Equality

Kim Brooks

This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law.  In addition, deep into the piece, the authors explicitly state that they chose the direction of the piece in part to highlight that feminists tend to prioritize culture and leave unaddressed the role of economics in constructing tensions, identities, and concerns.  Even if the article wasn’t so nicely written, even if it didn’t hold hints of something very interesting and hopeful, I would have been captivated by these motivations.

The authors drive the piece in surprising directions.  Part I outlines feminism’s engagement with culture as concept.  Part II situates a specific dispute (although in stylized form) that gives rise to a “clash” of cultures.  Part III illustrates how the technique of conflict of laws assists in reasoning through the particular dispute.  Part IV addresses possible objections and in Part V the authors argue that the approach delineated provides an intellectual style that might be adopted by feminists or cultural theorists.

Four reasons to read the piece…

First, the story is nicely told.  The authors self-consciously reflect on the directions in which  they take their narrative.  They appreciate that they are not engaged in truth telling; rather they are preoccupied with finding a route through.

Second, the authors do a beautiful job with their work on characterization (see Part IV. B. 2.).  This section should be essential reading for all third year students.  It tugs at the fundamental creativity of law(s).  The authors insist that we must think through the value, implications, results, and analytical clarity offered by alternate legal options.  They claim, additionally, uniquenesses in conflict of laws analysis – a self-reflexivity combined with an “as if” modality.  According to their rendering of the area, conflict of laws’ “open acknowledgement of the normative situatedness of characterization” is one of its analytical strengths.  In other words, conflicts requires an explicit judicial move-one where the decision-maker is forced to be clear about the legal claims that might be pursued and the legal jurisdictions in which those claims might be made, in a way that is at a minimum less explicitly required in other substantive law areas.

Third, the specific dispute the authors review is fascinating, and deceptively simple.  A father and daughter.  She lives in California; he in Japan.  He transfers all of the shares of the Californian subsidiary of a Japanese company to her.  He is the chair, principal shareholder, and CEO of the Japanese company.  She claims she has full decision-making control over the subsidiary.  He claims he intended to retain control.  What kind of law applies?  Corporate law? Trust law? Gift law? Should the underlying legal norms of Japan govern?  Those of California?  Should the history of Japanese corporate law or the practices of Japanese families matter?  The story isn’t drawn with precision from an underlying case, but it finds it basis in a real decision.

Fourth, the piece engages with a familiar story about the advantages of law (that one of law’s great strengths is its ability to resolve only the dispute before the decision-maker) in a new way.  The authors claim that “[o]ur interest is in asking how thinking through feminism/culture problems analogically, as if they were technical conflicts questions, might open up new avenues of theorizing. In other words, the conflicts doctrines we discuss are not simply tools for resolving disputes, although – and this is the trick – that is precisely how they are structured.  Rather, they are first and foremost tools with which to think.”  (P. 628.) One of the long recognized (and critiqued) strengths of law is that it enables the person thinking it through a dispute to focus on that one dispute only.  Ultimately the considerations one might bring to a single dispute have limits.  The dispute can be articulated, resolved (possibly) on these facts, under this law, and for now.  It is necessarily framed, delimited, contingent.  This may clarify thinking.  This is optimistic, of course, and refreshing.

Ultimately, in some ways the piece claims to be modest – it focuses on what is required to bring a single dispute to an equitable and legally defensible end and on how that approach might assist in the broad project of feminist theory.  Nevertheless, the tenor of the piece is marvellous – it calls to a long history of legal theory; it picks up from where feminists (and feminisms) stand on theorizing culture; and it does all of that in a way that left me curious.  Let me end with an excerpt from the article:

The insight of conflicts methodologies is that the tools sometimes exceed themselves, if we allow them to do so.  It may be that limiting the possibilities at one methodological or disciplinary level creates inadvertent surprises, unexpected discoveries in other places.  For legal scholars and lawyers this means recommitting to law, as opposed to say, popular culture, or fiction, as a medium of social change.

(P. 647).

Sonia Lawrence

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

This is delightfully, smugly, self-satisfying. It is neither analytic nor strategic. And when, inevitably it seems, our relatively open access to abortion (as Carol Sanger has called it, the “luxury of legality”) starts to be challenged, it might leave us rather less than prepared. Greenhouse and Siegel’s article illustrates how a slow burn, not the blast of Roe v. Wade, led to the bitter struggle over reproductive rights in the U.S. today.

Linda Greenhouse is a journalist and Joseph Goldstein Lecturer in Law at Yale Law School, and Reva B. Siegel is Nicholas deB. Katzenbach Professor of Law at YLS. Together, the authors also published Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court’s Ruling (Kaplan: 2010),which compiles primary documents including legal briefs, pamphlets, and letters, documenting the pre 1973 debate (read more about that book here, and read an excerpt). With their YLJ article, however, they take on one of the standard understandings of the abortion debate in the U.S. – that the intense political conflict and polarization was touched off by the 1973 Roe v. Wade decision.

The article offers a variety of important lessons and ideas to scholars of law generally, but perhaps particularly to feminists and others interested in protecting reproductive rights.

First, Greenhouse & Siegel illustrate the potency of the belief that Roe drove the “realignment of Republican and Democratic voters around abortion” (2072-73) and that the Roe decision “repressed” a political movement creating inevitable backlash (2074-75), providing a selection of published statements from prominent American theorists and academics that accept and further these theses (2073). Yet Siegel and Greenhouse argue convincingly, through the presentation of evidence including but not limited to poll numbers, that these conclusions are not supported by fact.

