The notion of property enshrined in the American legal system is a poor fit for what scholars have termed cultural property—tangible and intangible items of great importance to tribal cultural heritage. As Chante Westmoreland deftly reveals in her Note, An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age, property law addresses only some of the concerns associated with cultural items of significance to tribes. Property law is designed to protect the object itself, but tribes are often concerned not only with an actual object, but also with the cultural and spiritual significance of the item. (In order to track Westmoreland’s own language, I will use the word “tribe” or “tribal” to refer to people indigenous to what is now the United States. Other scholars might use the words indigenous, Native American, Indian, or their variants. The choice of language is a vital conversation, but one I will not take up in this short review.)
Of particular importance today—when it sometimes seems that everyone wants to make everything available on the Internet—are the new problems associated with digitization of important tribal artifacts. Westmoreland offers a balanced account of the benefits and problems associated with digitization. On the one hand, digitization enables what some have called a “museum without walls”—an opportunity for anyone with an Internet connection to learn about tribal practices around the world. Such a virtual museum would benefit scholarly research and enhance understanding by laypeople. Moreover, digitization would help mitigate the risk of loss of irreplaceable cultural items in a natural disaster or a war. The recent fire at Brazil’s National Museum, which caused the tragic loss of many irreplaceable items, vividly illustrates the benefits of digitization. One researcher, a member of the Tenetehára-Guajajara tribe who had been studying his people’s heritage, offered a stark assessment: “It felt like a genocide.”
Yet digitization also opens the door to abuse. Commodification of sacred tribal objects has long been both commonplace and problematic. Troublingly, it has allowed non-members of tribes to profit from those objects at the expense of the tribe. Digitization would potentially expand the opportunities for exploitation by profit-minded outsiders. Such individuals could digitize various forms of cultural property and make them accessible to the entire world through the Internet while completely excluding the tribes themselves from the benefits.
Westmoreland confronts the promise and peril of digitization with empathy and pragmatism. At the outset, she gives her own definition of the notably fuzzy term “cultural property,” one that works better than most: cultural property is “intangible sacred traditional knowledge that has been fixed in a tangible medium.” She provides an admirably clear explanation of the significance of such cultural property, which those raised in non-tribal cultures often struggle to grasp. An analogy borrowed from Kristin Carpenter is helpful here: a wedding ring has a different value to a jeweler and a spouse. Similarly, cultural property has intangible aspects that differentiate its value to a tribe and to those outside the tribe. Those intangible aspects are nonetheless real and worthy of some degree of protection. Westmoreland then offers a lucid explanation of the reasons that various potentially-relevant subfields of law—trade secret, copyright, patent, and trademark—each fail to capture the components of cultural property most threatened by digitization and consequently in particular need of protection. She concludes that, to combat the unique threats of digitization, legislators and policymakers should encourage collaboration between tribes and third-parties with an interest in tribal cultural property.
A great deal of legal scholarship falters when it comes time for specific proposals for reform, but not here: Westmoreland concludes her article with a number of ingenious solutions to the digitization conundrum. One example involves straightforward incentives. She explains, “Congress could offer a ‘voucher-based’ system in which libraries and museums receive either federal funding or deeper tax breaks in exchange for negotiating with tribes for licenses prior to digitizing cultural property.” Such a regime would incentivize the educational entities to make an effort to respect tribal knowledge.” Westmoreland further proposes that libraries and museums could use the funds they receive under a program designed to reward collaboration to pay a member of the tribe as a consultant for the digitization project. This would ensure that the tribe benefits tangibly from the project, and moreover would ensure that the digitization is performed in an accurate and respectful way.
Westmoreland’s work is notable for its identification of a pressing problem, clear explanation of the law, and pragmatic proposals for infusing the law with respect for cultural property. More generally, however, her research powerfully exposes the way that applying “neutral” legal principles is often not neutral at all. Legal principles reflect the values of the culture in which they arose and the identities of the people who hold power within that culture. Westmoreland’s examination of intangible tribal cultural property provides a sophisticated analysis of an accessible example. Her research is an important contribution both within and beyond antidiscrimination law. It would be worthy of a more experienced scholar—indeed, it would be worthy of a tenure-track professor. I really liked it a lot.
Cite as: Nancy Leong, Protecting the Intangible
(November 27, 2018) (reviewing Chante Westmoreland, An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age
, 106 Calif. L. Rev. 959
In her summer 2018 article in Feminist Legal Studies, Silvana Tapia Tapia takes a close look at a fundamental concern for many contemporary feminists – the ways in which penal expansion under neoliberalism was a “feminist-sponsored” reform project, one which feminist movements took up while ignoring, neglecting or rejecting more redistributive efforts. Tapia Tapia’s exploration takes place in Ecuador, in 2012 – and Ecuador, part of Latin America’s “pink tide,” explicitly rejected neoliberalism in 2007. The Ecuadorian constitution of 2008 had “unprecedented constitutional provisions.” One of these, “Sumak Kawsay, the indigenous approach to community life, as a fundamental principle” could support alternatives to carcerality in Andean justice, among other “counter hegemonic” possibilities. In this “post-neoliberal” environment, Tapia Tapia asks, what is the relationship of feminist interventions in criminal law to feminist alignment with redistributive claims in law and politics?
Beginning with a discussion of current scholarship on “carceral feminism” and “governance feminism,” Tapia Tapia outlines the argument that penal expansion operates to shift resources away from redistribution, that it has become transnational via human rights based discourses, and that it is fundamentally punitive. She reads scholars like Elizabeth Bernstein, Janet Halley and Prabha Kotiswaran as positing a link between carceral feminism and a neoliberal form of feminism, but in reading the Ecuadorian ”post-neoliberal” context, she finds that “many feminists demanding criminalization are strongly committed to a redistributive agenda.” (P. 6.) Why and how, Tapia Tapia asks, do Ecuadorian feminists who are operating in a post-neoliberal context, and a context in which the constitutional framework embraces a plurality of sources of law (“Andean Constitutionalism”), continue to support criminalization?
