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.

 
 

The Sublime Object of Race

Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151 (2013).

Nancy Leong provides the legal academy with a riveting account of the ways in which the logic of capital influences racial politics. Leong weaves together several topics of interest to legal scholars in her new article: criticisms of capital, diversity politics, and race as property. Her analysis revives the Marxian1 analysis conducted by early scholars of the critical legal studies movement at a time when questions of capital and race are as relevant as ever. I like it lots.

Leong’s work takes on the momentous task of breathing new life into Marxian legal theory. It also contributes to our substantive knowledge of the ideology of diversity and to our understanding of Marxian ideas and their relationship to law. Leong’s contribution is timely given the recent Supreme Court decisions in Fisher v. University of Texas and Shelby County v. Holder, both of which arise from historical legacies of race and racism. Her article does much to question the rhetoric of diversity, the linkages of capitalism and law, and the complexities of racial politics in a racialized world.

What, though, is racial capitalism? Leong writes that racial capitalism is “a process of deriving social or economic value from the racial identity of another person.” (P. 2153.) Her examples run the gamut of white people claiming black friends—such as the famous Seinfeld episode where George claims Karl, the exterminator, as his friend to impress Mr. Morgan—to universities Photoshopping black people into their admissions materials, to corporations hiring black applicants. In each of these instances, Leong argues, racial capitalism is at play because in each instance “a white individual or a predominantly white institution derives social or economic value from associating with individuals with nonwhite racial identities.” (P. 2154.) One might imagine any number of scenarios where racial capitalism is at play—for example, the corporate boardroom or the National Football League’s Rooney Rule.

It is important to consider the ways in which diversity is used as a justification. And, if there are negative consequences to diversity, these consequences deserve to be investigated in order to craft policies and practices that advance meaningful interactions between all persons. It may seem difficult to do anything about racial capitalism, although Leong ends her article on an optimistic note about our ability to dismantle racial capitalism. If Leong is correct, and she does make a compelling case, then what are scholars and practitioners to do? Her strategy is multi-stepped. She begins by suggesting that we “discourage racial capitalism and the racial commodification it requires and reinforces.” (P. 2221.) Where racial capitalism is present—and one might argue that there is no instance in which it is not, although Leong seems unwilling to make this argument—“First, we should respond by explicitly and publicly identifying instances of racial capitalism. Second, we should call attention to racial capitalism’s harms. Third, we should impose penalties on those who engage in racial capitalism. Fourth, those penalties should be directed to the project of furthering racial equality and reducing future commodification. And finally, the transaction should be explicitly structured to express condemnation of racial capitalism and to facilitate the overarching goal of productive discourse directed at ending racial capitalism.” (P. 2222.) These steps seem clear enough, but their application seems difficult. While Leong applies these steps to social, educational, and workplace instances, it is not clear that her steps to dismantling racial capitalism are at play in these instances. (Pp. 2222–23.) The compelling case she makes necessitates further attention to resistance strategies.

Leong nimbly explains and applies the writings of Karl Marx. (Pp. 2172–98.) Her clear prose and adept analysis help make Marx accessible to the uninitiated while still being refreshing and engaging to those already familiar with Marxian analysis. Leong explains Marxian standards—commodification, use value, and exchange value—clearly and concisely. At times she may sacrifice detail in the name of simplicity and readability, but this seems a minor quibble given the complexity of her project.