Second, the article invites us to ask about the broader mistaken conclusions (strategic, causal) that we may have drawn on the basis of these “lessons” from Roe. They also offer alternative explanations of the hyper-conflictual abortion arena in the US, and illustrate how considering these accounts leads us to different questions about the both periods – before Roe (about “the dynamics of conflict in the period after the decision and … the model of politics that implicitly organizes stories of constitutional change.” (2078-79, citations omitted)) and after:

if the Court’s decision in Roe was the sole cause of backlash, why did polls after Roe show no sign of decline in public support for abortion—and by some measures, record an increase in support for liberalizing access to abortion? Who attacked the Court’s abortion decision and when? Why, for example, was there not a single question asked about Roe at the confirmation hearings of Justice John Paul Stevens nearly three years after the decision? …. And, strikingly, why did those affiliated with the Democratic and Republican parties switch positions on abortion in the decades after Roe? (2081-82, citations omitted)

Finally, the article generally points to concerns about taking a juriscentric view of social change (this develops themes seen elsewhere in Siegel’s work, including in Roe Rage: Democratic Constitutionalism and Backlash, with Robert Post, where she offers a “realistic account of how courts actually function in our democracy … a model [called] … “democratic constitutionalism” [in which] interpretive disagreement [is] a normal condition for the development of constitutional law.”). Certainly there is an appealing simplicity to pointing to a case as the turning point, and as the cause of a social phenomenon. It is much simpler than trying to be descriptively accurate when so many institutions were engaged – the church, U.S. feminists (rather belatedly), and Republicans looking for a wedge issue which would loosen the hold of the Democratic Party on Catholics.

This is not to say that cases aren’t important and certainly this article never suggests as much. Rather, Siegel and Greenhouse illustrate that the focus on Roe is not just a faulty conclusion – it is a rhetorical strategy in and of itself.

This might be particularly pertinent for those in jurisdictions where pressure on “the right to choose” appears to be ramping up, as it seems to be in Canada and in the UK. Carol Sanger recently spoke in the UK about “The Americanisation of abortion politics in Britain” (the 2012 BPAS public lecture March 7, 2012 as described here), looking for ways to support women’s reproductive rights in the “increasingly politicized” UK debate. In both the UK and Canada, abortion is getting attention. Media have focused on sex-selective abortions in ways which have led to calls for more restrictions and policing of choice. This newspaper “expose” in the UK attempted to catch abortion providers acting contrary to law. In Canada, where criminal law regulating the availability of abortion was struck down in 1988, a recent editorial in the Canadian Medical Association Journal decried the practice of “female feticide” and called for restrictions on disclosing sex prior to 30 weeks gestation.  A recent article in the Atlantic describes “The Americanization of The U.K. Anti-Abortion Movement”, pointing to similarities in tactics and rhetoric as the U.K. debate appears poised to move away from the notion that abortion is a “medical issue”. Despite the fact that Canadian Prime Minister Stephen Harper made an election promise that the “abortion debate” would not be reopened, he has allowed one of his backbench MP’s to introduce a motion which calls for reconsidering section 223 of the Criminal Code of Canada (“A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state from the body of its mother…”). This section was never at issue in the constitutional cases regarding abortion, but the motion will be debated April 26, and has definitely energized public comment in Canada, both pro-choice and anti-abortion.

Elaine Craig

No one talks about what is wrong with rights anymore.  Rights critique, suggests Robin West, has been on a sharp decline since the 1990s and has been particularly muted under current American administration.  This silence, West argues, is both strange and undesirable.

While she offers some hypotheses to explain these observations, West’s focus is not a post-mortem on the critical rights movement of the 1980s.  Instead, and put simply, her aim is to reinvigorate the rights critique in light of both current political, social and economic context and the ways in which rights claims are currently being configured in response to this context.

West reopens conversation on “rights’ wrongs” not with a concern for the ways in which legal liberalism’s rights granting machine perpetuates subordination and alienation in the name of protecting supposedly free and equal citizens from an intrusive state.  Instead, West targets what she identifies as the new rights bearing character and its new state foe.  Indeed much of her framing of this new rights critique is articulated in juxtaposition with, although not direct contrast from, rights critique of the 1980s.

Focusing on claims for the right to marry, the right to resort to violence in self-defence, and the right to home schooling, West suggests that contemporary arguments for rights can be characterized as rights of withdrawal or exit rights from “the social compact with an incompetent, sub-minimal state”.  Claimants advance the right to home schooling on the basis that publicly funded education is inadequate.  Same sex couples claim the right to marriage in order to access financial benefits and securities the state won’t provide to single individuals.  In the age of Obama, the rights claiming character is constructed as a heroic sort pitted against the tragedy of our failed community. The state cannot or will not protect the hero from crime and so he must have a gun to protect himself.  The state cannot be trusted to redistribute wealth through taxation and so the hero must do so at church.  As with the right to liberty and autonomy, rights of withdrawal do not result in the social renovation necessary to address systemic injustices like poverty.  In this sense, West offers a new way of articulating and analyzing the injustices identified by 1980s critical legal studies scholars.  However, she adds to this a concern regarding the way in which today’s rights claims impact our sense of civic responsibility and obligation.

Hers is not a critique of rights as a concept, nor of the value of pursuing dignity and equality, nor of individual rights (to abortion, same sex marriage, home schooling…).  It is a critique of the new relationship between the state and the individual and of the way in which today’s rights claims promote withdrawal and perpetuate our failed obligations to one another.  She offers an astute observation of the insights current rights claims reveal about us as a dilapidated community, or what West describes as a shattered state.  “The tragedy of these rights of withdrawal is not just the lethality that follows in their wake. It is also the horrifying, yawning chasm where a civic society, a community, and state could once be found.”  We are the state she suggests and thus, her critique is of us as sovereign citizens.  In her powerful conclusion, she calls for a reactivated citizenship and a discourse which recognizes our obligations to support and assist one another.  “If we believe that protection of citizens against violence, education of children, assistance with health and child care, and provisions for persons in abject poverty are basic state functions, then citizens, as the sovereigns from whom the state draws its power, must support and fund these state functions.”  Instead of turning to courts to advocate for rights to withdraw from a dysfunctional and incapacitated, if not malignant, state, we as sovereign citizens need to support through our taxes and our labour these public functions.

