The Journal of Things We Like (Lots)
Select Page

Legal Human Humility: Contending with the Representation of Trees and Other “Nature” Beings

Alyse Bertenthal, Standing Up for Trees: Rethinking Representation in a Multispecies Context, 32 L. & Literature 355 (2020).

Despite the dominance of COVID-19 in our media feeds this past year, we still do not hear much about the anthropogenic origins of zoonotic diseases or the anthropocentrism that frames anthropogenic activity. We hear even less about the corresponding need to combat anthropocentrism, the monumental roadblocks legal systems erect in this regard, and how legal systems can and should adopt anti-anthropocentric perspectives in order to make inroads against an array of inequality-producing social phenomena. Going against this grain, and exacting much-needed pressure against Western legal orders’ exclusionary anthropocentric worldview of “nature” as property, is Alyse Bertenthal’s Standing Up for Trees: Rethinking Representation in a Multispecies Context.

In this elegantly-written article—that reads more like a cogent literary meditation than standard law review writing itself—Bertenthal casts a critical lens on the anthropocentrism of Western legal cultures and, in particular, the legal devaluation of trees in the American landscape (figuratively and literally). But she also challenges us further by asking us to interrogate the human-made legal constructs that are meant to rectify the subordinate position of “nonhuman nature” (P. 356)—such as the extension of legal personhood—for their residual anthropocentric exclusions.

With Christopher Stone’s trailblazing 1972 article Do Trees Have Standing? as a point of departure for her analysis, Bertenthal provides two signal contributions in moving us toward a multispecies understanding of who law is for and the power asymmetries it should address. First, she provides a fascinating historical overview of the specific ways trees have populated American case law, including the last time the United States Supreme Court rendered an opinion about the value of a tree (almost a century ago in 1928).

Second, she goes beyond standing debates about whether trees should move from legal object to legal subject to ask a newer set of questions: how can the perspectives or voices of trees (and, by extension, other nonhumans) enter spaces of law without succumbing to its anthropocentric vortex? How can law hear “tree voice” in a way that avoids human contamination and containment, however benevolently intended? Can we fashion a different relationship with trees and other “nature” beings so that these nonhumans do not need to “rely upon human forms in order to be heard in distinctly human forums?” (P. 356.) Can we eschew the “centrality of humans as the standard and representative for nonhuman nature” (P. 356)?

Bertenthal innovatively uses literature to spotlight these questions and illuminate some answers, suggesting that the impoverished stories law tells us about trees and what they are worth can profit from the better stories available in literary imaginings of trees “where trees can and do exist as more than human property or prize.” (P. 357.) Bertenthal opens her recourse to literature for “good stories” about trees with a section entitled “Tree Space.” She first recalls how literature has primed us to think of trees as old and encouraged us to mark their longevity, as well as covet their unhurried and gentle pace. This is a conceptualization some have called “tree time” that stands “as an implicit critique and natural contrast to human time.” (P. 357.)

Bertenthal then suggests that law, in contrast to literature, harnesses the endurance of trees not to romanticize or dignify them, but to establish private ownership. She takes us through a brief but instructive historical account of how trees are used to delineate the physical dimensions of real property. She discusses the metes and bounds systems and other 19thcentury legal initiatives that treat trees, as Bertenthal pithily puts it, “as markers of space, not time.” (P. 359.) Bertenthal also refers to the voluminous case law focused on neighbour disputes over who owns trees in more contemporary times. While owners may care enough about trees to sue their neighbours, these cases, Bertenthal argues, are much more about social relations gone awry than any challenge to trees’ status as property (P. 361.) This type of socio-legal excavation about nonhuman animals—let alone trees—is rare in legal scholarship.

The latter parts of the paper are where Bertenthal explores a corrective for the “property-obsessed narrative of trees,” something she is quick to stress must be different from conservationist goals that implore us to protect trees for future human generations. She instructively asks the question most of us don’t: “When trees speak in their own voice, will they really be so concerned with us, and with what happens to us?” (P. 362.)

She acknowledges that there are cases where state courts have been able to bring into view trees’ “intrinsic value.” Bertenthal discusses another dispute between neighbours where one party resisted terminating the tree’s life due to the personal value the tree held for him, a value that the court was able to legitimate in its damage award.1 Bertenthal appropriately reads such cases as expanding law’s surface understandings of trees but not the foundational legal ordering that classifies trees as property under which trees are valuable insofar as humans value them. The intrinsic value cases are compared to The Giving Tree by well-known children’s author Shel Silverstein in which a tree ostensibly gifts to a little boy whatever he needs as he ages, including the tree’s life.

For a non-anthropocentric appraisal of tree value, Bertenthal turns first to the Lorax, a character from the eponymously-named book of another famous children’s book author, Dr. Seuss. A dominant understanding of the tale reads the Lorax as an environmental guardian of trees, caring empathically for them and giving voice to their needs.2 Although the trees in The Lorax are no longer valued simply for how they benefit humans, Bertenthal suggests that a continuing problem with the guardianship model as a corrective for law’s propertization of trees is the power asymmetry it embeds, however well-intentioned. Bertenthal finds a recent interpretation of the Lorax character as actually forming part of the trees’ ecological system a more hopeful rendering of the representation she is advocating for. Her vision is a form of legal representation where tree (and other nonhuman) voices can be less mediated by humans who wish to speak for them but do not share their vulnerability. Bertenthal also calls for a form of legal representation that acknowledges that trees do not speak with a singular voice and that a lot will be lost in translation and will remain unknown to humans even when we care deeply and wish to protect trees.

It is in a courtroom scene in Richard Powers’ tree-centered novel, Overstory, that Bertenthal finds a model for how the law can listen to and learn about trees in a different register. In Overstory, a botanist is asked to be an expert witness to convince a judge to rule against a logging company. She tells the judge about who trees are through what trees and forests can do, basically convincing him as to their need to be protected from death. But she also shares that, as a human, even one who is an “expert” in trees, she can only know so much and that there is much more that trees and forests have to impart if humans are to be able to understand them.

Bertenthal offers up the botanist’s testimony in this novel as an example of how humans who care about the lives and flourishing of trees (and presumably other nonhumans) can speak more ethically about rather than for trees. This is because the testimony envisions legal representation as partial translation, a translation in which we acknowledge the limits of being human. Bertenthal reads the botanist as not speaking for the trees, but for herself. Her advocacy and contribution in that moment is to allow the love and empathy that she has for trees help the legal decision-maker see “tree being,” rather than merely seeing trees as property. The botanist’s advocacy thus illuminates the injustice in our normal relations with trees.

I recommend Bertenthal’s piece not so much for her specific prescriptions about representing trees or other nonhumans, but for the overall non-anthropocentric imprint her fluidly-crafted argument leaves on its reader. One might come away unswayed that the guardianship model or the act of speaking for is as flawed as Bertenthal argues. But one will not come away unaffected by the literary analysis or the need to think more deeply about the flaws of legal anthropocentrism and the violence it enacts on trees and other beings devalued as “nature” and subordinated as “property.” Bertenthal reminds us that questions about legal standing for other species will require that we “stand up for” (but not speak for) them and will also invariably require us to “stand aside.” (P. 369.) The article presses the point that we must write a different and better legal narrative or story for other species, one where humans are no longer the central characters.

Property Law instructors seeking to infuse their teachings with more critical content should teach Bertenthal’s article. We know that teaching critical content in law school about inequality and injustice, particularly to those anxious to learn the law and not critique it, can be challenging. This is so even when we do not ask students to reconsider who has formal legal subjectivity in law and who doesn’t. Imagine what happens when we do ask this question.

In my first six years of teaching, I taught Property Law to 1Ls. I always raised the normative question about what/who is property. Most years, I included a module introducing students to animal law scholarship promoting legal personhood for animals. These classes were daunting, eliciting the denial and overall defensiveness that often ensues when adults are asked to confront the subjectivity of the living, sentient subjects many of us eat or whose milk or eggs we appropriate.3 One year, prefacing a module about the physical dimensions of land ownership, I also raised the question about whether trees should be property, thinking this would go over better. I put Christopher Stone’s classic article, Should Trees Have Standing? in the readings and read Shel Silverstein’s iconic children’s book, The Giving Tree, to the class, both of which are sources Bertenthal mentions. Whether my adult students felt infantilized by the latter or didn’t love the classic children’s book as much as I did (for what I perceived as its objection to a sacrificial life for a tree), I am not sure. But this intervention also fell flat.