The remainder of the article unpacks the positioning of Ecuadorian feminists, through a multimethod qualitative approach, including documentation and interviews with women who were involved in debate over 2012 draft bill that increased maximum penalties, increased most sentences, and created more than 70 new offences. This method allows an effective close read of how these narratives placed redistribution and gender equality in conversation. The details of the answer to Tapia Tapia’s research question are important and interesting. They offer insight into the challenge of moving from one paradigm to another in our thinking, and the pressures which lead valiant, if potentially fundamentally misguided, efforts to render various policy programs compatible. In this case, human rights serves as the bridge that both grounds feminist demands for protection against VAW, and serves to render criminalisation “minimally problematic” or even “benign.” (P. 9.)
The 1998 constitution of Ecuador, while neoliberal in frame, honoured many feminist demands in the rights paradigm, beyond criminalisation to gender quotas and sexual reproductive rights. The 2008 Constitution was pathbreaking in its incorporation of indigenous justice – but it also kept the human rights framework, which was seen by mainstream human rights advocates as good for the protection of women. It required the state to protect personal integrity and pointed to the right to a life free of violence. These became, though there were other avenues of possibility, requirements to carry out penal prosecution. Provisions that widened access to justice and minimize revictimization “framed the protection of women mainly as a set of legal conditions that enable penal litigation and promote the use of the criminal justice apparatus.” (P. 9.) Penal regulation is thus rights based.
At the same time, feminist organizations and scholars in Ecuador invoked rights to limit the state’s penal power. A constitutional principle linked the state’s obligations to protect the rights of “victims . . . the prosecuted and . . . those deprived of their freedom.” (P. 7.) Tapia Tapia posits that in fact “[a]ppeals to criminalization (feminist or not) are always already legitimized at the highest level of the legal system within progressive orders: they are rational responses to violations of human rights.” (P. 8.) But she laments the ways the “virality” of criminalization in this order “displaces non-hegemonic legalities . . . a crucial element of the new constitution’s emancipatory horizon.” (P. 9.) Satisfied that criminal justice is not a big problem, feminists have not taken up these possibilities.
Tapia Tapia’s 2012-2014 fieldwork in Ecuador puts rights-based frameworks at the heart of “side-lining alternative knowledges and strategies.” (P. 9.) Instead, her potentially startling conclusion is that “penality has entered leftist feminist discourse and has been articulated into the post-neoliberal project as a non-problematic, even redistributive device.” (P. 9.) In part this happened because part of the goal of feminist organizations involved in the creation of the 2008 Constitutions was to defend the gender provisions in the 1998 Constitution, not “reimagine gender-state relations.” (P. 9.) Mainstream women’s organizations both endorsed the redistributive project and dropped Indigenous approaches to gender justice in favour of human rights discourses. Differentiating between the younger feminists who had joined the government (oficialistas) and the mainly older feminists in the NGO arena (opositoras), Tapia Tapia notes while opositoras were concerned that full criminalization in the VAW context did not facilitate women’s access to justice, nor did it align with what survivors of VAW wanted, “other possible approaches” were completely disregarded by opositoras and oficialistas both.
She argues that non-Indigenous feminist organizations were ill-equipped to pick up the opportunities in the 2008 Constitution for alternative approaches to violence, alternatives to incarceration. Instead, they returned to a narrative based on rights, one that used a technical system to render the violation of women’s rights (femicide) visible, one that was compatible with incarceration, and one which bypassed the possibility of building new state responses to violence against women through reviving and creating practices based in Andean justice. This attachment to transnational narratives of rights did not hamper feminist endorsement of the state’s redistributive projects – and indeed in some ways feminists understood the criminalization of patriarchal violence as a tool to “tackle gender-based economic inequalities.” (P. 18.) There was no “practicable field of intelligibility” available to do otherwise.
Aside from the decoupling of neoliberal thought and carceral feminism that Tapia Tapia’s work illustrates, her work offers an important thought, one that could be helpful regardless of your particular politics or focus. This is the critical nature of an available “practicable field of intelligibility” in those moments where change becomes possible. In the context she explores, developing the practicable field of intelligibility could have involved listening to Indigenous teachings, learning about and developing understandings of violence and inequality that are not rights based, focusing on access to justice and imagining and adapting social institutions – other than the prison – which could operate to provide freedom from violence for women. For those interested in anti-carceral feminism and hoping for a post-neoliberal era, this article is a cautionary tale which pushes us to focus, now, on preparing for the future.
Maya Manian, The Story of Madrigal v. Quilligan: Coerced Sterilization of Mexican-American Women
, in Reproductive Rights and Justice Stories
(forthcoming 2019), available at SSRN
The meaning of “success” in litigation challenging inequalities is at the core of Professor Maya Manian’s essay about the extensive effort to end sterilization of Mexican-American women at the Los Angeles County + USC Medical Center in the 1970s.
In one sense, the case of Madrigal v. Quilligan is a great victory. The federal judge who first heard the case issued a preliminary injunction directed at making the Spanish language consent forms understandable to patients. This judge then signed off on a settlement agreement between the Madrigal plaintiffs and the California Department of Health, approving California’s enhanced sterilization consent requirements, which themselves had been the product of lobbying and media efforts by Chicana activists. The United States Department of Health issued new guidelines requiring bilingual consent forms and instituting a federal monitoring program. The case “galvanized Chicana feminist activism” in ways that made it clear that a broader notion of “reproductive justice” was necessary: it should not be limited to the emphasis by white feminists on abortion and contraception but must also include abusive practices intended to limit reproduction by women of color and impoverished women.
