Costly Mistake: Failing to Read This Article

Nov 23, 2012 Kim BrooksAdd a Comment

Kim Brooks

If you want to impose a tax on income, you need to delineate the contours of the concept of income.  Importantly, you need to mark the line between income-producing activities and non-income-producing (or personal) ones.  When an individual or a business engages in costly activities that produce taxable income, the cost of those activities should be deductible.  When that individual or business engages in costly activities that do not produce taxable income, the cost should not be deductible for tax purposes. Sounds simple.

Some legal concepts (like the distinction between business and personal expenses) are misleadingly simple to articulate and are confounding in their application, while some expenses cause tax scholars and policy-makers relatively little anxiety.  As Fellows and Kahng illustrate, if I pay to go on a vacation, drink a fine bottle of wine, or fall asleep on a high-end mattress, no one would suggest that my expenses should be tax deductible.  They are clearly personal.

But for scholars with an interest in equality, questions about some of the more ambiguous expenses remain.  What about when a person living in poverty pays to attend university with the objective of obtaining a more lucrative work position?  Or what about the person with a disability who has to pay for expensive equipment to return to the workplace?  Or what about the woman who has to pay for childcare so that she can return to work after having a child?  These expenses are often not considered to be expenses incurred to produce income for employees, and their deduction is routinely denied.

Many tax scholars have engaged in debates about the business/personal distinction over the years.  (And despite the richness of that literature, there is still a good deal to say.)  Fellows and Kahng don’t stop their analysis, though, by taking on only the business/personal distinction.  Instead, they center their analysis on the ways in which that distinction is differently operationalized when they taxpayer in issue is a worker rather than a business.  Central to their claim is the evidence that when legislators, policy-makers, and courts adjudicate the line between personal and business expenses for workers, they are highly restrictive: if there is an argument that the expense is personal, it is denied.  In contrast, when those same people or bodies adjudicate the line between personal and business expenses for businesses, they are highly liberal: if there is an argument that the expense is business, it is allowed.

To make that distinction more concrete, as noted above, many of the expenses workers incur that facilitate participation on the paid workforce (for example, education, medical expenses, or child care) are not deductible.  On the other hand,  many of the expenses incurred by a business’s managerial class (for example (borrowing from Fellows and Kahng), costly furniture, artwork, luxurious travel accommodations and meals) are regularly deductible.  As the authors state, “[i]t is unclear, for example, why a corporate executive must have a mahogany desk or a corporate jet to fly him to business meetings when a Steelcase desk and commercial air travel are available at a fraction of the cost” (at 36).

Fellows and Kahng’s argument unfolds in five parts.  Part I roots the distinction between business and personal expenses and the different alignment of that distinction for workers and businesses in the politics surrounding the enactment of the income tax legislation in 1913 and the immediately following years.  This part of their work provides a wonderful political economy of the entrenchment of attitudes about workers and businesses in income tax law in its early periods.  Part II focuses on the development of the deference decision-makers (and especially courts) give to businesses in allowing expenses to be deductible.  Part III centers on workers – exploring the ways in which the deduction workers expenses, even those with significant attachment to income-production, are routinely denied.  The authors describe the current approach as resulting in underinvestment in worker productivity, and misallocation of resources and misevaluation of assets; therefore, Part IV lays out an argument in favor of the more liberal deduction of expenses incurred by workers (and more restrictive deduction of expenses incurred by businesses) based on the economic incentives those tax changes would create.  Finally, Part V sets three goals for redefining the tax base.

Fellows and Kahng’s piece is not for the faint of heart:  it is dense, thickly argued, and ultimately, about tax law.  Yet the issue at the centre of their work, the conceptualization of our human action as fundamentally connected to income production or as a non-work-based-personal activity, is an important conceptual issue for equality scholars.  As the U.S. election debates have underscored, the design of our tax system reveals a good deal about what we value and who we value. For those who care about what the tax system exposes about what we think is private, this article (and the conceptual problems it addresses) is essential reading.