If I were to teach Property again, I would include Bertenthal’s article to do the heavy critical lifting. Her analysis is peppered with literary references to possible childhood favourites that students can relate to, and it also has an inviting, literary quality itself. Without compromising its hard-hitting message against law’s anthropocentric exclusions, it has the potential to bring along even the most ardent proponents of human exceptionalism to consider the claims of nonhumans and the urgent need for law to respond to multispecies realities and complexities.

  1. Kallis v. Sones, 208 Cal.App.4th 1274 (2012).
  2. It is worth noting that Dr. Seuss’ works have been criticized for their exclusionary tropes, and Dr. Seuss Enterprises has recently announced that 6 books will cease to be published due to racist imagery. The Lorax is not in this list and, as Bertenthal notes, has received acclaim as a pro-environmental text.
  3. Why We Love and Exploit Animals: Bridging Insights from Academia and Advocacy (Kristof Dhont & Gordon Hodson eds., 2020).
Cite as: Maneesha Deckha, Legal Human Humility: Contending with the Representation of Trees and Other “Nature” Beings, JOTWELL (April 29, 2021) (reviewing Alyse Bertenthal, Standing Up for Trees: Rethinking Representation in a Multispecies Context, 32 L. & Literature 355 (2020)), https://equality.jotwell.com/legal-human-humility-contending-with-the-representation-of-trees-and-other-nature-beings/.

Uncovering the Little-Known History of Suffragists of Color

Recasting the Vote: How Women of Color Transformed the Suffrage Movement is an essential read for anyone interested in women’s history, the history of voting rights in the United States, Indigenous history, or the history of other under-represented groups. Cathleen D. Cahill brings to light the little-known contributions of Native, African-American, Asian, and Latina women to the struggle for voting rights in America. Cahill combed multitudinous sources to paint robust portraits of these women, including Native activists Laura Cornelius Kellogg, Marie Louise Bottineau Baldwin, and Zitkala-Ša, African-American voting rights advocate Carrie Williams Clifford, Chinese-born activist Mabel Lee, and Latina activist Nina Otero-Warren, among others.

The book rightfully complicates the notion of women’s suffrage, revealing that a singular focus on women’s suffrage both obscures the larger struggles that these women were engaged in to secure the voting rights of all members of their communities and elides the contributions of these women to the suffrage movement. As Cahill explains, “[t]he suffrage histories of women of color bridge 1920, so to see that year as an end point leads us to tell a story that inevitably ignores them and truncates our understanding.” (P. 205.) Another invaluable aspect of this book is that Cahill refuses to shy away from the complexities of the important history she is unveiling. Thus, as readers, we are forced to reckon with the fact Native and Latina activists, for instance, sometimes drew distinctions between themselves and African-Americans to demonstrate the worthiness of their own communities for voting rights. More broadly, we are faced with the shameful history of exclusion within the women’s suffrage movement. White suffrage parade organizers, for instance, tried to relegate Ida B. Wells (then going by Mrs. Wells-Barnett) to the portion of the 1913 Washington D.C. suffrage parade reserved for African-Americans, rather than allowing her to march with the Illinois delegation as planned. As a consequence, she had to jump into the parade after it had already started in order to march with her fellow Illinois citizens. (P. 104.)

It is tempting to the think of the history of voting rights, like other histories, in linear terms, with African-American males getting the vote in 1870 upon the ratification of the Fifteenth Amendment; white, African-American, and Latina women receiving the right to vote in 1919 with the ratification of the Nineteenth Amendment; and Native American men and women securing the right to vote via statute in 1924 (although many Native persons had obtained the right to vote prior to that).

Recasting the Vote shows that this progression was nowhere near so simple. Cahill, for example, reminds us that, post-1920, widespread lynching of African-Americans continued to be utilized to dissuade African-Americans from voting and that, as a consequence, activists like Carrie Williams Clifford organized campaigns for anti-lynching legislation. (P. 226.) Racist whites also prevented Native Americans from voting even after the Indian Citizenship Act was passed, with “States with large Native populations borrow[ing] heavily from . . . southern examples while also using Native people’s unique relationship to the federal government to keep them from voting.” (P. 261.) And although activists like Mabel Ping-Hua Lee fought for women’s suffrage in the United States, under the Chinese Exclusion Act, “the Chinese were the only people in the world whom the United States restricted due to their nationality and made ineligible for naturalized citizenship.” (P. 149.) Thus, until the repeal of the Chinese Exclusion Act in 1943, Chinese-born women could not become naturalized citizens and could not vote irrespective of the Nineteenth Amendment.

Cahill thus renders her history of suffragists of color in all of its undeniable complexity. As such, Recasting the Vote is bound to be an indispensable resource on the subject for decades to come.

As a tribal law and federal Indian law scholar, I found I was most drawn to Cahill’s portraits of Native activists who participated in the suffrage movement. Cahill’s work introduced me to Marie Louise Bottineau Baldwin and Laura Cornelius Kellogg and greatly enriched my understanding of the life of writer Zitkala-Ša, all of whom were significantly involved in the suffrage movement.

A member of the Turtle Mountain Chippewa Tribe who initially supported her attorney father in his protracted attempt to recover fair compensation for the federal government’s taking of the Turtle Mountain Chippewa’s lands, Bottineau Baldwin went on to become the first Native female attorney in the United States, after graduating from Washington College of Law (now part of American University).1 Before, during, and after law school, she served in the United States Office of Indian Affairs, and she also served as one of the founders and executive committee members of the Society of American Indians. In her work for Native suffrage, Bottineau Baldwin, like Kellogg and Zitkala-Ša, fought against the idea, so prevalent in mainstream society at the time, that United States citizenship for Native Americans was diametrically opposed to tribal sovereignty, so that an individual Indigenous person would have to choose between the two types of citizenship and rights. Instead, Bottineau Baldwin argued for a layered understanding of citizenship in which participation in tribal affairs and tribal rights recognized under treaties with the federal government, including communal land rights, remained important.

Oneida author Laura Cornelius Kellogg similarly advocated for a layered notion of citizenship in which American Indians’ tribal identity would remain important. She was also employed for a time in the Indian Service and similarly served on the Executive Board of the Society of American Indians. (Pp. 90-91.) She linked United States constitutional ideals to a Haudenosaunnee origin, publishing her first book, Our Democracy and the American Indian: A Comprehensive Presentation of the Indian Situation as It is Today, in 1920. (Pp. 243-245.) The book set forth Kellogg’s groundbreaking economic and political plan, which she called Lolomi. In order to continue to resist assimilation, she argued for Native persons to become organized in a corporate structure through which they could negotiate with the federal government on a more equal basis. (P. 244.)

Finally, I was grateful to learn more from Cahill’s book about Yankton author Zitkala-Ša, whose American name was Gertrude Simmons Bonnin. Active on the Board of the Society of American Indians and a staunch suffrage advocate, Zitkala-Ša, like Bottineau Baldwin and Kellogg, rejected the idea that Native Americans had to choose between tribal rights and rights as United States citizens. (Pp. 189; 247.) Zitkala-Ša fought for the passage of the Indian Citizenship Act and was bitterly disappointed that Native persons in many states continued to be denied the vote after its passage. (Pp. 256; 260.) As one of the investigators of efforts to defraud members of the Five Civilized Tribes of their mineral wealth, Zitkala-Ša also importantly “linked the plundering of Native resources to the violence perpetrated against Native women.” (P. 250.)

As Cahill demonstrates, the canonical women’s suffrage story is a white women’s history, curated very deliberately by Susan B. Anthony, who, along with Matilda Joslyn Gage, wrote the six-volume History of Woman Suffrage, after which Anthony burned the sources and mementos she had solicited from her compatriots in order to write the work. (P. 263.) Readers are extremely lucky that Cahill has assembled these compelling stories of the suffragists of color who do not fit into the tidy white women’s suffrage story and whose voices have been ignored for far too long.

  1. The Turtle Mountain Chippewa Tribe is comprised of Anishinaabe and Métis peoples and is located within the boundaries of North Dakota. See “Tawnshi! Welcome,” Chippewa Heritage, available at http://www.chippewaheritage.com/.
Cite as: Ann E. Tweedy, Uncovering the Little-Known History of Suffragists of Color, JOTWELL (March 25, 2021) (reviewing Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020)), https://equality.jotwell.com/uncovering-the-little-known-history-of-suffragists-of-color/.