Yet in another way, the case ended in defeat. As Manian reports, after the initial judge died, the new judge refused to grant compensation to the women, stating that there was no “racialized targeting of Mexican-American women’s reproduction,” but simply “ten distinct random occurrences” in which the named plaintiffs were subject to tubal ligations. The trial had seemingly made clear that the “consent” of the “Madrigal ten,” as well as many other similar women, was procured in an atmosphere in which there was a language barrier and lack of medical understanding; many women did not know they had been sterilized and those who did believed that the procedure was reversible (if the “tubes” could be tied, they could be “untied”). And then there is this practice, which a medical student testified to as occurring on an almost daily basis in an effort to procure “consent” to tubal ligation: “The doctor would hold a syringe in front of the mother who was in labor pain and ask her if she wanted a pain killer; while the woman was in the throes of a contraction the doctor would say, ‘Do you want the pain killer? Then sign the papers. Do you want the pain to stop? Do you want to have to go through this again? Sign the papers.’” Yet the judge found that the doctors were “certain in their own mind[s]” that the women had consented, although the women were entitled to sympathy for “their inability to communicate clearly.” Further, the judge rejected the specific evidence relating to these plaintiffs about their harm—that “reproductive capacity was particularly important to women from small rural communities in Mexico”—because the doctors could not be expected to know that.
Professor Maya Manian’s vital essay is in the forthcoming anthology Reproductive Rights and Justice Stories. It’s part of the Law Stories series from West Publishing which has proven to be a necessary teaching resource, usually providing great background material to famous cases and especially useful epilogues. In the Story of Madrigal v. Quilligan, Maya Manian has done an even greater service, illuminating a case that is not generally in casebooks (the penultimate opinion of the district judge was unpublished, the Ninth Circuit affirmed without opinion), but which serves as a cultural touchstone, resulting in some legal scholarship and the 2015 PBS production of a documentary about the Madrigal women, No Más Bebés by Renee Tajima-Peña. It is a case and story that deserves wide recognition.
In her essay, Professor Manian rightly centers the Madrigal women. Their bravery in becoming plaintiffs is immense. After the revelations and litigation, some of the women managed to rebuild their lives. For others, the “involuntary sterilizations were devastating.” So too was the judicial defeat, as a woman’s son describes it, “then they go to court with many of them thinking they might make this right, and then all of a sudden the doctors get away with what they did….”
But in addition to the women plaintiffs, Manian provides inspiring glimpses into the people who worked to address the inequalities wrought by physicians who believed that sterilizing “hyper-fertile” immigrant women, whose children were assumed to be a likely drain on public resources, was not only justifiable, but good. Opposing these doctors were other medical professionals: not only the resident who testified about the practices she saw, but also the whistleblower resident who “surreptitiously copied medical records for hundreds of sterilizations at the Medical Center and spent hours after his shifts typing letters to journalists, civil rights groups, and government officials, in the hopes of spurring legal action.” In the legal arena, there was new attorney Antonia Hernández, who later became the president of the Mexican American Legal Defense and Education Fund (MADEF) working with other attorneys, as well as with activist Gloria Molina, who led the organization Comisión Feminil and later became the first Chicana elected to the Los Angeles City Council.
The story Manian ultimately tells is one of courage and resistance. As we confront renewed efforts to control the reproductive and sexual rights of immigrants, people of color, and all women, it is a story that is worth reading—and retelling.
Despite the fact that bisexuals are, by most counts, the largest sexual minority group in the United States, they remain woefully under-researched and under-theorized. This invisibility in the realm of research and scholarship may be tied to the fact that bisexual programs and organizations receive only a minuscule amount of funding compared to either gay or lesbian organizations. As one study noted, over a forty-year period, bisexual programs and organizations received less than 0.3% of the funding awarded to their gay or lesbian counterparts. See Anthony Bowen, Forty Years of LGBTQ Philanthropy: 1970–2010 33 (2012). Furthermore, bisexuals face alarming physical and mental health disparities—including higher levels of mood and anxiety disorders and of suicidal ideation—compared to individuals of other sexual orientations, which may well be a consequence of the fact that bisexuality is stigmatized by both heterosexual and homosexual communities.
This background of invisibility and stigmatization helps illustrate the importance of Brian Dodge et al.’s Attitudes Toward Bisexual Men and Women Among a Nationally Representative Probability Sample of Adults in the United States, published in the journal PLoS ONE. The article—and the study on which it is based—fills an important gap in the existing research on bisexuality as to prevailing societal attitudes toward bisexuals and the persistence of common stereotypes of this group, despite the considerable advances in societal attitudes towards gays and lesbians.
Prior to the publication of this article, the only published research to address such attitudes that was based on a nationally representative probability sample was a 2002 article by Gregory Herek in which he found that heterosexuals rated bisexual men and women lower than any of the other fourteen named political, racial, ethnic, and religious groups identified in the study—except for injecting drug users. See Gregory M. Herek, Heterosexuals’ Attitudes Toward Bisexual Men and Women in the United States, 39 J. Sex Res. 264, 268 (2002). While compelling, Herek’s findings have become outdated, particularly given the known advances in societal attitudes toward gay men and lesbians over the past decade and a half. Moreover, unlike the work of Brian Dodge and his colleagues, Gregory Herek was able to assess only heterosexuals’ attitudes toward bisexuals because the number of gay and lesbian respondents in his study was too low. Id. at 267. Because bisexuals are known to face prejudice from both the straight and LGBT communities and because this intra- and inter-group prejudice is thought to contribute to bisexuals’ poorer health outcomes, the information that Dodge and his colleagues obtained about gay and lesbian attitudes is crucial.
Dodge and his colleagues, who specialize in public health, medicine, and social work, asked their respondents to rate the extent to which they either agreed or disagreed with five stereotypes of bisexuals, relating to perceptions of confusion, perceptions of HIV/STI “riskiness,” perceptions of non-monogamy, perceptions of promiscuity, and perceptions of bisexuality as temporary. Because attitudes toward bisexual males are known to be more negative than those toward bi women, the researchers asked about attitudes toward each gender group separately, without separating out transgender men and women from either group.
