Wednesday, June 28, 2017
Karen Patricia Heath, New Directions in the History of Conservative Women
Kirsten Marie Delegard. Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. Philadelphia: University of Pennsylvania Press, 2012. 313 pp.; ill. ISBN 978-0-8122-4366-6 (cl).Erica J. Ryan. Red War on the Family: Sex, Gender, and Americanism in the First Red Scare. Philadelphia: Temple University Press, 2015. xii + 220 pp. ISBN 978-1-4399-0884-6 (cl); 978-1-4399-0885-3 (pb).Michelle M. Nickerson. Mothers of Conservatism: Women and the Postwar Right. Princeton, NJ: Princeton University Press, 2012. xxvi + 231 pp.; ill., maps. ISBN 978-0-6911-2184-0 (cl); 978-0-6911-6391-8 (pb).Leslie Dorrough Smith. Righteous Rhetoric: Sex, Speech, and the Politics of Concerned Women for America. New York: Oxford University Press, 2014. x + 241 pp. ISBN 978-0-1993-3750-7 (cl).
As these four monographs ably demonstrate, scholars in the field of US women's history are now accustomed to taking conservative activists and their ideas and organizations seriously. All of the authors treat their historical actors with dignity, meaning that as a group, these works serve to normalize conservative female activism within an academic environment that, in the past, neglected such women and their politics. And yet, certain problems of definition, analysis, and methodology remain: How permeable are the borders between progressivism and conservatism, and between moderation and extremism? And how do these relationships change over time? How should scholars who self-identify as feminists and progressives situate themselves vis-à-vis the conservative women they study? And where should scholars direct their attention in the immediate future, in order to further develop this vital subfield on the history of conservative women?
Wednesday, May 31, 2017
Donna Coker, Crime Logic, Campus Sexual Assault, and Restorative Justice, 49 Texas Tech L. Rev. 47 (2017)
The dominant campus sexual assault narrative that emerges from both media and regulatory accounts is that of a male “sexual predator” assaulter who penetrates without consent a white heterosexual female victim. In contrast to the paradigm case, LGBTQ students face considerable risk of experiencing campus sexual assault; campus administrators see a range of sexual misconduct with a dramatic range in severity, including at the low end “sexual coercion”; the conclusion that most campus assaulters are “predators” is based on misapplied research and is unsubstantiated by more sophisticated longitudinal research. Furthermore, the paradigm occludes the ways in which intersectional forms of oppression based in race, gender, class, sexual orientation, and sexual identity, define not only risks for assault, but risks for administrator bias (both with regard to those accused and those who claim to have been harmed).
Schools face intense political pressure to import “Crime Logic” into administrative regulations that address campus sexual assault. Crime Logic refers to a set of beliefs and attitudes characterized by a focus on individual culpability rather than institutional or collective accountability; disdain for policy attention to social determinants of behavior; and a preference for narratives that center on simplistic bad actors and innocent victims and for banishment/incapacitation over rehabilitation for those who harm others. The potential to use Civil Rights law as a means to change the social norms that promote sexual mistreatment is compromised when administrators employ punitive responses based in Crime Logic over responses that educate, rehabilitate, and better meet the varied needs of victims of assault.
An intersectional public health approach that avoids the punitive and simplistic individually-focused accounts dictated by Crime Logic will reap better results in intervening and lessening campus sexual assault. Such an approach should intervene in the social and psychological factors most frequently correlated with campus sexual assault.
Friday, May 5, 2017
Catherine Powell, How Women Could Save the World, If Only We Would Let Them: From Gender Essentialism to Inclusive Security, 28 Yale J. L. & Feminism 271 (2017)
We increasingly hear that empowering women and placing them in positions of leadership will lead to a safer, more prosperous world. The UN Security Council’s groundbreaking resolutions on Women Peace, and Security (WPS) — and U.S. law implementing these commitments — rest on the assumption that women’s participation in peace and security matters will lead to more sustainable peace, because women presumably “perform” in ways that reduce conflict, violence, and extremism. This idea is of heightened importance today because women are still vastly underrepresented in positions of leadership in the peace and security field, having yet to “shatter that highest and hardest glass ceiling” as Commander-in-Chief in the United States or rise to the role of Secretary-General in the United Nations. Before her own historic race to become the first woman Commander in Chief, Hillary Clinton had prominently made the claim we increasingly hear that women’s empowerment is not only the right thing to do, but the smart thing to do for global and economic security.