A Lively Conversation on Trans Legal Change

Samuel Singer & Ido Katri, Guest Editors, Special Issue: On the Margins of Trans Legal Change, 35 Can. J. of L. and Soc’y 147 (2020).

If you’re having one of those days where you feel like change may never come; here’s a fabulous volume for you. This special issue of the Canadian Journal of Law and Society centres the lives of trans people, grapples with daily experiences of exclusion and discrimination, and claims new shared ground for legal change in ways that requires us to de-centre law. It is exciting work.

The collection of articles addresses all manner of cites of legal contest—from employment law to human rights, to education law, to health law. As a collection it is neither rigidly theorized nor staunchly pragmatic. Instead, the articles, many of them authored collaboratively, acknowledge theoretical foundations and legacies, and seek to build from those foundations while still keeping the real lives of trans people in sharp view. And while the collection is ground-breaking as a venue for a collective conversation about trans legal change, it makes no claims to be definitive or comprehensive. Each article both stands independently as a contribution rooted in a specific set of experiences and legal frames and weaves with the other contributions to form a coherent, but of course incomplete, whole. The collection is a conversational moment: it results from an effort to bring together a growing number of Canadian trans scholars, activists, and allies in dialogue and to let things unfold from there.

The collection features 12 distinct contributions, each worth reading in the spirit in which they are offered. As I read through the collection, I imagined the authors were inviting us to pick up a drink of our choosing—a coffee, tea, icy cold water, scotch—and to ready ourselves to learn something, to agree and to disagree, and to find ourselves perhaps hopeful about the future of trans scholarship and trans law.

The transcription of the keynote presentation, a discussion between Dr. Viviane Namaste at Concordia and Dalia Tourki, former Advocate and Public Education at the Centre for Gender Advocacy in Montreal and now a law student, is a genius opening. The pair offer a thoughtful tribute to long-time activist, sex worker, and public intellectual Jamie-Lee Hamilton. They open-heartedly explore the right to be loved, one of many signals that trans legal change is not going to rest on foundations familiar to many traditionally trained lawyers. The challenges of both relying on an often oppressive and conservative institution (like law) and wanting to de-centre the power of those institutes arises poignantly in the dialogue. (Imagine: changing your identity papers can be liberatory and yet not celebratory.) There are lovely stop-downs in washrooms, and with trans youth, on migrants, and contemplating glass ceilings.

The article by Dan Irving and Nathan Hoo particularly captured the spirit of law’s limits. Irving conducted forty-four semi-structured interviews with trans-identified residents of urban areas who were un/deremployed. One of the striking reflections was how complex it was for participants to articulate the reasons for the difficulties they faced in seeking employment. Many could sense that discrimination was at play, but speaking with confidence about the nature of that discrimination and its ramifications was elusive. This is of course why “law wins”. Because our sense of what constitutes discrimination is confined to our sense of what is valid evidence. And what is considered valid evidence is constructed by a system whose survival turns on the inability to “prove” the facts we of course know.

Since many readers of Jotwell find their homes in universities, Leon Laidlaw’s article on trans university students’ access to facilities is a must. Laidlaw surveyed fifth-four trans students and explored their use of washrooms, locker rooms, and student housing on campus. Laidlaw helpfully offers a taxonomy of strategies for “inclusion”—binary inclusion (integrating some space for trans students within the already existing gender binaries), alternative accommodations (offering some distinctive space), and degendering (removing the need for binary facilities altogether). None of these approaches is satisfying. Instead, Laidlaw offers a recommendation for each of washrooms, locker rooms, and accommodation that borrows from the three possible approaches.

Let me offer one final teaser: Jake Pyne’s contribution on “building a person”. Pyne’s article draws an analogy between two behaviour modification programs that share an origin: conversion therapy (which originally aimed to eliminate “feminine” behaviours in male-bodied children) and applied behavioural analysis (ABA) (which aimed to eliminate some behaviours in autistic children). The shared history of these “treatments” is a fascinating read, perhaps familiar to others, but new to me. Pulling together “autism and transgender” offers Pyne with a new lens through which to explore the relative rise in ABA and decline in conversion therapy. The analogy helps Pyne to centre the lives of autistic transgendered children. It also allows for more critical approaches to ABA and to centring the person, what Pyne describes as “a discursive shift from having a condition to being a human.” (P. 358).

A discursive shift of this sort could serve as a frame for the collection. What each of the articles have in common is a profound commitment to honouring being human, and centrally, being a trans person. That work entails exploring understanding law pluralistically and seeing its limits, being grounded in the daily experiences of trans lives, recognizing that the conversation remains partial and ongoing, and acknowledging and grappling with what it means to be centred.

Cite as: Kim Brooks, A Lively Conversation on Trans Legal Change, JOTWELL (January 25, 2021) (reviewing Samuel Singer & Ido Katri, Guest Editors, Special Issue: On the Margins of Trans Legal Change, 35 Can. J. of L. and Soc’y 147 (2020)), https://equality.jotwell.com/a-lively-conversation-on-trans-legal-change/.

Equality for Whom? Nonmarital Inequality and the Paradox of Parental Leave

Deborah A. Widiss, Equalizing Parental Leave, 105 Minn. L. Rev. __ (forthcoming, 2021), available at SSRN.

On Election Day, Colorado voters approved an initiative that makes Colorado the tenth state (including D.C.) in the U.S. to install a state-run paid family and medical leave insurance program. It will provide, among others, at least 12 weeks of paid time for childbirth and adoption, hence extending the entitlement of paid parental leave to Colorado workers who are not covered by the Federal Employee Paid Leave Act. Paid parental leave is increasingly considered to be a crucial measure to advance sex equality by transforming parenthood on double fronts: enabling working mothers to stay employed and paid while caring for children, and encouraging working fathers to provide hands-on infant care. Internationally, many countries have enacted various parental leave policies, which provide either equal amounts of leave to parents regardless of sex or distinct leave policies for mothers or fathers, while mindful of the risk that accommodating working mothers’ need for childcare without engaging working fathers in childcare will likely deteriorate the unequal division of childcare. It follows that a feminist inquiry into parental leave policies typically centers on the issue of which approach best promotes equal parenthood so that mothers do not shoulder the sole responsibility of childcare.

In Equalizing Parental Leave, professor Deborah A. Widiss argues that the above vision of equal parenthood is an incomplete picture. Widiss has examined the efficacy of different paid parental leave policies as an equality-promoting measure from a comparative perspective in a related article, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia (reviewed by Naomi R. Cahn on JOTWELL). Equalizing Parental Leave takes a step forward to shed light on the sex inequality of nonmarital families under U.S. parental leave laws. Both federal and state parental leave laws provide the same benefits to mothers and fathers, but they do not benefit all families equally: families with two legally recognized parents are entitled to receive as much as twice the benefits of families with one legally recognized parent, and marital families are more protected than nonmarital families.

Consequently, Widiss discloses an overlooked paradox of parental leave: “every step forward in achieving the gender equality envisioned by these laws—that is, the aspiration that both mothers and fathers will fully utilize their benefits—will widen the gap between families with one custodial parent and families with two”. (P. 2.) To put it another way, laws that intend to correct sex inequality simultaneously cause a different kind of sex inequality: “the particular structure of American leave laws is intended to address sex inequality within (presumptively-different-sex-two-parent) families by encouraging men and women to share caregiving responsibilities. But this policy simultaneously disadvantages single parents. Since women are far more likely than men to have sole custody of a child, a policy that disadvantages single parents functionally disadvantages women.” (P. 40.)

Equalizing Parental Leave grapples with this paradox of equality1 by providing a diagnosis and a proposal to fix it. Its primary goal is neither to revolutionize the theoretical debate on equality nor to challenge existing constitutional equality doctrines radically. Rather, it incorporates the theoretical inquiry of sex equality with a solid empirical investigation through intersectional and comparative lenses, and seeks a practical solution that can be pursued under the current structure without abandoning the road that has been taken.

Widiss’s careful review of empirical data and reports reveals the intersectional inequality of nonmarital parenthood that begs the need for legislation: unmarried parents are vulnerable workers and families already disadvantaged by their class, race and gender, but they are very unlikely to receive leave benefits from their employers. Her comprehensive and up-to-date survey of US federal and state parental leave laws makes a breakthrough by examining the interaction of leave laws with state family laws that defines parentage and custody rights, which shows how new leave laws categorically disadvantage single parents who are already the disadvantaged. Most significantly, her endeavor to seek wisdom from other countries produces the highlight of this article: the need to promote sex equality both within and between families.