Not all readers will agree that the legal academy of the new millennium is devoid of rights critique.  Queer legal theorists have developed quite a fulsome critique of the gay and lesbian movement.  Regardless, West’s piece provides us with a new framework to think through the failings of an approach to social justice that is so heavily reliant on assumptions about rights’ rights.  The most compelling and discomfiting aspect of this work is that to embrace her framework of analysis, to reinvigorate a rights critique along the lines she suggests, creates also a moment to acknowledge individual responsibility for our failed community.

Margaret Davies

‘Before rules, were facts: in the beginning was not a Word, but a Doing. Behind decisions stand judges; judges are men; as men they have human backgrounds.’ (Llewellyn 1931, p. 1222) Gender-neutralised, the sentiments contained in Llewellyn’s famous words and the article which they introduce still hold – the human background of judges is important, and ‘doings’ or ‘tangible realities’ rather than words and abstractions, are what makes law dynamic, purposeful, and responsive (if slowly) to an even more dynamic social context.

How, then, might law be different if judicial decisions were routinely made by feminists? What would a ‘female-gendered mark on the law’ actually look like? (p. 8). Feminist Judgments: From Theory to Practice begins to answer these (and other) questions. It presents twenty-three alternative feminist judgments for actual cases, and commentaries to accompany the cases, written by feminist academics and activists. All of the cases were decided in England and Wales, and most (though not all) were decided relatively recently and reflect current law. The idea of re-writing judgments from a feminist perspective has a Canadian precedent in the Women’s Court of Canada (see Majury 2006) while the idea of rewriting judgments (not necessarily feminist) has a US precedent in two books edited by Jack Balkin (2002; 2005, but see Majury 2006, n14). Whereas the Canadian cases focus on equality jurisprudence under the Canadian Charter of Rights, the cases in Feminist Judgments deal with a very broad range of legal matters: consent to medical treatment, same-sex marriage, capacity to marry, the defence of provocation, refugee law, manslaughter by neglect, trespass to property, custody to children under family law, pregnancy discrimination, consent to bodily harm, evidence and many more. Some of these areas are framed by British and European equality and human rights law, but many rely on development of the common law or interpretations of statutory provisions. Some of the judgments affirm the decision made in the existing case but do so using a different reasoning process, while others reject the original decision.

There is a great deal that could be said about this project, and the three excellent introductory chapters to the book canvass a large number of questions associated with the idea of writing feminist judgments – what is the nature of judicial constraint and discretion in politically-charged contexts? Do women judge differently? What characterises a feminist judgment? Is gender (and racial and religious) diversity on the bench important and why? What doctrinal controversies are especially resistant to feminist judgment and what theoretical frameworks can be mobilised to deal with particular issues?

I just want to highlight three significant contributions to feminist and critical scholarship made by this book. First, as the editors note, the book ‘represents a form of academic activism’ (p. 8). The feminist ‘judges’ do not speak here primarily as scholars or critics (though a high level of scholarship and critique is evident) but as decision makers in difficult cases who are trying to make a difference to legal doctrine and policy. The project is one of ‘law reform’ in that the idea is to change law’s accepted stories and assumptions and to promote a shift in legal consciousness. This is only possible by engaging with law, and operating with a critical consciousness of its constraints – certainly operating at the margins at times but also frequently offering a solid and persuasive alternative to ingrained legal narratives. Although some may express scepticism that such a project will actually make a visible difference to law, it is nonetheless one of several feminist strategies and one which, in my view has the power to show how law might actually be different in practice.

Second, the book is tangible evidence of the strength in feminist diversity. It will come as no surprise to anyone that there is no feminist blueprint or general theory which can be applied in these practical contexts. Feminist jurisprudence is clearly guided by general principles and attitudes designed to empower women, protect our autonomy, and prevent discrimination but there can be significant disagreements about policy and practical implementation. In many of the cases considered, there are no easy decisions and potential controversy about the answer that is reached, but the book illustrates that there is strength rather than weakness in such contestations.

Finally, the book reminds us of the importance of a process of fact finding and legal interpretation which is nuanced, open-minded and critical, sensitive to power, and attentive to the relations between people rather than reliant on stereotypes and two-dimensional characterisations. Common law legal method is based on the idea that legal principles are derived in part from the material realities of life – lived experiences and real relationships. Certainly there is a hierarchy, structure and history, a mass of legal baggage, which also precedes and constrains any decision but, nonetheless, common law requires a renewal and re-enactment of principle in response to each unique set of facts. In promoting ‘critically aware’ decision-making (p. 43), Feminist Judgments affirms the ability law has to reinvent itself, to shift its discourse in response to changing values, and to become something other than simply alienating and exclusive. Such a change might take time, but it nonetheless is a possibility, as this book shows.

The book has already had an impact in a practical setting. In early November 2011 Baroness Hale, the only woman and feminist on the UK Supreme Court, gave evidence to a House of Lords Select Committee on the Judicial Appointments Process. She was asked what sort of difference a more diverse judiciary might make to the actual outcomes of cases. The ‘best answer I can give’ she said, describing the Feminist Judgments Project, is ‘go read that book.’ I would add – don’t just read the introductions and a few cases of interest. Read it all, because it is not in the individual contributions that it makes its most compelling argument, but in the collective enterprise of forming new stories and approaches to gendered questions.

