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Suing on the Shoulders of Others

Suzanne Lenon & Danielle Peers, ‘Wrongful’ Inheritance: Race, Disability and Sexuality in Cramblett v. Midwest Sperm Bank, 25 Feminist Legal Stud. 141 (2017).

While few seriously hold up litigating as a path to happiness, lawyers, historians, and activists often associate an expanded capacity to sue with increased justice. Thus the married woman’s right to sue in her name and minorities’ prerogative to respond to discrimination and hate crimes via legal proceedings are markers of progress. However costly and uncertain litigation is, the real issue is of course the potential for oppression wherever the powerful unjustifiably limit one group’s scope for legal action relative to that enjoyed by others. Crucially, my examples don’t typically evoke the worry that increasing one potential plaintiff’s options imposes costs on another historically subordinated group. The example in Suzanne Lenon and Danielle Peers’ engaging new essay in Feminist Legal Studies does precisely that.

The authors invite us to scrutinize the content and context of a lawsuit that a short time ago would have been unthinkable. Their point of departure is the complaint for wrongful birth brought by Jennifer Cramblett, a white lesbian, against the sperm bank that mistakenly provided her with sperm from an African-American donor, leading to a child of mixed race. The novelty inheres in the space for a committed lesbian couple to present in court its ambition to have a child by assisted reproduction as ordinary and reasonable. Lenon and Peers call us to examine the set of assumptions – the legal and social inheritance of white privilege – by which having a healthy child of mixed race might occasion compensable harm. They argue convincingly that the white lesbian’s lawsuit confirms, indeed reinforces, discourses that subordinate others.

In its twenty pages, the paper deftly moves across distinct legal and social literatures. One part traces the racial politics of homonormativity, by which the path to gay and lesbian equality in the U.S. culminated in same-sex marriage and access to military service. The plaintiff’s legal team (I don’t suppose that a lawsuit transparently represents the plaintiff’s thoughts or feelings) thus constructed her as an “ideal homonormative citizen: a middle-class, (re)productive, university-educated white lesbian in a committed, monogamous, domestic partnership.” A second part traces tort law in relation to wrongful birth, including varying conceptions of disability and of feminist reproductive rights. A third part connects disability, race, and sexuality in the eugenic legacy of “wrongful birth” and reproductive technologies. Last, drawing on the work of Cheryl Harris and other theorists, Lenon and Peers situate the lawsuit vis-à-vis whiteness as inherited property and as privilege.

In a year when North America has witnessed a resurgence of explicit, public manifestations of racism and white supremacy, this paper invites readers to pay attention to their subtler forms. While the semiotics of the khaki-clad mob bearing Tiki torches on the campus in Charlottesville may appear obvious, Lenon and Peers lead the reader to consider the racialized subtext of the proposition that an all-white suburb has “better” schools than the more “racially diverse” communities where Cramblett and her partner feel they need to take their mixed-race child.

I suspect this illuminating paper would make uncomfortable reading for Jennifer Cramblett. The authors characterize the life that Cramblett had imagined for herself, her partner, and her intended white child as one of “enjoy[ing] the spoils of … inherited structural violences” of homophobia, racism, and white supremacy. But the authors conclude by confirming that their concerns reach far more broadly than one plaintiff, whose story, they insist, is not “strange” or a “one-off.” The ultimate wrong, they tell us, is “the case’s very own conditions of possibility.”

Cite as: Robert Leckey, Suing on the Shoulders of Others, JOTWELL (November 21, 2017) (reviewing Suzanne Lenon & Danielle Peers, ‘Wrongful’ Inheritance: Race, Disability and Sexuality in Cramblett v. Midwest Sperm Bank, 25 Feminist Legal Stud. 141 (2017)),

­A Socialist Feminist Legal Theory for Our Time

Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century, 49 Conn. L. Rev. 117 (2016), available at SSRN.

In the aftermath of the 2016 presidential campaign and the dramatic defeat of an avowedly feminist Hillary Clinton to a demonstrably misogynistic Donald Trump, many have called into question the future of feminism. Clinton’s loss to a significantly less qualified candidate and the startling statistic that fifty-three percent of white women voted for her opponent raises questions about the persuasive power of mainstream feminism. Clinton’s campaign revealed the stubbornness of misogyny both in the political system and socially. Yet, even as misogyny became increasingly apparent in the primaries and then more blatant in the presidential race, for progressive women, Clinton’s gender identity and her liberal positions on women’s issues were not enough to overcome their economic concerns and social concerns. Rather, they were drawn to Senator Bernie Sanders’ reinvigorated socialism in the primary race even though they eventually voted for Clinton in the general election.

Prior to this recent campaign, as Cynthia Grant Bowman notes in her article Recovering Socialism for Feminist Legal Theory in the 21st Century, socialism had been largely absent from mainstream party politics in the United States. However, it was critical in the ideological development of a number of social movements in the 1960s and 70s, including those for civil rights, labor rights, and women’s rights. In her article, Bowman seeks to now reintroduce this work to feminist legal theorists to advance an “agenda for both research and legal reform.” (P. 119.)

The article has two main contributions that make it important reading. First, it recovers a strand of feminist theorizing that is once again becoming important particularly to younger feminists. With growing inequality and a breakdown of the state’s commitments to social services, this history reminds us of prior struggles. Her literature review provides a map of socialist feminist thinking and a starting point for those who are unfamiliar with it. The second important contribution is that she revisits Catherine MacKinnon’s early dismissal of Marxism. And while not overstating MacKinnon’s influence, Bowman suggests that much has been missed by feminist legal scholars who pursued Critical Legal Studies or Critical Race Theory rather than developing a robust socialist strand of feminist legal theory. What might such a socialist feminist legal theory have looked like? Bowman explores this question as well as what a turn now to socialism in feminist legal theory (FLT) in the legal academy could yield if we take up her suggestion. Given the recent turn of events in the political and economic fortunes of women and minorities, there is no time like the present to do so.

Part I of the article lays out a very important history of feminism and Marxism in the 1960s and 70s. In the milieu of a number of social movements and student activism against the Vietnam War, Bowman traces the rise of feminist critiques of Marxism and socialism and the development of socialist feminism. According to her account, by the mid-70s, socialist feminism had established itself as a distinct branch of feminism. Distinguishing itself from both Marxism and radical feminism, socialist feminism “could develop a theory and politics that would address ‘the political/economic/cultural totality of monopoly capitalist society,’ including understanding the interconnection between the subjugation of women and the atomization of the working class.” (P. 129.) This history is important particularly for younger feminist legal theorists who have not had the opportunity to engage with the literature before. If, as she encourages, we are to incorporate socialist feminism into FLT, we must go back and read these key texts by theorists like Angela Davis, Shulamith Firestone, Iris Young, Zillah Eisenstein, Nancy Hartsock, Heidi Hartmann, and Alison Jagger to name just a few. FLT scholars are likely to be familiar with the works of Nancy Fraser and Sylvia Federici, but considerably more work is out there to be mined for ideas as Bowman aptly demonstrates.

