Dec 7, 2011 Robert Leckey
How is it that people of wildly varying politics come together in viewing homophobic bullying in schools as an urgent problem? With whom does tackling homophobic bullying through a law-and-order paradigm make us allies? What forms of systemic homophobia, at home and in schools, does a focus on individual bullies obscure? What assumptions about queer adolescents’ sexuality and agency underwrite campaigns against homophobic bullying? Why is it so much easier to crack down on bullies in school than it is to talk openly about sex?
The strength of Daniel Monk’s article is that he shows convincingly that people committed to fighting homophobia can and should ask these questions. His interest is the “conditions of possibility” that have constructed homophobic bullying, discursively, as “a legitimate object of social concern within civil society.” Monk identifies the key discourses that have converged so as to legitimate concern about homophobic bullying. He also explores the political investments that underlie them and the responses to bullying grounded in penal or criminal law.
One discourse is that of child abuse. Monk highlights the particularity of the social focus on homophobic bullying in schools. Gay rights and children’s rights organizations do not, he notes, address the effects of parental homophobia on children. Moreover, the construction of the school as a dangerous place, and by implication the home as safer, corresponds with political and socioeconomic privatizing shifts in the perception of schooling.
Another discourse is that of the child victim. The discourse of homophobic bullying draws on images—simultaneously appalling and reassuring—of the child as innocent victim. Monk’s worry is that the imagery of the child as victim silences other concerns. It desexualizes victims of bullying and effaces adolescents’ sexual agency. He reports that Stonewall, the leading gay rights organization in the UK, addresses homophobic bullying on its Web site, but not young people’s needs for information about safer sex.
The third discourse is that of “the tragic gay.” Monk’s analysis here will be counter-intuitive to many readers, but I found it disturbing and provocative. He suggests that the problematization of homophobic bullying has ushered in a shift by which the negative characteristics once associated with homosexuality are now associated with the victims of bullying. “Development into successful normal adulthood is not ‘arrested’ by paternal or maternal attachment, but rather by homophobia itself. In other words, the development question now is not, ‘What makes someone homosexual?’, but instead ‘What makes someone behave in a way that fails to conform to heteronormative behaviour’.” The queer youth remains “a reassuringly distinct and tragic ‘other’ from that of the heterosexual.” Now the developmental cause is not homosexuality, but bullying. The upshot? Queer youth still need help.
Monk is most bracing in his critique of the political aspirations associated with the fight against homophobic bullying. Bullying and its victims are measured as problematic against the metric of an imagined, post-homophobic future. If it weren’t for bullying, goes the thinking, queer adolescents might grow up to be more normal. Gay boys might be less effeminate. They might play more team sports. They might grow up to form more stable, “traditional” monogamous relationships. Here the crucial problem is that the harm chalked up to bullying is measured by an assimilative metric of straight-acting heterosexuality.
The article’s analysis of the turn to law-and-order policies by some opponents of homophobic bullying gave me pause. The clampdown on individual bullies, argues Monk, individualizes the bully through a pathological gaze. Focus on the individual perpetrator erases structural forms of homophobia. Readers may vary in the relevance they accord to Monk’s observation that policies making parents responsible for their children’s bullying bear hardest on economically disadvantaged single mothers.
Certainly some elements of the article will resonate most in the United Kingdom (Monk is based at the School of Law, Birkbeck, University of London). The Conservative government’s strong support for anti-bullying initiatives comes to mind. So does the focus on rigidly gendered school uniforms as a form of structural homophobia. But the general argument will resonate in North America, which has recently witnessed the “It Gets Better” campaign on youtube, as well as in other places.
Monk’s article is not an easy read. It is densely written and its interdisciplinary range is broad. The care with which he registers caveats—in a laudable effort to specify his critique’s limits—occasionally weighs on the text. But it will reward a thorough reading. I should add that it will annoy some people, including people I like and whose efforts I admire. Good critical scholarship often does.
The push for legal recognition of same-sex adult conjugality has rightly inspired a rich critical literature, chiefly from queer and feminist scholars. Daniel Monk’s article joins a small, but growing, body of work that turns a critical eye on legal and social efforts related to children, be they the children of same-sex parents or queer themselves.