References

Balkin, Jack ed. (2002) What Brown v Board of Education Should Have Said (NYU Press, New York)

Balkin, Jack ed. (2005) What Roe v Wade Should Have Said (NYU Press, New York)

Llewellyn, Karl (1931) ‘Some Realism About Realism – Responding to Dean Pound’ Harvard Law Review 4: 1222

Majury, Diana (2006) ‘Introducing the Women’s Court of Canada’ Canadian Journal of Women and the Law 18: 1-25

Davina Cooper

Amongst those who favor equality, there is, it might be said, a reluctance to confront its norms, premises and institutional tendencies. Yet, as a discourse and governance project, it is at least arguable that equality bears (or embraces) conventions of calculation, orderliness, categorization, legitimacy (as a precondition for equality or its result), boundaries and top-down assumptions of implementation and accomplishment. Unsurprisingly, critiques of equality, particularly more anarchist ones, tend to prefer difference, freedom, anti-identity politics, an aesthetic of non-equivalence, and open-ended non-institutional action.

Nail’s (2010) article, invested in building a new radical praxis, poses a way through and between these constructed polarities. While Nail doesn’t address equality directly, the issues he explores are hugely important to thinking more openly, and reflexively, about equality within the context of a radical change politics. At the heart of Thomas Nail’s article is the claim that radical politics needs to rebalance its focus; the almost exhaustive interest in cataloguing and pouring over what is wrong in the present needs to be supplemented more fully with greater interest in the social renewal posed by contemporary social experiments.

Intellectually, Thomas Nail’s article is grounded in (and by) post-anarchism: “the explicit conjunction between post-structuralist political philosophy and anti-authoritarian politics” (75). Two key features characterize this version of post-anarchism: “the critique of all forms of authoritarianism and representation”; and “the affirmation of difference” (76), as something infinite, and beyond (that is uncontained, and unanchored by) norms of social ordering. But what does this conception of post-anarchism mean for the kinds of organizations post-anarchism might seek to advance? And, importantly, how might post-anarchism respond to already existing social innovations, such as free schools, local currency networks and community councils?

In seeking to respond to these questions, Thomas Nail draws on two intellectual strands: the writing of Deleuze and Guattari, and the political project articulated by the Zapatistas. Brought into dialogue with each other, Nail explores three key dimensions of a post-anarchist political project. The first is a multi-centered approach to political diagnosis and engagement, in which no single struggle or social contradiction (class, gender, or race) constitutes the primary explanation for what’s wrong or the main axis (or vanguard) of struggle. Second, is the exodus from state-centered demands and representational frameworks to a do-it-yourself politics. Key here is the idea of prefiguration, a concept also popular within feminist politics. Drawing on Deleuze and Guattari, Nail goes beyond the conventional temporal direction underpinning prefiguration, in which contemporary practices express – and thereby held to produce – a desired future. Arguing that prefigurative transformations aim to establish a new political present within the skin of the old, Nail explores how this present is also shaped by what is to come. Manifestations of these ‘backward-running’ currents may not necessarily be visible now. However, transformative processes work to change dominant conditions of visibility so that what was barely perceptible (the lines of the future) comes into view. The third dimension concerns participatory forms of governance. Representational politics has been deftly criticized within anarchist and anti-state scholarship; but far less has been said about what should take its place. Drawing on Deleuze, Guattari, and Zapatista modes of decision-making, Nail briefly considers plastic, adaptive, responsive forms of organizational structure and governance.

I was drawn to this article, written in the course of Thomas Nail’s PhD research, for several reasons. I liked the fact Nail counters the romanticization of a call to arms – the tendency of theorists to imagine that now is the time when things should kick off, when global capitalism should be fought through the imaginative actions of the subaltern or multitude, utterly ignoring all the social innovations and grass-roots projects that currently exist. Nail also recognizes (in ways often scarce in much contemporary radical thinking) that change theorizing emerges from social movements as well as from scholars; and he raises important questions and issues about how to imagine radical change, including through a politics which refuses the amplification of institutional power that making demands on the state can generate. At the same time, he confronts directly and innovatively the question of (differently scaled) governance.

But what does this article tell us about equality? On one level, equality is presupposed as a core dimension of a radical politics; yet the emphasis on difference exceeding categories of gender, race and sexuality etc., and on grass-roots action begs the question: what forms of equality are at stake? Gender equality might mean parity between gender-encoded groups; it might also mean relinquishing gender as a meaningful category of difference, of pluralizing and multiplying gendered categories of difference; or refashioning them – so gender is only salient, for instance, as a stylization of the body or as culturally inflected modes of social interaction.  I take from Nail’s article that openness to difference, plurality and community-based lateral politics suggests different approaches to gender equality will emerge and be fought over, that certain possibilities may inhere in the future, but the development of these remains unclear to date. Part of the question of what equality is to become, of course, depends on how it is inhabited – the sites which take, and are given, responsibility to introduce or claim it. Nail’s article, as an exploration of post-anarchist thinking relinquishes an equality politics anchored in demands upon the state (to change or to advance equality). But post-anarchism leaves me with several questions: do state-inflected institutional structures have any legitimate part to play in undoing systemic forms of inequality, given their assembled presence in our current social landscape? Under what conditions, or in what ways, can they be used to do something more than to contain, diffuse and control equality aspirations? And if equality is a projection of non-institutional sites and spaces, how might it take shape – can equality look altogether different from the ordered forms of categorization associated with the contemporary state’s casting of equality governance?