In the second part of the article, Bowman takes up the development of FLT in the 1970s. She asks why there is no strong current of socialist feminism in the law today. After all, during the 1970s, women were entering law school in record numbers. Socialist feminists were present in many other parts of the academies from which these students had received their undergraduate training. Yet in the legal academy, even while women were using the law to win greater equality for women, those strategies were informed by a more mainstream liberalism than socialism. The strategy of Ruth Bader Ginsburg, working on the ACLU’s Women’s Rights Project, was to bring cases advancing women’s formal equality. The strategy was largely successful until women’s biological difference became a stumbling block. The losses in cases dealing with pregnancy discrimination, for example, demonstrated the limits of formal equality. Some feminist scholars like Robin West raised questions about using men as a yardstick for equality when women’s particularities made that measure problematic. They advocated for greater “understanding and valuing of the unique experiences of women.” (P. 156.) In the early 1980s, Catherine MacKinnon intervened in this sameness/difference debate with a critique of both sides. Rather than using men as the norm, her project was to develop a theory that articulated the use of sex to distribute power.

By the 1990s, an array of critiques had emerged in feminist legal thought. African-American, Latina, and Lesbian feminists charged mainstream FLT with essentialism. The field of feminist thought became more complex and contested, yet no specifically and overtly socialist strand of FLT emerged from the fragmentation of the field. The only legal theorist at the time to take Marxism seriously was MacKinnon. Her engagement with Marx was profound. Her thorough reading of the literature led her to conclude that Marxism and feminism could not be synthesized as others had tried to do because Marxists “ignored sexuality as a form of power.” Marx failed to question the way women were defined by nature and therefore he did not consider sex-based subordination as requiring an explanation. Engels was better on this score, but as Bowman points out, he “understood women’s status as simply a product of the family form particular to capitalism.” (P. 159.) Changes in family, therefore, were a result of economic changes. Bowman goes on to describe MacKinnon’s assessment of the only semi-successful project of synthesis, which was the “wages for housework” movement. By bringing housework into view as work in the way it is understood by Marxists (as having the possibility to both oppress and liberate), the wages for housework movement made substantial advances, but, according to MacKinnon, it still fell short of articulating a theory and method that accounted for the relationship between sexuality and power that would lead to full liberation of women. (Pp. 160-161.)

While MacKinnon’s negative assessment had a powerful impact on FLT, Bowman argues it is not the sole reason for the arrested development of socialist FLT. So, what does explain this gap? One possible explanation is that feminists gravitated to alternative movements, like Critical Legal Studies, that emerged at the same time. Bowman argues that this turn away from socialist feminism was a missed opportunity and impoverished the developing field of FLT. In Part III of the article, Bowman explores the potential of socialist feminism to inform a richer, more emancipatory FLT. For starters, she accepts the socialist axiom that even the most benevolent forms of capitalism will not bring human flourishing to women. In order to achieve this, socialism’s core commitments to using collective resources to meet basic needs, to collective decision-making and bargaining in work, and to genuine equal voice in government are indispensable. In addition, socialist feminism would bring its insights into the “interdependence and interpenetration of the public and private spheres and the economic impact of that interdependence.” (P. 165.) The inclusion of globalized conceptions of race and class in legal analyses that are sensitive to women’s multiple roles would flesh out current FLT. In terms of U.S. doctrinal areas of study, socialist FLT would offer a more nuanced understanding of the sexual division of labor and how this undergirds the tenacious discrimination faced by women. In family law, socialist feminism would help illuminate the incompatibilities in the structures of families and markets and shift away from liberal attempt to reconcile the two. In addition, I would add that socialist feminism may inform the ways in which the family and market have also been co-constructed in capitalism to the detriment of women’s autonomy and flourishing. As feminism’s potential for emancipatory change is in question, there is no time like the present to take up Bowman’s call to revisit some of the more radical theoretical work of the past and introduce it to feminist legal theory.

Cite as: Cyra Akila Choudhury, ­A Socialist Feminist Legal Theory for Our Time, JOTWELL (October 31, 2017) (reviewing Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century, 49 Conn. L. Rev. 117 (2016), available at SSRN),

Over and Under-Policing: Thoughts on Remedying Shooter Bias

Using the fatal shooting of Laquan McDonald by Chicago police officer Jason Van Dyke as the starting point, this article seeks to address the common articulation of fear by police officers in the wake of such fatalities. Initially highlighting the question of why an unarmed teenager who did “not appear to be threatening anyone” (P. 145) was shot a total of sixteen times, Professor Lee addresses the data, which are officially underreported, on the number of fatal shootings that occur annually in the United States. Despite the lack of official data, the article notes that, “nongovernmental sources … indicate that the actual number of persons killed by police is probably double [the reported figure of 420 fatal encounters with police annually.]” (P. 146-47.)

Turning to focus on the disparate number of Black individuals who are shot and killed by police, Prof. Lee notes that, despite constituting only six percent of the U.S. population, “Black men accounted for approximately forty percent of the total number of unarmed individuals shot and killed by police.” (P. 149.) This is the central problem that Lee seeks to address. She makes two proposals, which are based on the failures of perception that often take place in such encounters.

In embracing the concept of  “threat perception failure,” (Id.) Lee offers an explanation for the degeneration of these encounters between police and civilians. Threat perception failure refers to the misperception that takes place when an officer erroneously shoots an unarmed person, having assumed that they were armed. Lee references Prof. Fridell, who states that, because of embedded societal stereotypes of Black criminality, such failures occur more frequently when the “police-citizen encounter involves a Black suspect than when it involves a White suspect.” (P. 150.) This theory, in turn, logically becomes the underpinning for Lee’s first proposal of enhanced police training. Importantly, while consciously held stereotypical views also exist, Lee is careful to point out that “the shootings are not necessarily the result of conscious racism.” (Id.)

In digging into the social science research on race and police shootings, Lee states that, “this research demonstrates that most individuals are quicker to see a weapon when dealing with a Black suspect than when dealing with a White suspect.” (Id.) Lee points out that police officers are better able to decide when, and when not, to shoot. This is important to her thesis, as it suggests that police officers can be trained to decrease such threat misperceptions. Lee proposes that police departments tackle this head-on by increasing and improving their efforts to reduce the incidence of the shooting of unarmed suspects, and, importantly, address the bias inherent in these killings.

Lee’s second proposal is that police forces mandate (ongoing) martial arts training for all officers, which requires more than the typical forty-four hours of self-defense training, as “without regular and sustained practice of such techniques, a police officer is unlikely to be able to effectively use those techniques if and when needed on the street.” (P. 150, 166.) Lee makes this suggestion partly due to research that indicates that, with training, police officers can reduce their racial biases, as well as improve their decision-making accuracy when shooting (un)armed suspects.

We also learn later in the article that in studies “[p]olice officers also showed less racial bias than civilians in the ultimate decision to shoot.” (P. 156.) She reminds us that “studies have shown that repeated exposure to Black and White suspects when race is not a diagnostic cue as to whether the suspect is holding a gun results in less biased and more accurate decisions about when to shoot.” (Id.) In addition to providing healthy outlets for stress and improved psychosocial well-being, given officer articulation of fear as a driving factor in such shootings, Lee suggests that enhanced training in martial arts would increase the level of police confidence, so that they would not feel the need to resort to lethal force in volatile situations. (P. 151.)

Professor Lee lays out the pervading stereotypes that are either consciously or unconsciously held by most Americans associating Blacks with criminality and dangerousness. In doing so, she emphasizes that such bias has little to do with one’s ideology around race and racism; rather, “even the most egalitarian-minded individuals are quicker to associate Black faces with negative words and White faces with positive words.” (Id.)This research tracks the shooter bias research as well, insofar as “most people exhibit racial bias with respect to the decision whether or not to shoot a suspect.” (Id.) This decision is interwoven with notions of officer confidence, their sense of commanding respect from the suspect, as well as threats to gendered conceptions of masculinity. (See P. 159, referencing the work of Phillip Atiba Goff and L. Song Richardson, and Frank Rudy Cooper.)