Leong raises important questions about the benefits of diversity, given capitalist linkages that hurt people of color, in practice as well as the ways in which policymakers and legal professionals talk about diversity. She also positions race and class as intersecting identity categories that demand attention together. If Leong’s analysis is correct, than critiquing racially discriminatory actions must be accompanied by attending to class politics as well. Richard Thompson Ford has argued that Leong may have taken an overly pessimistic view of racial capitalism and an overly optimistic view on the likelihood it can be ended in his thoughtful Harvard Law Review Forum piece responding to Leong’s article.2 Ford’s criticisms are well-reasoned. For example, Ford argues that even if the ethos of modern diversity initiatives produces the negative results Leong highlights, pursuing diversity remains a worthy goal. Although Leong argues as much (P. 2155), Ford rightly points out that Leong’s interpretation of the dangers of diversity might be “uncharitable.” (P. 253.) It is unclear what an acceptable diversity policy at a corporation would look like or how a college might draft a reasonable affirmative action policy in the wake of Leong’s analysis. In short, Ford is troubled by the application of Leong’s theories. (P. 257.) More troubling may be the charge of essentialism Ford levies at Leong. (Pp. 256–57.) The delicate balance between making generalizable identity claims and recognizing difference remains, of course, heavily debated. If racial capitalism is to be challenged effectively, and hopefully dismantled, then more nuanced discussions of both racial identities and capitalism, which have occurred in other disciplines, must be continued in the legal academy.

Although Ford raises significant criticisms, Leong’s work helps expand the ways that legal scholars think about race and capitalism. Far from committing some sort of essentialist evil, Leong has moved forward our understanding of complex phenomena. While she does not provide guidelines for drafting diversity policies sensitive to the influences of race and capitalism, which may rile a practitioner or two, that task remains entirely possible in Leong’s framework. Despite these criticisms, Racial Capitalism is a landmark work. Leong’s adroit synthesis of classical Marxian literature, legal theory, and current sociological texts mark her contribution to the field of critical race theory and critiques of capitalism as not only timely but also engaging. This will not be the last chapter in racial capitalism analysis. Scholars will likely find this article useful, applying Leong’s work to issues of administrative, sports, entertainment, and private associations law. We have Leong to thank for making this contribution, and for encouraging further study and debate.



  1. Leong uses the word “Marxian” instead of “Marxist.” While she does not explain this word choice, it is common to describe criticisms of capital as Marxian when they take the long view of Marx and his ideas. Marxian criticism denotes criticism not centered on Marx, but instead concerns the larger expanse of class-based theoretical analysis. []
  2. Richard Thompson Ford, Capitalize on Race and Invest in Justice, 126 Harv. L. Rev. F. 252 (2013). []
 
 

Scholarship in a Violent Time

Alexander Kondakov’s paper on the claims framed by gay and lesbian activists in Russia and the effects of official silence is brave and thought-provoking.

It is a fine example of socio-legal research, combining discourse analysis of sources gathered from empirical research with theoretical insights. Amongst other sources, Kondakov draws on Wendy Brown’s work on tolerance and Brenda Cossman’s study of how refusing legal recognition to same-sex marriage nevertheless inaugurates it into “speakability.” Methodologically, his discussion of the “sub-discourse under the articulated one” as part of the normative order, “shaping things that are supposed to be left unsaid,” might appropriately inspire other legal researchers, as much scholarship confines itself to that which is said.

The paper begins with an overview of the historical treatment of same-sex activities in Russia over several centuries, referring to a number of Russian-language sources. Kondakov sums up that “[w]hen homosexuality was decriminalized, it continued to be pathologized.” Kondakov then focuses on two discursive flows regarding homosexuality in Russia. One is proposed by the state in laws and policies. He addresses the state’s “discourse of silence,” delineating the treatment of homosexuality as unspeakable in official legal and medical texts.

The other concerns the advocacy strategies of Russian gay-rights organizations, and the paper’s heart is found here. Kondakov undertakes a discourse analysis of fifteen LGBT organizations’ online statements and survey responses by their heads about rights and claims for rights. To summarize a nuanced analysis crudely, the majority of those groups prioritize a rhetoric of tolerance, while a minority advance a rhetoric of equality in claiming rights. In turn, the tolerance rhetoric correlates with deference towards the authorities and a preference for civil partnerships as a means of relationship recognition. The equality rhetoric lines up with a resistant attitude towards the authorities and claims for same-sex marriage.