Across all of the stereotypical statements regarding bisexual men and women, the authors found that the largest proportion of respondents—over one-third—neither agreed nor disagreed with each stereotype. Although it may appear on the surface that this result reflects neutrality toward bisexuals, in fact the result is quite concerning in that it appears to evidence a widespread unwillingness to disavow such stereotypes, whereas, with better-understood groups, one would expect respondents to readily recognize the perniciousness of stereotypes. Instead of recognizing the stereotypes as such, the largest proportion of respondents could be viewed as expressing indifference or perhaps lack of knowledge or understanding of bisexuals. Another cause for concern is that the authors found that attitudes toward bisexual men were in fact more negative across the board than those toward bisexual women. Although, for most of the stereotypical statements, these differences were slight, the negative attitudes were significantly stronger toward bisexual men on the question of the riskiness of contracting HIV or STIs from having sex with bisexuals. While, as the authors point out, there are several factors relating to the behavior of bisexual men that suggest that they are in fact less likely than members of other groups to transmit HIV, the study demonstrates that this stereotype of bisexual men as a bridge for HIV transmission is unfortunately alive and well. Finally, the study indicates that heterosexuals harbor more prejudice toward bisexuals than do gays and lesbians. Those who identified themselves as “other” or “asexual,” by contrast, demonstrated the least prejudice toward bisexuals.
While studies that utilize convenience samples are also valuable, the fact that the Dodge et al. study is based on a nationally representative probability sample is important because it means that the study provides generalizable information about our societal outlook as a whole. In an era when the United States government is dropping questions about sexual orientation from its own surveys and even forbidding agencies from mentioning some sexual minorities in their budget requests, the information uncovered in the Dodge et al. study will undoubtedly prove all the more valuable. See, e.g., Lena H. Sun & Juliet Eilperin, CDC Gets List of Forbidden Words: Fetus, Transgender, and Diversity, Wash. Post (Dec. 15, 2017). Moreover, this trend in the federal government is highly likely to lead to less research funding being available for the study of LGBT communities, which in turn will make studies based on nationally representative probability samples more difficult to conduct because of the expense of obtaining such samples.
In short, this study will serve as an indispensable resource for legal scholars who conduct empirical work or who engage in normative scholarship on bisexuality. It provides a much-needed lay of the land as to prevailing attitudes regarding bisexuality, demonstrating that, although attitudes have improved somewhat over the past fifteen years, perceptions of bisexuals still lag behind those of gays and lesbians. Moreover, the study particularly highlights the need for strategies to reduce stigmatization of bisexual men.
Mathilde Cohen, Animal Colonialism: The Case of Milk
, 111 Am. J. Int’l L. Unbound
267 (2017), available at SSRN
Many progressive scholars and advocates on the Left presume that the animal rights movement is culturally imperialist (at least in its American and Canadian iterations). This presumption holds steadfast in spite of the considerable scholarship, notably originating in ecofeminist thought, demonstrating the multiple ideological, discursive, and material links between human and nonhuman animal oppression advanced through dominant Western epistemologies and political, social, economic, and legal orders. Or, put differently, in many ways, arguments highlighting what is wrong with animal commodification and exploitation often indict Western worldviews on animals rather than seek to extend such worldviews elsewhere.
Why this presumption nonetheless persists is a complex issue. Certainly, one reason is the real and imagined whiteness of the movement (again, in its American and Canadian iterations). A further reason may be the related insufficient adoption of an intersectionalist ethic in high-profile animal rights campaigns where animal injustice is disconnected from human injustices. The perception can then flow that those who care about equality for animals do not care about vulnerable (often racialized and indigenous) humans.
Most legal scholarship on animals in the United States does not embrace an intersectionalist orientation when discussing injustice against animals. To the extent the dearth of intersectional analysis in animal law scholarship fuels the association of animal rights with cultural imperialism, Mathilde Cohen’s Animal Colonialism: The Case of Milk is a very welcome corrective. Her short yet informative analysis about milk’s global rise compellingly illustrates the transspecies nature of law’s violence and ensuing inequalities. Specifically, Cohen shows how Eurocentric international law and trade, European dietary and legal norms in relation to animals, and European and American modernist discourses championing cow’s milk over traditional breastfeeding and maternal care occasioned a global rise of the human consumption of cow’s milk that was pivotal to empire-building throughout the world. This entailed devastating harms for colonized peoples and animals both.
Using an ecofeminist frame, the article helpfully develops the emergent umbrella concept of “animal colonialism” as well as the sub-concepts of “milk colonialism” and “breastfeeding colonialism” that Cohen identifies as central to animal colonialism. (P. 268.) Through a generative discussion of these nascent terms, Cohen explains why the normativity of humans’ drinking another mammal’s milk should be seen as an injurious colonial practice that works against most of the world’s colonized peoples (and, of course, animals themselves). In doing so, she contributes postcolonial understanding to the body of literature that discusses milk’s cultural status worldwide as a pure and ethically benign substance.
Cohen begins by explaining the concept of “(a)nimal colonialism… as a dual phenomenon, consisting, on the one hand, in using animals to colonize lands, native animals, and people and, on the other hand, in imposing foreign legal norms and practices of human-animal relations upon communities and their environments.” (Id.) Cohen notes how Europeans were keen to bring their pastoral and agricultural practices, which included cows and sheep used for their milk, with them during invasions, and were also keen to acquire the land mass needed to sustain these large ruminants, and later to colonize appetites toward drinking cow’s milk. Although a critical part of animal colonialism in the case of milk is compromised by the literal colonial spread of animal bodies that international law enabled, Cohen ensures that we also understand the imposition of European legal norms that normalized animals as property as critical to animal colonialism. She writes: “The notion of animals as property proved essential to the diffusion of animal farming, particularly dairying, as it justified taking the milk from female animals for human consumption.” (P. 269.)