Robert Leckey

How is it that people of wildly varying politics come together in viewing homophobic bullying in schools as an urgent problem? With whom does tackling homophobic bullying through a law-and-order paradigm make us allies? What forms of systemic homophobia, at home and in schools, does a focus on individual bullies obscure? What assumptions about queer adolescents’ sexuality and agency underwrite campaigns against homophobic bullying? Why is it so much easier to crack down on bullies in school than it is to talk openly about sex?

The strength of Daniel Monk’s article is that he shows convincingly that people committed to fighting homophobia can and should ask these questions. His interest is the “conditions of possibility” that have constructed homophobic bullying, discursively, as “a legitimate object of social concern within civil society.” Monk identifies the key discourses that have converged so as to legitimate concern about homophobic bullying. He also explores the political investments that underlie them and the responses to bullying grounded in penal or criminal law.

One discourse is that of child abuse. Monk highlights the particularity of the social focus on homophobic bullying in schools. Gay rights and children’s rights organizations do not, he notes, address the effects of parental homophobia on children. Moreover, the construction of the school as a dangerous place, and by implication the home as safer, corresponds with political and socioeconomic privatizing shifts in the perception of schooling.

Another discourse is that of the child victim. The discourse of homophobic bullying draws on images—simultaneously appalling and reassuring—of the child as innocent victim. Monk’s worry is that the imagery of the child as victim silences other concerns. It desexualizes victims of bullying and effaces adolescents’ sexual agency. He reports that Stonewall, the leading gay rights organization in the UK, addresses homophobic bullying on its Web site, but not young people’s needs for information about safer sex.

The third discourse is that of “the tragic gay.” Monk’s analysis here will be counter-intuitive to many readers, but I found it disturbing and provocative. He suggests that the problematization of homophobic bullying has ushered in a shift by which the negative characteristics once associated with homosexuality are now associated with the victims of bullying. “Development into successful normal adulthood is not ‘arrested’ by paternal or maternal attachment, but rather by homophobia itself. In other words, the development question now is not, ‘What makes someone homosexual?’, but instead ‘What makes someone behave in a way that fails to conform to heteronormative behaviour’.” The queer youth remains “a reassuringly distinct and tragic ‘other’ from that of the heterosexual.” Now the developmental cause is not homosexuality, but bullying. The upshot? Queer youth still need help.

Monk is most bracing in his critique of the political aspirations associated with the fight against homophobic bullying. Bullying and its victims are measured as problematic against the metric of an imagined, post-homophobic future. If it weren’t for bullying, goes the thinking, queer adolescents might grow up to be more normal. Gay boys might be less effeminate. They might play more team sports. They might grow up to form more stable, “traditional” monogamous relationships. Here the crucial problem is that the harm chalked up to bullying is measured by an assimilative metric of straight-acting heterosexuality.

The article’s analysis of the turn to law-and-order policies by some opponents of homophobic bullying gave me pause. The clampdown on individual bullies, argues Monk, individualizes the bully through a pathological gaze. Focus on the individual perpetrator erases structural forms of homophobia. Readers may vary in the relevance they accord to Monk’s observation that policies making parents responsible for their children’s bullying bear hardest on economically disadvantaged single mothers.

Certainly some elements of the article will resonate most in the United Kingdom (Monk is based at the School of Law, Birkbeck, University of London). The Conservative government’s strong support for anti-bullying initiatives comes to mind. So does the focus on rigidly gendered school uniforms as a form of structural homophobia. But the general argument will resonate in North America, which has recently witnessed the “It Gets Better” campaign on youtube, as well as in other places.

Monk’s article is not an easy read. It is densely written and its interdisciplinary range is broad. The care with which he registers caveats—in a laudable effort to specify his critique’s limits—occasionally weighs on the text. But it will reward a thorough reading. I should add that it will annoy some people, including people I like and whose efforts I admire. Good critical scholarship often does.

The push for legal recognition of same-sex adult conjugality has rightly inspired a rich critical literature, chiefly from queer and feminist scholars. Daniel Monk’s article joins a small, but growing, body of work that turns a critical eye on legal and social efforts related to children, be they the children of same-sex parents or queer themselves.

Isabel Grant

Over the past decade in Canada, and particularly over the past five years, we have seen an increase in the number of prosecutions of nondisclosure of HIV status. Most of these cases are prosecuted as aggravated sexual assault, our most serious sexual offence, punishable by life imprisonment. Unlike sexual assault generally, there has been a dearth of literature in Canada addressing this issue from the perspective of its impact on women.

This is an exceptionally difficult issue for the feminist legal movement. On the one hand, prosecutions of nondisclosure could be seen as protecting the sexual autonomy of women who are often the victims of men who fail to disclose their HIV-positive status. Expanding the notion of fraud negating consent could be seen as empowering women to choose the circumstances in which they consent to sexual activity. However, women are also potential accused persons in these cases. Sex workers, immigrant women and poor women may be particularly at risk of criminalization for failure to disclose. Recently a 17 year old girl in Edmonton was named publicly and charged with aggravated sexual assault for not disclosing her status to two men. Rates of HIV are increasing in young women in Canada and we need to ask whether criminalization, in the long run, will protect women from HIV or further marginalize and isolate this already highly stigmatized group.

Alison Symington takes on some of these difficult issues in her chapter in this forthcoming book on Sexual Assault edited by Professor Elizabeth Sheehy. Symington takes as her starting point the view that “any use of coercive legal powers by the state (whether within the criminal justice or public health systems) must be evaluated on its ability to prevent further HIV infections and/or promote care, treatment and support for [persons living with HIV/AIDS], in line with the best available evidence and human rights standards.”