Interestingly, the research based on participant studies indicates that the same shooter bias that negatively impacts Black people positively impacts white suspects. Specifically, Lee points out that, “[w]hen participants were given less time to decide whether to shoot, they mistakenly shot unarmed targets more often if they were Black than if they were White. Participants also mistakenly decided not to shoot armed targets more often when those armed targets were White than when they were Black.” (P. 154.)

This latter point is very important and is deserving of further study. Not only does such racially biased policing over-criminalize, and hence disparately punish Black suspects, it also privileges, through a halo effect, White suspects, thereby further undermining both police and community safety. Both stereotype-laden errors render us less safe – for Black suspects this consequence can be lethal; in terms of White suspects, police and society are rendered more vulnerable as we are under-protected from those who might pose a threat.

Lee also addresses research that challenges the majority of shooter-bias literature as unrealistic, given that “there is a big difference between pressing a button labeled ‘don’t shoot’ and not pulling the trigger of a gun in one’s hand.” (P. 155.) This literature asserts “[t]he natural inclination is not to act particularly under conditions of uncertainty or personal moral dilemma.” (P. 155, citing Lois James, Stephen M. James & Bryan J. Vila, The Reverse Racism Effect: Are Cops More Hesitant to Shoot Black Than White Suspects?, 15 Criminology & Pub. Pol’y 457 (2016).) Lee counters by questioning the assumption of non-action when danger is perceived, and when the tendency towards self-preservation likely kicks in. Importantly, Prof. Lee points out that, because research shows that

[R]ace plays some role in the decision to shoot, proposals for reform should seek ways to reduce the possibility of racial bias impacting the police officer’s decision to shoot, as incorrect shooting decisions can harm not only unarmed Black civilians who are mistakenly perceived to be armed and dangerous, but also police officers who may be too slow to perceive when a White suspect is armed.

(P. 160.)

Hence Lee’s proposals for implicit bias and martial arts training. I think that it is important to highlight that the second proposal is equally important, as we tend not to interrogate the inner life of police officers. Lee seeks to make the decision-making process better not only through police training recognizing external factors, i.e., the accurate recognition of weapons in the hands of suspects, regardless of race. She also suggests that through enhanced martial arts training we can better support police officers, not just physically through improved strength and body conditioning, but just as importantly through the meditative aspects of martial arts, which improve mental and emotional well-being, relieve stress, enhance calmness, decrease panic, improve confidence and intuition, and thereby improve “an officer’s ability to accurately assess the dangerousness of a given situation.” (P. 166-68.) Interestingly, Lee also suggests that police officers should embrace the underlying philosophy of karate to “never … initiate an attack in real life. Karate is supposed to be used defensively if, and only if, one is attacked. This is why virtually all the kata, or forms, in karate start with a block, not an attack.” (P. 169.)

Lee’s article comes at a time in our nation when the topic of race and policing is frequently discussed, but is nonetheless deeply polarizing. In addition to preventing the loss of Black lives, Lee adds a concluding argument for those disinclined to engage with the implicit bias rationale. She reminds us that “problematic shootings by police cost taxpayers millions of dollars in settlements arising from civil lawsuits. … The need for reform of policing practices … transcends race. Almost half of all individuals shot and killed by police each year are White.” (P. 171.) The second point, “that the need for reform transcends race, is race neutral,” further underscoring Lee’s intervention in support of weaponless martial arts training. (P. 172.)

I am grateful to Lee for engaging in this conversation. It is an important contribution to the national conversation around police shootings. I hope it will assist us in moving towards better outcomes in this respect, meaning greater safety for all involved, both suspect and officer.

Cite as: Camille Nelson, Over and Under-Policing: Thoughts on Remedying Shooter Bias, JOTWELL (October 11, 2017) (reviewing Cynthia Lee, Race, Policing, and Lethal Force: Remedying Shooter Bias with Martial Arts Training, 79 Law & Contemp. Probs. 145 (2016)),

Putting the Bathroom Debate to Rest

Ruth Colker, Public Restrooms: Flipping the Default Rules, 78 Ohio St. L. J. (forthcoming, 2017), available at SSRN.

The site of toilets as a social justice struggle is at least as old as plumbing. Biological necessity and the unacceptability (and often criminalization) of public urination or defecation led to “restrooms” being made widely available. Public toilets– meaning any facility outside the home and including commercial, work, and educational places–are a necessity if one wants to travel, engage in business, be employed, or pursue an education. But while bodily requirements are almost universal, public toilets have been less democratic. At one time, many restroom facilities bore racially restrictive signs. Economic class divisions explicitly and implicitly sorted people. Access to toilets for people with disabilities has been uneven. And restrooms continue to be designated by gendered symbols announcing sex-segregated usage.

Professor Ruth Colker, an established authority in gender, sexuality, and disability law, intervenes in the current debate surrounding sex-segregated restrooms and suggests an elegantly simple solution. This solution sidesteps the convoluted machinations that have recently suffused the problem.

Interpreting Title IX of the Education Amendments of 1972, the Obama Administration issued “guidance that required educational entities to allow students and faculty to use the communal, sex-designated restroom with which they self-identify and not limit transgender members of the community to restrooms with single stalls.” The United States Supreme Court was poised to hear the issue, granting certiorari to the Fourth Circuit’s decision in favor of the student in Gloucester County School Board v. G.G. But before oral argument, the new Administration rescinded the guidance. The Court then issued a one sentence order vacating and remanding the Fourth Circuit opinion for further consideration in light of the new Administration’s action. Thus, the possibilities that the issue would be determined on administrative law grounds receded. Yet even before these developments, Colker sought to raise a different question than that raised by the G.G. litigation. Colker pivots to the question of whether it is constitutional for governments to require sex-segregated restrooms.

Interestingly, and often ignored in the scholarship, governments usually do require sex-segregated facilities. For example, as Colker notes, the New York State Plumbing Code provides: “Where plumbing fixtures are required, separate facilities shall be provided for each sex.” This imposition of sex-segregated restrooms then allows the challenge to this state action under traditional equal protection doctrine. For Colker, the challenge sounds in sex-role stereotyping that the state cannot solve by reference to formal equality. She rejects the possibility that “biological differences” have any purchase because at “home, men and women are able to use the same restroom design.”

Instead, sex-segregation justifications are based on the state interests of privacy and of safety. Analogizing to established constitutional equal protection cases such as United States v. Virginia (VMI) (1996), authored by Justice Ruth Bader Ginsburg, Colker argues that these justifications are pretextual (not genuine) and not sufficient, as well as not being served by the sex-segregation. Colker suggests that the privacy and protection arguments do not simply flow from a desire to protect the female sex from male violence–an assumption relying on gendered stereotypes and heterosexual norms–but also arise from desires to protect men. Men, on this view, need privacy and to be protected from a “continuing discomfort that men may feel in even thinking about women’s private bodily processes,” including menstruation.

More implicitly, when Colker articulates the harm to women from exclusion from all-male space including restrooms–exemplified by then-Presidential candidate John Kerry’s comment about the surprising “number of people” who tried to introduce themselves to him in the men’s room–she acknowledges men being protected from women’s judgments and able to engage in “locker room” talk, as another Presidential candidate recently phrased sexist remarks.

