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.
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. 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.”
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.
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.
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” 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.
Many legal scholars who care about social and economic equality spend time focusing on constitutional, anti-discrimination, criminal, or private law subjects; yet, a country’s tax code is the government’s most substantial tool for advancing social and economic policy. Its ramifications for equality are substantial.
Many tax scholars have uncovered the gender and race bias embedded in tax law. (Just to illustrate, see the work of terrific people like Dorothy Brown or Kathleen Lahey.) Yet, there has been surprisingly little change to codes around the world to bring them into conformity with the recommendations of those scholars. Perhaps Kleiman, Matsui and Mitchell’s report, The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws, will help.
Kleiman is an assistant professor at the University of San Diego School of Law; she’s joined by two co-authors, each of whom is affiliated with the National Women’s Law Centre. The report is a model for how legal academics might work collaboratively with those in the policy space to advance evidence-based research with a view to promoting progressive change.
The report is divided into seven parts. The first four address design features of the US tax Code that disadvantage women and people of color. While the Code may appear to be neutral in its application, it creates a range of incentives and benefits that drive from underlying behavior and social structures that reflect women and people of colour’s experience of systemic discrimination.
Readers from outside the US will have a sense of the idiosyncratic US-decision to allow joint filing by spouses. The report highlights two of the issues that arise from that practice – the reduced tax liability that results from marriage and the disincentive for women to enter the paid workforce. Most countries resolved those gender- and race-discrimination issues decades ago (if they ever had them).
Additional discriminatory provisions that are relied up to calculate taxpayers’ income are also explained. For example, unpaid work in the home is not accommodated in the design of tax codes with the result that an incentive is created for women to provide substantial informal services to their families. All workers incur costs in order to work: the code generally allows the kinds of costs incurred by men (for example, by allowing the deducibility of luxury meals, travel, and accommodation), while denying or under-reflecting the kinds of costs incurred by women (for example, child care costs). Some kinds of employment-based compensation are taxed – for example, awards for workplace discrimination, which are more likely to be received by women and people of color, while other forms of compensation are exempt from tax — for example, worker’s compensation, which is more likely to be received by men.
The report also looks at the implications of the taxation of savings and wealth. The benefit of reduced tax rates for savings accrue primarily to high-income earners (more likely to be white men) as do the benefits of a range of housing preferences. Inability to access housing preferences has particularly pernicious effects for people of color; an observation also made by others.
The gender and race-based biases in tax codes around the world have been studied extensively. What makes this report worth reading is the accessibility of the authors’ approach.
Additionally, in Part V, the report makes a relatively unique contribution in its discussion of the gender and race-implications of tax administration. For example, the US relies extensively on the Earned Income Tax Credit as a means of raising the income of those in working households above the poverty line. The EITC plays a valuable (if inadequate) function in facilitating income security. However, the IRS devotes substantial tax administration and audit resources to policing EITC claims; that means, low-income people, women, and people of color are more likely subject to the attention of the IRS. This contrasts with the quite troubling decline of enforcement attention paid to high-net worth individuals and multinational companies.
Finally, in Part VI, the report turns to the question of process: how might policy-makers better inform themselves about and understand the implications of gender and race bias in the Code. The authors focus on the need for better disaggregated data and more robust reporting requirements.
If you have never turned your mind to the way our tax code intersects with equality aspirations, then this report is a must read. And if tax equality is an ongoing preoccupation, this report offers a few gems on the more neglected topic of differential tax enforcement.
Tracy A. Thomas, Leveling Down Gender Equality, 42 Harv. Women’s L.J. 177 (2019).
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.” Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.
Morales-Santana was decided in the second year of the Trump administration and in the wake of its anti-immigration policy. Born in 1962 in the Dominican Republic to an unwed American citizen father of Puerto Rican origin and a Dominican Republic citizen mother, the plaintiff Luis Morales-Santana had lived in the United States since he was thirteen. The INA’s requirement of derivative citizenship for children born overseas to one American citizen parent in effect at Morales-Santana’s birth adopted a gender- and marital-status-based distinction by setting a longer physical presence requirement for citizen fathers and shorter physical presence requirement for unwed citizen mothers. Morales-Santana was not qualified for citizenship because his father had failed to meet the INA’s physical presence requirement for unwed fathers by a matter of days, and was to be deported as a non-citizen with several convictions. His father, however, would have satisfied, if female, the lesser stringent requirement for unwed citizen mothers to transfer derivative citizenship. Morales-Santana claimed that the INA’s gender-based distinction was a violation of gender equality, and requested that the rule for unwed citizen mothers be applied to him and that he be granted American citizenship.