Nov 9, 2011 Isabel Grant
Over the past decade in Canada, and particularly over the past five years, we have seen an increase in the number of prosecutions of nondisclosure of HIV status. Most of these cases are prosecuted as aggravated sexual assault, our most serious sexual offence, punishable by life imprisonment. Unlike sexual assault generally, there has been a dearth of literature in Canada addressing this issue from the perspective of its impact on women.
This is an exceptionally difficult issue for the feminist legal movement. On the one hand, prosecutions of nondisclosure could be seen as protecting the sexual autonomy of women who are often the victims of men who fail to disclose their HIV-positive status. Expanding the notion of fraud negating consent could be seen as empowering women to choose the circumstances in which they consent to sexual activity. However, women are also potential accused persons in these cases. Sex workers, immigrant women and poor women may be particularly at risk of criminalization for failure to disclose. Recently a 17 year old girl in Edmonton was named publicly and charged with aggravated sexual assault for not disclosing her status to two men. Rates of HIV are increasing in young women in Canada and we need to ask whether criminalization, in the long run, will protect women from HIV or further marginalize and isolate this already highly stigmatized group.
Alison Symington takes on some of these difficult issues in her chapter in this forthcoming book on Sexual Assault edited by Professor Elizabeth Sheehy. Symington takes as her starting point the view that “any use of coercive legal powers by the state (whether within the criminal justice or public health systems) must be evaluated on its ability to prevent further HIV infections and/or promote care, treatment and support for [persons living with HIV/AIDS], in line with the best available evidence and human rights standards.”
Symington demonstrates that it is not self-evident that criminalization protects women nor that it decreases the transmission of HIV, particularly considering that most transmissions occur during the acute stage of the virus, often before the individual knows he or she is HIV-positive. Symington argues that the trend towards over-criminalization may be a result of “a state-sponsored AIDS panic” rather than sound social policy, reminding us of increased scientific knowledge about the efficacy of condom use and anti-retroviral therapy in reducing transmission risks to extremely low levels. Women must be given the physical and economic resources to be able to disclose their status without facing the risk of violence or other harm. While criminalization may give some women a small measure of justice, Symington asks “what message does that send to women and the public generally about their role in sexual relationships, about sexual assault and violence against women, about dependency and agency at the root causes of women’s vulnerability to both violence and HIV, including poverty, discrimination and myths about women’s sexuality?” She looks at the issue from the perspective of agency and empowerment, pointing out that myths of women as passive sexual actors are implicated in the issue and arguing that, in an ideal world, both partners in a sexual relationship, should make their own autonomous decisions about sexual behaviour and take steps to protect themselves from risks. The stigma and fear surrounding HIV often seem to further public beliefs that persons living with HIV must carry all of the responsibility to protect their partners through disclosure and should be imprisoned if they fail to do so, whether or not HIV is actually transmitted.
Symington also expresses concern about the damage done to sexual assault prosecutions generally by equating HIV nondisclosure with sexual assault. She notes the racial and heterosexist bias demonstrated in the Canadian prosecutions to date, and the stereotypes and stigma that such systemic discrimination perpetuates. She points out that other sexual assault cases are much less likely to succeed on the basis of women’s uncorroborated evidence than areHIV non-disclosure cases and shows that while both are prosecuted as sexual assault, very different dynamics are at play. As well, she details several reasons why criminalizing HIV non-disclosure may actually be counterproductive to transmission prevention efforts, including increasing disincentives for people to find out their status; and contributing to public misunderstanding of transmission risks and stigmatization of people living with HIV.
Symington does not make clear whether she believes criminalization is ever appropriate – for instance, in the difficult cases of those individuals who demonstrate a pattern of total disregard for the safety of their sexual partners, despite the efforts of public health authorities. Most HIV/AIDS advocacy groups recognize a narrow but necessary role for criminal law. Determining where the line should be drawn is a challenge currently before the Supreme Court of Canada in a case from Manitoba and one from Quebec.
Symington’s arguments and discussion are nuanced and powerful. However, her starting point – that any use of coercive legal power must be evaluated on its ability to decrease HIV transmission – is likely to be challenged. Many would argue that the purpose of sexual assault law is protect the physical and sexual integrity of (primarily) women. The fact that these purposes conflict may be a further reason Symington urges us to re-consider sexual assault as the appropriate tool to use in these cases.