Colker does address the lived experience of transgendered individuals who may be validated by sex-segregated facilities when they are able to use the facilities that conform to their own gender identity. Colker however does not delve deeply into the theoretical distinctions surrounding gender-identity, gender-expansion, and gender-abolition. Instead, Colker suggests that the norm of sex-segregation must end. She concludes that the sex-segregation norm that we sometimes subject to exceptions should be replaced by a non-segregation norm. This uni-sex norm for restrooms might likewise be subject to some exceptions on the basis of safety, assuming the need for the exception was grounded on the best available objective evidence and no modifications to the restroom design would mitigate the problems.

Colker admits norming sex-integration rather than sex-segregation might feel uncomfortable at first. But she concludes that while flipping the default rule might take some getting used to, we’d get used to it. And, she implies, we’d wonder why sex-segregated restrooms were ever the norm.

Cite as: Ruthann Robson, Putting the Bathroom Debate to Rest, JOTWELL (June 21, 2017) (reviewing Ruth Colker, Public Restrooms: Flipping the Default Rules, 78 Ohio St. L. J. (forthcoming, 2017), available at SSRN),

Committing to Critically Interrogating Our Conversations About Women We Think We Don’t Much Like

Alice Woolley & Elysa Darling, Nasty Women and the Rule of Law, U.S.F. L. Rev. (forthcoming), available at SSRN.

If you have been called aggressive, incompetent, immoral, nasty, unlikeable, unattractive, unfeminine, or unpleasant, or if you’ve heard someone call a woman lawyer one of these adjectives, or if you think they accurately describe a woman lawyer you know, then read Nasty Women and the Rule of Law.

The claim of the paper is modest: women who enter the legal profession risk being labelled “nasty women.” And by that, the authors mean that women risk attack arising from “the intersection between the normative structure of the lawyer’s role and sexist stereotypes.” (P. 3.)

The paper has a sensible flow that makes reading it a pleasure. Part II looks to the challenges faced by women in law. It reminds us of the host of exhilarating statistics (for over two decades, close to fifty percent of law students are women) and their more depressing shadow (women remain a small minority (fifteen percent) of equity partners). And, among other concrete examples of the sexist stereotypes endured by women lawyers, it refreshes our memories (not that they need much refreshing) about the “sexism playbook” thrown at Hillary Clinton, including the common invocation of her function as “bitch.” The quantitative and qualitative data shore up the authors’ two claims in this part – that women lawyers are subject to sexism and misogyny and that there is something unique to the intersection of being a woman lawyer and exposure to sexism.

Part III discusses the role that popularity plays. This part connects the general unpopularity of lawyers with the expression of that unpopularity when the subject of scrutiny is a woman lawyer. Woolley and Darling observe that women lawyers “experience both more and different criticism – the criticisms directed at them are more frequent as well as being personal, hostile and gendered.” (P. 17.) Trying to explain why women’s experience is different takes the article to Parts IV and V.

What does being a lawyer require and what does that mean for women? Woolley and Darling accept the story that lawyers act as zealous advocates for clients’ interests within the bounds of legality. The authors elaborate on that view, described by them as a modified positivist theory of the lawyer’s role, in Part IV.

Finally, Part V looks squarely at the gendered criticism directed at women lawyers. Here Woolley and Darling get to the heart of their inquiry: “Why…does that unpopularity and uncomfortable social position look different for women? Why do women struggle to achieve equality in the profession, and why do they risk personal gendered commentary and criticism that male lawyers do not?” (P. 23.) They conclude that the combination of prescriptive gender stereotypes (whether about what women are or about what they should be) conflict with the requirements of being a lawyer. Lawyers need to be competent, authoritative, and rational, acting only in the interests of clients and not others. These requirements are perceived to run counter to the obligations and requirements of being a woman, or at least behaving like a woman should. In this part, the authors also ask whether changing the concept of the role of lawyers might help, and, despairing, conclude that it’s unlikely to improve much.

As a minor note, although the paper does not treat this theme out as core to its claims, the authors make fascinating links between the roles of women-lawyers in the political realm. They connect the dots between the work politicians do to create social settlement of political disputes and the implementation of these settlements in legislation.

To the conclusion – in my view, the article’s most important contribution is not the economy of its style, the clarity of its argument, nor the authors’ willingness to identify and concede counterarguments, although all of those are strengths. Nor is it the way that the article took what was my back-of-the-mind impression (about gendered attacks on women as lawyers) and turned that impression into a well-reasoned review and analysis of available evidence. Although that was satisfying. The major contribution of the article for me was that it finds a way to gently, but clearly and firmly, demand that the reader reconsider their own way of talking about and criticizing women lawyers and to support women who work “to accomplish the law’s respect for dignity” without asking them to risk “having their own [dignity] undermined.” (P. 32.)

Cite as: Kim Brooks, Committing to Critically Interrogating Our Conversations About Women We Think We Don’t Much Like, JOTWELL (May 24, 2017) (reviewing Alice Woolley & Elysa Darling, Nasty Women and the Rule of Law, U.S.F. L. Rev. (forthcoming), available at SSRN),

The Staying Power of Injustice and the Prolonged History of the Trafficking of Indian Children in The Other Slavery

Andrés Reséndez, The Other Slavery: The Uncovered Story of Indian Enslavement in America (2016), available at Amazon.

The Other Slavery: The Uncovered Story of Indian Enslavement in America is a devastating encyclopedic account of slavery in the Spanish colonial New World. For me, the ultimate effect was a surprising combination of a renewed sense of the intractability of old problems like racism and slavery and an acute sense of having awoken to a new historical reality that I previously knew next to nothing about.

As a professor of federal Indian law, I begin my class each semester with a brief overview of early colonialism, including the Requerimiento, a document that Spanish explorers read to Indigenous peoples before attacking them. Drafted in 1510, the Requerimiento threatened the original inhabitants of the Spanish colonies with slavery and war if they did not accept Christianity and the primacy of both the Pope and the Spanish monarchs. Despite my knowledge of the widespread use of this document, I had no idea of the breadth of the system of enslavement that Indians in the Spanish New World, ranging from New Mexico, California, Utah, and Florida down to Chile, were subject to. Author and UC Davis historian Andres Reséndez posits remarkably that Indigenous peoples’ precipitous population declines from the end of the fifteenth century through the mid-sixteenth century were due more to “slavery, overwork, and famine” than to disease. (P. 17.) While shocking given the prevalence of the disease theory, this idea makes intuitive sense to me because I can see the popularity of the disease hypothesis standing alone possibly being fueled by its resonance with old but unfortunately not quite extirpated Western ideas of the supposedly divinely ordained superiority of Europeans and European-Americans compared to their Indigenous counterparts. Given slavery’s overtly oppressive character, the idea that Indigenous populations were decimated through slavery (in addition to disease) is undoubtedly more difficult for European-Americans to reckon with. In short, the book pierced me and changed me, and I will never see American history or Latin American history the same way again.

