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.

 
 

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. []
 
 

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/. []
 
 

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.

 
 

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.

 
 

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.

 
 

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)). []
 
 

Practicing the Future

Over the past several years, Davina Cooper has been writing about “everyday utopias,” intentionally created practices and spaces, which represent an effort to enact social change in everyday life. In Everyday Utopias: The Conceptual Life of Promising Spaces, Cooper brings together much of this work in a revised form and underpins it with an extensive theoretical discussion of how such practices can be understood as socially transformative.

The individual pieces previously published were always intriguing and highly stimulating—engaging as they did in great detail with a variety of otherwise marginal, and sometimes unstudied, cases. These include Speakers’ Corner in Hyde Park, the Toronto Women’s bath house, Local Exchange Trading Schemes, public nudism, an alternative school, and a state-run equality program. The synthesis of these case studies into one collection adds enormous value to her previous publications, as does the very significant theoretical work Cooper undertakes in framing, connecting, and conceptualizing these spaces. More than this, the book itself is “hopeful and inspired”—as Sara Ahmed says on the back cover—because it offers multiple instances of social transformation in action and an analysis of how shaping the present may influence the future, both in the cases discussed but also in general.

The core of Cooper’s theoretical work appears in chapters one and two and is, in brief, an impressive and thoughtful engagement with utopian political traditions and theory—with the creative conceptual potential of engaging with alternative practices. As Cooper explains in chapter one, her focus on the conceptual within everyday utopias is motivated by two factors. First, “everyday utopias can revitalize progressive and radical politics through their capacity to put everyday concepts, such as property, care, markets, work, and equality, into practice in counter-normative ways.” (P. 11.) Second, they are “hugely fruitful places from which to think differently and imaginatively about concepts.” (P. 11.) This practiced counter-normativity and the different thinking that it generates are fundamental to Cooper’s project and to her very original engagements with the case studies.

The key to Cooper’s discussion is the way she understands concepts within a context in which practice, imagining, and the observer all take an active part. For Cooper, concepts are not abstract things that are merely ideational but are rather dynamic expressions that take place between imagining a thing and actualizing it. Concepts are therefore materially engaged processes in which the imagination of the material has also played an essential role.

This understanding of the conceptual can be illustrated by Cooper’s discussion of contemporary utopian thought and practice. As she explains, utopia can no longer be understood as an ideal or abstract construction of the perfect society. Rather, scholars of utopia now see it in more practical terms—as an attempt to practice ideas, which also incorporates the struggles and frequently conflictual relationships, which go into developing and sustaining novel and counter-normative practices. Utopianism remains future-oriented, but the future is one that can be imagined and, more importantly, practiced, in the present. The “everyday utopia” is in part an experimental space where ideas are tested and where new ideas emerge. There is a vision and a common purpose, of course, but the “utopia” itself rests in its actualization. In this way, the concept is an imagined-practiced reality, not an abstraction. It is not static and its edges may not always be clear, rather it may be redrawn with changing experiences, relationships, and engagements. Concepts “oscillate,” says Cooper, between the imagined and the practiced worlds—an effort to perfect and improve concepts “pulls on what is actualized,” but, at the same time, practice constrains the imagination. (P. 37.) Moreover, concepts change in response to the desire for social change. Of particular interest to Cooper is the potential that some concepts carry for being imagined and practiced in ways that might help to reshape our social relations.

This last point is illustrated in many ways through the case studies, which form the practical substance of the book and which are based on a variety of empirical methods, primarily observations and interviews. Cooper has been very thorough in her approach to these cases, avoiding the temptation to over-analyse her utopian spaces in ways that would unduly limit them or tie them up in recognizably present- and past-oriented concepts. Most importantly, she does not evaluate them against progressive, or even their own, normative standards, and she is very careful to remain self-conscious about her own participation as a “visitor” in the process of gathering information from the different sites. (P. 18.) Thus, instead of engaging in a closed style of analysis, she traces future-oriented “conceptual lines,” which are basically the multiple meanings and possibilities emerging from innovative practices. Such lines may not have the stability of firm representations or bounded concepts but are the partially developed potentialities from which the future may be formed. They, therefore, have transformative capacity, though no actual large-scale transformation can be guaranteed.

The selection of these case studies is itself intriguingly eclectic, although there is nothing random about it. Cooper has not chosen to look at separately imagined and actualized spaces distinct from the mainstream. Rather, her everyday utopias are adjacent to, proximate to, or simply part of everyday and mainstream existence. They take a slice of everyday activity—education, economic exchange, sex, governance, undressing, and speech—and actualize it differently. This actualization may be directed at a particular community, such as lesbians and trans women in the bath house example, or designed to fulfill a particular purpose, such as engaging in public debate, in the speakers’ corner example. Compared to mainstream non-utopian spaces, the everyday utopia tends to be motivated by a political purpose, it is intentionally designed to be transformative and is always, nonetheless, problematized by the challenges of actualization. Cooper’s discussion of all of her cases draws these themes out in diverse and often open-ended ways.