Symington concludes that “forging strategic linkages between the analysis and advocacy work on HIV and on violence against women may be a critical next step in advancing the criminal law in a more logical and effective direction.” It is hoped that advocacy groups will take up this challenge. The significant public health problem of nondisclosure needs a more nuanced response than the blunt tool of widespread criminalization.
Oct 12, 2011 Toni Williams
Martha T. McCluskey,
How the 'Unintended Consequences' Story Promotes Unjust Intent and Impact, 21
La Raza L.J. __ (Forthcoming 2011), available at
SSRN.
One of the more unnerving aspects of the recent financial crisis is the speedy recovery of those large financial firms that survived the crash. Gifted with eye-watering sums of virtually free credit and liberated from the ‘toxic’ assets that their financial engineering created, global financial firms such as Goldman Sachs reported higher than ever earnings in 2009 and 2010. Elsewhere in the economy, the prospects of recovery are remote and receding. The reframing of the crisis as ‘fiscal’ rather than ‘financial’ has forced sovereign countries to take out unsustainable loans in order to appease their bondholders. Jobs, pensions, and public services have been slashed in the US and across Europe. US homes are being lost to foreclosures at an extraordinary rate (some reports estimating up to 10-13 million foreclosures) as the consequences of the crisis continue to rip through the economy. Compounding the direct dispossession of those whose homes are taken, foreclosure actions blight entire neighborhoods, exerting yet more pressure on whatever little equity in their homes residents may have sheltered from the predatory lenders.
The juxtaposition of business as usual on Wall Street and in the City of London with the destruction of homes, livelihoods and other means of economic security of workers and the unwaged, pensioners and children in the US and Europe shows that neoliberalism’s project of robbing the poor to give to the rich has survived the crisis, gathering strength in its wake. Martha McCluskey’s illuminating working paper, How the ‘Unintended Consequences’ Story Promotes Unjust Intent and Impact, analyses the persistence of upward redistribution in policy making and asks how one of its key supporting narratives can be resisted. The paper provides an excellent overview of the crisis for equality theorists who are not specialists in the intricacies of neoliberal “financialization”. It explains some of the decisions within financial firms–and by some regulators–that created the crisis; and vividly illustrates the devastating impact of those decisions on US communities, particularly Communities of Colour. McCluskey uses the example of the financial crisis effectively to illustrate the argument that the “unintended consequences” narratives in policy discussions about egalitarian regulation serves to rationalize the legal underpinnings of upwardly redistributive measures and perpetuates “the ideology that law is powerless to disrupt a naturalized order of inequality outside of law” (P. 9).
The paper includes a succinct summary of the career of “unintended consequences” narrative, referencing legal realist studies of “law in action” and Robert Merton’s more conceptual 1936 essay before turning to the late twentieth century incorporation into claims about the futility of progressive regulation. While scholars working in traditions such as legal realism or law and society have documented empirically various types of unintended consequences–benign, malign, and perverse–the regulatory futility literature, predominantly influenced by law and economics, typically focuses only on the alleged perversity of distributionally egalitarian initiatives. Rent control, interest rate ceilings, minimum wage laws, environmental regulation and so on are attacked as self-defeating measures that unintentionally exacerbate the problems of those whom they purport to ‘help’. Drawing on the work of liberal theorists such as Cass Sunstein (as well as the more predictably conservative claims of mainstream law and economics and financial market commentators), McCluskey illustrates the pervasiveness of claims about the perversely harmful effects of egalitarian policies and their power to inhibit progressive measures notwithstanding the absence of robust evidence–or in many instances any evidence–about the impact of progressive policies that are dismissed rather than enacted.
McCluskey locates the ideological power of the unintended consequences narrative to foster upward redistribution in the ways that policy debates compare the mythological perfect consequences of the hypothetical free market with the complex compromises that often attend egalitarian regulation and the well-documented limitations of regulatory agencies. This comparison centralizes law as an inherently flawed actor and instrument of progressive regulation, limited in its effective capacity to direct power towards desired egalitarian ends. With respect to the market, by contrast, the ideology of self-regulation through self-interest erases law from view. In effect, the work of law in structuring the ground rules of the market is rendered invisible, its deployment of rules of property and obligation that enable–and potentially constrain–the exercise of power disappears. Through this erasure of law–and power–the unintended consequences narrative contributes to the embrace of the market as a legitimate source of economically just solutions rather than as a subordination of justice to the structural inequalities of contemporary neoliberalism.