In explaining “milk colonialism,” Cohen draws from historical accounts to highlight how the dairy industry spread from European metropoles as an integral part of colonial and neocolonial expansion. (Id.) Most people around the world had never raised animals for lactation and milk consumption. Europeans viewed non-dairy diets as civilizationally inferior. They promoted cow’s milk as a universal healthful food and also justified land dispossession on this ground so that more and more animals could be raised. By the nineteenth century, Cohen notes, modernizing technologies enabled this highly perishable substance to withstand global export to new populations in colonized lands as well as constitute a vital part of the diet for colonizing human forces. Cohen emphasizes that in the twentieth century, international law and trade allowed American and European powers to export their milk surpluses to newly created markets in colonies and countries of the Global South such as China and India. (Id.)
Cohen goes on to highlight how the global ubiquity of humans’ drinking cow’s milk today is detrimental to both women and animals’ ability to feed their children from their own bodies. Cohen calls this “breastfeeding colonialism.” (P. 270.) Cohen notes how the British and French, but also other European states, linked the regulation (read: discouragement) of breastfeeding to ideas of nationhood, imperial identity, and racial superiority. European powers also ridiculed indigenous breastfeeding and other mothering practices and the quality of the milk that non-European cows produced. They promoted European and American cows’ milk as the best nutrition for human children through discourses of “civilization, modernity, and scientific medicine.” (Id.)
Although feminists and reproductive justice experts have exposed the harms of such colonial mindsets on women and their infants worldwide, Cohen importantly emphasizes the harm the colonial trumpeting of cow’s milk and its entrenchment today enacts on cows and their calves, highlighting the grief and trauma inherent in the practice of separating mothers from their nursing-ready newborn calves so humans may appropriate the calves’ milk. (P. 271.) As an outcome of this last point, Cohen innovatively concludes that long-standing and contemporary postcolonial and intersectionalist feminist concerns about reproductive justice surrounding the global politics of breastfeeding should let go of their anthropocentric focus and focus instead on a transspecies right to breastfeed. (Id.)
Through chronicling in condensed yet incisive fashion the colonial dynamics instrumental to the historical and global rise of cow’s milk as a human food, Cohen’s analysis compellingly disrupts several misconceptions: that animal exploitation and human exploitation are separate phenomena, that caring about animals is always already culturally imperialist, or that reproductive justice is only a human concern. She enriches both animal law scholarship and equality law scholarship by facilitating understanding of why decolonial politics requires attending to the human instrumentalization of animals.
Amanda Dale, Gun Control and Women's Rights in Context: Reflections of the Applicant on
Barbra Schlifer Commemorative Clinic v Canada, 13 J.L. & Equal.
61 (2017), available at HeinOnline
In Gun Control and Women’s Rights in Context: Reflections of the Applicant on Barbra Schlifer Commemorative Clinic v Canada, Amanda Dale not only provides the reader with an embodied account of law that exemplifies the limits of legal discourse, she also offers a compelling (and disheartening) explication of how and why the Stephen Harper government’s repeal of the long-gun registry threatens the lives of women.
As Dale points out, gun control in Canada is different from that in the United States. Canadian gun control laws are, of course, much more robust. For example, restricted weapons, such as handguns, have been subject to gun control legislation, including a registry, since 1932. However, a Canadian registry for long guns (shotguns and rifles) was not put into place until 1995 – following a mass shooting in Montreal that engendered significant activism aimed at reducing violence against women. The shooter targeted women and said he was motivated by a hatred of feminists. Noting that most women are shot by people they know and that most domestic violence involving firearms involves legally owned shotguns and rifles, Dale explains the connection between the protection of women’s physical safety and the need for a long-gun registry.
Unfortunately, in 2012 the Conservative government eliminated the obligation to register non-restricted firearms (rifles and shotguns) and required the destruction of all of the records that had been collected under the long-gun registry. Dale is the executive director of the Barbra Schlifer Commemorative Clinic. The Schlifer Clinic is a Toronto-based organization that seeks to reduce the prevalence and impact of violence against women by advocating for law reform and providing legal and counselling services to women who have experienced violence. The Schlifer Clinic, under Dale’s direction, brought a constitutional challenge to the repeal of the long-gun registry, arguing that it infringed women’s rights to equality and life, liberty, and security of the person. Gun Control and Women’s Rights in Context tells the story of the Clinic’s legal intervention.
Here are four things that make this article exceptional.
First, the piece is both beautifully written and rigorous. Dale seamlessly weaves together a narration of her experience of the litigation, the literature on feminist methodologies that deploy voice scholarship of this nature, an empirically grounded explanation of the risks and costs to women caused by the repeal of these gun control laws, and a persuasive legal argument identifying the ways in which the elimination of the registry and its records breach the Charter of Rights and Freedoms.
Second, because Dale has chosen to tell this story from a first-person perspective, the article offers a fascinating opportunity to understand legal process from the perspective of the litigant. She draws upon transcripts of her testimony, correspondence between the Clinic and its advisors, and her observations of, and reflections about, the process.
As an aside, had she chosen a different methodology the reader would not learn about, for example, the hate mail she received, or the vandalism and threats perpetrated against the Clinic. While gun culture in Canada is thankfully different from that in America, the violence to which Dale and the Clinic were exposed as a consequence of challenging the repeal of this aspect of Canadian gun control legislation serves as a helpful reminder that we cannot become complacent about the need to resist further erosion to our gun control laws.
Third, Dale draws upon the Clinic’s knowledge gained by decades of advocacy and service provision in response to domestic violence to highlight the relationship between intimate femicide and gun control laws regarding commonly held weapons. There is a poignancy to this experiential knowledge that throws into relief the distressing and senseless loss caused by the repeal of the long-gun registry.
