Wednesday, November 30, 2022
Signs was founded in 1975 as part of an emergent tradition of feminist scholarship and has been publishing continuously ever since, establishing itself as a preeminent journal in women’s, gender, and sexuality studies. At the time of the journal’s conception, Signs’s founding editorial staff sought not only to raise consciousness and develop theories of women’s oppression but also to challenge the taken-for-granted and to strive for theoretical nuance and interdisciplinarity. To honor half a century of publication, our fiftieth anniversary issue aims to generate new questions and critical discussion about “Big Feminism” – about the role and power of feminist theory – today and into the future.
These fifty years have witnessed consequential feminist debates (over sexuality, over the category “woman,” over approaches to difference, over representations of “third-world” women) and the emergence of new analytical and theoretical frames (to analyze experience, identity, agency, desire, the body, violence, inequality, coalition, work, family, and relationships between self and other, and more). The Signs archive stands as a testament to the creativity, vitality, reach, and impact of feminists and feminist thinkers. Virtually no area of social life and no academic discipline has been untouched or unchanged by those who have contributed their work to the journal.
And yet, as the editors of a recent special issue have written: “The work in this field has never been richer, the future of our field never more imperiled.” From the standpoint of 1975, 2025 may appear to be a feminist pipe dream. Rights that were once aspirational have been codified into law; there are women heads of state the world over; women have not only entered but have transformed the professions; LGBTQ rights, while very much a work in progress, have been achieved to a degree that even recently seemed unimaginable. At precisely the same time, the ground beneath our feet is collapsing. As we write this, we are facing the end of abortion rights and a global upsurge of fascism in which misogyny figures centrally. And, #MeToo notwithstanding, violence against women continues unabated. From this moment of profound triumph and profound precarity, how do we, as feminists, imagine the next fifty years? What are our feminist visions (utopias and dystopias) for 2075? What work will it take to bend the arc toward gender justice?
This special anniversary issue of Signs seeks to engage with the big feminist questions that remain outstanding after all these years.
- How has the definition of feminism evolved, and what does it encompass now?
- How do we grapple with the relationships and nuances between feminism, gender, sexuality, race, and capitalism?
- How might we imagine a feminist vision for the future, from where we stand now? How might we get there?
- Whence the durability of patriarchy? Of violence against women? Of the denial of reproductive justice?
- What are the new forefronts of feminist theory? Compulsory heterosexuality, intersectionality, and gender performance (among others) are concepts that have shaped our feminist thinking over the past fifty years. What are the emergent feminist theories of the fifty years to come?
- Given the strength of the patriarchy in the 2020s, including but not limited to the shocking efforts to roll back long-standing reproductive rights, what will it take to dismantle this system?
- Over the past fifty years, feminists of color, queer feminists, and disabled feminists, among others, have transformed the movement with critical attention to race, sexuality, nationality, ability, and age—and yet these inequalities remain. How do we attend to these disjunctures? What inequalities remain unrecognized? How can we transform our own movement while still working for transformation in the wider world?
- Has the knowledge produced in field of women’s/gender studies managed to advance the work of social and political transformation?
- What will it take to build better, stronger bridges between academic feminism and feminist activism on the ground? What new coalitions should we be building, and how?
- How, finally, will feminist historians, writing in 2075, remember 2025? How do we understand our present from the standpoint of the (imagined) future?
Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We seek essays that are passionate, strongly argued, and willing to take risks.
The deadline for submissions is February 1, 2023.
Please submit full manuscripts electronically through Signs’s Editorial Manager system at http://signs.edmgr.com. Manuscripts must conform to the guidelines for submission available at http://signsjournal.org/for-authors/author-guidelines/.