The Court had previously reviewed and upheld the INA’s gender- and marital-status based distinctions that imposed more rigorous requirements for unwed citizen fathers to convey citizenship to their overseas-born children in Miller v. Albright and Tuan Anh Nguyen v. INS. Ginsburg— then a junior member of the Court— was one of the dissenters in both cases. Morales-Santana marks her success in converting her prior dissent into a majority opinion. Writing for the majority as a senior member of the Court, she repudiated the statutory gender stereotype assumption that unwed fathers cared little about their children whereas “the mother was regarded as the child’s natural and sole guardian” (Morales-Santana) for its failure to meet her favored heightened scrutiny’s “exceedingly persuasive justification” requirement in United States v. Virginia, the very first gender equality case that Ginsburg wrote and read for the majority.
Ginsburg’s notable success in striking down gender-based citizenship laws, however, did not activate Morales-Santana’s nationality. The Court refused to grant Morales-Santana’s requested remedy and instead applied the more rigorous rule for unwed fathers to everyone — that is, treating mothers like fathers — by arguing that it would have been Congress’s legislative decision. However, the Court did require that Congress’s future decision be gender-neutral and impose the same treatment for wed and unwed parents. One cannot help but wonder to whom and for whom the Court delivered equality.
The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).
The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.
Should Justice Ginsburg have followed then-professor Ginsburg’s proposed guidelines and the gender equality precedents, she would have been able to reconcile her objections to laws based on gender stereotypes and preference for judicial constraint. She would have reached a different conclusion regarding remedy. “The lack of clear, established legislative intent, the influence of racism and nativism on the formation of the ten year rule, equitable considerations of harms to children, and the strong judicial preference for extension,” Thomas argued, “all supported leveling up.” (P. 196.) While Thomas was unable to explain Ginsburg’s “mistakes” and inconsistency and her consequent willingness to level down, her discussion has proved how and why Ginsburg could have acted otherwise.
The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)
In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.
The Court’s records in gender equality cases, which evaluated the defendant’s interests and concerns to perform a remedial calculus to avoid inequality by the remedy itself, should have been taken seriously. The Court would have therefore considered the harms to children and U.S. mothers to balance away from leveling down. All in all, the mean remedy is not the right remedy. Thomas’ criticism that “stopping gender stereotypes from operating in the future to third parties may seem satisfactory to Justice Ginsburg, but it is not an individualized remedy adequately providing meaningful, tangible redress for the specific harms suffered by the individual plaintiff” (Pp. 207-08) suggests that Ginsburg’s idea of gender equality is purchased at the price of Morales-Santana’s nationality and equality and that Ginsburg’s judicial philosophy offers no justification for her choice of remedy.
At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.) I cannot agree more with this conclusion. However, I would like to see more critical engagement with the issue of illegitimacy discrimination, as well as with the issue of the standard of equality scrutiny: will an anti-subordination review hinder the remedial choice of leveling down? Does a move “away from a formalistic parallelism and into a substantive inquiry” (P. 217) require not only changing remedial choice but also changing the standard of equality review? Is the idea of equality as “equal concern” (a Dworkinian concept) equivalent to substantive equality, which centers on the hierarchy of power?
A final note. As a precedent, Morales-Santana now lies as “an open wound.” (P. 217.) The wound should serve as a reminder of America’s past in its local and global context. I was drawn to the curious case of Morales-Santana due to my interest in the Court’s gender equality jurisprudence and my identity as a Taiwanese feminist. Taiwan is one of the global south countries where American troops left behind children whom they fathered with local women through buying, raping, or dating them during the Cold War. Lorelyn Miller was born in the Philippines, in 1970, to unwed parents, an American soldier father and a Filipino national mother. Tuan Anh Nguyen was born in Vietnam, in 1968, to an unwed pair, an American citizen father and a Vietnamese mother.