Kondakov plainly prefers the equality rhetoric over that of tolerance, saying of the “tolerance bargain” that it “forces lesbians and gay men in Russia to exist in the lacunas of silence and to get rid of the sexualized features of homosexuality.” Who needs LGBT activism “to make us invisible,” he asks, when the authorities successfully do that? At the same time, the strategy of equality challenges silencing and “provokes conservative political response or recognition.” The upshot is that what is said when the silence is broken “does not necessarily contribute to the recognition of LGBTs as empowered citizens.”

With the horrific images from YouTube videos of gay bashings in our mind, and the response from outside Russia, that statement appears to be a painful understatement. Indeed, this paper is both timely and already slightly dated. It provides valuable historical context and insight into the views of activists on the ground in Russia. Paying attention to such views is crucial, given the risks that heavy-handed condemnations of Russian homophobia may only intensify the will to differentiate that country from the West.

The paper is out of date insofar as when Kondakov finalized it, it was only regional governments that had adopted provisions stipulating fines for the “propagation” of homosexuality. In June 2013, the Duma adopted a federal law banning gay propaganda. To be sure, the paper’s ambition is not to report on the latest developments in Russia. Given that the paper’s historical survey begins in medieval times, a few months’ further changes are trivial. Still, the recent federal law alters the relevant dynamics in that Kondakov contrasted Russia’s acknowledgement of European human rights norms “at the level of the Criminal Code and state law” with “forms of backlash” at the local or regional level.

At a time when some are calling for Russia’s LGBT community to get dangerous, Kondakov’s paper may inspire reflection on legal scholarship’s place and value in a time of crisis. His careful scholarly attention to the dynamics of speech and silence on gay rights in Russia is itself a courageous act of resistance.

Copies of Foucault and Butler may provide little defense to a physical attack. Still, at a moment of fear and temptation to despair, the insights that Kondakov draws from them in the Russian context may provide grounds for hope, however frail. Continuing his paper’s central theme of silence and resistance, he closes by noting that the laws banning homosexual propaganda themselves speak aloud of homosexuality and “open up a public discussion on homosexuality in Russia to negotiate its status.” Moreover, the laws “employ a rich diversity of phrases to speak about homosexuality in law,” including neologisms. The discourse is not monolithic, then, but “unstable and diverse,” hinting at “room for negotiation.”

I don’t know if Kondakov would write the same thing in the prevailing conditions. I certainly hope so.

 
 

Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic

L. Song Richardson & Phillip Atiba Goff, Self-Defense and the Suspicion Heuristic, 98 Iowa L.R. 293 (2012).

I like the article Self-Defense and the Suspicion Heuristic; consistent with Jotwell’s tagline, I like it lots. The timing of this short review is apt. The Zimmerman verdict was recently rendered. It is still fresh in our minds, protests are taking place across the United States, President Obama has delivered a landmark speech on race in America, reflecting that, “Trayvon Martin could have been me . . . .” Self-Defense and the Suspicion Heuristic is an important work that lends insight into thought processes that could have led both to the killing of Travyon Martin and the verdict of acquittal.

This Iowa Law Review article, authored by a law professor (Richardson) and social psychologist (Goff), explores the subtle “mental processes [that] can conspire to produce racially discriminatory behaviors.” (P. 295.) In attempting to disabuse the reader of the assumption that Mr. Zimmerman must have been a bigot or a racist, meaning a conscious discriminator, Richardson and Goff elucidate predictable and pervasive unconscious racialized psychological processes that “warp the perceptions of even the most egalitarian of individuals.” (P. 295.) They call for “a new legal and theoretical framework that can account for these biases—one that does not rely upon the fiction of the objective decision-maker or the scapegoat of the consciously biased actor.” (P. 295.) Tapping the mind sciences to illuminate unconscious psychological processing that “can lead to systematic errors in judgment about criminality,” the authors introduce “the suspicion heuristic.” They employ this heuristic, which is defined as a “mental shortcut that often leads to systemic errors in determining who is and is not suspicious” (P. 297) to interrogate reasonableness determinations in self-defense doctrine.