It would be impossible to do this book any sort of justice in the course of a short review, so I will touch on a few of the insights that The Other Slavery led me to. First, the book elucidates how Anglo-centric the teaching of history in the context of U.S. federal Indian law tends to be. It showed me starkly that the snippets I previously knew about the history of tribes in the Southwest were grossly inadequate. I am now convinced that it is essential to know a fair amount about the Spanish government’s colonial policies to understand federal Indian law. Looking at it solely through the lens of historical British, French, and American policies is insufficient—too much is left out that can help us understand how we got to where we are today.1

One of the harsh truths that the book instilled in me is the difficulty of effecting justice through law. At the same time, one of the rays of hope that sustains the book and bulwarks the reader against utter despair is that there were several Spanish rulers (as well as priests and scholars) who saw the injustice of Indigenous enslavement and who, in the case of the rulers, enacted laws outlawing the practice. For instance, King Ferdinand and Queen Isabella as well as King Philip IV, his wife Queen Mariana, and their son King Charles II all enacted laws prohibiting taking Indians as slaves. These laws had important beneficial effects—indeed many slaves sued for their freedom under them—but, all in all, the laws ended up freeing only a small portion of all the Indian slaves throughout the New World. (P. 74.)

Reséndez carries us through numerous innovations that colonial leaders developed to circumvent these laws. As he explains, “[a]ll over Spanish America, Indian slave owners and colonial authorities devised subtle changes in terminology and newfangled labor institutions to comply with the law in form but not in substance.” (P. 75.) Thus, slavery, after being outlawed, gave way to a tribute system involving encomiendas, which were rights granted by the Crown that included the ability to demand work from Indigenous persons. New encomiendas ceased in 1673, and so they were replaced by another tribute system, also involving forced labor, called repartimientos. Finally, when repartimientos began to be phased out in the late 1700s, debt peonage, which had existed for centuries, came to the forefront as the most prevalent species of slavery. (P. 238.) Debt peonage proved hard to root out—although a few politicians and political appointees made heroic efforts—and Reséndez points to one example in New Mexico that occurred as late as 1967. (P. 314.)

This is a difficult emotional path to follow as a reader. We learn, for instance, that, as anti-slavery laws became more ingrained, Spanish colonial slave traffickers were replaced by tribal traffickers, including Caribs and Comanches. Furthermore, the laws had the unfortunate effect of promising the Native slaves more than they could deliver: “[the Indians’] experience of the campaign [in the late 1600s] was marked by dashed hopes, anxiety, and restlessness.” (P. 147.) These relentless innovations in slavery and slave-like institutions are one of the central themes of the work, and what they ultimately tell us is that justice is extremely hard to effect in the face of contrary economic interests.

One very early example of a colonial leader flouting the law involves Columbus himself. His contract with the Spanish monarchy allowed him to invest in the cost of his expeditions in order to gain a percentage of any profits derived therefrom, and thus he had a direct economic incentive to exploit the Indigenous people and to try to get around slavery laws—indeed, he noted that the Indians of Española were its “greatest wealth” and that they did “all the work of men and beasts alike.” (P. 28.) The difficulty of achieving justice when it threatens economic interests is a lesson that can equally be applied to other facets of injustice in the United States, and Resésendez himself describes the Supreme Court’s disappointingly narrow interpretation of the Thirteen Amendment, which proved a tragedy not just for Indians mired in debt peonage, but also for newly free African Americans. (P. 304-05.)

Another revelation for me was the fact that the assimilationist practice of social services’ removal of Indian children from their homes, which is generally traced back to the mid-1900s, had an important and largely unrecognized historical antecedent: stealing Indian children into slavery.2 In most circumstances in the Spanish New World, Reséndez explains, Indian slaves who were women or children were considered more valuable than grown men. Indeed, even the Requerimiento itself threatens to enslave the listener’s wife and children. Thus, The Other Slavery exposes us to a long and appalling history of stealing Indian children into slavery. One of the most gut-wrenching quotes is this one by Alonso de León, describing Mexico in the late sixteenth century: “In those days, we did not consider anyone a man until he had journeyed to the Indian rancherías, whether friends or enemies, and seized some children from their mothers to sell.” (P. 99.)

Stealing children was also a rampant practice in California and in what eventually became the American Southwest, and Reséndez describes several different forms of it. Among them are the Mormon practice in Utah in the mid-1800s of purchasing Indian children under the pretense of saving their souls (which also involved erasing their cultures), apprenticing Indian children to white families in California also in the mid-1800s, and the widespread practice of stealing Navajo children in the 1860s. At one point during the Navajo Campaign, Kit Carson requested permission from General James Henry Carleton to allow the Utes assisting the U.S. forces to keep the Navajo women and children they captured partly because otherwise the Utes would not be sufficiently compensated for their services and partly because selling the Navajo captives into slavery in Mexico would “cause them to loosen their collectiveness of interest as a tribe.” (P. 286.) Thus, shades of genocide are apparent in Carson’s missive and in the U.S.’s condonation of the practice (although this particular request was refused). The fact that thievery of Indian children has such a long history in America reinforces the need for the Indian Child Welfare Act and similar state laws to protect against further iterations of this type of abuse.

In conclusion, The Other Slavery is indispensable reading for professors in the U.S. who teach federal Indian law. More broadly, I sincerely wish that Chapter One, which is about Columbus, could be read by everyone who teaches some aspect of New World history at any level. I would hesitate to recommend any of the other chapters individually—for those who are interested in colonial history, Indigenous history, or the history of slavery, all of the chapters delineate crucial parts of the same horrifying story.

  1. There has also been important scholarship on slavery under French colonial rule—and its continuance under British rule—in Canada. See, e.g., Marcel Trudel, Canada’s Forgotten Slaves: Two Hundred Years of Bondage (trans. George Tombs 2013). For a discussion of Indian slavery in colonial and early American Virginia, as well as elsewhere in the United States, see  Gregory Ablavsky, Making Indians “White”: The Judicial Abolition of Native Slavery in Revolutionary Virginia and Its Racial Legacy, 159 U. Pa. L. Rev. 1457 (2011). []
  2. Another key historical antecedent to these removals was the genocidal boarding school system, which came to the forefront in the late 1800s. []
Cite as: Ann Tweedy, The Staying Power of Injustice and the Prolonged History of the Trafficking of Indian Children in The Other Slavery, JOTWELL (April 25, 2017) (reviewing Andrés Reséndez, The Other Slavery: The Uncovered Story of Indian Enslavement in America (2016), available at Amazon),

Being Interconnected

Drucilla Cornell & Karin van Marle, Ubuntu Feminism: Tentative Reflections, 36 Verbum et Ecclesia (2015).

For a number of years, Drucilla Cornell has been studying and reflecting upon ubuntu,1 an African term expressing the idea that humans come into being through interconnectedness and that therefore they have a being, understanding, and set of obligations that emerge in their interconnections. The 2015 article authored by Cornell and South African scholar Karin van Marle summarises ubuntu, compares it with classical Western individualist notions of the self, and considers what it has to offer to Western feminism. The article not only serves as an introduction to a significant African concept, but also challenges Western legal feminism to reflect on its foundational concepts. Although this particular article is relatively short, it is very rich in detail and offers a number of intriguing directions for further reflection and action. In this brief review, I will summarise some key features of ubuntu as presented by Cornell and van Marle, and offer a few comments about its broader significance. My intention is to inspire readers to go to the original article: the ideas are new to me and my rendition of them is short and lacking in depth.

By contrast to Western philosophy, the idea of ubuntu does not permit questions such as “who am I?,” “what do I know?,” and “what ought I to do?” to be addressed separately in the abstract. We are not abstract beings, but become beings in a time and a place, and are always already surrounded by others. Who we are, what we know, and our ethical obligations are connected. As Cornell and van Marle explain,

Ubuntu is a philosophy on how human beings are intertwined in a world of ethical relations from the moment they are born. Fundamentally, this inscription is part of our finitude. We are born into a language, a kinship group, a tribe, a nation, and a family. We come into a world obligated to others, and those others are obligated to us. We are mutually obligated to support each other on our respective paths to becoming unique and singular persons.