To conclude, this book is really worth reading, in particular for its focus on everyday intentional communities and the role that they can play in social transformation and also (even more importantly in my view) because of its highly original and thoroughly embedded approach to the issue of conceptualization and its relationship to practice. It is a book where each chapter engages with a new and fascinating topic and where the theoretical engagement is always original, rich, and thought-provoking.

 
 

Dressed Up and Ready to Read

One of the most heated series of conversations I had with my colleagues in law school was about hair: color, style, length, and accoutrements. All of these choices apparently meant something. It was unclear to me what, precisely, my haircut at the time signalled—or didn’t—but it was clear to me that Hair Matters.

Thankfully, Ruthann Robson has authored Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from our Hairstyles to Our Shoes. The book is something of a relief for me. It clarifies how my hair (and clothes, and shoe) choices are constrained by the regulatory framework of the American Constitution. I feel less responsible for my Hair and Clothing Mistakes, since it is clear that my choices are subject to constitutional limits. And it has advanced my understanding of what Dressing Means.

The book is fantastic. I spent most of my time marvelling at the work that it must have taken to produce. Each chapter is thickly layered with individual stories, historical moments, and case reviews. The connections between and amongst the identified parts are beautifully drawn. The writing is lucid and mature. The book is Robson at her best.

The premise of the book is straightforward: constitutional considerations constrain, inform, and explain our clothing—or lack of clothing—choices. Robson drives the book through seven chapters that explore the premise in different contexts. In each chapter, she draws out the themes of hierarchy, sexuality, and democracy—themes that she argues “animate the constitutional concerns surrounding attire and appearance.” (P. 2). These themes are enhanced by attention to the ways in which clothing has influenced the design of the constitutional text, to the complexity of challenging dress through constitutional litigation, to the pervasiveness of deference to perceived common sense in judicial and legislative decision-making on dress, to concerns about whether dressing is trivial or fetishized, to the historical context in which all of these conversations are held.

Every reader will find a favorite chapter. Here I’ll only identify a highlight or two from the rich text in each. Dressing Historically (Ch. 1) will draw in those with a passion for historical constitution reflections from the Magna Carta to the Stamp Act. Dressing Barely (Ch. 2) is essential reading for those with a penchant for indecent exposure. Dressing Sexily (Ch. 3) transgresses from cross-dressing to sexual violence. Dressing Professionally (Ch. 4) zips up on dressing in the private work place and general uniformity. For those who look forward to burning and reading books, Dressing Disruptively (Ch. 5), which ranges over school discipline and other political statements, must be read first. Dressing Religiously (Ch. 6) covers body modification, prisons, and niqabs with sensitivity and rigor.

Let me spend a final moment on two of my favorite parts of the book. First, I loved Robson’s attention to “slovenly interpretations,” her label for the tendency of decision-makers to rely on their seemingly common sense understanding of the meaning of clothes in interpreting and applying constitutional principles and doctrines.

Second, in Dressing Economically (Ch. 7), Robson does again what I most love about her work: She teases out the class backdrop. Hierarchy is a repeated theme throughout the book, so the power and class context in which constitutionalism laces through dressing is always present. Dressing Economically, though, takes us through slavery and cotton; laissez-faire economics, laundries, and child labor; and leaves us examining free trade and fair trade.

The book is supported by a blog. I’m relieved because when I finished reading the book, I wanted more. Not because the book was wanting, but because the book was so stimulating; because the stories of the real people in the legal disputes under consideration were so fascinating. The blog allows the themes of the book to evolve over time, which is a marvellous idea. I wish more authors would embrace the potential that supplementary resources provided online provides.

At the end of the day, I am left with a thicker sense of the fabric of American (and in some limited ways, Canadian) constitutionalism and a richer sense of how dressing is intimately connected with the equality project. What a genius idea to provide all of this through the lens of dressing.

 
 

Generations of Activism and Queer Time

In their engaging, highly readable article, Jon Binnie and Christian Klesse explore the effects of intergenerationality within Polish transnational sexual solidarity movements. Specifically, the authors examine how chronological age and people’s histories and trajectories of political activism shape the interactions taking place between lesbian and gay activists from Poland and those from Western Europe.