Such claims raise fundamental questions for international law, equality theory, and feminism. Assertions that the world would be a better — more peaceful, more prosperous — place, if women assumed leadership positions in peace and security matters are unapologetically instrumentalist and reinforce essentialist views of women. At the same time, evidence suggests that these claims are to some extent accurate. Thus, these assertions should be carefully examined. Reviewing new research, this Article argues that while some evidence supports these claims, the statistical evidence supporting these claims suffers from methodological flaws. Moreover, the forms of gender performance reflected in the data — which international law has organized itself around — are based on the socially constructed roles women play as caregivers, nurturers, and collaborators, not necessarily on their inherent biological roles. Yet, international law reifies these roles and the stereotypes that surround them, even as it tries to open up opportunities for women beyond traditional sex-segregated positions that have long relegated women around the world to the pink ghetto of economic inequality and inferior political and social status. Having to maneuver around formal equality, on the one hand, and instrumentalist claims that women will “save” the world, on the other, means that the category of “woman” can restrict even as it liberates. After all, not all women are “peace-loving,” particularly in a world where the women who succeed are often those who can succeed on terms defined by men.
Two prevailing theoretical frameworks — antisubordination and securitization—shape the current debate about WPS, but each ultimately falls short. This Article identifies democratic legitimacy as a novel third approach missing from the existing debate. As an alternative view, the democratic legitimacy account effectively reframes the WPS debate as one concerning inclusive security — emphasizing that women’s participation enhances the representativeness, democracy, and fairness of the process as a whole — rather than privileging the “special interests” of a particular group (as the antisubordination approach is accused of doing) or reinforcing gender essentialism (as the securitization approach does). Notably, a democratic legitimation paradigm is grounded in a model of inclusion that can be applied to vectors of inequality beyond gender, as well as to inequality at the intersection of various forms of inequality. Moreover, by emphasizing democratic representation, this approach insists on local ownership and bottom-up solutions, thereby emphasizing participation and leadership by women in conflict zones, rather than female global elites. Under a democratic legitimacy paradigm, women can still “save” the world, but in a different way than the predominant discourse would have us believe.
Thursday, April 27, 2017
Carrie Menkel-Meadow, Feminist Legal Academics: Changing the Epistemology of American Law Through Conflicts, in Gender and Careers in the Legal Academy (Ulrike Schultz, ed. Hart Publishing-Onati Series, forthcoming)
In this Chapter I will describe the inter-generational contributions of the first few decades of women law professors who have created a contested “canon” of new understandings of legal concepts in American jurisprudence and legal practice. I describe here the way in which several generations of women law professors (some working with legal practitioners) have forged new legal ideas or “memes” (cultural units of understandings), and legal causes of action that have reframed not only “women’s issues” (reproductive rights, employment and labor rights, family law, violence, rape and criminal law, as well as constitutional jurisprudence and different conceptions of “equality”), but have also contributed new conceptions or interpretations of mainstream legal concepts (e.g. in contracts, property, and torts etc.).
Those of us who have written about these developments over the years all acknowledge the inter-generational differences in meanings attributed to our goals as participants in the making of new legal epistemology—the interpretation of law and doctrine, the creation of new concepts, causes of actions, or legal “memes,” the creation of new courses and methods for learning law, whether and how our new epistemology should be integrated (or more controversially “assimilated”) into mainstream American law doctrine and education, how we have or have not influenced the legal academy and legal thought generally, as well as legal practice and law reform measures, and what lessons we offer for future generations of “outsiders” who are increasingly populating our profession with more diverse bodies and ideas.
Tuesday, April 25, 2017
In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.
Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”
Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***
Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.
Thursday, April 13, 2017
“Making feminism a universal pursuit might look like a good thing,” author Jessa Crispin writes, “but in truth it progresses, and I think accelerates, a process that has been detrimental to the feminist movement.”
Crispin has written a polemic titled Why I am Not a Feminist, in which she laments the banality of contemporary feminism. Her thesis is simple enough: At some point, feminism lost its political moorings; it became vapid and toothless in its quest for universality. Feminism became a catch-all term for self-empowerment, for individual achievement.
Feminists, she believes, forsook their values for the sake of assimilation, which is another way of saying they were co-opted by the system they once rejected.