Symington demonstrates that it is not self-evident that criminalization protects women nor that it decreases the transmission of HIV, particularly considering that most transmissions occur during the acute stage of the virus, often before the individual knows he or she is HIV-positive. Symington argues that the trend towards over-criminalization may be a result of “a state-sponsored AIDS panic” rather than sound social policy, reminding us of increased scientific knowledge about the efficacy of condom use and anti-retroviral therapy in reducing transmission risks to extremely low levels. Women must be given the physical and economic resources to be able to disclose their status without facing the risk of violence or other harm. While criminalization may give some women a small measure of justice, Symington asks “what message does that send to women and the public generally about their role in sexual relationships, about sexual assault and violence against women, about dependency and agency at the root causes of women’s vulnerability to both violence and HIV, including poverty, discrimination and myths about women’s sexuality?” She looks at the issue from the perspective of agency and empowerment, pointing out that myths of women as passive sexual actors are implicated in the issue and arguing that, in an ideal world, both partners in a sexual relationship, should make their own autonomous decisions about sexual behaviour and take steps to protect themselves from risks. The stigma and fear surrounding HIV often seem to further public beliefs that persons living with HIV must carry all of the responsibility to protect their partners through disclosure and should be imprisoned if they fail to do so, whether or not HIV is actually transmitted.

Symington also expresses concern about the damage done to sexual assault prosecutions generally by equating HIV nondisclosure with sexual assault. She notes the racial and heterosexist bias demonstrated in the Canadian prosecutions to date, and the stereotypes and stigma that such systemic discrimination perpetuates. She points out that other sexual assault cases are much less likely to succeed on the basis of women’s uncorroborated evidence than areHIV non-disclosure cases and shows that while both are prosecuted as sexual assault, very different dynamics are at play. As well, she details several reasons why criminalizing HIV non-disclosure may actually be counterproductive to transmission prevention efforts, including increasing disincentives for people to find out their status; and contributing to public misunderstanding of transmission risks and stigmatization of people living with HIV.

Symington does not make clear whether she believes criminalization is ever appropriate – for instance, in the difficult cases of those individuals who demonstrate a pattern of total disregard for the safety of their sexual partners, despite the efforts of public health authorities. Most HIV/AIDS advocacy groups recognize a narrow but necessary role for criminal law. Determining where the line should be drawn is a challenge currently before the Supreme Court of Canada in a case from Manitoba and one from Quebec.

Symington’s arguments and discussion are nuanced and powerful. However, her starting point – that any use of coercive legal power must be evaluated on its ability to decrease HIV transmission – is likely to be challenged. Many would argue that the purpose of sexual assault law is protect the physical and sexual integrity of (primarily) women. The fact that these purposes conflict may be a further reason Symington urges us to re-consider sexual assault as the appropriate tool to use in these cases.

Symington concludes that “forging strategic linkages between the analysis and advocacy work on HIV and on violence against women may be a critical next step in advancing the criminal law in a more logical and effective direction.” It is hoped that advocacy groups will take up this challenge. The significant public health problem of nondisclosure needs a more nuanced response than the blunt tool of widespread criminalization.

Toni Williams

One of the more unnerving aspects of the recent financial crisis is the speedy recovery of those large financial firms that survived the crash. Gifted with eye-watering sums of virtually free credit and liberated from the ‘toxic’ assets that their financial engineering created, global financial firms such as Goldman Sachs reported higher than ever earnings in 2009 and 2010. Elsewhere in the economy, the prospects of recovery are remote and receding. The reframing of the crisis as ‘fiscal’ rather than ‘financial’ has forced sovereign countries to take out unsustainable loans in order to appease their bondholders. Jobs, pensions, and public services have been slashed in the US and across Europe. US homes are being lost to foreclosures at an extraordinary rate (some reports estimating up to 10-13 million foreclosures) as the consequences of the crisis continue to rip through the economy. Compounding the direct dispossession of those whose homes are taken, foreclosure actions blight entire neighborhoods, exerting yet more pressure on whatever little equity in their homes residents may have sheltered from the predatory lenders.

The juxtaposition of business as usual on Wall Street and in the City of London with the destruction of homes, livelihoods and other means of economic security of workers and the unwaged, pensioners and children in the US and Europe shows that neoliberalism’s project of robbing the poor to give to the rich has survived the crisis, gathering strength in its wake. Martha McCluskey’s illuminating working paper, How the ‘Unintended Consequences’ Story Promotes Unjust Intent and Impact, analyses the persistence of upward redistribution in policy making and asks how one of its key supporting narratives can be resisted.  The paper provides an excellent overview of the crisis for equality theorists who are not specialists in the intricacies of neoliberal “financialization”. It explains some of the decisions within financial firms–and by some regulators–that created the crisis; and vividly illustrates the devastating impact of those decisions on US communities, particularly Communities of Colour. McCluskey uses the example of the financial crisis effectively to illustrate the argument that the “unintended consequences” narratives in policy discussions about egalitarian regulation serves to rationalize the legal underpinnings of upwardly redistributive measures and perpetuates “the ideology that law is powerless to disrupt a naturalized order of inequality outside of law” (P. 9).

The paper includes a succinct summary of the career of “unintended consequences” narrative, referencing legal realist studies of “law in action” and  Robert Merton’s more conceptual 1936 essay before turning to the late twentieth century incorporation into claims about the futility of progressive regulation. While scholars working in traditions such as legal realism or law and society have documented empirically various types of unintended consequences–benign, malign, and perverse–the regulatory futility literature, predominantly influenced by law and economics, typically focuses only on the alleged perversity of distributionally egalitarian initiatives. Rent control, interest rate ceilings, minimum wage laws, environmental regulation and so on are attacked as self-defeating measures that unintentionally exacerbate the problems of those whom they purport to ‘help’. Drawing on the work of liberal theorists such as Cass Sunstein (as well as the more predictably conservative claims of mainstream law and economics and financial market commentators), McCluskey illustrates the pervasiveness of claims about the perversely harmful effects of egalitarian policies and their power to inhibit progressive measures notwithstanding the absence of robust evidence–or in many instances any evidence–about the impact of progressive policies that are dismissed rather than enacted.