The authors locate their discussion within queer conversations about time and futurity. According to Lee Edelman, whose blistering critique of heterosexual reproductive futurity proved very popular within certain quarters of queer studies, “The image of the Child invariably shapes the logic within which the political itself must be thought”; there is only one position to take when it comes to the Child and that is to be “for” it. Edelman argues instead for an “unthinkable” politics that refuses to be oriented to the future and its beneficiaries. But this is not the position Binnie and Klesse adopt. Rejecting Edelman’s account of queer, the authors draw instead on José Esteban Muñoz’s argument of queer time, where “Queerness is a structuring and educated mode of desiring that allows us to see and feel beyond . . . the present.” Thus, the authors indicate the possibility of a “queer child” as one who stands in for, and gestures to, a different future—where sexual diversity is a regular and accepted dimension of social life.

At the heart of Binnie and Klesse’s article is a discussion of trans-generational gay solidarity politics drawn from participant observation and interviews—carried out since 2004—with thirty-five activists involved in Polish LGBTQ political networks. One of the striking features of their discussion is the age difference between Polish activists and those acting in solidarity from elsewhere in Europe. While the Polish activists tend to be young lesbian women in their early to mid-twenties, the gay activists from elsewhere—who join their marches and offer alliance—are frequently older men. The article explores perceptions on both sides of these age and gender transactions, including of their benefits and tensions. The authors quote a young Polish woman who describes the lack of older lesbian and gay role models in Poland; to her, one value in having older activists from elsewhere participate in marches lies in the sense of continuity and future that is provided —with its hope that the rocky, often violent times of gay activism can be survived and, at a certain point, may perhaps be left behind. At the same time, the young Polish activist quoted alludes to the problem of outside assumptions of expertise: particularly when older men from Western Europe tell young, Polish feminists how to do politics.

Problems of patronage emerge strongly in this account, with Polish queer activists being seen, in a kind of racialising gesture, as the “poor children.” Binnie and Klesse allude to the familiar West European and North American paradigm in which sexual politics is approached through a linear narrative of development. From this perspective, East Europe, along with many other parts of the world, remains “behind” when it comes to sexuality equality or liberation—a timing problem that can and needs to be remedied through accelerated “catch up” measures. Yet, this version of political time is challenged by their Polish interviewees. It is also challenged by academic work that—anchored in the historical experience of Central and Eastern Europe—approaches time differently. There are the queer nostalgias emerging from regions such as the former Yugoslavia, and the forms of “knotted time” Robert Kulpa and Joanna Mizielińska discuss, which involve temporal disjunctions and time’s unsettled representation.

The confluence of different temporalities is important for thinking about the effects of generation on political identities, knowledge, and projects. Ken Plummer, whom the authors quote, makes the nice point that “all sexualities dangle from an age perspective.” How we live our sexual identities is shaped both by our age and by our generation’s distinctive experiences, including earlier, formative political moments. Binnie and Klesse quote a Dutch gay activist who suggests that because Polish queer organisations are more recently established, they can integrate the different strands of lesbian, gay, bisexual, and transgender politics in a far more foundational manner than much older gay organisations, such as the Dutch COC, where newer movements sit precariously upon a foundationally gay and lesbian base. The Dutch COC was founded in 1946; Polish LGBTQ politics became visible, the authors suggest, in 2001 with the first march for LGBTQ rights in Warsaw and then hit a “turning point” in 2004, with the March for Tolerance in Krakow. The violent far-right counter-demonstrations that met the Krakow march helped turn LGBTQ politics into a focus for Polish national debate.

There is a growing body of work on sexual dissidence and LGBT politics in Poland from academics such as Agnieszka Graff, Anna Gruszczynska, and Joanna Mizielińska, and Binnie and Klesse’s article on trans-generational activism is one of several pieces these authors have written on Polish LGBT activism and politics. While the interest and relevance of this particular piece certainly comes from its geopolitical context, it comes also from the importance of thinking about the power and resources age, generation, and gender differentially provide in relation to political activism. Binnie and Klesse are attuned to the ways inequalities intersect; the authors allude to the paradigm of intersectionality and, in other articles on Polish LGBT activism, have focused on different inequalities, including class.

However, for me, what emerges in this article more strongly than a sociological account of how age and gender shape political activism is the significance of life histories, generational cohorts, and the formative experience of “coming out” activism to how subjects understand and feel their politics. This is an important theme, salient to many contexts where cross-generational political differences give rise to conflict and strain. Sometimes tensions between activists (whose politics got forged through different eras of struggle) surface directly but often they emerge in other ways: in the anger that erupts when issues deemed burning for one generation seem to be disregarded by another; in the incomprehension expressed towards previously (or subsequently) taken-for-granted beliefs and premises; or in the political datedness or aesthetic response that greets terms and ways of thinking perceived as outmoded or overly avant-garde. In this context, Binnie and Klesse’s article evocatively demonstrates the value of a more attentive and sensitive awareness of the generational ways in which political knowledges are formed, and of the possibilities and challenges for connecting across these differences.