Markets of course are every bit as capable of generating unintended consequences as are regulators. Indeed the central item of faith of the efficient market, Adam Smith’s “invisible hand”, is postulated as an unintended consequence–albeit benign–of the exercise of self-interest; and among the contested accounts of the recent financial crisis are explanations of the crash as a perverse unintended consequence of financial innovation. According to the dominant narrative, however, market actors, even elite financial market actors, purportedly lack the capacity to control market forces so that the perverse unintended consequences generated by their decisions do not become a reason to eschew the market.
Insisting that law is far from “powerless to disrupt a naturalized order of inequality” generated by the notion of the essentialized market situated outside law, McCluskey provokes readers to challenge the simple-minded complacency of the unintended consequences narrative. Her directions for critical engagement indicate the need to counter the ways that the insertion of “unintended consequences” in policy debates “obscur[es] contested interests and ideologies”, contributes to the normalization of elite wrongdoing as in financial frauds of the predatory lenders, attributes the results of structural inequality to individual failings, and above all “conveys a false sense of inevitability to harmful policies, evading analysis of alternative policy choices with better results”.
Beyond its systematic analysis of how law is implicated in policies of upward redistribution, McCluskey’s paper engages the reader in thinking critically about the potential role of law “in resisting the upward transfer of resources” (P. 9); and in fashioning alternative economic arrangements, a project that grows more urgent as the effects of the crisis continue to intensify inequality, destroy economic security and corrode peace of mind.
Sep 9, 2011 Ruthann Robson
Julie Nice,
How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38
Hastings Const. L.Q. 631 (2011), available at
SSRN.
The controversial decision of the United States Supreme Court last year in Christian Legal Society v. Martinez involved a dispute at Hastings College of Law. On one side, the College of Law applied its blanket nondiscrimination policy as a prerequisite for recognition of student groups. On the other side, the student organization Christian Legal Society, backed by the national organization, argued that a nondiscrimination policy that included sexual orientation infringed on its religious freedom. Thus, the case can be easily understood as just another battle in the continuing war between equality (for sexual minorities) and liberty (of religious freedom) fought on the field of various First Amendment doctrines. Too much of what I’ve read about the case succumbs to this reductive reading.
Professor Julie Nice, of the University of San Francisco School of Law, resists the easy renditions. Her article is refreshing because she engages the theories, the doctrines, and the politics with equal urgency and depth. It is also invigorating in its accessibility: Nice’s language does not obfuscate or overwhelm. Moreover, while the article centers on a single case and was written for a symposium on CLS v. Martinez held by the Hastings Constitutional Law Quarterly, it looks backwards and forwards as well as sideways to illuminate the notions of “equality” and “discrimination.”
Nice acknowledges that the United States Supreme Court has “not yet provided any framework for understanding the ways that liberty and equality interrelate” and that no scholarly consensus or “grand theory” has emerged. In some ways, Nice’s own article contributes to this scholarly quest, although arguably her claim is the more modest one of seeking to “understand what was at stake in this particular controversy and to explore the implications of the decision.” But the “particular controversy” in CLS v. Martinez is quite complicated; much of the oral argument was devoted to the record. However, as Nice points out, the disagreement between Justice Ginsburg ‘s opinion for the Court and Justice Alito’s dissenting opinion is not so much factual as in the ultimate characterization of the facts, especially the motivations of the law school. Nice writes that where “Justice Ginsburg and the majority saw textbook neutrality, Justice Alito and the dissenters saw obvious pretext.”
Nice explains this disagreement through a difference in the lenses of time, place, and money. While this obviously resonates with the First Amendment doctrine of “time, place, and manner,” Nice’s discussion here is not primarily doctrinal. The issue of money (and perhaps, manner) is the “dangling of the carrot of subsidy, not wielding the stick of prohibition,” as Nice quotes Justice Ginsburg’s opinion. As for place, the law school’s “limited public forum” for student groups allows Ginsburg to select a more lenient level of scrutiny to evaluate the school’s action. But the time to which Nice refers is not during the law school day or calendar, it is the time of post-Lawrence and post-Romer. The Court’s 1996 decision in Romer v. Evans (declaring unconstitutional as violative of equal protection Colorado’s Amendment 2, prohibiting anti-discrimination laws that included sexual orientation) and the 2003 decision in Lawrence v. Texas (declaring unconstitutional as violative of liberty under substantive due process Texas’ criminal sodomy statute) have made a difference. At least for the majority of members of the Court, sexual minorities are now considered “a class to be deserving of ordinary constitutional protection.” It is this insight, which she names “self-evident,” that animates Nice’s article.