Getting Rights Right

Oct 29, 2012 Toni WilliamsAdd a Comment

Toni Williams

This working paper makes a thought-provoking contribution to debates about the value of litigating rights to advance social change. It asks whether litigating the socio-economic rights that have been incorporated into many of the constitutions drafted during the past 50 years or so has what the authors term “pro-poor” effects. And, to the extent that such effects occur, what political, economic, social and legal factors and institutions might account for them? In response to these questions the authors offer a comparative analysis and reworking of data from five case studies of socio-economic rights litigation reported in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, a book edited by the same authors and published in 2008.

All five research sites are large so-called emerging economies with constitutions that recognise socio-economic rights, some more explicitly than others.¹ The case studies of socio-economic rights litigation in India, Nigeria, Indonesia, Brazil and South Africa that are discussed in the 2008 book provide extensive details of reported cases in the fields of health care and education in each country and the authors estimate the direct and indirect effects of the cases on each country’s population and public policy. This paper revisits the data, incorporating it into a small sample comparative study across the five jurisdictions; a study that makes intriguing, if cautious, claims about the capacity of some courts to decide some socio-economic rights claims in ways that are beneficial to some of the poor.

To investigate the distributive impact of socio-economic rights litigation is, of course, to engage with well-established and often-repeated findings about litigation processes and courts as tending either to favour the rich and powerful, the “haves” of the societies in which they are situated, or, more likely, to be ineffectual. Brinks and Gauri believe that such claims about the regressive impact and impotence of rights litigation over-generalise from a limited number and narrow range of courts, cases, constitutions and countries. They claim that a more systematic analysis, taking into account variation between different types of cases and characteristics of courts, shows that litigating social and economic rights may sometimes yield robustly pro-poor effects, at least in the areas of health care provision and education.

Brinks and Gauri’s framework for analysing the distributional consequences of socio-economic rights litigation is built on three core elements: the reach of a judicial decision, that is its broad applicability beyond individual litigants; the ‘impact’ of a decision, that is the size and scale of its’ benefits; and the distributional consequences of a decision, that is the share of those benefits received by the poorest 40% of the population. Reach is the basis for the paper’s estimates about the indirect effects of litigation, the type of effect that Brinks and Gauri regard as fundamental to the progressive potential of socio-economic rights litigation and largely absent from the literature on rights litigation. Making this point, the authors observe that “the areas were it is easiest to measure the distributive effect of litigation — direct effects on litigants, especially in individual cases — …. are the areas where effects are most likely regressive and least important in the overall public policy context” (p.15 emphasis in the original).

Reach depends on procedural characteristics of the legal system, including the extent to which conventions about precedent and universality render specific cases as generally applicable. Reach also depends on non litigants having access to the benefits of a decision to uphold or extend a socio-economic right without having to surmount the multiple barriers to litigating individual rights claims. Finally, reach varies with the types of cases that are litigated. The case typologies (drawn from categories elaborated in more detail in the book) differentiate between entitlements to public “provision” of socio-economic rights to educational and health care goods and services, litigation to secure or enforce “regulation” that enables access to or improves enjoyment of rights to health or education, and claims to the enforcement of a third party’s “obligations” in relation to educational and health care rights.

Brinks and Gauri reason that non-litigants might be expected to have reasonably good access to the benefits of successful regulation-type cases when they share the same policy space as the litigants and cannot easily be excluded from the policy environment that the regulation changes, that is when they use the same services in the same areas as successful litigants. A court decision compelling the enactment and enforcement of cleaner fuels regulation in a major city, such as the Delhi clean air cases discussed at pp.32-33, for example, has considerable reach and the beneficial impact of such regulation on respiratory health may well be experienced disproportionately by those who lack the resources to protect themselves in heavily polluted public spaces. By contrast non-litigants may be wholly excluded from the benefits of an “obligation” type decision when they do not use educational or health care facilities run by private third party providers. Thus a decision to strengthen health care rights by facilitating malpractice lawsuits against doctors in India, a society where such lawsuits are associated with the private medical system, for example, is unlikely to have distributionally progressive consequences. As for the provision cases, the paper suggests that distributional effects of this type of litigation may be unpredictable. While the express purpose of such litigation is often exclusive in the sense that it seeks public provision of goods or services to the litigants, potential exists for more far reaching effects when the aggregation of a large number of cases forces a policy shift towards universal provision, as apparently has happened in some Brazilian states after thousands of individual cases seeking access to particular medications.