Equalizing Parental Leave shines due to its adoption of a comparative and transnational perspective. As Widiss and other commentators have noticed, the U.S. lags far behind many countries in the world on the protection of new parents by providing paid time off work. The Family and Medical Leave Act provides only unpaid leave, under which “the most vulnerable workers are least likely to be covered.” (P. 21.) Only four of the U.S. state paid leave laws were passed before 2017, and the Federal Employee Paid Leave Act was passed as recently as 2019. This embarrassing fact provides a rare chance for the transnational migration of equality laws to the U.S. Both U.S. federal and state paid leave laws adopt the formal equality approach to provide the same benefits to each parent of a new child. In contrast, countries other than the U.S. generally endorse a substantive equality approach built on the premise that treating women and men the same under the structure of sex inequality will not eliminate inequality at best, and will exacerbate women’s disadvantage at worst.

Widiss identifies the growing trend of encouraging fathers to claim more parental leave by supplementing sex-specific leave with a gender-neutral parental leave available to either parent after materiality or paternity leave. It is an affirmative response to cope with the unfortunate fact that “to the extent that a parental leave can be claimed by women, it typically is claimed by women.” (P. 39.) One of these measures is to reserve a portion of “shared” parental leave for fathers only (known as the “use-it-or-lose-it” provisions), which is proven to have increased fathers’ leave-taking rates. The measure’s effectiveness in transforming fatherhood has led some commentators to propose that the U.S. should follow suit.

Widiss, however, uncovers a fundamental misunderstanding of U.S. laws that guides the above reform proposal. Other countries adopt a shared parental leave policy in which a certain portion of leave time can be transferred from one parent to the other parent. The reserving time for fathers was therefore against a previous baseline in which mothers could use all available leave time. In contrast, American leave laws provide individual and non-transferable benefits and leave for mothers and fathers alike, and there is no shared parental leave. Based on this comparison, Widiss declares that “although gender neutral, the American approach is already more aggressive in encouraging men to take leave than almost any other country’s policy, in that a full half of bonding benefits and leave is “use-it-or-lose-it” leave.” (P. 37.) She pinpoints the opposite problem of the American leave policy—it systematically benefits families conforming to the stereotypical nuclear family, and makes no modification for single families.

The lesson to be learned from other countries’ approaches, Widiss finds, is that they are similarly incapable of treating all families equally, despite their various efforts to transform fatherhood by imposing sex-specific or neutral measures. The American approach disadvantages families with one legally recognized parent. A policy that provides exclusive maternity leave would treat a child with a single mother and a child with married different-sex parents equally, but would disadvantage a child with two fathers. Apparently, various leave policies will result in different levels of benefits being available for different families, hence raising the concerns of discrimination.

However, Widiss cautions that this is not necessarily a problem. The primary focus of parental leave law dictates whether or not it constitutes a violation of equality. If the focus is on a parent’s interest, American law is fair in treating all parents equally (meaning being treated the same when similarly situated). If the focus is on a child’s interest, a family’s interest or public interest, American law is unfair and disadvantages those who need it the most. She also notes that, as a matter of law, variations in how parental leave laws treat families can probably survive a constitutional equality challenge, and are also likely permissible under statutory antidiscrimination laws. As a matter of policy, parental leave laws contribute to the status quo that “nonmarital children, and the adults who care for them— disproportionately poor and working-class women of color—are disadvantaged from the very first months of life.” (P. 40.) Therefore, the first imperative of policy reform is to support nonmarital families in which the parent bears the primary responsibility for both breadwinning and caregiving.

Widiss’s paid leave law reform proposal to advance both sex- and family-based equality is a modest one. It recognizes the remarkable effects that universal childcare and a high-income replacement rate will bring about, but chooses a different route that requires minimal additional resources, that is, permitting sole custodians to receive extended benefits with the possibility of a transfer to a broader range of familial caretakers. (P. 41.) The proposal is premised on the lessons learned at home and abroad. The domestic experience of leave law policy seems to have lived up to its goal of encouraging fathers to claim leave and shifting gender norms within two-parent (different-sex) families. Other countries’ experience suggests that providing individual rights to each parent on a use-it-or-lose-it basis is the most effective way to achieve policy goals. She is, therefore, reluctant to move toward a wholly family-based leave approach, which will likely compromise the progress achieved by the existing structure.

Keeping the individual-based policy in place, her proposal would allow single parents to receive extended benefits. This gender-neutral policy will likely produce a positive, disparate impact on women, because they are more often the sole custodians.2 Using other countries’ transferable leave laws as a model, her proposal would allow the option of transferring a portion of benefits to an extended list of familial caregivers, including unmarried fathers, grandparents, and cohabitating partners. A jurisdiction can decide the design of transfer options and the range of benefit extension as it sees fit to mitigate existing inequality. The suggested changes, Widiss argues, can be easily implemented to existing leave laws, because they do not require the creation of new legal categories. Furthermore, it would not unduly burden employers, because the costs are already spread across the tax base. It is indeed a small but necessary step to advance equality for all.

As a newcomer to the club of countries offering paid parental leave, the U.S. still needs more states to enact legislation so that paid parental leave will be available nationwide. But the inequality of nonmarital families begs for more changes. Equalizing Parental Leave engages with the equality question of paid parental leave on both empirical and conceptual levels. It exhibits the crucial role of solid empirical research to substantiate an inquiry into inequality. It demonstrates how a comparative and transnational perspective can enrich and inspire one’s visions for change. Legal reform that intends to correct sex inequality will not produce a different kind of sex inequality, if we are willing to look beyond two-parent marital families and the American border.

  1. In The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia, Widiss discusses another paradox of parental leave, that is, the sameness and difference dilemma that professor Windy Williams famously categorized as “equality’s riddle.” Equalizing Parental Leave also touches on the “equality’s riddle” question in Part III.
  2. Widiss believes that this disparate impact is unlikely to be considered unconstitutional sex discrimination due to the lack of discriminatory intent, and is probably permissible under Title VII (fn. 282, p. 50).
Cite as: Chao-Ju Chen, Equality for Whom? Nonmarital Inequality and the Paradox of Parental Leave, JOTWELL (December 9, 2020) (reviewing Deborah A. Widiss, Equalizing Parental Leave, 105 Minn. L. Rev. __ (forthcoming, 2021), available at SSRN), https://equality.jotwell.com/equality-for-whom-nonmarital-inequality-and-the-paradox-of-parental-leave/.

Beyond Predictions About Predictive Policing

Kate Robertson, Cynthia Khoo, and Yolanda Song, To Surveil and Predict: A Human Rights Analysis of Algorithmic Policing in Canada, Citizen Lab and International Human Rights Program, University of Toronto (2020).

To Surveil and Predict is longer than the usual Jotwell suggestion. The authors carefully document and then explore the rights implications of the use of algorithmic and predictive tools by police forces in Canada. They conclude with a series of recommendations focused on public policy. My recommendation here is focused on the method and the equality focused parts of the report, although I like it all–a lot.

First, method. The Report works to expose and explore something that’s only just starting up. So classic doctrinal methods–where are the cases?–are not going to work well. But some of the analysis is quite legal, running things through Canadian human rights and charter provisions. At the same time and contrary to much (also very good) early work in this sector, they do not spend much time speculating about potential future technologies. Instead, Robertson, Khoo and Song pursued information (inter alia) about what was happening “on the ground” through freedom of information (FOI) requests. One of the many aspects of their work that I like: they provide information about how these requests were received and negotiated. (P. 13; Appendix A.) FOI is a critically important tool for researching the administrative state. How the process plays out is usually connected to the quality, volume and nature of the information obtained, but the process of making requests (and receiving replies, or not) is rarely described in articles. In my view, discussion of how the FOI requests worked in context is a good reason for adding length to research reports and analysis.

Other methodologies beyond doctrinal/theoretical analysis include convening a conference held under Chatham House rules (“participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed”), such that “insights from the symposium have informed some of the analyses in this report.” (P. 12.) From my experience, this is not a methodology expressly used or often described in legal research published in legal journals. Finally, they conducted a small number of interviews with key informants from the profession, and law enforcement. (P. 13.)