McCluskey locates the ideological power of the unintended consequences narrative to foster upward redistribution in the ways that policy debates compare the mythological perfect consequences of the hypothetical free market with the complex compromises that often attend egalitarian regulation and the well-documented limitations of regulatory agencies. This comparison centralizes law as an inherently flawed actor and instrument of progressive regulation, limited in its effective capacity to direct power towards desired egalitarian ends. With respect to the market, by contrast, the ideology of self-regulation through self-interest erases law from view. In effect, the work of law in structuring the ground rules of the market is rendered invisible, its deployment of rules of property and obligation that enable–and potentially constrain–the exercise of power disappears. Through this erasure of law–and power–the unintended consequences narrative contributes to the embrace of the market as a legitimate source of economically just solutions rather than as a subordination of justice to the structural inequalities of contemporary neoliberalism.

Markets of course are every bit as capable of generating unintended consequences as are regulators. Indeed the central item of faith of the efficient market, Adam Smith’s “invisible hand”, is postulated as an unintended consequence–albeit benign–of the exercise of self-interest; and among the contested accounts of the recent financial crisis are explanations of the crash as a perverse unintended consequence of financial innovation. According to the dominant narrative, however, market actors, even elite financial market actors, purportedly lack the capacity to control market forces so that the perverse unintended consequences generated by their decisions do not become a reason to eschew the market.

Insisting that law is far from “powerless to disrupt a naturalized order of inequality” generated by the notion of the essentialized market situated outside law, McCluskey provokes readers to challenge the simple-minded complacency of the unintended consequences narrative. Her directions for critical engagement indicate the need to counter the ways that the insertion of “unintended consequences” in policy debates “obscur[es] contested interests and ideologies”, contributes to the normalization of elite wrongdoing as in financial frauds of the predatory lenders, attributes the results of structural inequality to individual failings, and above all “conveys a false sense of inevitability to harmful policies, evading analysis of alternative policy choices with better results”.

Beyond its systematic analysis of how law is implicated in policies of upward redistribution, McCluskey’s paper engages the reader in thinking critically about the potential role of law “in resisting the upward transfer of resources” (P. 9); and in fashioning alternative economic arrangements, a project that grows more urgent as the effects of the crisis continue to intensify inequality, destroy economic security and corrode peace of mind.

Ruthann Robson

The controversial decision of the United States Supreme Court last year in Christian Legal Society v. Martinez involved a dispute at Hastings College of Law.  On one side, the College of Law applied its blanket nondiscrimination policy as a prerequisite for recognition of student groups.  On the other side, the student organization Christian Legal Society, backed by the national organization, argued that a nondiscrimination policy that included sexual orientation infringed on its religious freedom.  Thus, the case can be easily understood as just another battle in the continuing war between equality (for sexual minorities) and liberty (of religious freedom) fought on the field of various First Amendment doctrines.  Too much of what I’ve read about the case succumbs to this reductive reading.

Professor Julie Nice, of the University of San Francisco School of Law, resists the easy renditions.  Her article is refreshing because she engages the theories, the doctrines, and the politics with equal urgency and depth.  It is also invigorating in its accessibility: Nice’s language does not obfuscate or overwhelm.  Moreover, while the article centers on a single case and was written for a symposium on CLS v. Martinez held by the Hastings Constitutional Law Quarterly, it looks backwards and forwards as well as sideways to illuminate the notions of “equality” and “discrimination.”

Nice acknowledges that the United States Supreme Court has “not yet provided any framework for understanding the ways that liberty and equality interrelate” and that no scholarly consensus or “grand theory” has emerged.  In some ways, Nice’s own article contributes to this scholarly quest, although arguably her claim is the more modest one of seeking to “understand what was at stake in this particular controversy and to explore the implications of the decision.”  But the “particular controversy” in CLS v. Martinez is quite complicated; much of the oral argument was devoted to the record.  However, as Nice points out, the disagreement between Justice Ginsburg ‘s opinion for the Court and Justice Alito’s dissenting opinion is not so much factual as in the ultimate characterization of the facts, especially the motivations of the law school.  Nice writes that where “Justice Ginsburg and the majority saw textbook neutrality, Justice Alito and the dissenters saw obvious pretext.”

Nice explains this disagreement through a difference in the lenses of time, place, and money.  While this obviously resonates with the First Amendment doctrine of “time, place, and manner,” Nice’s discussion here is not primarily doctrinal.  The issue of money (and perhaps, manner) is the “dangling of the carrot of subsidy, not wielding the stick of prohibition,” as Nice quotes Justice Ginsburg’s opinion.  As for place, the law school’s “limited public forum” for student groups allows Ginsburg to select a more lenient level of scrutiny to evaluate the school’s action.  But the time to which Nice refers is not during the law school day or calendar, it is the time of post-Lawrence and post-Romer.  The Court’s 1996 decision in Romer v. Evans (declaring unconstitutional as violative of equal protection Colorado’s Amendment 2, prohibiting anti-discrimination laws that included sexual orientation) and the 2003 decision in Lawrence v. Texas (declaring unconstitutional as violative of liberty under substantive due process Texas’ criminal sodomy statute) have made a difference.  At least for the majority of members of the Court, sexual minorities are now considered “a class to be deserving of ordinary constitutional protection.”  It is this insight, which she names “self-evident,” that animates Nice’s article.