The paper applies the case typology to health and education rights cases across the five countries, assesses the social impact or effects of different cases, and estimates the share of any beneficial impact that goes to the two lowest income quintiles in each country. This analysis finds considerable variation in the distributional impact of socio-economic rights ranging from apparently “very much pro-poor” in countries (e.g. South Africa and India) and policy areas that are dominated by regulation type decisions through to “close to distribution-neutral” in countries (e.g. Brazil and Indonesia) where individualised results may be generalisable beyond litigants to “sharply anti-poor” consequences in settings (e.g. Nigeria) where the impact of socio-economic litigation is tightly confined to individual litigants.

This paper is interesting because it takes seriously the work of courts and legal mobilisation in countries of the Global South, because it engages with variation in the distributional consequences of decisions in different courts and about different socio-economic rights, and because it touches on the social, economic, political and institutional conditions associated with variation in distributional impact. A rich paper and a stimulating read, Law’s Majestic Equality yielded few definitive answers, but its claims about the progressive potential of some types of socio-economic rights litigation pose plenty of theoretical questions, methodological questions, and political questions about the equality project of getting rights right.

1. There is considerable variation in what that recognition might entail. Eg., the socio-economic rights set out in the preamble to the Nigerian constitution are not justiciable as such see the OMCT, FIDH, Obs reportNIGERIA: Defending Human Rights: Not Everywhere Not Every Right, International Fact-Finding Mission Report, available at http://www.omct.org/files/2010/05/20688/nigeria_mission_report.pdf. But as the Brinks & Gauri study shows, some individualised human rights claims have been crafted that draw on rights to education and healthcare.

Is Critical Citizenship Critical?

Oct 1, 2012 Camille NelsonAdd a Comment

Camille Nelson

It is a good thing when those of us in education are urged to be more thoughtful about what we seek to achieve through our teaching and scholarship. An analysis of the possible impact that education can have moves beyond the standard questioning of pedagogy, and speaks to the societal value of education as transformative, not just for the student and future graduate but also for society. Such higher order questions, as I like to call them, are not typically the stuff of faculty meetings, but they are at the core of a recent article by Professors Angela Mae Kupenda and Michelle Deardorff.

In their article, Negotiating Social Mobility and Critical Citizenship: Institutions at a Crossroads, the authors juxtapose two seemingly inconsistent struggles faced by institutions of higher education – improving the socioeconomic possibilities of our students versus preparing students for what they theorize as “Critical Citizenship.”:

“Preparing students to prosper in the present structure, while it may help them to individually succeed, is in a way teaching them to become participants in structures of continued oppression of others.” (339)

“Law schools provide tremendous opportunities for a concerned educator to prepare students to be active, engaged citizen students, able to challenge systemic forms of oppression and to negotiate and challenge a political process that maintains, often, a status quo of inequality.” (360)

This latter objective is, in the authors’ opinions, the ultimate value-add of education.  Such conscious education is founded upon, “preparing students to challenge societal injustice and to be critical citizens who are willing to challenge a government that engages in abusive actions or is exploitative of its citizenry”(337). This thesis might be expanded to include corporate citizenship in a globalized world. I am not certain that these objectives are mutually exclusive, or that the latter is not sometimes achieved through the former, but there are serious policy, practice and ethical questions underlying and informing the worthwhile project undertaken by these authors.

Assuming for the moment that education does have the transformative force that these professors posit, one must take seriously their question. Do faculty and university administrators have institutional and societal goals in mind, goals beyond educating the individual student, when we offer educational programs?  I hate to sound market-driven, especially when we are discussing education, but to ignore the role that increasing tuition rates has had in contributing to the consumer-like expectations of students in American higher education would be folly. It is not surprising that students, and parents, investing significant amounts of their income and savings in education expect a return that surpasses debt load in a reasonable amount of time. Further, as educators, especially those of us from non-traditional backgrounds, we must acknowledge that education, and the academy, have provided many of us with sustenance and the means to improve our lives, and those of our loved ones.