Fourth, Dale does a wonderful job of demonstrating the ways in which traditional legal discourse privileges a narrow conception of “expert knowledge” and strips legal claims and the stories we tell about litigation of critically important context. Moreover, she deftly demonstrates how this gap in legal commentary and process imposes particular harms upon the equality interests of women.
While the Schlifer Clinic’s legal intervention was not successful – the court rejected the Clinic’s Charter claims – Dale’s adept narration, the way she brings the story of this process to life, might aid in future attempts to formulate feminist arguments in favour of better protections against firearm-based domestic violence. At a minimum, her article ensures that the harms caused to women as a consequence of the loss of the long-gun registry will not go unregistered.
Cite as: Elaine Craig, Women and Guns
(April 4, 2018) (reviewing Amanda Dale, Gun Control and Women's Rights in Context: Reflections of the Applicant on
Barbra Schlifer Commemorative Clinic v Canada, 13 J.L. & Equal.
61 (2017), available at HeinOnline), https://equality.jotwell.com/women-and-guns/
Claire L’Heureux-Dubé was Canada’s second woman to join our Supreme Court of Canada. She was famous for her strong personality, her charm, her directness, and eventually her willingness to dissent. She was loved by some, loathed by others.
My opening paragraph so dramatically understates the significance of Justice L’Heureux- Dubé. It pretends that the life of one woman – a woman who faced substantial personal and professional challenges – can be adequately captured in a few words.
Enter Constance Backhouse’s brilliant biography. Biography is an art. How to render a person visible? To be appropriately honest about her failings and reflective about her successes? To situate her life within its broad context – social, political, economic, and scientific? To reflect her social character – her relationships and the effects of those relationships on the path of her life?
Backhouse’s considerable work answers these questions.
In over 700 meticulously researched pages, she takes us on a magnificent journey. For those who love reading about “formative years,” five early chapters are devoted to tracing L’Heureux-Dubé’s family heritage and early education. The chapters give us a sense of everything from L’Heureux-Dubé’s early years with a lively and cheerful mother to school under the tutelage of nuns to the impact of the mighty St. Lawrence River on the development of sense of her place in the world.
The next part of the book turns to L’Heureux-Dubé’s legal education and life in practice. As one of the earliest women law graduates, L’Heureux-Dubé confronted resistance at each stage of her career because of her sex. Her father did not support her educational and career choices, she was excluded from scholarships, she faced sexual harassment in the workplace. Yet, she prevailed and through force of will found herself a mother of two children and a leading member of the Quebec City bar.
On to her time at the courts. The book takes us through L’Heureux-Dubé’s contributions at the Quebec Superior Court, the Quebec Court of Appeal, and finally the Supreme Court of Canada. L’Heureux-Dubé’s widely acknowledged work ethic shines through, as do the ways her fortitude was tested by exclusion from the “inner club” of largely male lawyers and judges and the pressures of a particularly demanding set of family circumstances.
These opening twenty-eight chapters (in a book with thirty-eight chapters) are gorgeously written with specificity that leaves the reader feeling like she is standing right beside L’Heureux-Dubé as her life unfolds. That’s credit to Backhouse’s use of detail, her reliance on hundreds and hundreds of hours of interviews with L’Heureux-Dubé and those who know her, and her fierce analytical skill, which renders plain the subtle.
Unconventionally, but useful especially to the legally trained reader, the biography then looks carefully at six of Justice L’Heureux-Dubé’s Supreme Court of Canada decisions – decisions she rendered on sexual assault, spousal support, human rights for same-sex couples, tax law, Quebec secession, and immigration. These decisions are presented as signature moments in Justice L’Heureux-Dubé’s self-expression. Backhouse situates each decision in its broader social context. Each of these last six chapters has its own story to tell and each should be included in any course materials that include the underlying decision. Each is dazzling.
When the biography ended, after a couple of chapters that explore the effect of Justice L’Heureux-Dubé and her work on Canadian justice and the international legal scene, I felt bereft. I longed for the book to continue. Not because anything was missing, but because reading the book was such a pleasure. The book is more than a biography of an extraordinary woman authored by an extraordinary woman; it is a story about the way justice reflects our lives and about how our lives are lived in the space of the possibilities justice presents, and sometimes denies.
The tenor of the debate over the propriety of creating religious exemptions to generally applicable laws has changed dramatically in recent years. As recently as 1993, progressives and conservatives joined forces to secure passage of the Religious Freedom Restoration Act, which requires the granting of such exemptions in cases where compliance with a statute would “substantially burden a person’s exercise of religion” unless the denial of the exemption was necessary to serve a “compelling” governmental interest. However, as the focus has turned to requests for exemptions by employers who object to the contraceptive mandate of the Affordable Care Act and merchants who wish to avoid providing goods and services for same-sex weddings, the debate over religious exemptions has taken on a starkly partisan aspect, with advocates for both sides often eschewing reasoned argument in favor of emotionally charged rhetoric that demonizes their opponents and effectively denies the possibility of good faith disagreement.
Against this background, Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, is a particularly welcome contribution to the debate. After a brief overview of the legal and political background of the current dispute over religious exemptions, Debating Religious Liberty presents a series of essays designed to illuminate the different positions on the issue. Corvino, a longtime advocate for LGBT rights, makes the case against all but the narrowest religious exemptions to laws designed to protect people from discrimination on the basis of sexual orientation or gender identity (SOGI laws). By contrast, Anderson and Girgis, both of whom are well-known for their opposition to government recognition of same-sex marriages, contend that religious objections should be honored in a much broader range of circumstances.