Through these methods, Robertson, Khoo and Song establish three categories of “algorithmic policing technologies”, the first two of which are also “predictive policing technologies.” All have been procured and/or deployed in Canada: location-focused algorithmic policing technologies, person-focused algorithmic policing technologies and algorithmic surveillance policing technologies (“sophisticated, but general, monitoring and surveillance technologies”). (P. 2, Pp. 38-69.)

For purposes of this Jotwell section, the meat of the report is in section 5.4, which considers the Right to Equality and Freedom from Discrimination.1 The authors have wisely taken an international human rights approach, so they are not limited to recognized rights under the Canadian Charter of Rights and Freedoms, or federal/provincial human rights codes. This ensures that along with racial discrimination (an early and continuing focus in the document), the authors take up concerns about socio-economic disadvantage as a salient ground of discrimination when these technologies are considered. (Pp. 113-119.)

Within the sections dealing specifically with equality and discrimination, they focus on three things. First, the operation of Virginia Eubank’sfeedback loops of injustice” (when data taken from a discriminatory system is used as the training material for an AI system). Second, the problem of hypervisibility for many low income people resulting from significant engagement with government systems. Finally, they turn to the ways that algorithmic approaches may build in discrimination but make it difficult to establish the cause, burying it in sophisticated techniques of maths and science. (“Inequality by Design and “Math-washing” Injustice” at P.122.)

In Canadian law, many criminal justice instances of racial discrimination have been dealt with not through the application of section 15 (the equality protection section of the Charter of rights and freedoms) but instead through other legal rights.2 This is at least in part because for some time the equality section has placed high barriers in front of claimants (U.S. readers might be interested to know, for instance, that collecting data disaggregated by race has not been a common practice and remains a controversial practice in Canada–which can make discharging the claimant’s burden of proof in section 15 equality cases difficult). 

To Surveil and Predict, however, makes recommendations at the policy level–not tactical suggestions for constitutional litigation. Thus, they are both broader and more preventative, highlighting the inability of courts to do this kind of work when faced with constitutional challenges. The three recommendations specifically aimed at equality and discrimination (Pp. 159-160) include an immediate moratorium on use of past data sets to inform predictive policing, a federal judicial inquiry into any and all such repurposing of past police datasets, and a requirement that all use of predictive policing and other algorithmic surveillance policing technologies be subject to a tracking requirement to “monitor potential emergence of bias.” (P. 160.)

The report relies on some of the excellent work on AI, policing technologies and algorithmic predictive technologies produced in the U.S., as we might expect. The development and operationalization of predictive policing technologies has been prominent in that country. But in a “small” jurisdiction like ours, with our own unique constitutional protections and human rights laws in place, implications, as well as doctrinal and policy questions have to be considered anew. It is also possible that the different contexts will reveal new effects of predictive and other forms of algorithmic policing technologies. For example, to the extent that hypervisibility depends on the existence of state services and information sharing between them–it is possible that this concern is heightened in a state which provides, in general, more services. And the problem might be even greater in unitary systems where information sharing would be intragovernmental not necessarily “intergovernmental” as it often is in federal states like Canada (where there remains surprisingly little intergovernmental sharing) and the US.

It is clear that particular features of relevant doctrines will be key to policy recommendations, and that particular doctrinal requirements of proof will be major barriers. In particular, Canadian constitutional law does not require intent to discriminate, but uses a substantive definition of discrimination. Furthermore, Canadian constitutional law does not limit the grounds of discrimination, which might be particularly important given the fine-grained targeting based on multiple characteristics that these technologies are designed to produce. Finally, the particular political and legal conventions which operate to define and differentiate the private and the public might also be relevant here where the majority of the technologies are developed in the private sector and used by the public sector under a variety of arrangements which, as the authors note, might make access to the information required to understand what is actually happening in the operation of the technology quite difficult.

I think that this report is perhaps a bit long for me to urge everyone to read all of it here (I would if I could though!). But for scholars of equality–whether already interested or only vaguely aware of these new tools available to the state, and whether interested in Canada or not–I highly recommend at least those portions of To Surveil and Protect focused on method, and on the right to equality and discrimination.

  1. There is of course much more, from attention to rights of privacy, expressive freedoms, and other rights which can be raised mainly in the context of legal proceedings and criminal justice.
  2. See, for instance, R. v. Williams, [2003] 2 S.C.R. 134, 2003 SCC 41, or R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Cite as: Sonia Lawrence, Beyond Predictions About Predictive Policing, JOTWELL (October 13, 2020) (reviewing Kate Robertson, Cynthia Khoo, and Yolanda Song, To Surveil and Predict: A Human Rights Analysis of Algorithmic Policing in Canada, Citizen Lab and International Human Rights Program, University of Toronto (2020)), https://equality.jotwell.com/beyond-predictions-about-predictive-policing/.

“Free” Market Too Costly for US Families

Maxine Eichner, The Free-Market Family (2020).

In July 2020, newspapers reported a study that ranked the United States as the second-worst country—after Mexico—to raise a family out of 35 OECD countries. The US failed, in particular, in the categories of cost to raise a family, time parents have to spend with their children, and safety as related to raising a family. Sadly, for families who struggle with this issue, this report held nothing surprising. The Free-Market Family (2020), by Maxine Eichner, affirms the study and adds much more. The book details, in a comprehensive and nuanced manner, the failure of the US to support its families. Eichner argues that over the past five decades the US has gradually adopted an extreme version of “free-market family policy,” in which the government’s role in helping families to care for their children, especially in their early years, is minimal. Families are sacrificed to the market’s mercy, juggling work and caregiving, in what becomes a mission impossible for all but the ultra-rich. The result is devastating: the well-being of most US families—measured across such standards as happiness, academic achievement, mental health, time to spend with family, and economic mobility—is significantly worse in comparison to other similar countries.

The Free-Market Family is mandatory reading for anyone who wants to understand how laissez-faire public policies fail most US families. Diligently and elegantly, Eichner maps and analyzes the various policies that contribute to this failure. One of the book’s primary strengths lies in the richness of disciplines, resources, and methodologies she engages—from history to political economy, from major news stories to economic data, from interviews with 39 parents to comparative policies across various nations. Together, the book provides a thorough and rigorous account of the policies that the US has embraced, including their political origins and their harm, and offers suggestions about how to correct them. Eichner’s style is crisp and delightful, making even her meticulous detailing of policies and data accessible to a broad audience without compromising the critical nuances of these issues. The personal narratives make the story less abstract, and are often very touching.

Economic inequality is the major story that Eichner tells. Although free-market policies harm most families—even middle- and upper-middle-class—not surprisingly, those who are harmed the most are poor and working-class families. Many of these families’ problems stem from the economic insecurity they face and from the government’s hands-off policies. Due to unstable jobs, child benefits in a form of a tax credit (rather than guaranteeing minimum income), and welfare policies that aim mainly at putting parents to work (often even in the year that a child is born), low-income parents often struggle to put food on their family’s table or provide stable housing. In the first year after a child’s birth, a period that is enormously important to the child’s development and to the recovery of the birth mother, they often cannot afford even a short time of parental leave, let alone an entire year (and often need to pay a hospital bill). Yet, the federal law provides only three months of unpaid parental leave, and, thanks to exemptions, a large percentage of families do not qualify for even this benefit. The US is the only OECD country without a policy of paid parental leave.

At the same time, parents’ work hours can be highly unpredictable, they might need to work nights and/or take second and third jobs—all of which make the task of finding good childcare nearly impossible. Further, government failure to provide subsidized daycare, as well as reliable and supervised care centers, make their parenting task impossible: not only do they experience the stress of juggling all this (indeed, surviving), they cannot spend time with their children or provide quality parenting. In a system that strongly relies on parents to privately navigate raising children, these parents have less time and fewer resources to spend on their children than their more affluent counterparts. The result is that economic mobility for children from these families is significantly lower than in other countries (P. 9). Finally, prekindergarten programs—which play an important role in equalizing between children from wealthy and low-income families—are too expensive and typically inaccessible to most. Fewer than 40 percent of three-year-old in the US are enrolled in such programs, compared with 90 percent in such countries as France, the UK, Germany, and Israel (P. 113). This is just the tip of the iceberg of the account that the book provides of how “poor and low-income families bear the harshest burdens of free-market family policy” (P. 119).