To position professors and higher education, including legal education, in this mix as fundamentally offering not improved socio-economic status (SES) and class mobility, but rather the tools to  dismantle the proverbial master’s house is surely a risky thesis, at least in these times of economic uncertainty and output-based educational assessments (339, 360, 363). Nonetheless, these inspired professors, who demonstrate a seemingly unflappable faith in not just faculty members, but also pedagogy and the transformative potential of education, have a point.

In Negotiating Social Mobility and Critical Citizenship the authors explain their admirable “long-term goal of creating a more just society” (339) by reminding us of education theory ranging from John Locke’s comments in Two Treatises of Government to Paulo Freire’s Pedagogy of the Oppressed (345-46). I respect their thesis, although I suspect that the goal identified might not resonate with everyone, including some of the students they teach, many of whom likely aspire to live comfortable lives with high incomes.

Without wading into that argument – which is far too complex and robust for this short essay – there is a very real economic lens that need not present the incompatible binary that the authors suggest. One of the things I liked about the article is it led me to ask whether these objectives could be pursued simultaneously:  can educational missions and visions (shared with readers of the article in detail) encompass both SES upward mobility and equality enhancing aspirations? Furthering one goal may not necessarily undermine the other. For example, one might think of a creative entrepreneurial graduate who starts a business that both reverses environmental degradation and makes that entrepreneur financially comfortable or even wealthy.

In addition to providing both institutional and professorial suggestions on how to support the critical citizenship of students, one of the most important contributions of this project is the way it forces us, as faculty and university administrators, to look inward and to ask ourselves if we are still willing to pursue, or even capable and equipped to tackle, the Lockean question of social justice or societal transformation (368-76). Do we take these parts of our missions seriously?  And if we do, how do those commitments manifest in our institutions?  Those are the tough questions, too easily lost in increasingly market-driven educational models. As the authors state, “fram[ing] our understanding of the academy” is essential (376). There may not be any uniformity, let alone consensus, here, but the conversation is not only worth having, but also is an essential part of how institutions might navigate the turbulent times we are in.  After reading this article, I am inspired to move forward with vision, commitment, and resolve to ensure that the value of an education includes, but is not limited to, quantitative measures, and embraces qualitative societal enhancement.

One Engagement – Moral Theory of Political Reconciliation

Sep 4, 2012 Val NapoleonAdd a Comment

Val Napoleon

For anyone interested in a critical, practical, and political exploration of reconciliation, Colleen Murphy’s book is a wonderful resource. It is a fast-paced and well-written book that compels the reader to keep going. And, it is useful in the everyday world.

In Canada, over the past thirty years, almost 600 indigenous women and girls have gone missing or have been slain.² Between 2000 and 2008, there were 153 new cases. Most of the disappearances and deaths occurred in the western provinces in British Columbia, Alberta, Manitoba, and Saskatchewan.³  The majority of these women and girls were mothers. Some were students. Almost half of these cases remain unsolved. Time and time again, these women and girls are described as sex trade workers and addicts as if somehow that designation defines them all or explains them away. What is so disturbing is that their murders and disappearances seem to have become normalized – a part of Canada – but in the background or in the shadows.

Every year there are rallies and demonstrations in Canadian cities, usually small events. There are also various national legal and political actions spearheaded by groups such as the Native Women’s Association of Canada, Amnesty International, and others. In BC, there is currently a highly contested Missing Women’s Commission of Inquiry underway. Many criticisms have been expressed about this inquiry including the commission’s narrow mandate, who the commissioner is, and limited resources and timeframe.⁴

Given the trend toward truth and reconciliation processes, how might such an approach apply to the missing and murdered aboriginal women? I want to draw on the work of Colleen Murphy to argue that this issue, and others like it, require two kinds of repair – political and personal.

According to Murphy, if we only focus on the personal experience of survivors of violence, which is absolutely necessary, we will overlook the external changes that are necessary for dealing systematic wrongdoing and oppression. This external perspective means thinking about a political reconciliation process that is capable of imagining the end of injustice and oppression, and of addressing the conditions that facilitate and support injustice and oppression.