Thursday, March 30, 2017
Much ado in the news today about the Pence Rule of Working with Women. There are reports of Vice-President Mike Pence’s practice that he “that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side.” It was mentioned in the context of discussing he and his wife Karen have preserved their marriage. Pence’s rule is actually a version of the "Billy Graham Rule" adopted by the famous evangelist. Rev. Graham refused to meet, travel, or dine with a woman alone. A similar story about a similar practice among conservative members of Congress appeared in 2015. The rule is also sometimes thrown around (by non-lawyers) in sexual harassment training as a “best practice” and way for men to protect themselves against false accusations by women.
Commentary has pointed out how the Pence/Graham practice penalizes women by denying them access to fully do their job, as well as advancement. See How Mike Pence's Refusing to Eat with Women Hurts Women And that it is illegal sex discrimination because it denies women equal opportunity in the workplace. The current discussion serves as a reminder of the more subtle ways in which sex discrimination exists in the workplace today, evolved from the days of segregated help-wanted ads into segregated access to full workplace responsibilities.
Missing so far from the discussion is something more fundamental to understanding the law against sexism. What is discriminatory about the Pence-Graham practice is that it reinforces sexist ideas of women. It depicts women as sexual objects, regardless of context. As primarily sexual objects, they are controlled and dominated by male-led society. Systemically this is a legal problem because all women are treated as inferior based on subordinate ideals of women’s true nature as sexual object. This is the core of legal theorist Catharine MacKinnon’s work showing the deeper social and systemic nature of sexism when law and business practices allow it to continue.
MacKinnon made her argument initially in the context of sexual harassment. The Pence Rule is an overcorrection of the same problem. While not encouraging the sexual behavior of women, it still conveys the same message that women exist only for sex and control by men.
Moving from the theoretical to the practical, the Pence Rule also clearly reinforces the notion that women at work are not equally relevant. Men in power have no real need to meet with women in a confidential setting. The judge does not need to deliberate in confidence with a law clerk, the dean does not need to discuss confidential matters with the associate dean, and the president does not need to dine with the prime minister.
Thursday, March 23, 2017
Nancy Levit, June Carbone, Naomi Cahn, Gender and the Tournament: Reinventing Antidiscrimination Law in the Age of Inequality, Texas L. Rev. (forthcoming)
Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This article argues that this is a mistake. Instead, Reinventing Antidiscrimination Law attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both eliminate discrimination and promote economic growth. Using that approach, this Article is the first to consider how widespread corporate tournaments and growing gender disparities in the upper echelons of the economy are intrinsically intertwined, and how they undermine the core promises of antidiscrimination law. The Article draws on a pending case challenging the “rank and yank” evaluation system at Microsoft, as well as social science literature regarding narcissism and stereotype expectations, to illustrate how consideration of the legitimacy of competitive pay for performance schemes is essential to combating the intrinsically gendered nature of advancement in the new economy.
Monday, January 23, 2017
It's not everyday that you see "Intersectional Feminism" in the newspapers.
USA Today, What is Intersectional Feminism?
"Intersectional feminism" is a term you may be hearing a lot.
If feminism is advocating for women's rights and equality between the sexes, intersectional feminism is the understanding of how women's overlapping identities — including race, class, ethnicity, religion and sexual orientation — impact the way they experience oppression and discrimination.
A white woman is penalized by her gender but has the advantage of race. A black woman is disadvantaged by her gender and her race. A Latina lesbian experiences discrimination because of her ethnicity, her gender and her sexual orientation.
Intersectionality has received increased attention in part due to how the Women's March on Washington, taking place Saturday, came together. The rally, which began organically on Facebook, was initially criticized for failing to include any women of color as organizers. Now its leaders include Tamika Mallory, an African-American civil rights activist and former director of the National Action Network; Linda Sarsour, a Muslim who heads the Arab American Association of New York; and Carmen Perez, a Latina activist who directs Harry Belafonte’s Gathering for Justice. The march's policy platform is called "Unity Principles," which include the belief that "gender justice is racial justice is economic justice."