The free-market family-policy approach that the US has adopted, Eichner persuasively contends, is so radical that policymakers frequently prioritize market operations that harm the family, instead of markets that work for improving the well-being of families. Conversely, in a “pro-family” approach—a version of which has been adopted by virtually all other wealthy democracies, and often by countries that are much less wealthy than the US— the market constrained by the government in order to help the people. These policies include: limiting work hours so parents can spend time with their families, publicly paid parental leave for up to a year (in the case of two parents, policy often includes incentives for the other parent to take some leave), strong safety-net programs, child benefits in the form of monthly income, and subsidized and supervised quality daycare—to name just a few.

The US’s radical market-centric approach to family policy has not always been its governing ideology. Rather, in one of the best chapters in the book, Eichner recounts that during much of the twentieth century “the role of the government in safeguarding the well-being of families against harmful market forces was a fundamental part of our nation’s social contract” (P. 159). Knowing that the free-market approach is a political choice, Eichner sketches a roadmap for a pro-family agenda, arguing that adopting pro-family policies will not decrease productivity or growth. Further, her proposal is not limited to listing specific policies, but attacks the core of this structural inequality. She asserts that reducing economic equality is a central goal that will improve well-being and will generally enable a more just society.

Ten years ago, Eichner wrote The Supportive State: Families, Government, and America’s Political Ideals.1 That book, grounded in political theory, argues that the state is responsible for creating the conditions that will help families with their caretaking needs. In using liberalism as her main framework, Eichner criticized the notion that when it comes to families the state’s values should be those of negative autonomy and state neutrality. The Free-Market Family takes this argument one step further. It constitutes an unapologetic attack on the free-market approach—not just on account of the policy outcomes it produces but also on the grounds that we must have principles other than market ones. The book taps into a large and growing literature on the wages of neo-liberalism on inequality and is a part of this growing conversation that is grounded in a political economy approach.2 Like its predecessor, this book will benefit a larger audience than legal theorists and family law scholars—it is a must read for anyone who cares about economic inequality, its sources, and how it crushes US families.

  1. Maxine Eichner, The Supportive State: Families, Government, And America’s Political Ideals (2010)
  2. Jedediah Britton-Purdy et al., Building a Law-and-Political Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784 (2020); The Law of High-Wealth Exceptionalism, 71 Alabama L. Rev. 981 (2020).
Cite as: Erez Aloni, “Free” Market Too Costly for US Families, JOTWELL (September 14, 2020) (reviewing Maxine Eichner, The Free-Market Family (2020)), https://equality.jotwell.com/free-market-too-costly-for-us-families/.

Thickening Rather than Abandoning the Rule of Law: Revisiting What Counts as “Law” through a Controversy about What Should Guide Judges in Awarding Spousal Support

The rule of law is a ubiquitous if elusive policy and legal term deployed worldwide. It is also a founding narrative of British colonialism. It thus strikes some as anathema to equality. But given its foundational stature in numerous legal orders, when equality-promoting measures are perceived as promoting the rule of law, they can receive the validation they may desperately need. Conversely, when such measures are seen to offend the rule of law, they risk being dismissed as constitutionally illegitimate. What we understand the rule of law to be, then, vitally matters to substantive equality goals. Currently, a formal or thin conception prevails in many jurisdictions. In this narrow conceptualization, the rule of law is directed at maintaining formal separation of powers and a system of positive laws where all exercise of public authority has a legal source, and no one is above the law.

Many equality initiatives, however, to be seen to have rule of law backing and thus legal legitimacy, need a thicker account of the rule of law, one that can keep pace with changing social mores and normative commitments. How, then, to move our legal systems toward this thicker conceptualization? In The Spousal Support Advisory Guidelines, Soft Law, and the Procedural Rule of Law, Jodi Lazare deftly contributes one answer to this all-embracing question with her analysis of a particular tool meant to ensure women’s substantive equality: the Spousal Support Advisory Guidelines (“the Advisory Guidelines”) in Canada.

Lazare explains that the Advisory Guidelines, which set out “ranges of both amount and duration of support” (P. 317) upon relationship breakdown in various circumstances, were intended to bring more consistency to the judicial discretion judges had under the Divorce Act to make awards. Authored by two family professors working with a 15-member advisory committee, she summarizes the comprehensive consultation and deliberation that took place across Canada with the family law bar and bench to generate their content. While impressively engendered through the “ground up” (P. 320) and although the Department of Justice funded the research, the Advisory Guidelines are not the result of any legislative act and are also not mentioned in any piece of related legislation.

Whereas some courts in certain provinces have endorsed the Advisory Guidelines in their making of spousal support awards as a legitimate guide for judicial discretion, courts in other provinces have dismissed them because they are not legislative in character, viewing them as  “informal, unofficial, and non-binding (in) nature” (P. 318) and any judicial reliance on them as an affront to the rule of law. As a result of the mixed judicial reaction, “the unpredictability and sense of injustice that provided the impetus for the creation of the Advisory Guidelines continue to undermine the family law system.” (P. 319.) Lazare’s analysis is devoted to showing why “judicial reliance on the Advisory Guideline might be understood as upholding, rather than offending, the foundational constitutional principle.” (P. 343.)

Her analysis deploys public law theory (administrative, constitutional, and rule of law) and a discussion of deliberative democracy to do so. What could understandably have been an abstruse argument given the conceptually dense subject matter is instead rendered as a concise, accessible, and generative analysis that impresses upon its reader both the analytical acumen and elegance in writing of the author, but also the pressing need for equality advocates not to abandon the rule of law as a colonial holdover. Lazare shows, through the prism of family law and spousal support in particular, why equality advocates need to thicken the meaning of the rule of law so as to “open up new understandings of legitimacy and expand the existing pool of sources of normativity” (P. 345) as to what law is and how it comes into being.

She begins her argument by explaining how the Advisory Guidelines promote substantive gender equality for women who are most often the dependent spouse. (Pp. 322-24.) After making this connection, Lazare is then able to focus on making the case as to why the Advisory Guidelines’ “soft law”-like status is actually compatible with the rule of law properly conceived (even though, as Lazare acknowledges, the Advisory Guidelines are likely more reprehensible to rule of law purists than actual “soft law” as the former are not only unlegislated but also not created by the administrative or executive branch or any public authority).

Lazare builds a layered argument for why the rule of law should be “something more than a requirement of form and authorship.” (P. 335.) She calls for a vision of the rule of law that aligns with “thick constitutionalism” (P. 333), specifically locating the rule of law features of the Advisory Guidelines in the quality of the procedures that led to their creation, arguing that the Advisory Guidelines’ deliberative democratic genesis is superior to anything emanating from formally legislated sources as they pertain to spousal support. Lazare persuasively argues that policy-making that is the outcome of deliberative democratic principles and mindful of constitutional values respects the rule of law despite its informal, unbinding, and non-legislated character.

As Lazare sensibly recognizes, her article “does not purport to settle the meaning of the rule of law.” (P. 343.) But what her grounded analysis of the Advisory Guidelines does is to provide a persuasive equality-focused analysis of why legal thinking about the rule of law should not remain tethered to a thin conceptualization in Canada (or elsewhere). As she notes, her argument has resonance beyond equality for women or other dependent spouses in family law.  Consider animal rights, another important research area for Lazare. Establishing that the rule of law properly conceived permits, say, courts to treat guidelines from animal protection organizations with similar quality of deliberation to those underlying the Advisory Guidelines would be a powerful legal argument in a legal landscape where animal interests are overwhelmingly absented.

Further, Lazare’s careful and cogent analysis prompts scholars like myself, seeking to mine the rule of law in aid of animal protection because of its formidable legitimating value, to closely consider the nuances of what a properly conceived thick description of the rule of law would be. Her argument that a deliberatively democratic process and general respect for constitutional values like equality can impart legal character to guidelines developed by non-public entities, also implicitly highlights the illegitimacy when such deliberation is absent in the documents produced by non-public entities such as agricultural industry-driven norms regarding the farming of animals.

In other words, Lazare’s analysis helps us to see when the outputs of non-public actors can legitimately supplement judicial discretion, but also the dangers of regulatory capture. Her analysis advances a deeper contemplation of precisely how to thicken the concept of the rule of law. In doing so, the analysis productively moves the conversation forward in Canada about the need to rethink the rule of law and how to rehabilitate it from a tool of colonialism to an ally of equality.

Cite as: Maneesha Deckha, Thickening Rather than Abandoning the Rule of Law: Revisiting What Counts as “Law” through a Controversy about What Should Guide Judges in Awarding Spousal Support, JOTWELL (May 8, 2020) (reviewing Jodi Lazare, The Spousal Support Advisory Guidelines, Soft Law, and the Procedural Rule of Law 31 Can. J. Women & L. 317 (2019)), https://equality.jotwell.com/thickening-rather-than-abandoning-the-rule-of-law-revisiting-what-counts-as-law-through-a-controversy-about-what-should-guide-judges-in-awarding-spousal-support/.