In other words, thinking about reconciliation as forgiveness usually means emphasising internal changes among victims. Murphy argues that a political reconciliation process should be about both ending violence and addressing the institutional and social conditions that make violence possible.

How might Murphy’s approach be applied to the missing and murdered aboriginal women and girls? First, there must be a careful and accurate understanding of the dynamics of the conflict and oppression, in this case, what is happening to aboriginal women and girls at every level from the community to the state. Second, this close analysis of the reality and experience of the oppression and violence must inform and anchor any larger political reconciliation process. Obviously, the big task is to consider and debate what a larger political reconciliation process might be, how it might be structured, and what its possible goals.

This means that any reconciliation process must derive from and speak to the actual problems in a way that acknowledges the depth and complexity of the damage done to both personal and political relationships. Again, this work will require many conversations about the multiple relationships with and around indigenous women – family, local, and beyond. Might the obvious complexity of indigenous women’s lives require more than one political process? Should there be multiple sites and levels of reconciliation facilitated? Murphy’s book is one way to begin some of these necessary conversations.

1.  Native Women’s Association of Canada, What Their Stories Tell Us: Research Findings from the Sisters in Spirit Initiative (2010). Over 150 of these women are still missing and over half the total cases remain unsolved.
2. See also Christine Welsh’s important documentary, Finding Dawn (2006) National Film Board, and Amnesty International, Stolen Sisters: A Human Rights Response to Discrimination and Violence Against Indigenous Women in Canada (2004). For an international perspective on missing and murdered women and girls, see the Backyard (El traspatio), a movie based on real life events in a Mexico-US border town.
3. The Missing Women’s Commission of Inquiry just released four reports.

Equality vs. Fairness

Jun 11, 2012 Ruthann RobsonAdd a Comment

Ruthann Robson

Americans know that there is something wrong with a guilty verdict rendered by “an all-white jury.”  But translating that something into a constitutional issue, never mind a constitutional right, is not straightforward. Indeed, it has become downright complicated and, as Nina Chernoff argues, totally wrong.

Often, the first impulse when faced with the “all white jury” problem is to conceptualize the problem as one of equality.  It seems discriminatory–unequal–when the person on trial is a member of a racial minority and is not “represented” on the jury.  And indeed, this may violate the Equal Protection Clause of the Fourteenth Amendment.  But not necessarily.  The Equal Protection Clause, as presently construed in American constitutional doctrine, generally requires discriminatory intent.  On the other hand, persons accused of crimes are afforded rights in the Bill of Rights that are not grounded in equality, but in fairness. The Framers of the Constitution, most of whom had committed the crime of treason during the Revolutionary War, were quite invested in fairness of process. For example, the Sixth Amendment guaranteeing an accused person assistance of counsel, confrontation of the witnesses against one, and a speedy and public trial.  The Sixth Amendment also guarantees an “impartial jury.”  In common parlance, this is a “jury one one’s peers.”  In constitutional doctrine, it requires that the jury members be “drawn from a fair cross-section of the community.”

This “fair cross-section of the community” requirement has become entangled with equal protection doctrine.  Nina Chernoff unravels the problem in Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards.  She does not argue for a theoretical revision of either the Sixth Amendment impartial jury guarantee or the Fourteenth Amendment’s equal protection provision.  She does not argue for a new rule or standard.  Instead, she simply argues that courts should correctly apply well-settled “fair cross-section” doctrine and not conflate it with equal protection analysis.

Chernoff’s seemingly modest argument, however, is far from timid.  She examined 167 cases decided from 2000- 2011 by federal circuit courts and state supreme courts.  In not one case did a court conclude that there was a “fair cross-section” violation.  This might mean, of course, that there are no problems, although a fair number of criminal defendants (or at least their lawyers) seemed to believe there was severe underrepresentation in the jury pool.  Chernoff also cites conclusions from a number of commissions and task forces investigating racial and ethnic underrepresentation on juries indicating significant disparities.  More compellingly, however, Chernoff demonstrates how the judicial opinions themselves undermine their own conclusions.  Even as the courts find no Sixth Amendment violation, the same courts aver there are “real problems with the representation of African-Americans on our juries, and the crisis of legitimacy it creates,” and describe the evidence of underrepresentation as “disquieting,” “troubling,” and “worthy of concern.”  One court devoted six pages to a discussion of possible remedies for the problem of racial disparity in that system and another court even mandated changes to the jury system; both courts, however, denied the defendant’s constitutional challenge.