This is not to minimize her spectacular and succinct analysis of First Amendment precedent, which includes a discussion of the “sex discrimination trilogy,” the “sexual orientation duo,” and the “sleeper comparison” case of Ysura v. Pocatello Education Association, which involved union payroll deductions for public employees. Reading Nice’s analysis, even if one knows these cases ̶ and perhaps especially then ̶ reorients and reorganizes the doctrinal and theoretical meanings of the cases and their relationships. Also helpful is her reminder that First Amendment doctrine provides “an array of options for framing and deciding any particular dispute” and her explanation of how the opinions in CLS v. Martinez execute their choices.
But, as Nice concludes, if CLS should complain that Hastings Law School’s decision to afford equal treatment to sexual minorities has” trumped” the liberty of interest of CLS to receive governmental support for its own moral disapproval of sexual minorities, CLS would be right. However, this might be true because “CLS simply failed to persuade a majority of the Court that Hastings enacted or applied its nondiscrimination policy for recognition of student groups at least in part because of its adverse effect on fundamentalist Christians.” As such, CLS v. Martinez “effectively brings cases involving incidental effects on expressive association into the broader equality fold, requiring proof of intent before such incidental effect or disparate impact will raise the Court’s suspicion and its scrutiny.”
Additionally, and perhaps even more importantly, Nice concludes that “rather than perceiving Martinez as merely about equality trumping liberty,” it may actually enhance liberty by distinguishing between ideology and identity. On this view, the majority of the Court in Martinez refused to “perpetuate the presumption that the mere presence of an openly gay member in the Christian Legal Society necessarily would alter the organization’s message.” By refusing the conflation of identity and ideology, the case “enhances liberty, making space for an individual to embrace any religious ideology regardless of his or her sexual orientation.”
Within the space of 40 pages, Nice convinced me that not only is CLS v. Martinez “no outlier,” but also that it will come to be seen as a decisive engagement, just as we view that other Battle of Hastings.
Cite as: Ruthann Robson,
Battle of Hastings, JOTWELL
(September 9, 2011) (reviewing Julie Nice,
How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38
Hastings Const. L.Q. 631 (2011), available at SSRN),
https://equality.jotwell.com/battle-of-hastings/.
Jul 21, 2011 Sonia Lawrence
In Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, authors Janet Halley (Harvard) and Kerry Rittich (Toronto) offer a compelling way to think about the doctrinal areas which for so many of us are handy ways of defining our area of scholarship. The problem is that these “areas” are often less than helpful when trying to define the legal context of equality problems, and they are a positive danger when we move on to consider law reform options. Halley and Rittich take on these problems as they relate to “family law”.
Let me start by saying that even on its own terms, this article is fundamentally about equality questions. Halley and Rittich are clear that family law is about “distributional outcomes” (P. 755) and that the legally constituted family is closely linked to market distributions, even if those links are often masked. They argue that the family should be recognized as an “economic unit” and not only as an “affective unit”. The authors encapsulate this idea in their use of the term, “economic family,” signaling that they would put “the family and the market, family law and contract, back into contiguity” (P. 758), resisting the claim that the “economic character of the family” has disappeared in modern and postmodern times. Key to this resistance is accepting that the household is (still) a critical economic unit.
As the authors develop this idea, they ask how what is commonly referred to as “family law” governs the ongoing negotiations which characterize a household–“marriage or divorce; deciding how much to invest in the education of children; tolerating domestic violence or deciding to escape it….who will take out the garbage.” (P. 761.) At this point, they turn to delineating the “background rules”–not “family law” as defined in law school courses, but the other rules, those “artificially segregated” from family law and defined by different headings. (P. 761.) These legal backgrounds are labeled, in a user-friendly taxonomy, Family Law (FL)1, FL2, FL3 and FL4.