Reconciling Competing Claims to Equality Relating to Tribal Governments and Native and Non-Native Individuals

Bethany Berger, Savage Equalities, 94 Wash. L. Rev. 583 (2019).

Bethany Berger’s article Savage Equalities is an excellent exploration of the importance and varied meaning of equality in the context of tribal rights and Federal Indian Law. Berger carefully evaluates the various types of equality claims that are levied in relation to tribes, including the idea that recognition of tribal sovereignty creates special rights for tribes that denigrate the equality rights of non-Indians (or even, according to some formulations, Indians), the idea that recognition of tribal sovereignty is necessary to foster equal treatment of tribes and tribal citizens, and finally the concern that Indian tribes’ governmental actions sometimes violate their own citizens’ rights to equality. She traces the prevalence and deployment of these ideas through the tortuous history of the federal government’s relationship to tribes, showing how, for example, the idea of unfair “special rights” for tribes was used during particularly dark periods of federal-tribal relations such as the allotment period, when the idea purportedly justified harming tribes by unlawfully taking their property. The taking of tribal property at the time was deemed necessary to level the playing field for individual non-Indians who were seen as unfairly lacking these special rights.

Berger similarly traces the understanding of the right to tribal sovereignty as rooted in, and necessary for, equality through more positive periods of history, and she additionally identifies instances where individuals under tribal jurisdiction have been denied their rights to equality at the hands of tribal governments.

In some ways, Berger’s work builds on previous scholarship about the distrust of tribal governance rights resulting from strict adherence to a liberalist worldview.1 However, Berger’s article is unique in her comprehensive focus on the various and often contradictory visions of equality that are brought to bear in the tribal context and in her proposal for an innovative framework to help us evaluate these claims in a reasoned way.

Her framework consists of a threefold evaluation of competing claims to equality:  “First by taking seriously the idea of tribal governmental equality. Second, by considering how history and context affect the present meaning of these claims. And, finally, third, by evaluating how challenged measures will affect the least well off.”  (P. 319.) Her framework provides much-needed tools to rigorously evaluate competing claims to equality in the context of tribal governance and individual rights and to identify spurious equality arguments that are rooted in a coopting of equality language, such as the idea that the Termination Period, during which the federal government ended its special relationship to many Indian tribes, actually effected an emancipation of those tribes who were affected by the policy, similar to the abolition of slavery for African-Americans. (P. 611.) Although the approach and structure of the framework are different, Berger’s concept reminded me of another very valuable test in the equality arena, namely Davina Cooper’s examination of whether an alleged form of oppression constitutes an “organising principle of inequality.”2

Another extremely valuable part of Berger’s work is her evaluation of the utilization of these equality arguments in the context of three culturally salient examples—the contention that the Indian Child Welfare Act (ICWA) violates the equal protection rights of Indian children, the argument that the equal protection rights of Cherokee Freedmen were being violated by the Cherokee Nation is in its efforts to exclude them from the Tribe, and, finally, the argument that tribal treaty fishing rights in the Pacific Northwest and the Midwest create special rights for tribal citizens that unfairly put non-Indian fishers in an unequal position. Because federal Indian law scholars and practitioners are very familiar with all three of these arguments, Berger’s application of her framework to them helps us understand how the framework works and highlights its usefulness.

In the context of ICWA, for example, Berger uses the second principle of her framework to reinforce the need to take into account the long history of state and federal removal of Indian children, often to further assimilationist goals, when evaluating current claims that the law violates equality principles. (P. 623.) With regard to the third principle, the effect of the challenged measures on the least well off, Berger explores an instance in an important recent Supreme Court case, Adoptive Couple v. Baby Girl, where the wealth of the white adoptive couple was used as ammunition by the guardian ad litem and others to support the idea that the adoptive couple had a superior claim to the child to that of her biological father, whose general fitness as a parent was not disputed. (P. 630.) Thus, Berger notes that, “in protecting the children of less well-off parents and communities against more powerful ones trying to take them away, ICWA in fact helps remedy inequitable power imbalances in child custody cases.” (P. 630.)

Finally, Savage Equalities provides a rich historical recapitulation of the use of equality arguments in relation to tribes from the sixteenth century on. History is distinctively important in federal Indian law—almost to the point that every article in the field can be judged by how well it explains the portions of history that are relevant to the points it is making—and Berger’s historical overview is particularly fascinating and meaningful. Her article traverses the birth of international law in the sixteenth century, when Francisco de Vitoria and others critiqued the justice of European sovereigns’ claims that they gained power over portions of the New World and the indigenous people inhabiting those areas by virtue of having “discovered” them (P. 598-601), the flip-flopping views of the American Founders as to tribal rights, and the background of the seminal case, Morton v. Mancari, in the 1970s. (P. 616.)

One of her most interesting notes is her observation that early abolitionists were often inspired to end, not just the evils of slavery, but also unfair denials of tribal sovereignty, 606, thus demonstrating a longstanding synergy between individual civil rights and the sovereignty rights of tribal governments. Berger uses her evocative historical overview to demonstrate key points in her argument, such as the idea that past “policies built on the insistence that Native people were entitled only to individual equality [rather than also to protection of their tribal governments and cultures] are today recognized as among the most inegalitarian in the long, sad history of federal Indian policy.” (P. 602.)

Savage Equalities is a wise and engaging work that will make you think in new ways about old wrongs. Even more importantly, it provides indispensable tools to evaluate competing equality claims pertaining to tribal governments. By blazing a trail for rejection of baseless claims and acceptance of legitimate ones, it furthers justice in this important area.

  1.  See, e.g., Ann Tweedy, The Liberal Forces Driving the Supreme Court’s Divestment and Debasement of Tribal Sovereignty 18 Buff. Pub. Int. L. J. 147, 199-216 (1999); see generally Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 Cal. L. Rev. 799 (2007); Gloria Valencia-Weber, Racial Equality: Old and New Strains and American Indians, 80 Notre Dame L. Rev. 333 (2004).
  2. Davina Cooper, Challenging Diversity: Rethinking Equality & the Vale of Difference 63 (2004).
Cite as: Ann E. Tweedy, Reconciling Competing Claims to Equality Relating to Tribal Governments and Native and Non-Native Individuals, JOTWELL (April 10, 2020) (reviewing Bethany Berger, Savage Equalities, 94 Wash. L. Rev. 583 (2019)), https://equality.jotwell.com/reconciling-competing-claims-to-equality-relating-to-tribal-governments-and-native-and-non-native-individuals/.

Communication, Knowledge Sharing and Danger Assessments: Key Factors in the Prevention of Domestic Violence Fatalities

Were I to describe Rachel Louise Snyder’s new book – No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us – in three words they would be: comprehensive, concrete, and captivating.

No Visible Bruises offers a truly comprehensive exploration of the problem of domestic violence and our socio-legal responses to it. The book is framed around key stories and insights from victims and perpetrators, law enforcement, and academics and advocates who have worked to reform social and legal responses to intimate partner violence. The book convincingly demonstrates the systemic nature of the problem in part because it is so comprehensive in its assessment of the issue. Snyder draws connections between the pervasive and silent character of domestic violence and the economy, education systems, social stigma, sexism and intergenerational abuse. Using specific examples like family justice centers, multidisciplinary high risk response teams, batterer intervention programs, police protocols, researchers and fatality review teams No Visible Bruises canvasses the past several decades of reform to socio-legal responses to domestic violence. Snyder traces the history of the movement to reform how law enforcement, social workers and courts address domestic violence and examines how these efforts take shape today.

The book challenges head on some of the more tenacious myths about domestic violence. For example, Snyder relies upon several high profile cases in which women were murdered by their husbands or partners to explain why for many women remaining in, or returning to, violent relationships is a survival mechanism. In doing so she thoroughly discredits the myth that if the violence was severe enough women would just leave. One of the key stories in the book, indeed the story that opens the book, involves the murder of Michelle Monson and her children by her husband. As Snyder aptly demonstrates, one of the most dangerous circumstances for a victim of domestic violence is when she attempts to leave. A woman’s risk of being murdered by her former partner in the weeks and months following a break-up is alarmingly elevated. Perpetrators are likely to escalate their violence when victims try to leave. Victims of domestic violence, Snyder suggests, know this. Michelle Monson knew this and so, as often happens, following her attempt to leave, her report to the police and disclosure to her family, Michelle Monson recanted and returned to her abuser after he was released. Snyder writes:

Michelle did not recant because she was a coward, or because she believed she had overreacted . . . She did not recant because she was crazy . . . or because any of this was anything less than a matter of life and death.  She did not recant because she had lied. She recanted to stay alive.  She recanted to keep her children alive. Victims stay because they know that any sudden move will provoke the bear. (P. 53.)