The suspicion heuristic seeks to explain how even the perception of race, without animus, can “bias judgments of criminality.” (P. 296.) Providing an overview of the relevant mind sciences, Richardson and Goff explore the study of heuristics (“the human tendency to use decision-making shortcuts”) (P. 297) and biases, then implicit bias, which has been found to disadvantage marginalized groups, including women, people of color, and those individuals with lower socio-economic status. (P. 297.)

The authors start with the reality that, “given the social construction of crime as racially Black, people are more likely to both consciously and non-consciously associate Blacks with criminality.” (P. 312.) In doing so, they reject ways of thinking that are “mired in antiquated lay theories of human nature,” (P. 312) in favor of the suspicion heuristic which they posit as more “consistent with four decades of research into how humans think.” (P. 312.)

The authors reference numerous studies and mind-science research on point, including research indicating that police officers are not immune from biased thought-processes. For instance, they cite a study which concludes that “an officer’s implicit association of Blacks with apes was a significant predictor of [the] overestimation [of the age of a black child],” (P. 306) which in turn is assumed to lead to harsher treatment. In acknowledging this implicit dehumanization, however, the authors do not connect this to the long history of scientific racism, for instance that perpetrated under the pseudo-science of phrenology and craniology, which operated to privilege whiteness whilst simultaneously dehumanizing people of color.

Importantly, the authors describe how the heuristic recognizes that “Blacks serve as our mental prototype (i.e. stereotype) for the violent street criminal. Furthermore, the tendency for black suspects to be over-represented in media portrayals of violent street crime makes the Black-as-criminal stereotype readily available.” (P. 310.) The consequences of such racialized unconscious analysis are serious, “if the person being judged is non-White, individuals are more likely to make a mistaken judgment of criminality.” (P. 311.) In analyzing the way the doctrine of self-defense deals with the question of perceived threats, the authors link legal doctrine and research from the mind sciences to explain the ways in which an individual may rely upon racialized heuristics and be informed by implicit racial associations. “The suspicion heuristic thus explains how mere knowledge of ubiquitous criminal stereotypes can cause pernicious errors in judgment and perception, regardless of whether the individuals involved believe or subscribe to the stereotype.” (P. 314.) This conclusion validates and brings insight to the ongoing conversation around the killing of Trayon Martin, as well as concerns with the verdict acquitting George Zimmerman. Furthermore, the authors state, “people are more likely to recall evidence of Black criminality than instances when that stereotype was false.” (P. 312.)

What the article does not explain, perhaps a worthy prequel, is just how and why those “ubiquitous criminal stereotypes“ came to be, such that they could be activated even in the absence of conscious and deliberate thoughts. That is, why, given “dwindling racial bigotry” (P. 312) does non-conscious bias against people of color, Black people in particular, persist, and where did it begin? The authors indicate that people have racialized go-to’s; that is, automatic, non-conscious, unintentional, and disparately racialized ways of thinking. These heuristics interact with our implicit biases to produce disparate outcomes for some people, Black people being their main focus. This begs the question: Why do we have the particular racial short-cuts that we do in the first place?

That said, this is an important and timely article. It provides an easily understandable primer on the law of self-defense, its history, development, classification, and utilization. (Pp. 314-318, 321-334.) This depth of analysis, combined with a solid description of the duty to retreat, and the stand-your-ground laws would delight law students engaged in criminal law exam preparations. (Pp. 326-332.) It also demonstrates the ways in which the uber-powerful legal notion of reasonableness is impacted by the suspicion heuristic, thereby having broad doctrinal appeal. (Pp. 318-320.) However, I think the greatest strength of the article is in providing a way to understand discrimination—and racism in particular—in the absence of intentionality. American jurisprudence addressing discrimination and bias remains fixated upon the intent standard, thereby excluding the contemporary manifestations of unintentional, implicit, and covert discrimination. The lack of a nomenclature about unintentional discrimination has diminished legal analysis (see for instance, Charles Lawrence III’s pioneering 1987 Stanford Law Review article, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism), which still expects and sanctions only explicit and more obvious forms of discrimination. This article should help us in this respect; it has provided both the empirical evidence to unmask, and a language to elaborate upon, the fiction of exclusively intentional forms of discrimination.