See prior posts:
Tuesday, January 10, 2017
Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century, 49 Connect.L.Rev. (2016)
Abstract:This Article argues that a significant strand of feminist theory in the1970s and 1980s — socialist feminism — has largely been ignored by feminist jurisprudence in the United States and explores potential contributions to legal theory of recapturing the insights of socialist feminism. It describes both the context out of which that theory grew, in the civil rights, anti-war, and anti-imperialist struggles of the 1960s, and the contents of the theory as developed in the writings of certain authors such as Heidi Hartmann, Zillah Eisenstein, and Iris Young, as well as their predecessors in the U.K., and in the practice of socialist feminist groups in the United States during the same period. Although many American feminist legal theorists themselves participated in or were influenced by the progressive movements of the 1960s and 1970s, socialist feminism is virtually absent from their writings, except for those of Catharine MacKinnon, who, despite sympathy with the approach, disagreed with it and went on to develop her own version of feminist equality theory. The author argues that the time is now ripe to recapture this strand of feminism and explore what it would add to the study and pursuit of women’s equality.
Tuesday, November 22, 2016
Stephanie Bornstein, Unifying Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L.Rev. 919 (2016)
This Article argues that theoretical and doctrinal advances in sex stereotyping cases have broad application, with the potential to reinvigorate employment discrimination litigation under Title VII as a whole. The Article suggests that precedent from pioneering sex discrimination cases can and should be applied to cases alleging discrimination on other bases, including race and national origin. It proposes a more coherent, unified approach to antidiscrimination law that capitalizes on recent courts’ recognition of the operation of sex stereotypes at work. In an era in which the advancement of equality has stalled in both the workplace and the Supreme Court, a unified approach to Title VII litigation framed around stereotype theory offers an important path forward for antidiscrimination law.
Tuesday, November 1, 2016
Kimberlé Crenshaw urges us to ask this question. Through her theory of intersectionality, she explains the overwhelming underrepresentation of violence against African-American women in activism, politics and media.
“The problem is, in part, a framing problem,” Crenshaw says. “Without frames that are capacious enough to address all the ways that disadvantages and burdens play out for all members of a particular group, the efforts to mobilize resources to address a social problem will be partial and exclusionary.”
For Crenshaw, this meant developing a language as a method of understanding this problem, she says: “When there’s no name for a problem, you can’t see a problem. When you can’t see a problem, you can’t solve it.”
Tuesday, October 18, 2016
The US Feminist Judgments Conference is this week here at Akron Law.
The background materials for the conference include articles and essays exploring the foundational ideas of the conference, including what feminism means, what feminist judgments are and why we might need them, and the difference feminist decision making might make. To review the materials, go here: US Feminist Judgments CLE Materials
Table of Contents:
Kathyrn Stanchi, Linda Berger, & Bridget Crawford, Introduction to the Book: Feminist Judgments (Cambridge 2016)
Sally Kenney, Thinking About Gender and Judging (2008)
Sally Kenney, Wise Latinas, Strategic Minnesotans, and the Feminist Standpoint: The Backlash Against Women Judges, Thomas Jefferson L.Review (2013)
Heather Roberts & Laura Sweeney, Why (Re)Write Judgments? (2014)
Erika Rackley, What a Difference Difference Makes (2008)
Rosemary Hunter, Can Feminist Judges Make a Difference? (2008)
Rosemary Hunter, Feminist Judgments as Teaching Resources, Oñati Socio-legal Series (2012)
Justice Sonia Sotomayor, Lecture: A Latina Judge’s Voice (2009)
Justice Sotomayor, dissenting, Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2015)
Gonzales v. Carhart, 550 U.S. 124 (2007)
Justice Ginsburg, dissenting in Gonzales
Beverley Baines, Why Not Nine? (2016)
Tracy Thomas & TJ Boisseau, Law, History & Feminism, Introduction to Feminist Legal History (NYU Press 2012)
Wednesday, September 14, 2016
Bradley Areheart, The Symmetry Principle
Abstract:Antidiscrimination principles have been studied and written about for decades. Surprisingly, the question of how some laws protect symmetrically, while others protect asymmetrically, has received little attention. Even more surprising is the fact that legal scholars have not provided any systemic account of symmetry’s function in antidiscrimination law. Title VII, for example, makes it illegal to discriminate against both blacks and whites, against both men and women. In contrast, the Age Discrimination in Employment Act’s scope is asymmetrical in that it protects only those over the age of forty. This Article proposes “the symmetry principle” as a major normative theory for considering the design of antidiscrimination laws. When antidiscrimination laws are symmetrical they have the capacity to harness a unique mix of strengths—while minimizing weaknesses—from previous normative theories regarding the means and ends of antidiscrimination law. The symmetry principle is thus a design compromise, somewhere between the poles of particularism and universalism, in fashioning laws to prevent and rectify subordination.