Morales-Santana’s parents have a different story: Morales-Santana’s father is from Puerto Rico – a so-called unincorporated territory that, in the words of the Supreme Court of the United States in a series of decisions known as “the Insular Cases,” “belongs to, but is not a part of, the United States”—, and he was born in a Caribbean country to a Dominican mother. While Lorelyn Miller never lived in the United States at least until after her 21st birthday, Tuan Anh Nguyen and Morales-Santana share a commonality of being non-white children born overseas to unwed American fathers and local mothers and having migrated to the United States. Morales-Santana’s reach extends beyond American borders. Its potential victims include children and mothers who reside outside the United States and who might have no or little knowledge about the case or their (dis)qualification for American citizenship under the INA. Legislative and judicial efforts are required to redress their harms.
Asad Rahim, Diversity to Deradicalize
, available at SSRN
It is difficult to say anything new about affirmative action. Scholars have analyzed the effect of affirmative action on white students and on people of color through the lenses of many disciplines. They have considered the philosophical consequences of a system that takes account of race in comparison to one that is race blind. They have asked whether a system can be race blind. Perhaps more than any other topic, scholars have exhaustively discussed diversity. The focus is not surprising, given that diversity is the only rationale for affirmative action that will withstand strict scrutiny, absent a narrow exception for institutions attempting to remedy their own past discrimination. But to offer anything new about diversity is a difficult task.
Despite the rich work already available, in Diversity to Deradicalize Asad Rahim offers a provocative and novel addition to the affirmative action canon. His sharp look at Bakke and diversity hones in on the father of the diversity rationale, Justice Lewis Powell. Justice Powell’s solo concurrence in Bakke v. Regents of the University of California first articulated the diversity rationale for lower courts and institutions of higher learning. Powell’s opinion has drawn praise and criticism. Some saw it as a unifying opinion that furthered racial harmony by demonstrating that integration is good for those of all races. Others have criticized the diversity rationale for affirmative action as ahistorical, ignoring centuries of racial injustice in favor of a rationale that emphasized what people of color could do for white people. Whatever their beliefs, litigants have found themselves advocating forcefully for the merits of diversity in order to preserve affirmative action at state schools.
Rahim’s paper calls into question a critical component of this narrative: that Justice Powell was motivated by integrationist aims. By examining speeches, personal notes, and other writings from Powell’s archives that offer insight into his racial views, Rahim undermines the received wisdom that Powell was a segregationist prior to his appointment to the Supreme Court, but that he became an integrationist during his time on the bench. He demonstrates “significant continuity” between Powell’s “views before he joined the Court and the way he voted as a Justice on key cases involving race and education during his tenure.” In the big picture, Rahim concludes, “Justice Powell spent considerable jurisprudential effort to limit the reach and effectiveness of racial integration.”
If racial integration did not account for Justice Powell’s embrace of diversity in his Bakke concurrence, what did? This is where Rahim’s work really shines. He advances a fascinating new explanation: Justice Powell grew attracted to the idea of diversity because he feared radicalism. He believed that institutions of higher education were the site of radicalization for college students, who were targeted by radicals intent upon “infiltrat[ing] American universities in order to ‘brainwash’ the nation’s future leaders with anti-American propaganda.” Powell’s fears were stoked by waves of campus protests during the 1960s and 1970s. Importantly, however, Powell did not see radicals as predominantly non-white. Rather, he argued, “[t]he most visible element of the revolutionary movement is basically white and campus oriented.” Diversity, he believed, would serve as an antidote to such radicalization. But not just any diversity: the kind of intellectual diversity that would serve as a counterweight to the “new left” and moderate the radical forces on campus. This fascinating look into Justice Powell’s thinking explains why, for example, he quoted with approval Harvard’s statement that “[a] farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer.” Yes, diversity could include race, but mostly it was about neutralizing leftist forces.
Rahim’s work really made me think. For this race scholar who has been writing (sometimes wearily) about diversity for fifteen years, Diversity to Deradicalize brought new life. I liked it a lot.