Taken together, the essays illuminate the differences in basic premises that underlie the dispute over the granting of religious exemptions to SOGI laws. At the core of dispute is the debate over the analogy between SOGI status and race. Corvino contends that the position of LGBT people is analogous to that of African-Americans in the pre-Brown era, and that religious exemptions to SOGI laws should be strictly limited for the same reasons that we would not countenance broad exemptions to laws that prohibit discrimination on the basis of race. By contrast, while conceding that LGBT people suffer from some discrimination in American society, Anderson and Girgis assert that the magnitude of this discrimination pales in comparison to that which was faced by African-Americans prior to the passage of federal civil rights legislation in the 1960s. Based on this view, they question the need for SOGI laws and insist that, in any event, any such laws should provide for broad religious exemptions.
Each of the authors plainly has a strong commitment to his position, and the authors construct the arguments for both sides with great care and rigor. But what is equally impressive about the essays in this book is the respect with which all of the authors treat the views of those with whom they disagree. Corvino, Anderson, and Girgis demonstrate that even the most controversial, emotionally charged issues can be discussed without resorting to vitriol or ad hominem attacks. In so doing, they provide an object lesson in civility from which we can all benefit.
While few seriously hold up litigating as a path to happiness, lawyers, historians, and activists often associate an expanded capacity to sue with increased justice. Thus the married woman’s right to sue in her name and minorities’ prerogative to respond to discrimination and hate crimes via legal proceedings are markers of progress. However costly and uncertain litigation is, the real issue is of course the potential for oppression wherever the powerful unjustifiably limit one group’s scope for legal action relative to that enjoyed by others. Crucially, my examples don’t typically evoke the worry that increasing one potential plaintiff’s options imposes costs on another historically subordinated group. The example in Suzanne Lenon and Danielle Peers’ engaging new essay in Feminist Legal Studies does precisely that.
The authors invite us to scrutinize the content and context of a lawsuit that a short time ago would have been unthinkable. Their point of departure is the complaint for wrongful birth brought by Jennifer Cramblett, a white lesbian, against the sperm bank that mistakenly provided her with sperm from an African-American donor, leading to a child of mixed race. The novelty inheres in the space for a committed lesbian couple to present in court its ambition to have a child by assisted reproduction as ordinary and reasonable. Lenon and Peers call us to examine the set of assumptions – the legal and social inheritance of white privilege – by which having a healthy child of mixed race might occasion compensable harm. They argue convincingly that the white lesbian’s lawsuit confirms, indeed reinforces, discourses that subordinate others.
In its twenty pages, the paper deftly moves across distinct legal and social literatures. One part traces the racial politics of homonormativity, by which the path to gay and lesbian equality in the U.S. culminated in same-sex marriage and access to military service. The plaintiff’s legal team (I don’t suppose that a lawsuit transparently represents the plaintiff’s thoughts or feelings) thus constructed her as an “ideal homonormative citizen: a middle-class, (re)productive, university-educated white lesbian in a committed, monogamous, domestic partnership.” A second part traces tort law in relation to wrongful birth, including varying conceptions of disability and of feminist reproductive rights. A third part connects disability, race, and sexuality in the eugenic legacy of “wrongful birth” and reproductive technologies. Last, drawing on the work of Cheryl Harris and other theorists, Lenon and Peers situate the lawsuit vis-à-vis whiteness as inherited property and as privilege.
In a year when North America has witnessed a resurgence of explicit, public manifestations of racism and white supremacy, this paper invites readers to pay attention to their subtler forms. While the semiotics of the khaki-clad mob bearing Tiki torches on the campus in Charlottesville may appear obvious, Lenon and Peers lead the reader to consider the racialized subtext of the proposition that an all-white suburb has “better” schools than the more “racially diverse” communities where Cramblett and her partner feel they need to take their mixed-race child.
I suspect this illuminating paper would make uncomfortable reading for Jennifer Cramblett. The authors characterize the life that Cramblett had imagined for herself, her partner, and her intended white child as one of “enjoy[ing] the spoils of … inherited structural violences” of homophobia, racism, and white supremacy. But the authors conclude by confirming that their concerns reach far more broadly than one plaintiff, whose story, they insist, is not “strange” or a “one-off.” The ultimate wrong, they tell us, is “the case’s very own conditions of possibility.”
Cite as: Robert Leckey, Suing on the Shoulders of Others
(November 21, 2017) (reviewing Suzanne Lenon & Danielle Peers, ‘Wrongful’ Inheritance: Race, Disability and Sexuality in
Cramblett v. Midwest Sperm Bank, 25 Feminist Legal Stud.
141 (2017)), https://equality.jotwell.com/suing-on-the-shoulders-of-others/
Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century
, 49 Conn. L. Rev.
117 (2016), available at SSRN
In the aftermath of the 2016 presidential campaign and the dramatic defeat of an avowedly feminist Hillary Clinton to a demonstrably misogynistic Donald Trump, many have called into question the future of feminism. Clinton’s loss to a significantly less qualified candidate and the startling statistic that fifty-three percent of white women voted for her opponent raises questions about the persuasive power of mainstream feminism. Clinton’s campaign revealed the stubbornness of misogyny both in the political system and socially. Yet, even as misogyny became increasingly apparent in the primaries and then more blatant in the presidential race, for progressive women, Clinton’s gender identity and her liberal positions on women’s issues were not enough to overcome their economic concerns and social concerns. Rather, they were drawn to Senator Bernie Sanders’ reinvigorated socialism in the primary race even though they eventually voted for Clinton in the general election.
Prior to this recent campaign, as Cynthia Grant Bowman notes in her article Recovering Socialism for Feminist Legal Theory in the 21st Century, socialism had been largely absent from mainstream party politics in the United States. However, it was critical in the ideological development of a number of social movements in the 1960s and 70s, including those for civil rights, labor rights, and women’s rights. In her article, Bowman seeks to now reintroduce this work to feminist legal theorists to advance an “agenda for both research and legal reform.” (P. 119.)