Monday, May 23, 2016
Paul Kerry (BYU, History), Mary Wollstonecraft on Reason, Marriage, Family Life, and the Development of Virtue in A Vindication of the Rights of Woman, 30 BYU J. Public Law 1 (2015)
The aim of the argument here is to show how A Vindication of the Rights of Woman presents a view of the equal dignity and intellectual capacity of the sexes embedded in the proposition that males and females are beholden to the same standard of virtue and chastity. Wollstonecraft further argues that both women and men have the same obligation to develop virtue by living lives that are ordered to duties by reason. Reason guides the passions and is exercised through the use of moral agency. Although her treatise calls for certain kinds of female independence, there are also spheres of interdependence and complementarity on which she insists in marriage, childrearing, and family life, but also in the development of virtue. Indeed, in the quest to develop virtue, men and women need each other: “The two sexes mutually corrupt and improve each other. This I believe to be an indisputable truth, extending it to every virtue.” Although Wollstonecraft accords religion a central teaching role as well, it is critical to the philosophical underpinnings of her treatise that human reason (God given, in her view) can derive the principles she puts forward and as such her arguments resonate with those made by natural law advocates. Without this set of arguments, Wollstonecraft's compelling philosophical insights are only partially understood if not largely missed, reduced as they are to calls for specific kinds of action rather than understood as reasoned contributions to political thought. A part of the work here must include restoring Wollstonecraft's argument through her own words by close reading.
This begs an important question: How could Wollstonecraft's many words on key elements of complementarity between man and woman in marriage, childrearing, family life, and the development of virtue and the role of reason go undetected or be neglected? Some of Wollstonecraft's ideas are explained away strategically by suggesting that she had to work within the accepted idioms of her time to revolutionize from within the prevalent discourse. On this view, Wollstonecraft is seen to pose her arguments “within a framework that was minimally acceptable to popular prejudices.” The implication is that she cloaked her real arguments inside of language and tropes that would allow other, less acceptable ideas of the time, to be granted passage into the public discourse. Yet, her ideas, those presented here, are strongly present, in some cases tirelessly omnipresent, in her treatise. She holds these up not as the husk in which to hide the real kernel of her meaning, but as essential to her argument--they are the root of her philosophical thinking. It is strangely myopic to classify her thinking on chastity, marriage, the family, and the complementarity of the sexes as mere window dressing because her views are not radical nor break decisively with traditional thinking.
Another answer to the question is that Wollstonecraft's insights are often placed onto a procrustean bed of feminist theory. Wollstonecraft's place in intellectual history has changed along with the political fortunes of the women's movement. Sometimes it appears as if A Vindication of the Rights of Woman is caught in an interpretative struggle over the meaning of feminism, rather than allowing the treatise to challenge and broaden what feminism means. It is tempting to confer on this text a status as a forerunner of modern feminism, but, depending on what a critic defines this to be, such a status can lead to distortions in understanding the text. The risk of “vile anachronism”is always present when studying any thinker from an ideological or theoretical perspective. Finely textured ideas of past thinkers run the risk of becoming flattened to fit an agenda. This apprehension is conveyed in the words of one critic: “One can see how the moral analysis and the social description in A Vindication could be appropriated for a more conservative social theory, which . . . would confine [women] to a desexualized domestic sphere as wives and mothers.” Certainly the multivalent meanings in A Vindication of the Rights of Woman might disturb a tidy reading that would grant it some kind of prototypical status or bind it to one end of a political spectrum. The high aim of scholarship, of course, is to attempt to understand Wollstonecraft's treatise without pressing it tendentiously into one's particular agenda, theoretical, political, or otherwise. Yet, warning about conservative appropriation can easily chill legitimate efforts to rehabilitate a key text in ways that might threaten the dominant feminist paradigms that have confined A Vindication of the Rights of Woman to a narrower reading than is borne out by the evidence. Rather than pre-emptively silencing or ignoring potentially “contradictory implications” it could be that the most interesting insights are to be found in exploring the tensions rather than in pulling or pushing the text in one ideological direction or another.
Friday, May 6, 2016
The law provides that Mother's Day is a ... flag day?