(P. 2.)

As Cornell and van Marle further explain, ubuntu bypasses key Western distinctions between ethics, epistemology, and ontology. Ethical imperatives are embedded in our fundamental connectedness and in the dignity necessarily accorded to all people as a result of the “social bond.” (P. 3.) The emergence of the human in an intermingled, obligated life means that it is impossible to distinguish, as Western philosophers do, the question of being from that of knowing, and that of right action: “Ubuntu in this sense encapsulates how we know the world as well as how we are in it through the moral obligations as human beings who must live together.” (Id.)

Because ubuntu emphasises that humans are “intertwined” in this way, it is not only about our origins and context, it also concerns the production of the future. Activism and critique are built into ubuntu, because community is constantly regenerating and reformulating itself, and because it is up to the participants to acknowledge the ethics of common existence: “human beings are born into an affective network that is constantly being transformed by the participants themselves.” (Id.) The authors describe ubuntu as having not only a radical and critical edge, but also a revolutionary core because it so thoroughly places human beings together in solidarity.

For example, in the context of South Africa, the authors discuss the work of Sampie Terreblanche,2 who, in their words, “describes 354 years of patterns of unfree black labour to underscore that the transformation in the country cannot move forward unless it completely undoes that history.” (P. 3.) As he argues, transformation in South Africa cannot be accomplished by replacing a system of explicit exploitation of black labour with neoliberal capitalism because the economic and social system is still structured by the history of black servitude. Striving to live together in solidarity is a profoundly anti-racist practice and philosophy, because it means openly contesting the ongoing effects of this history. (Such an approach is clearly of relevance in Australia and many other countries where colonialism remains a living practice.) Again, to unsettle a distinction that Western thinkers find hard to overcome, ubuntu is both critical and revolutionary: it encourages both transformation and ongoing reflectiveness and dissent as “there is always more work to do together in shaping our future,” and “the future in a deep sense is always a collective project.” (P. 5.)

This understanding of intermingled lives does have some resonances in Western theory, and in particular in relational feminism and anti-racist feminism. As the authors outline, it adds depth to the linking of feminist ethics and anti-racism. Understanding that social belonging connects everybody and implicates us all in change means that it is not possible to promote oneself at the expense of others, or pay attention to a particular group while marginalising some other group. As they say, “the flourishing of one human being is not separate from the flourishing of all other[s].” (Id.) This does not entail a rejection of the individual – “individuation is … valued, but as individuation, not individualism.” (Id.) We become “unique and singular” individuals in our interconnected situations, and not in any sense separately from community. Thus we are neither entirely relational nor self-determining, but individuals shaped by and belonging to a social context.

There are many further implications of this thinking for feminism generally. To summarise them briefly, ubuntu feminism is described by Cornell and van Marle as including the following elements: surpassing the tension between care and justice; the unthinkability of justice without radical equality; the rejection of an unmodified feminism; and the multiple possibilities for understanding the home and women’s spaces. Finally, they explore its potential contribution to discussions about spatial politics and, in particular, challenging the differentiation of spaces in politicised and gendered ways.

Cornell and van Marle show that the idea of ubuntu has much to offer Western feminism, philosophy, critique, and activism. It might be argued against this proposition that Western thought already has many of the resources needed to underpin and promote a transition to a less individualistic and more egalitarian and connected worldview. It could furthermore be suggested that “external” ideas cannot easily be translated into the different and very resistant context of Western thought. While these points might be true, it is also imperative that Western thought challenge and renew itself by drawing inspiration from non-Western philosophy. Importantly, as the authors point out, there cannot be justice that is ahistorical and merely local. Therefore the concepts and practices through which justice is promoted cannot derive solely from a single tradition, especially one that has pinned so much faith in the sovereign individual. If we are to have a common global future the first step is to understand our interconnectedness and our deep reliance on each other and each other’s well-being. This project of developing a sense of human connection through feminist, anti-racist, anti-colonialist, and other egalitarian movements has always been important, but it is now extremely urgent in the face of exploitative political movements that build support through politics of division and fear.

  1. For instance, Drucilla Cornell, uBuntu, Pluralism and the Responsibility of Legal Academics to the New South Africa, 20 Law & Critique 43, 47 (2009). []
  2. Sampie Terreblanche, A History of Inequality in South Africa (2002); Lost in Transformation (2004). []
Cite as: Margaret Davies, Being Interconnected, JOTWELL (February 27, 2017) (reviewing Drucilla Cornell & Karin van Marle, Ubuntu Feminism: Tentative Reflections, 36 Verbum et Ecclesia (2015)),

Liberty, Equality, Polygamy?

Since the 2003 Lawrence v. Texas (539 U.S. 558) decision in which the United States Supreme Court overruled the criminalization of private homosexual conduct in the United States, the argument that the ruling would lead to same-sex marriage and also to the recognition of polygamous marriage has been made with regularity by Supreme Court Justices and law professors. Most recently, in the 2015 Obergefell v. Hodges decision, the Court proved Justice Scalia right and extended the fundamental right to marry to same-sex partners. (Obergefell v. Hodges, 576 U.S. __ (2015)). In his dissent in Obergefell, Justice Roberts reprised the Scalian slippery slope argument and asked whether “States may retain the definition of marriage as a union of two people….Indeed from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.” (Id. (Roberts, J., dissenting).) Invariably, when asked to legally justify the prohibition of polygamy against constitutional challenge, proponents of exclusively monogamous marriage rely on a host familiar Orientalist tropes as well as assertions of social dangers with little empirical proof.

Regardless of whether one agrees with the practice of plural marriage or same-sex marriage as a moral matter, it has become a requirement in the marriage cases, at least from Perry, Windsor, and now Obergefell, that objections to legalization be based on logical, discernible evidence rather than vague suppositions or, worse, stereotypes. Professor Jonathan Turley’s article The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions examines and challenges the proffered justifications for continuing the criminalization of polygamy. Using two cases, one from Canada that he refers to as “The Bountiful” (Reference re: Section 293 of the Criminal Code of Can., 2011 BCSC 1588), and Brown v. Buhman1 from the United States (947 F. Supp. 2d. 1170 (D. Utah 2013)), Turley argues that post-Lawrence, the ability to show harm from specifically consensual, adult plural marriages is very difficult if not impossible.

The article begins with a brief overview of the Canadian reference and the Brown case. The laws being questioned in both cases are remarkably similar, which makes for an excellent comparative analysis. In both contexts, though the law affects other communities, the state’s criminal prohibition is directed at Mormon polygyny. The similarity notwithstanding, the different analyses of harm undertaken by the courts result in polar opposite outcomes: The Brown court found that Utah’s ban on informal polygamous unions in which the parties never seek state licensing or recognition does not implicate harms that are compelling enough for the state to invade consenting adults’ privacy. Women and children are protected by other laws like domestic violence and child abuse laws, and these harms cannot be assumed as necessarily arising in all polygamous unions to ban their informal practice. The Canadian court, on the other hand, was persuaded by expert testimony of significant harm arising from polygamy, particularly to women and children, to justify a criminal ban of the practice.