These categories describe the relationship of various kinds of law or rules to the “economic family” or “household”. FL1 is the law school course in Family Law. But, “if you wanted to understand how law contributes to the ways in which the actual family and household life is lead by actual people, you would never stop there.” (P. 761.) The authors take us next to FL2, comprising the explicitly “family” targeted provisions of various other forms of law (including immigration and bankruptcy law). FL3 moves further into the background, “the myriad legal regimes that contribute structurally but silently to the ways in which family life is lived” (P. 762.) These contributions might be intentional, unintentional, helpful or harmful. Rittich and Halley cite “occupancy limits in landlord/tenant law that give more or less protection to incumbents; employment rules that permit dismissal on the part of the employer “at will” as part of this zone. Finally, FL4 consists of informal norms, since recognizing the impact of these ideas means recognizing that they often trump formal laws in terms of impact on the organization of a household.
Here are the four things I get from this. Firstly, the critique advanced here of family law as a “liberal” idea is one which explodes a variety of accepted ways of doing things (or, as the authors write, “give the lie to the apparent naturalness of what we are doing now”). Secondly, we can all think about how our particular area of study (assuming it isn’t family law proper) might be affecting households. For instance, co-author Kerry Rittich, in another article in the same volume, does this in relation to development policy and legal reform, tracing the path from market reform to the transformation of families and reallocations of “resources and power” within households. (P. 765.) These effects will be, according to this article, profoundly distributional and therefore are easily part of the equation for equality scholars. Thirdly, at the same time, we can imagine developing similar genealogies for other areas of law (Equality Law 1, 2, 3 and 4?), genealogies which push us to be more critical (small c or big C) about the multiple layers of distributional effects that equality law has, and more generally about the scope of our fields. Finally, the model is extremely helpful, if daunting, when attempting to engage in law reform efforts. It means that we can look outside the obvious points of intervention–but it also means that we have to consider a very complicated set of interactions and results from any proposed change. Anything that makes “unintended consequences” a bit more predictable is helpful, and many law reform campaigns could do with a more critical eye. This model offers us a way to see that things are more complicated or maybe even simpler than we might at first think.
These four things are all outside the “urgent” need which drove this article, the need for a better model for comparative family law analysis. There is so much in this short (24 pages) article. Each time I read it I find something new.
Jun 13, 2011 Kim Brooks
Long overdue, in 2010 Canada ratified the United Nations Convention on the Rights of Persons with Disabilities. (The United States has yet to ratify the Convention.) While countries can ratify conventions at the international level, it is often the case that only in translation to our domestic, sometimes even local, contexts do we see the real effects of our commitments.
Judge Anne Derrick’s piece, a report on the death of Howard Hyde ordered by Nova Scotia’s Minister of Justice, pushes at the boundaries of what most of us would consider scholarship; yet, it is the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months. It provides a marvellous illustration of the values reflected in the Convention played out against one very specific set of facts.
Howard Hyde, who was experiencing a recurrence of his chronic schizophrenia, was arrested by the Halifax Regional Police on November 21, 2007, after assaulting his common law partner. Mr. Hyde tried to escape from the police when he was being booked. A conducted energy weapon was twice used to shock Mr. Hyde. After additional struggles, Mr. Hyde collapsed and stopped breathing. He was revived and taken to the hospital. After recovering at the hospital, Mr. Hyde was discharged once again to the police. Later in the day, he appeared in court and was remanded to a correctional facility for the evening. Mr. Hyde did not sleep that night.
On November 22, while being transported to court, Mr. Hyde attempted to escape from correctional officers. He was restrained in a cell by correctional officers and stopped breathing. He was pronounced dead at 8:43 a.m.
This is the story that gave rise to the inquiry and the subsequent inquiry report. Even in its simple telling, drawn from the Preface of the report, the terror that a man living with a mental illness must have felt through the whole ordeal, and the inadequacy of the institutional response to his needs, is apparent.
The report deserves to be read in its entirety – all 7 parts, 57 chapters, 462 pages. Rooted in the experience of one man, in one small corner of the world, the inquiry report demands broad readership.
Following a moving introduction and preface, the report reviews the factual narrative (Part II), outlines the cause and manner of death (Part III), addresses a range of issues that arise from the inquiry (Part IV), delineates the major findings (Part V), reviews changes since the time that Mr. Hyde died (Part VI), and provides for recommendations (Part VII) and a conclusion (Part VIII).