Equality scholars in law often concentrate on constitutional or other legislated equality protections, analyzing how they are applied and interpreted, and evaluating their impact. But this can have the effect of allowing law to narrow the places in which equality questions are seen as relevant. In Beyond Airspace Safety: A Feminist Perspective on Drone Privacy Regulation, Kristen Thomasen brings together emergent technologies, legal questions, and social context in interrogating the gendered implications of the way privacy is framed and regulated.
Professor Thomasen problematizes the safety-oriented development of North American drone regulation, by reference to feminist critiques of approaches to privacy in western law and philosophy. She carefully articulates the ways in which drone technology is not value neutral (noticing a variety of ways in which mainstream discourse has tended to assume that the newness of the technology designates it as a per se good). Instead, she focuses on the salient features of this particular technology – that it flies, that it can carry a variety of payloads, that it is separated from the operator, and that it is relatively low-cost. She is concerned that the technology be carefully set into the particular, existing, and gendered, context. Unfortunately, she contends, neither public discourses nor the work of regulatory agencies show evidence of this kind of approach.
The article thus uses of a wide variety of material and techniques in making the case for attention to gender in regulation of new technology and drones in particular. Thomasen argues that there is a culturally unsurprising but profoundly unhelpful focus on how drone technology might invade the privacy of women and girls in private spaces, with relatively little attention to the potentially significant problems arising from surveillance in public spaces. This fixation on relatively prurient fact scenarios, noted and named the “sunbathing teenager narrative” by Professor Margot Kaminski in a 2016 Slate article, tracks the way that women’s privacy is usually considered under the rubric of modesty rather than other potential conceptualizations of the importance and meaning of privacy. Thomasen then works to illustrate how interpretations of privacy in law continue to focus on modesty, and the gendered implications of this focus. (P. 312.)
As in so much feminist scholarship, the notion of the public/private divide is of central significance to Thomasen’s work. Using Anita Allen’s work, Thomasen focuses on the question of privacy in public – not raised by the popular “sunbathing teenager narrative” – arguing:
“[E]xisting conditions of inequality will impact and be impacted by the development and adoption of new technologies like the drone….it is necessary to consider how the technology might impact that social context–and how that social context might (or should) impact the development and regulation of the technology . . . .” (P. 322.)
The paper then turns to the question of what Thomasen identifies as a North American approach to drone regulation, arguing that the value neutrality of that approach limits awareness and acknowledgment of the impact of technologies on individuals and communities:
“Regulations . . . focus on regulating the artefact (the ‘drone’ as an unmanned vehicle that takes to the airspace), rather than how it integrates into society. Accordingly, the particular politics embodied in the technology remain largely unaddressed.” (Pp. 333-34.)
Thomasen finishes by offering recommendations for regulation of drones, within the “safety” framework, while recognizing that the underlying issues she identifies go far beyond drones and their regulation.
Read this paper. The writing is lovely and the paper is a good read, belying the amount of analytical work it contains. It offers an important contribution to feminist work on privacy and the public/private divide as well as to work on technology (it was published in a Canadian law and technology journal). It also illustrates what careful critical attention to the implications of new technologies requires, and the value of this kind of work. Looking into the legal future frequently requires a careful look to the legal past, for instance. The uses to which a new technology can be put should not be confined to those hyped by designers and vendors. And equality is not a concept that should be relegated to designated legal spaces where it is central and welcome.
Iselin Gambert and Tobias Linné, Got Mylk?: The Disruptive Possibilities of Plant Milk
, 84 Brook. L. Rev.
__ (forthcoming 2019), available on SSRN
It’s time to consider whether the milk on our cereal or granola, or in our coffee or tea, is an agent of inequality. Gambert and Linné in their compelling article, Got Mylk?: The disruptive possibilities of plant milk, confront “Dairy Pride” and argue that it operates as a tool of oppression along several axes. They use multiple lenses of equality including capitalism, speciesism, sexism, and racism to analyze milk as reality and symbol.
