential and challenges of using mapping to support indigenous land-rights claims. In part, I think, because of the article’s interdisciplinary character, it achieves insights that go beyond elucidating the shortcomings of colonial legal systems in justly addressing indigenous claims to revealing the limitations of the law itself as a mechanism of justice.

I wished that the article addressed in more depth the reasons (and possible solutions) for Western courts’ distrust of oral history. It seems to me, especially from reading U.S. Free Exercise cases rejecting Native religious rights, that this distrust is not only about the rules of evidence and Western history’s deceptive appearance of neutrality, but that it is also about judges’ fears that they will be unable to tell real oral history from evidence developed for litigation that masquerades as oral history. The authors interestingly point out that oral history is subject to similar validation techniques within indigenous societies as those established for Western history. I agree that that information is important and should add credibility to evidence of oral history, but I also would like to know more about how it might be possible to assure courts that they are getting real oral history without requiring largely unavailable archaeological and anthropological evidence. I think that this fear among judges of not being able to evaluate the credibility of particular showings of oral history is related to the often-voiced fear of the slippery slope that we see in cases like Lyng v. Northwest Indian Protective Ass’n, 485 U.S. 439, 452–53 (1988), and more implicitly in cases like Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc).

I appreciated the article’s focus on judicial treatment of oral history in the British colonies broadly, rather than focusing solely on the United States. I felt that this approach, like the article’s interdisciplinary perspective, provided a richness of context that is often absent from American legal scholarship.

Finally, the article provides a valuable overview of the cases in which evidence of oral history has been admitted and of the statutory contexts, such as the Native American Graves Protection and Repatriation Act, that specifically contemplate it. It would be interesting if the authors expanded this section to also examine the administrative guidance for the National Historic Preservation Act, which contemplates admission of oral evidence, and how that guidance has been applied in courts.1

This article is designated as Part I, and, in Part II, the authors plan to explain how technological innovations can be used to preserve and present oral histories. Because Part I was such a worthwhile read, I look forward to reading Part II.

  1. See 1-20 Cohen’s Handbook of Federal Indian Law § 20.02(3)(b) (citing National Park Service, National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties (1990)). []
Cite as: Ann Tweedy, Oral History and Perceptions of Subjectivity, JOTWELL (April 29, 2014) (reviewing Robert Alan Hersey, Jennifer McCormack, & Gillian E. Newell, Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past, Ariz. Legal Stud. Discussion Paper 14-01 (2014), available at SSRN), http://equality.jotwell.com/oral-history-and-perceptions-of-subjectivity/.