Let me highlight two aspects of the report, simply as a teaser. First, the report’s 80 recommendations are essential ground for equality scholars with an interest in policy-relevant scholarship. It might be noted that the recommendations appropriately do not focus on the assault of Mr. Hyde’s common law partner (although the need for appropriate accommodation for accused persons living with mental illnesses is underscored); rather, they are focused on the interaction between mental health and the criminal justice system. The recommendations cover everything from the importance of developing a provincial mental health strategy that ensures coordination of care, integration of services and supports, and monitors quality and outcomes (Recommendation 1) to implementing a diversion program, including pre-charge diversion, for accused persons with mental illness (Recommendation 10) to training police with an eye to the overarching purpose of the development of a culture of respect and empathy for persons with mental illness in the justice system (Recommendation 49).
Second, the report is beautifully written. Let me draw from the conclusion, which demonstrates more than ably the skill of the author and her ability to cut to the core of the issues before her:
At an immediate, fundamental level, what Mr. Hyde needed was human contact, reassurance and kindness. The evidence discloses how well he responded, even when somewhat agitated, to simple but effective interactions that incorporated these elements. Certain police officers, sheriffs and correctional officers were all successful in their interactions with Mr. Hyde utilizing approaches that were empathetic, respectful and caring. Even though he was acutely ill, Mr. Hyde was reassured and comforted “by talking to him.”3 Understanding this is to understand Mr. Hyde’s humanity and recognize in him, ourselves. (P. 388, footnotes removed)
I might conclude just by saying, briefly, something about the value of understanding this report as a form of scholarship. If the highest calling of scholarship is to reveal the truth of the world, and perhaps further to reason about what that truth should be, then this report fits within the core of that ambition. The report contributes to our knowledge about mental illness, the interaction between human beings experiencing a form of mental illness and the criminal justice system, and the potential to recognize and appreciate the fullness of the human experience. It is, in that regard, scholarship of discovery. In addition, Judge Derrick draws together diverse strands of evidence and weaves those together analytically, in a way that demonstrates the scholarship of integration. Finally, the report’s provision of thoughtful and detailed recommendations is exemplary of scholarship of application.
The report’s conclusion section opens with a quote from T.S. Eliot. It might be used to reveal the connection between the work of Judge Derrick in this report and the explorations we all take as scholars:
We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.
– T.S. Eliot
Jun 12, 2011 Michael Froomkin
Equality Law Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Kim Brooks
Dean and Weldon Professor of Law
Dalhousie University – Schulich School of Law
Professor Sonia Lawrence
Director, Institute for Feminist Legal Studies
York University – Osgoode Hall Law School
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Davina Cooper
University of Kent Law School
Professor Elaine Craig
Dalhousie University – Schulich School of Law
Professor Margaret Davies
Flinders University School of Law
Professor Katherine Franke
Director, Center for Gender and Sexuality Law
Columbia Law School
Professor Isabel Grant
University of British Columbia, Faculty of Law
Professor Robert Leckey
McGill University, Faculty of Law
Professor Val Napoleon
University of Alberta
Professor Camile Nelson
Suffolk University Law School
Professor Ruthann Robson
Professor of Law and University Distinguished Professor
City University of New York School of Law
Professor Toni Williams
University of Kent Law School
Jun 8, 2011 Michael Froomkin
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
Although gentle critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details.
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Ordinarily, a Jotwell contribution will
- be between 500-1000 words;
- focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
- begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.
Initially, Jotwell particularly seeks contributions relating to:
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Technical
Jotwell publishes in HTML, which is a very simple text format and which does not lend itself to footnotes; textual citations are much preferred.
Contributors should email their article, in plain text, in HTML, or in a common wordprocessor format (Open Office, WordPerfect, or Word) to jotwell@gmail.com and we will forward the article to the appropriate Section Editors. Or you may, if you prefer, contact the appropriate Section Editors directly.
Jun 8, 2011 Michael Froomkin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
Jotwell fills that gap. We are not be afraid to be laudatory, nor do we give points for scoring them. Rather, we challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We aim to be positive without apology.
Tell us what we ought to read!
How It Works
Jotwell is organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, is managed by a pair of Section Editors who have independent editorial control over that section. The Section Editors are also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors commits to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication.
For the legal omnivore, the ‘front page’ at Jotwell.com contains the first part of every essay appearing elsewhere on the site. Links take you to the full version in the individual sections. There, articles are open to comments from readers.
The Details
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