Perhaps the most obvious equality lens they discuss is the capitalist one of big business and consumers. The so-called “Milk Wars” arise from a Food and Drug Administration (FDA) regulation that defines milk only as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” (P. 5.) This excludes all forms of plant milk that have been in use for centuries such as soymilk, coconut milk, and various forms of nut milk, as well as goat and sheep milk. The increasing popularity of plant-based milk has led to FDA warning letters and some lawsuits seeking to stop plant-based milk from using the term “milk.” The proposed DAIRY PRIDE Act (“Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese to Promote Regular Intake of Dairy Everyday” Act), broadens the definition of milk as derived from “hooved mammals,” but would mandate more severe restrictions on the use of the word “milk” in plant-based contexts. (P. 20.) Meanwhile, as Gambert and Linné explain, in Europe litigation over “post-milk” oat beverages such as the Swedish dairy industry suing the “Oatly” company, have perhaps made oat drinks more popular. The comparative United States and European discussions are a marked strength of the article. (P. 40.)
This business and consumer lens on equality in milk definitions and production forms the basis for the other equality lenses that Gambert and Linné deploy. They demonstrate how the “Milk Wars” are inflected with speciesism, sexism, and racism. They show how the regulatory terrain is the site of several overlapping cultural battles around the globe.
Milk, they argue, is “the ultimate feminized tool of exploitation in a patriarchal world.” (P. 49.) Reflecting on the use of the verb “[to] milk” as meaning “to exploit,” they connect legal usages to cultural and scholarly works that consider milk as “symbolically and literally used as a tool of exploitation and regulation of human and nonhuman female bodies alike.” (P. 50.) They connect speciesism and feminism, agreeing with scholars who argue that “the issues underlying the control of both animal and human milk-producers are analogous.” (P. 51.) They make further connections to racism and colonialism, contending that “the colonial practices of multinational First World food and dairy corporations when introducing dairy based infant formula in developing countries have had ‘devastating effects on mothers and children, cows and calves, rural poor and small dairy farmers.’” (P. 51.) And then there is the historical practice of wet-nursing, using human milk, with its class and racial inflections, as well as its modern turns in the selling of “mother’s milk” or even ice-cream made from human milk.
The article also explores milk as identified with whiteness. The authors delve into the genetic disparities with regard to milk’s digestibility in adults, a condition known as “lactase persistence,” and note that “dairy milk remains today a central fixture of Western culture despite a majority of people of color not being able to digest it.” (Pp. 54-55.) This biology is then refracted with notions of white supremacy (milk as a perfect food for perfect people). Interestingly, the article includes a discussion of milk as a symbol of white power by members of the so-called alt-right.
The proposed solution of Gambert and Linné is an incident of “verbal activism” that would supplant the problematic “milk” with a more liberatory “mylk.” (P. 3.) The term “mylk,” they state, “already has a long history within the vegan community of signifying plant milk.” (P. 71.) Even as the authors recognize a new word will not solve everything — cashew and soy farming practices are not necessarily more labor-friendly than dairy farming practices; plant-based “mylk” might continue to be more expensive than dairy milk if subsidies do not end — they contend “mylk” would be a step towards a world of more equality. Certainly something to think about over breakfast.
Editor’s note: Prof. Robson wrote the above based on a 2018 draft. Since then, Prof. Gambert revised the article and Tobias Linné dropped off as co-author due to conflicts in his schedule that prohibited him from working on the article. The version now online at SSRN, and due to be published in the Brooklyn Law Review, reflects these changes.
Most academics who care about substantive equality accept that ideologies and attendant violence about which lives matter in society and which lives don’t cause devastation and trauma to individuals and communities. Many of us write about such suffering in our work so that others can learn about it and push for law reform and social change. But how exactly we as academics can bear witness to this suffering in the course of our equality-inspired, change-seeking research and writing is not a frequent point of discussion. But it should be, especially when the suffering we write about is chronic, of staggering magnitude, largely incommunicable, and sanctioned by law.