36 USC 117 - Mother's Day(a)Designation.— The second Sunday in May is Mother’s Day.(b)Proclamation.—The President is requested to issue a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings, and on the people of the United States to display the flag at their homes or other suitable places, on Mother’s Day as a public expression of love and reverence for the mothers of the United States.
Wash Post, How Feminism Sold Out by Becoming Cool
This new mutation can be called “marketplace feminism,” the author writes, “a mainstream, celebrity, consumer embrace of feminism that positions it as a cool, fun, accessible identity that anyone can adopt.” If any purported feminist campaign is touched by corporate or private interests, it is suspect. For Zeisler, feminism is feminism and capitalism is capitalism, and when they hook up it’s just gross....
This book’s critique of “marketplace feminism” offers no wiggle room: If you claim feminism without combating structural inequality, your feminism is counterproductive, prioritizing personal advancement rather than attacking the systems that perpetuate wage disparities or gender-based divisions of labor. And don’t bother suggesting that a movement might benefit from the popularization of its tenets — however superficial the interpretations may be — because Zeisler isn’t buying it. “The diversity of voices, issues, approaches, and processes required to make feminism work as an inclusive social movement,” she writes, “is precisely the kind of knotty, unruly insurrection that just can’t be smoothed into a neat brand.”
Wednesday, May 4, 2016
Jamie R. Abrams (Louisville), Debunking the Myth of Universal Male Privilege, 49 U.Mich.J.L. Reform 303 (2016)
Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military's statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male violence to men, and positions women as perpetual outsiders.
Debunking the myth of universal male privilege in heavily masculinized institutions would advance gender equality and shift the law reform focus. It would bring sexual assault, domestic violence, and sexual harassment into the same frame as the military mental health crisis and even mass solidier-on-soldier shootings. This would reveal the gender equality implications of military mental health and disentangle masculinities and military efficacy. Debunking the myth of univeral male privilege would yield more vigilance to how law reforms can exacerbate hyper-masculine violence. It introduces new entry points to gendered violence in the military, expanding the focus from incident-based responses to recruiting and training.
Tuesday, May 3, 2016
Scott Allen Anderson, Conceptualizing Rape as Coerced Sex
Philosophers, feminists, and legal theorists have long criticized the current definition of rape as it is formulated in most of the states of the U.S. because of its dual “force” and “consent” requirements. Several prominent writers have recently sought to reconceptualize rape as “non-consensual sex,” thus omitting the “force” requirement. While there are some unmistakable practical advantages to such proposals, I argue that such a conceptualization risks failing to grasp what is distinctively problematic about rape for women, and why rape has the effect it does in supporting women’s gender oppression. I suggest that one of the reasons why consent-focused reform proposals have been so popular is because the dominant accounts of coercion in recent philosophical writing have not been suited to help identify rape in terms of coercion. I offer an alternative approach to thinking about coercion which, I argue, can replace the focus on “force” in current conceptualizations of rape in order to avoid their main difficulties, especially with respect to identifying “acquaintance” rape as such. I further show how conceptualizing rape as coerced sex does help explain its distinctive badness both for the individual victims as well as for women as a group.
Scott Anderson’s article Conceptualizing Rape as CoercedSex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.”
Monday, May 2, 2016
Heather Roberts (Australian Natl) & Laura Sweeney (NSW Gay & Lesbian Rights Lobby), Review Essay: Why (Re)Write Judgements?, 37 Sydney L.Rev. 457 (2015)
Australian Feminist Judgments is a collection of fictional judgments for real Australian cases that have been rewritten by Australian scholars from the perspective of a feminist judge. Each judgment is introduced by a commentary, written by a different scholar, explaining the legal and historical context of the original decision and the choices made by the feminist judge. This review essay locates the collection within more general debates surrounding judgment writing, particularly leading Australian extra-judicial commentary on how and why judgments are written. Against this larger plane, we consider a number of the key issues raised by the collection about judgment writing, including the significance of recounting the facts of a case, the uses of formalist judicial method and the capacity of judgments to effect change. Drawing on a number of examples from the collection, this review essay contends that Australian Feminist Judgments makes a valuable contribution not only to contemporary feminist debates, but also to issues going to the heart of judicial practices and judgment.
The US Feminist Judgments rewriting projects is here.
A fall conference on rewriting judgments, The US Feminist Judgments Project: Rewriting the Law, Writing the Future is planned for October 20 & 21.