The denials are understandable because the courts are “reading in” equal protection standards requiring intent rather than “fair cross-section” standards that rest on result.  Of the many cases Chernoff discusses, the one from the federal court in the District of Connecticut stands out.  There seemed to be no dispute that African-American and Latinos were underrepresented in the jury pool and that this occurred because not a single jury summons had ever been sent to New Britain or Hartford, the counties that contained over 60% of the voting-age Black and Latino population.  There was never any explanation regarding the New Britain residents, whose names were never entered into the computer.  There was, however, an explanation regarding the Hartford residents: a computer programming error caused the “d” in Hartford to be interpreted as “deceased.”  Thus, everyone in Hartfor“d” was “unavailable” to serve on a jury.  Both the unexplained and explained errors were not intentional.  Any fault was negligent at best:  the court stated that “as often happens in overburdened courts (like other institutions), the failure to adopt a proper procedure might have resulted simply from the unwarranted assumptions by all concerned” that the system is operating as it should.

Chernoff argues that the correct analysis in such cases ignores intent.  Supreme Court precedent is squarely on her side.  In Duren v. Missouri, 439 U.S. 357 (1979), a case involving the exclusion of women jurors and argued by now-Justice Ruth Bader Ginsburg, the Court clarified the standard.  The Court stated that in contrast to an equal protection claim regarding the jury pool, in a Sixth Amendment fair-cross-section claim the “systematic disproportion itself demonstrates an infringement of the defendant’s interest in a jury chosen from a fair community cross section.”  In other words, impact alone is sufficient.  Yet as Chernoff demonstrates, courts ignore this language and contaminate the systematic exclusion requirement with an intent element.  As a result, the fair cross-section of the community guarantee for criminal defendants is essentially nullified.

Chernoff does not speculate on the rationale for the confusion.  It may be that the courts cannot help but be concerned with blameworthiness, especially when it implicates judicial integrity.  It may be that courts misconstrue the meaning of the word “systematic.”  It may be that the right to have a “jury of one’s peers” sounds more like equality than other Sixth Amendment guarantees such as the right to assistance of counsel.  Or it may be that the equal protection standard requiring intent has so insinuated itself into our constitutional understandings that it is implied even when it is not present.

But these speculations also implicate a much larger issue.  It may be that the intent requirement in equal protection doctrine itself is wrong.  Certainly, this intent requirement comports with United States Supreme Court decisions, most notably Washington v. Davis, 426 U.S. 229 (1976), holding that discriminatory impact was insufficient to support an infringement of the right to equal protection.  An impact rule, the Court stated in Washington v. Davis, would raise “serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”

Chernoff raises serious questions about the misuse of equal protection’s intent requirement in the “fair cross-section” context.  She demonstrates how the doctrines have become convoluted and thus rendered the fair cross-section doctrine incorrect.  Yet she also exposes just how damaging the discriminatory intent requirement can be, whenever equality or fairness is at stake.

No Conflict About this Non-Essentialist Reading

May 9, 2012 Kim BrooksAdd a Comment

Kim Brooks

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

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

Four reasons to read the piece…

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

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

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

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

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

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

(P. 647).

Womb as Wedge: What We Can Learn from Revisiting the Political History of the Abortion Controversy in the US

Apr 25, 2012 Sonia LawrenceAdd a Comment

Sonia Lawrence

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

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

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

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

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

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

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

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

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

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

Heroes, Tragedies, and Our Failed Community

Mar 16, 2012 Elaine CraigAdd a Comment

Elaine Craig

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

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

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

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

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

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

Feminist Judgments

Feb 20, 2012 Margaret DaviesAdd a Comment

Margaret Davies

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

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

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

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

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

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

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

References

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

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

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

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

Thinking About Post-Anarchism

Jan 13, 2012 Davina Cooper2 comments

Davina Cooper

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

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

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

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

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

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