While the discussion of these cases is fascinating particularly for those of us who teach comparative family law, the real contribution of the article is in the challenge to the use of harm in continuing the ban on polygamy. Turley suggests that the harm principle as articulated by Utilitarian philosophers and specifically John Stuart Mill was once a favored argument of conservative Liberal supporters of privacy. Mill’s harm principle restricted government regulation only to those actions that directly harmed others, therefore removing consensual acts from its purview. Turley argues that the way that this principle has been deployed in some recent feminist scholarship has begun to take an illiberal turn reminiscent of an entirely different philosophical tradition—that of Lord Patrick Devlin. Turley argues that these feminist uses of the harm principle to argue that polygamy results in social rather than individual harm forces a particular choice upon all citizens resulting in what he calls “compulsive liberalism,” “where harm is defined broadly to subsume consensual acts that foster discrimination or stereotypes.” (P. 3.)

Resting on moral conceptions of harm, in short, returns us circularly to illiberal theories like that of Devlin, who argued that moral harm alone was a sufficient basis for state action such as criminalization, in opposition to the Millian harm principle. Turley asserts that compulsive liberalism is eroding some of the most fundamental rights of individuals in a liberal society, tracing this trend from the early argument made by Catherine MacKinnon that pornography always and inevitably subjugates women to current attempts to regulate speech and expression via hate-speech legislation and attempts to protect religious sentiments. One might add the proscription against holocaust denial, activism for Palestinian rights, and regulation of Islamic dress to Turley’s examples indicating that it is not only liberal feminists engaging in this sort of compulsory liberalism. Nevertheless, Turley argues persuasively that illiberal regulation of free speech based on conceptions of societal harm—perhaps even espoused as a threat to the public order—reintroduces morality alone as an adequate basis for criminal regulation.

The polygamy cases, Turley argues, “fall on the very fault line between compulsive liberalism and libertarian theories over the function of criminal sanctions.” (P. 1943.) Examining the expert testimony on harm supporting continued criminalization in the Bountiful and Brown cases, Turley asserts that in Bountiful there was a willingness to rely on theoretical claims of social harm even when the unions were “consensual, and reveal[ed] no cognizable harm to the participants. It was the threat of its very existence to the fabric of marriage as an institution that [Chief Justice] Bauman saw as a credible basis for criminal sanctions.” (P. 1944.) The possible harm to women, children, and the institution of monogamous marriage sounds very much like the harms offered by opponents of same-sex marriage. Moreover, they resuscitate Lord Devlin’s argument that the law does not protect individuals but society.

Even if we do not espouse the view that all the law should do is protect individuals from other individuals or from an overreaching state consonant with Libertarianism, Turley’s exploration of the expert testimony raises the question of whether these are, indeed, harms to society causally related to the polygamous structure or form of marriage. The reliance on harm to women in the face of consent and, indeed, choice, raises questions whether feminist opponents of polygamy value autonomy even when they do not agree with its ultimate outcome. Can women choose polygamy freely? Can women choose to dress modestly? Or are these choices always compelled by the invisible hand of the patriarchy from which the only escapes are those authorized by liberal feminist orthodoxy? Turley rightly points to a conundrum at the heart of this kind of feminist project: the possibility that freedom will not look like what the majority wants and will reflect norms that are not typically white, upper-middle class, and European in origin.

Ultimately, Turley challenges the idea that a polygamous marriage treated on equal terms with a monogamous marriage is a threat to women’s equality. It is questionable that a form of marriage is inherently unequal. As I have argued, monogamous marriage historically suffered from serious gender inequality until the mid-twentieth century and in many respects continues to do so.2 Abuses within these marriages were tolerated with equanimity by the law. Only after the women’s movement of the 1960s onwards have we been able to rehabilitate monogamy into a more egalitarian form through legal enactments like domestic violence, child abuse, and age of consent laws. Even if we focus on polygyny in its more extreme forms, there are means by which we can legally structure these marriages to distribute the rights and obligations and, indeed, even the legal status of marital partners, more equally among all the spouses. And certainly, as Turley points out, family structures with multiple partners are not restricted to polygyny but include polyamory and polyandry. These relationships can be egalitarian and cooperative, or not—just as monogamous marriages. But that does not preclude them from being valid choices by both men and women.

The animus that has been directed at polygamy from religious conservatives to liberal feminists has failed to respond to the problem of the disparate treatment of people in plural marriages or those who want to form them (and this is not necessarily always a heterosexual arrangement) from those in monogamous marriages. What is the feminist response to multiple-partner gay or lesbian relationships? Surely these do not implicate gender inequality. As Turley argues most persuasively, using the state’s power to criminalize plural-partner marriages by reducing these to extreme polygyny and then basing the argument for prohibition on moral disgust or fear of prospective societal disintegration alone takes us back to 1950s: it is going backwards and should not be mistaken for progress towards greater equality and freedom.

  1. The decision in Brown was subsequently vacated for mootness by the United States Federal Court of Appeals for the Tenth Circuit. Brown v. Buhman, No. 14-4117 (April 11, 2016). []
  2. See generally, Cyra Akila Choudhury, Between Tradition and Progress: A Comparative Perspective on Polygamy in the United States and India, 83 U. Colo. L. Rev. 101 (2012). []
Cite as: Cyra Akila Choudhury, Liberty, Equality, Polygamy?, JOTWELL (December 12, 2016) (reviewing Jonathan Turley, The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions 64 Emory L.J. 1905 (2015)),

Responding to Economic Inequality: The Place of Race

Olatunde C.A. Johnson, Inclusion, Exclusion, and the “New” Economic Inequality, 94 Tex. L. Rev. 1647 (2016).

Inclusion, Exclusion, and the “New” Economic Inequality by Olatunde C.A. Johnson (hereinafter The “New” Economic Inequality) addresses key questions that have arisen in this difficult era of austerity, retrenchment, and increased economic insecurity in rich countries. These questions include: where does racial inequality fit in the high-profile discourse about the (re)discovery of economic inequality? And, in a world of extreme and growing economic inequality, what kinds of inclusionary practices contribute to remedying racial inequality?

I read this article because I’m working on a research project1 about the role of law in implementing inclusionary practices. This project concerns inclusionary practices in Europe and Latin America, while The “New” Economic Inequality focuses on the legal customs, traditions, and remedial instruments of the United States. Fortunately, the article’s critical analyses of the limitations of historic “remedies” for racial inequalities in the U.S. and of the absence of race from much of the contemporary discourses of economic inequality are of broader significance, as are the article’s insights into the importance of place-centred remedies to struggles for racial equality.

A comprehensive introduction to the article contextualises and sketches the contours of the “new” economic inequality as it has been elaborated in recent academic and popular literatures and points to the uneasy fit of racial inequality within this discourse. The obduracy of racial inequality in the United States – as evidenced by social and economic measures including wealth, criminalisation, security, health, education, and racialized unequal access to other key public and private goods – does not comport well with the narrative of economic inequality as a “new” phenomenon. That narrative positions economic inequality as a radical change that has recently diminished the lifestyles and life chances of an almost universal middle class, the former beneficiaries of the credit-fuelled consumer society of the mid-twentieth century. If the problem of inequality that dominates contemporary social policy conceptualises economic inequality as a new situation that ruptures the fabric of an imagined time/space of equality and social mobility, where does that leave racial inequality, an aspect of American life that positioned Black and African-Americans as a perpetually excluded “other,” juxtaposed against an ostensibly universal norm of equality?