Anyone looking for an excellent example of how to bear witness to ongoing violence as a researcher—and learning along the way about the structural violence inherent to the dairy industry—should pick up Kathryn Gillespie’s The Cow with Eartag #1389. In it, feminist and critical animal studies geographer Gillespie eloquently bears witness to the massive yet mundane suffering engendered by the human appropriation of cows’ milk. Gillespie deeply cares about the plight of all farmed animals and the vulnerable humans exploited in agriculture, but has chosen to focus her critical lens on the dairy industry. She aptly defends her focus noting that milk is a substance produced by an industry whose workings “is obscured from public knowledge”, but is a product so normalized for humans to drink that “many well-educated and thoughtful people” are “surprised to discover that a cow has to be regularly impregnated to produce milk” (P. 14).
Through discourse analysis, participant-observation, interviews, library research, and stories about individual animals she encounters, Gillespie offers the reader a rare comprehensive and embodied account of the multiple components of the workings of the US dairy industry and how it takes living beings and turns them into things. Drawing from an intersectional feminist care-based ethic, Gillespie considers the routine structural violence that infuses the day-to-day practices of an industry that, from birth to death and thereafter, so completely commodifies the cow, her children, and her reproductive capacities under capitalist logics. Each illuminating chapter discusses a specific aspect of the dairy industry and “other peripherally related industries” such as the veal and beef industries it generates; other chapters innovatively explore the ethics of sanctuary spaces and 4-H agricultural education programs for children. Throughout, the analysis shines in integrating personal narrative with academic research to present an absorbing critique of what the law permits humans to do to animals even when so-called best practices are voluntarily adopted.
The contributions above to the burgeoning critical literature on animal agriculture constitute reason alone to read Gillespie’s book. But it is how Gillespie bears witness to the experiences of animals she encounters that is particularly noteworthy. One of the most eye-opening parts of the analysis for any reader will be Gillespie’s account of the auctions that take place as part of the animals’ commodified trajectories. Given the near impossibility for members of the public to visit animal agriculture enterprises to observe their practices, buttressed by a legal climate where attempts at undercover exposés are classified as terrorism (Pp. 38-40), Gillespie highlights the auction hall as one point in the otherwise hidden world of farmed animals’ lives where the public is invited. In Chapters 4 and 5, Gillespie describes her experiences sitting in on dairy auctions and, most brutally, the cull market auctions. I treasured these chapters for the rare glimpse they offered into what transpires in such spaces and for her candour in discussing what she thought and felt as she sat and observed for purposes of her research the parade of suffering animals that were auctioned off in front of her.
Indeed, it is while observing the cull market auction that Gillespie meets the book’s eponymous figure, one of the “spent” dairy cows who is meant to sell for cents on the pound to those who wish to transform her into meat. As Gillespie tells us, this is an animal who “limped through the door into the ring” and “whose impacts of her life as a commodity producer were easily legible on her body” (P. 96). This cow attracted no bids, and as the handler herded her toward the exit, she collapsed on the stage while the auction continued around her, “her mouth foaming with saliva and her breathing labored” (P. 97).
Gillespie writes about how her “mind raced with frenzied thoughts” about whether she should buy the cow, how she would transport and house her if she did, and “(w)hy this cow and not the dozens of others I had watched pass through the ring?” (P. 97), an experience she earlier describes as “immediately overwhelm(ing)” making her “unable to focus on each individual animal because of the scale of the suffering, each devastated body blurring into the next” (P. 96). She tells us of how her failure to intervene haunted her for “months afterward” and motivated her to produce a dissertation that “would be read both within and outside of the academy, with the hope of making an impact on the way people think about, and practice, our relationships with farmed animals” (Pp. 97-98).
Elsewhere, Gillespie has written about the embodied and empathic practice of bearing witness in doing academic work in spaces of violence and trauma. Her book provides an even fuller account of what bearing witness can look like when we seek to problematize legalized violence as academics in pursuit of justice. Her last chapter is aptly titled “On Knowing and Responding”, where she talks candidly about the difficulty of personal dietary change yet the pressing need for it to occur. As she has done throughout the work, Gillespie brings us back to the animals’ experiences, articulating the hope that “it is possible to learn from them, to let their stories be instructive as to how human-animal relations might be radically reimagined” (P. 219). Gillespie is not a legal scholar, but her work is of relevance to all of us in law pressing for equality in “radical” ways and encountering the extreme suffering of others whose lives we hope will one day matter.