This is not to minimize her spectacular and succinct analysis of First Amendment precedent, which includes a discussion of the “sex discrimination trilogy,” the “sexual orientation duo,” and the “sleeper comparison” case of Ysura v. Pocatello Education Association, which involved union payroll deductions for public employees.  Reading Nice’s analysis, even if one knows these cases  ̶  and perhaps especially then  ̶  reorients and reorganizes the doctrinal and theoretical meanings of the cases and their relationships.  Also helpful is her reminder that First Amendment doctrine provides “an array of options for framing and deciding any particular dispute” and her explanation of how the opinions in CLS v. Martinez execute their choices.

But, as Nice concludes, if CLS should complain that Hastings Law School’s decision to afford equal treatment to sexual minorities has” trumped” the liberty of interest of CLS to receive governmental support for its own moral disapproval of sexual minorities, CLS would be right. However, this might be true because “CLS simply failed to persuade a majority of the Court that Hastings enacted or applied its nondiscrimination policy for recognition of student groups at least in part because of its adverse effect on fundamentalist Christians.”  As such, CLS v. Martinez “effectively brings cases involving incidental effects on expressive association into the broader equality fold, requiring proof of intent before such incidental effect or disparate impact will raise the Court’s suspicion and its scrutiny.”

Additionally, and perhaps even more importantly, Nice concludes that “rather than perceiving Martinez as merely about equality trumping liberty,” it may actually enhance liberty by distinguishing between ideology and identity.  On this view, the majority of the Court in Martinez refused to “perpetuate the presumption that the mere presence of an openly gay member in the Christian Legal Society necessarily would alter the organization’s message.”  By refusing the conflation of identity and ideology, the case “enhances liberty, making space for an individual to embrace any religious ideology regardless of his or her sexual orientation.”

Within the space of 40 pages, Nice convinced me that not only is CLS v. Martinez “no outlier,” but also that it will come to be seen as a decisive engagement, just as we view that other Battle of Hastings.

Sonia Lawrence

In Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, authors Janet Halley (Harvard) and Kerry Rittich (Toronto) offer a compelling way to think about the doctrinal areas which for so many of us are handy ways of  defining our area of scholarship.  The problem is that these “areas” are often less than helpful when trying to define the legal context of equality problems, and they are a positive danger when we move on to consider law reform options. Halley and Rittich take on these problems as they relate to “family law”.

Let me start by saying that even on its own terms, this article is fundamentally about equality questions. Halley and Rittich are clear that family law is about “distributional outcomes” (P. 755) and that the legally constituted family is closely linked to market distributions, even if those links are often masked. They argue that the family should be recognized as an “economic unit” and not only as an “affective unit”.  The authors encapsulate this idea in their use of the term, “economic family,” signaling that they would put “the family and the market, family law and contract, back into contiguity” (P. 758), resisting the claim that the “economic character of the family” has disappeared in modern and postmodern times. Key to this resistance is accepting that the household is (still) a critical economic unit.

As the authors develop this idea, they ask how what is commonly referred to as “family law” governs the ongoing negotiations which characterize a household–“marriage or divorce; deciding how much to invest in the education of children; tolerating domestic violence or deciding to escape it….who will take out the garbage.” (P. 761.)  At this point, they turn to delineating the “background rules”–not “family law” as defined in law school courses, but the other rules, those “artificially segregated” from family law and defined by different headings. (P. 761.)  These legal backgrounds are labeled, in a user-friendly taxonomy, Family Law (FL)1, FL2, FL3 and FL4.

These categories describe the relationship of various kinds of law or rules to the “economic family” or “household”. FL1 is the law school course in Family Law. But, “if you wanted to understand how law contributes to the ways in which the actual family and household life is lead by actual people, you would never stop there.” (P. 761.) The authors take us next to FL2, comprising the explicitly “family” targeted provisions of various other forms of law (including immigration and bankruptcy law). FL3 moves further into the background, “the myriad legal regimes that contribute structurally but silently to the ways in which family life is lived” (P. 762.) These contributions might be intentional, unintentional, helpful or harmful. Rittich and Halley cite “occupancy limits in landlord/tenant law that give more or less protection to incumbents; employment rules that permit dismissal on the part of the employer  “at will” as part of this zone. Finally, FL4 consists of informal norms, since recognizing the impact of these ideas means recognizing that they often trump formal laws in terms of impact on the organization of a household.

Here are the four things I get from this. Firstly, the critique advanced here of family law as a “liberal” idea is one which explodes a variety of accepted ways of doing things (or, as the authors write, “give the lie to the apparent naturalness of what we are doing now”). Secondly, we can all think about how our particular area of study (assuming it isn’t family law proper) might be affecting households. For instance, co-author Kerry Rittich, in another article in the same volume, does this in relation to development policy and legal reform, tracing the path from market reform to the transformation of families and reallocations of “resources and power” within households. (P. 765.) These effects will be, according to this article, profoundly distributional and therefore are easily part of the equation for equality scholars. Thirdly, at the same time, we can imagine developing similar genealogies for other areas of law (Equality Law 1, 2, 3 and 4?), genealogies which push us to be more critical (small c or big C) about the multiple layers of distributional effects that equality law has, and more generally about the scope of our fields. Finally, the model is extremely helpful, if daunting, when attempting to engage in law reform efforts. It means that we can look outside the obvious points of intervention–but it also means that we have to consider a very complicated set of interactions and results from any proposed change. Anything that makes “unintended consequences” a bit more predictable is helpful, and many law reform campaigns could do with a more critical eye. This model offers us a way to see that things are more complicated or maybe even simpler than we might at first think.

These four things are all outside the “urgent” need which drove this article, the need for a better model for comparative family law analysis. There is so much in this short (24 pages) article. Each time I read it I find something new.