Johnson eschews the idea of subsuming contemporary racial inequality within some notion of the economy as generating a shared, “pan-racial” experience of structural inequity. Instead, The “New” Economic Inequality explores the historical-spatial underpinnings of racial inequality and the struggles to stop it, focusing in particular on the often complex and tense relationship between inclusion (anti-discrimination) claims based on race, gender, and other grounds of historic exclusion, and the sedimented distributional entitlements associated with the “democracy of opportunity” tradition in the U.S.2

Part I of the article outlines how concepts of space and place illuminate the processes and consequences of exclusion through class, race, and ethnicity and the implications of such exclusion for social (im)mobility. It draws on key studies of the impact of residential segregation by class and race on intergenerational (im)mobility. Relying on Patrick Sharkey’s work, for example, The “New” Economic Inequality documents (i) the huge and persistent differences in neighbourhood poverty experienced by low-income white and African-American residents of major U.S. cities, (ii) the significant impact this differential has had on access to publicly provided goods such as education and private market-based opportunities to secure good jobs and accumulate wealth, and (iii) the enduring, multigenerational effects of these differences.3

Part II of the article then reviews different legal instruments for tackling unequal places and remedying the opportunity deficits they create. The revival of integration litigation based on fair housing law is an interesting development, especially in the wake of the Supreme Court’s recent holding that racial integration is a core purpose of the Fair Housing Act and that the legislation supports disparate impact claims. A more intriguing aspect of the remedies discussion is Johnson’s survey and assessment of non-litigation strategies to address inequalities of place and race. These strategies include the use of governmental programming and spending regulations to require agencies and grant recipients actively to promote fair housing4 and sustainable communities.5 But perhaps the most interesting alternative to litigation discussed in the article is the “community benefits agreement” (CBA), an example of a regulatory compact through which the plans of developers and investors to (re)manufacture urban space are made conditional on agreements with local community coalitions and governmental organisations (municipalities, economic development agencies) to deliver inclusionary benefits such as decent wages, good jobs, affordable housing, sustainable environmental conditions, parks, and schools.

Johnson is careful not to suggest that the CBA offers much more than a limited intervention, suitable only in some circumstances, for the legacies — and enduring problems – of economic and racial exclusion. But her analysis does highlight a potentially exciting dimension of this type of intervention. As Johnson writes: “what is novel as a regulatory approach … is the shift … to a framework in which redistributive demands are made of private power and public goods. The aspiration of the CBA framework is not simply inclusion in structures of opportunity presumed to be operating correctly, but the remaking of the terms of how those structural arrangements distribute opportunity.” (P. 1662.)

Ultimately, what I most liked about Inclusion, Exclusion, and the “New” Economic Inequality is the article’s insistence on the importance of positioning racial, gender, and ethnic inequality as “a necessary disruption of the current interest in economic inequality,” a disruption that demands a rethinking of regulatory regimes and policy practice, a rejection of “narratives of integration” into the failing economic institutions of the early twenty-first century, and a new focus on “remedying the failures of the past, while responding to an evolving economic and racial order.” (P. 1665.)

  1. Funded by the British Academy, Award number: PM150186. []
  2. Joseph Fishkin and William E. Forbath’s recent work frames this tradition as a mode of constitutional political economy consisting of three key elements: “restraints against oligarchy”; “a political economy that sustains a broad middle class, wide open and broad enough to accommodate everyone”; and an inclusion principle “that democracy of opportunity must extend to all the people across lines of race and other invidious group-based distinctions,” see e.g., Joseph Fishkin & William E. Forbath, Wealth, Commonwealth, & the Constitution of Opportunity (U. Tex. L., Public Law Research Paper No. UTPUB632, 2015), available at SSRN. []
  3. Patrick Sharkey, Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial Equality 67 (2013). []
  4. Affirmatively Furthering Fair Housing Final Rule, 24 C.F.R. Parts 5, 91, 92, et al. (2015), cited at Johnson P. 1658. []
  5. Johnson illustrates this point with the Sustainable Communities grant programme administered by the Department of Housing and Urban Development in collaboration with the U.S. Department of Transportation and Environmental Protection Agency, see sources cited at footnotes 60 and 61 in Johnson’s article. []
Cite as: Toni Williams, Responding to Economic Inequality: The Place of Race, JOTWELL (November 11, 2016) (reviewing Olatunde C.A. Johnson, Inclusion, Exclusion, and the “New” Economic Inequality, 94 Tex. L. Rev. 1647 (2016)),

Where the “Normal” Is Gendered and Unjust

Do you want that with fries, salad, or a side order of sexual harassment? Kaitlyn Matulewicz’s paper on sexual harassment in the restaurant industry prodded me to look differently at interactions with servers and to reflect more broadly on the burdens placed on those who experience harassment. Her starting point is the legal standard by which, to qualify as sexual harassment, workplace conduct must be objectively “unwelcome” and outside the “normal.” Drawing on interviews with women full-service restaurant workers, Matulewicz argues that the organization of restaurant work makes women vulnerable to enduring sexual harassment. Structuring elements of restaurant work – hiring and dressing practices, the focus on customer service, and the legally approved wage-tip relation – normalize women workers’ subjection to unwanted sexualized experiences.

Matulewicz gives plenty of space to the women interviewed, allowing us to hear their voices. I appreciated her methodological decision not to ask the participants outright whether they had experienced sexual harassment. Instead, she asked them to talk about their work and to describe their interactions with customers, co-workers, and management. That decision was crucial to the project because her participants “often struggled in defining sexual harassment and thinking about their own experiences in relation to it.” (P. 135.) One reason for this struggle is that sexualized conduct is so “normal” in their workplaces – and that the workers need to please their customers.

While the paper’s primary aim is presenting the women’s accounts, Matulewicz connects her inquiry to legal literature on equality, such as work by my colleague Colleen Sheppard, and to legal and sociological research on labour and gender. Matulewicz cites data on the composition of the restaurant industry: women, the young, and visible minorities are disproportionately present in the “front of the house,” serving customers, while men are disproportionately present in the “back of the house,” in the kitchen and the manager’s office.

Matulewicz shows that, in a workplace where sexualized interactions are common, the prevailing legal approach can lay on the recipient of unwanted attention the burden of communicating that conduct is “unwelcome.” That a worker’s remuneration depends on tips, within the client’s discretion, stacks the deck against doing so. Participants reported learning strategies of “laughing it off” to get through the shift.

While the problem isn’t new, this paper pressed me to keep reflecting on the challenges of addressing systemic injustice using complaint-driven mechanisms – ones that work best for egregious individual incidents. I have been thinking of this problem in the context of my service as an assessor for my university’s policy on harassment, sexual harassment, and prohibited discrimination. The paradigm case for such mechanisms probably involves outrageous statements made before witnesses agog, but reliable. Meanwhile, a gamut of conduct and workplace decision-making remains, to use Matulewicz’s term, “more ‘subtle’” and harder to challenge.

A quick Web search tells me that Kaitlyn Matulewicz is a doctoral candidate in the Faculty of Law at the University of Victoria, an organizer with the Retail Action Network in Victoria, and has extensive experience as a server in the food and beverage industry. It’s an impressive combination of scholarly research, activism, and lived experience – and I look forward to reading her work again before long.

Cite as: Robert Leckey, Where the “Normal” Is Gendered and Unjust, JOTWELL (October 14, 2016) (reviewing Kaitlyn Matulewicz, Law’s Gendered Subtext: The Gender Order of Restaurant Work and Making Sexual Harassment Normal, 24 Feminist Legal Stud. 127 (2016)),