One of the book’s most important, and heart wrenching, contributions involves an examination of the risk assessment tools that have been developed to predict which cases of domestic violence are most likely to result in fatalities. Snyder suggests that the development of a danger assessment tool, which has been adapted for use by police, lawyers, courts, advocates and healthcare workers, is the single most important tool used in domestic violence situations today.  This instrument was developed based on studies of domestic violence cases which did result in a fatality. Researchers and advocates were able to identify numerous commonalities, such as previous incidents of strangulation, threats of suicide, substance abuse or addiction, forced sex and violence during pregnancy, between the cases they studied. As Snyder explains, danger assessments ask a set of questions the answers to which predict the likelihood that a perpetrator’s violence will become lethal, triggering law enforcement, domestic violence advocates and health care professionals to take additional steps to protect victims. She suggests that this approach has saved countless lives. Snyder’s discussion of this tool is heart wrenching because so many of the factors that these assessments are designed to reveal were present in the key cases featured in No Visible Bruises. Would Michelle Monson and others be alive today if a danger assessment had been conducted?

According to Snyder there is one further factor that is key to designing preventative responses to domestic violence fatalities: communication.

No Visible Bruises demonstrates the critical role that communication plays in making domestic violence less lethal. Snyder writes (P. 276), “[i]f I had to whittle down the changing world of domestic violence to just one idea that made all the difference, it would be communication”. It is painful to read Snyder’s detailed accounts of murders that might have been avoided with better communication between advocates, police and legal professionals.

No Visible Bruises is immediately engaging. It is an exceptionally well written example of literary journalism. Snyder threads the stories, insights and experiences of numerous individuals (victim/survivors, abusers, police officers, lawyers, academics, advocates and front line service providers) throughout the monograph making the issues and struggles addressed in the book vivid and real.

The book is as rigorous as it is dramatic and emotional. It reflects years of research, multiple interviews with many of her informants and countless site visits across the United States. No Visible Bruises captures the lived realities of women murdered by their intimate partners. Snyder demonstrates how these women could have survived with knowledge, communication between police, legal professionals and advocates, and systemized and coordinated response processes. No Visible Bruises is compassionate, unapologetically feminist, and insightful.

Cite as: Elaine Craig, Communication, Knowledge Sharing and Danger Assessments: Key Factors in the Prevention of Domestic Violence Fatalities, JOTWELL (March 12, 2020) (reviewing Rachel Louise Snyder, No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us (2019)), https://equality.jotwell.com/communication-knowledge-sharing-and-danger-assessments-key-factors-in-the-prevention-of-domestic-violence-fatalities/.

Whitewashing the Rural: How Cultural Views Influence Access to the Justice System for Communities of Color

When you picture the rural, what does it look like to you? Perhaps you think of cowboys and the Wild West or Midwestern farmers or coal miners in Appalachia. When you think of the characters that inhabit your mental image, aren’t they White? This is the widespread image that Maybell Romero challenges in her recent law review article, arguing that such a homogenously White perception of rural spaces has significant institutional impacts for people of color living in these areas. Romero uses her article to advocate for mandatory cultural competency trainings and data collection in rural prosecutorial offices. Proper collection and analysis of this data will help shed light on the extent of racial disparities in the rural criminal justice system. Romero also challenges us to view rural areas with more nuance; they are not the racially monolithic places that inhabit most Americans’ perceptions. Expanding our racial view of the rural will help us adopt a “thicker”1 definition of justice, one that truly serves all those living in rural communities.

Romero notes that in pop culture, rural America is often conceptualized in one of two dichotomous ways. The rural is either an Andy Griffith-esque heartland of traditional American values or it is a lawless wasteland characterized by drug-addiction and violence. The thing both of these conceptualizations share is that the inhabitants of both are exclusively White. The focus of Romero’s article is rural Maine, a place that many Americans would expect to be almost entirely homogenous. When considering challenges faced by rural Mainers, people of color are very often overlooked or forgotten completely.

By using an expanded conception of rural, Romero is able to situate narratives of exclusion, which are not inherently rural, within her discussion of rural prosecutorial discretion. Romero defines rural not in terms of population, but as a “theoretical and cultural concept.” (P. 234.)  For the purposes of her article, Romero uses rural as an analog for conceptual distance from power; communities that are forgotten or excluded from the decision-making process. This broader definition of rural allows readers to better understand challenges faced by rural communities of color by drawing from their own understanding of cultural isolation that also exists in non-rural places. Romero begins her article with a quote from Maine’s former Trump-like governor Paul Le Page, which simultaneously paints Black and Hispanic people as drug-dealers and also as exclusively non-Mainers. Maine is considered a mostly-rural state by population estimates, but Romero also uses places like Cumberland County, the most populous county in Maine, to illustrate her points about racial disparities within the criminal justice system. The reason she does this is a practical necessity: there is a paucity of data regarding how rural institutions interact with communities of color. While there have been many studies highlighting racial disparities in urban criminal justice systems, very little scholastic analysis has been devoted to the implicit and explicit biases that also exist in rural areas.

The lack of data about rural prosecutorial bias is even more troubling given rural demographic trends. Population growth for non-White rural residents outpaces that for White residents. Romero notes several reasons for this shift. (P. 230.) In Maine, Whites are moving to urban areas and away from manual jobs such as agriculture and animal processing. Maine legislators have noticed this population drain and have passed tax credits and student loan reimbursements to incentivize new residents to move to the state. A sizable portion of these new Mainers are people of color, attracted by the prospects of employment and reduced land prices. Id. In a generation, the racial makeup of many rural places, both in Maine and nationwide, could be drastically different. Rural criminal justice systems may not be prepared to treat these new residents with cultural competency.

Perceiving rural America as a wholly White space exacerbates “otherness” towards rural communities of color, who are already disproportionately criminalized by the justice system. Perhaps due to small, often indeed homogenous, communities that rural life fosters coupled with many residents’ resistance to trends of inclusivity, rural life often exacerbates oppression felt by people of color. Though non-Whites make up 15% of the rural population, institutions and systems, including the criminal justice system, are rarely operated with access considerations to communities of color. (P. 232.) Consequently, many of these communities are understandably skeptical about the actual neutrality of the courts.

Black Mainers are six times more likely to be incarcerated than Whites, and Maine’s Indigenous and Latino populations are also locked up at disproportionately higher rates. (P. 236.) These inequities are mirrored in the juvenile justice system, negatively influencing the future of many of the rural’s younger residents. Prosecutors have a high degree of discretion regarding what crimes they prosecute and to what degree of severity. The vast majority (95%) of elected prosecutors nationwide are White (P. 239), and conscious or unconscious biases towards people of color have inevitably shaped many prosecutorial decisions.

Many of the challenges faced by people of color who live in rural areas mirror those faced by people of color in urban spaces. However, without adequate data assessing racial disparities in rural criminal justice systems, these problems will remain largely unseen and untreated. Scholars of criminal justice reform should take note of Romero’s article and consider whether their research could also address access problems faced by rural residents of color. Uncovering the extent of bias in rural prosecutorial decisions is the first step in creating a more equitable justice system.

  1. Romero obtains her concept of a thicker access to justice from the UC Davis Law Professor Lisa Pruitt. See Lisa R. Pruitt & Bradley E. Showman, Law Stretched Thin: Access to Justice in Rural America, 59 S.D. L. Rev. 466, 497 (2014).
Cite as: Katherine Klein, Whitewashing the Rural: How Cultural Views Influence Access to the Justice System for Communities of Color, JOTWELL (February 21, 2020) (reviewing Maybell Romero, Viewing Access to Justice for Rural Mainers of Color Through a Prosecution Lens, 71 Me. L. Rev. 227 (2019)), https://equality.jotwell.com/whitewashing-the-rural-how-cultural-views-influence-access-to-the-justice-system-for-communities-of-color/.