The article has two main contributions that make it important reading. First, it recovers a strand of feminist theorizing that is once again becoming important particularly to younger feminists. With growing inequality and a breakdown of the state’s commitments to social services, this history reminds us of prior struggles. Her literature review provides a map of socialist feminist thinking and a starting point for those who are unfamiliar with it. The second important contribution is that she revisits Catherine MacKinnon’s early dismissal of Marxism. And while not overstating MacKinnon’s influence, Bowman suggests that much has been missed by feminist legal scholars who pursued Critical Legal Studies or Critical Race Theory rather than developing a robust socialist strand of feminist legal theory. What might such a socialist feminist legal theory have looked like? Bowman explores this question as well as what a turn now to socialism in feminist legal theory (FLT) in the legal academy could yield if we take up her suggestion. Given the recent turn of events in the political and economic fortunes of women and minorities, there is no time like the present to do so.
Part I of the article lays out a very important history of feminism and Marxism in the 1960s and 70s. In the milieu of a number of social movements and student activism against the Vietnam War, Bowman traces the rise of feminist critiques of Marxism and socialism and the development of socialist feminism. According to her account, by the mid-70s, socialist feminism had established itself as a distinct branch of feminism. Distinguishing itself from both Marxism and radical feminism, socialist feminism “could develop a theory and politics that would address ‘the political/economic/cultural totality of monopoly capitalist society,’ including understanding the interconnection between the subjugation of women and the atomization of the working class.” (P. 129.) This history is important particularly for younger feminist legal theorists who have not had the opportunity to engage with the literature before. If, as she encourages, we are to incorporate socialist feminism into FLT, we must go back and read these key texts by theorists like Angela Davis, Shulamith Firestone, Iris Young, Zillah Eisenstein, Nancy Hartsock, Heidi Hartmann, and Alison Jagger to name just a few. FLT scholars are likely to be familiar with the works of Nancy Fraser and Sylvia Federici, but considerably more work is out there to be mined for ideas as Bowman aptly demonstrates.
In the second part of the article, Bowman takes up the development of FLT in the 1970s. She asks why there is no strong current of socialist feminism in the law today. After all, during the 1970s, women were entering law school in record numbers. Socialist feminists were present in many other parts of the academies from which these students had received their undergraduate training. Yet in the legal academy, even while women were using the law to win greater equality for women, those strategies were informed by a more mainstream liberalism than socialism. The strategy of Ruth Bader Ginsburg, working on the ACLU’s Women’s Rights Project, was to bring cases advancing women’s formal equality. The strategy was largely successful until women’s biological difference became a stumbling block. The losses in cases dealing with pregnancy discrimination, for example, demonstrated the limits of formal equality. Some feminist scholars like Robin West raised questions about using men as a yardstick for equality when women’s particularities made that measure problematic. They advocated for greater “understanding and valuing of the unique experiences of women.” (P. 156.) In the early 1980s, Catherine MacKinnon intervened in this sameness/difference debate with a critique of both sides. Rather than using men as the norm, her project was to develop a theory that articulated the use of sex to distribute power.
By the 1990s, an array of critiques had emerged in feminist legal thought. African-American, Latina, and Lesbian feminists charged mainstream FLT with essentialism. The field of feminist thought became more complex and contested, yet no specifically and overtly socialist strand of FLT emerged from the fragmentation of the field. The only legal theorist at the time to take Marxism seriously was MacKinnon. Her engagement with Marx was profound. Her thorough reading of the literature led her to conclude that Marxism and feminism could not be synthesized as others had tried to do because Marxists “ignored sexuality as a form of power.” Marx failed to question the way women were defined by nature and therefore he did not consider sex-based subordination as requiring an explanation. Engels was better on this score, but as Bowman points out, he “understood women’s status as simply a product of the family form particular to capitalism.” (P. 159.) Changes in family, therefore, were a result of economic changes. Bowman goes on to describe MacKinnon’s assessment of the only semi-successful project of synthesis, which was the “wages for housework” movement. By bringing housework into view as work in the way it is understood by Marxists (as having the possibility to both oppress and liberate), the wages for housework movement made substantial advances, but, according to MacKinnon, it still fell short of articulating a theory and method that accounted for the relationship between sexuality and power that would lead to full liberation of women. (Pp. 160-161.)
While MacKinnon’s negative assessment had a powerful impact on FLT, Bowman argues it is not the sole reason for the arrested development of socialist FLT. So, what does explain this gap? One possible explanation is that feminists gravitated to alternative movements, like Critical Legal Studies, that emerged at the same time. Bowman argues that this turn away from socialist feminism was a missed opportunity and impoverished the developing field of FLT. In Part III of the article, Bowman explores the potential of socialist feminism to inform a richer, more emancipatory FLT. For starters, she accepts the socialist axiom that even the most benevolent forms of capitalism will not bring human flourishing to women. In order to achieve this, socialism’s core commitments to using collective resources to meet basic needs, to collective decision-making and bargaining in work, and to genuine equal voice in government are indispensable. In addition, socialist feminism would bring its insights into the “interdependence and interpenetration of the public and private spheres and the economic impact of that interdependence.” (P. 165.) The inclusion of globalized conceptions of race and class in legal analyses that are sensitive to women’s multiple roles would flesh out current FLT. In terms of U.S. doctrinal areas of study, socialist FLT would offer a more nuanced understanding of the sexual division of labor and how this undergirds the tenacious discrimination faced by women. In family law, socialist feminism would help illuminate the incompatibilities in the structures of families and markets and shift away from liberal attempt to reconcile the two. In addition, I would add that socialist feminism may inform the ways in which the family and market have also been co-constructed in capitalism to the detriment of women’s autonomy and flourishing. As feminism’s potential for emancipatory change is in question, there is no time like the present to take up Bowman’s call to revisit some of the more radical theoretical work of the past and introduce it to feminist legal theory.