Tuesday, November 22, 2022
Haim Abraham, Queering the Reasonable Person, Chapter in Diverse Voices in Tort Law (Kirsty Horsey Ed., 2023 Forthcoming)
Critical lenses, such as feminist and critical race theories, have been employed extensively to analyze the reasonable person standard theoretically and doctrinally, noting that courts and scholars personify the standards as a middle-class, white, heterosexual man. Consequently, these critical lenses have indicated that real individuals, who do not share the qualities of the personified reasonable man, become vulnerable. They are unlikely to be able to succeed in bringing claims against the people who the reasonable man represents, while they are more likely to be held to a higher standard and as such more likely to be liable.
These critiques are illuminating, but they are not particularly queer, nor do they exhaust all that queer theory can reveal about the reasonable man, and existing scholarship has yet to offer a comprehensive queer theory analysis of the reasonable person. This chapter fills this gap in literature, arguing that despite existing critiques, the reasonable person – as a legal standard – is essentially a queer standard. Yet, it is the very queer character of the reasonable person that places LGBTQ+ individuals at risk. First, past (and current) applications and personifications of the reasonable person into a white middle-class, cisgender, heteronormative individual, raises others’ standard of care while limiting the ability to hold ‘reasonable men’ liable. Second, the move from reasonable man to reasonable person, even if it signals a commitment to inclusivity, does not mean that this objective standard now has a fixed meaning. One of its core features is its ability to take on a wide-range of meanings, thus creating constant uncertainty and flux as there is a risk that that at any given moment the reasonable person will turn back to the reasonable man. The chapter concludes by examining several possible resolutions to the challenge posed by the reasonable man: changing his personification to a more inclusive one; eliminating the personification altogether; or diversifying the judicial composition, arguing that emphasis should be placed on the latter.
Reva Siegel, Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, Texas L. Review (forthcoming0
This Article examines originalism’s role in overruling Roe in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism’s authority, the Article shows that the conservative legal movement has practiced originalism as form of living constitutionalism that makes our constitutional order less democratic in several important ways.
To demonstrate how this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it.
The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration.
The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.
Monday, November 21, 2022
J.S. Welsh has published "Assimilation, Expansion, and Ambivalence: Strategic Fault Lines in the Pro-Trans Legal Movement" in Volume 110 of the California Law Review. The abstract previews:
For the past five decades, lawyers advocating on behalf of trans people have used arguments based in a binary understanding of gender to win critical legal battles in the fight for gender justice. These binary arguments clearly serve a strategic purpose: achieving major legal victories. Judges from state trial courts to the U.S. Supreme Court seem determined to reify traditional notions of gender identity. But this assimilationist strategy has its costs. The lived experiences of many queer, trans, and gender-nonconforming people is not necessarily consistent with the political goals implicit in the assimilationist approach. As the trans rights movement enters the law reform mainstream, this rift is increasingly exposed. This Article explores the conflicts that arise between groups within the pro-trans legal movement over who “counts” as trans for purposes of organizing and litigating, what compromises are necessary to push the movement forward, and who is included and excluded from political benefits.
Friday, November 11, 2022
Shalu Nigam, Different Facets of Feminist Lawyering in India
Much is being written about feminist lawyering in the West, but what is the purpose of feminist lawyering in the patriarchal context in third-world nations? While reflecting on case laws and activism in India, this essay argues that feminist lawyering in a profoundly hierarchical society is a much broader concept than that of traditional lawyering where a lawyer works not to `win the case’ but aims at the larger goals of eliminating inequalities, eradicating oppression, challenging sexist stereotypes, abolishing fascism and addressing conditions that perpetuate domination. In a society, where citizenship rights are denied to specific groups based on social parameters such as gender, race, caste, class or religion, feminist lawyering in such a context has to be understood broadly as a practice that supports those on the margins while holding the state accountable. It is about questioning the androcentric norms within and outside the courtrooms, asking the law, courts and society to be sensitive about gender concerns and to recognize and enforce the citizenship rights of half of humanity. This essay concludes that the purpose of feminist lawyering is to negotiate and contest the rights at various levels where feminist lawyers strive to transform the androcentric law and the layered, hierarchical society with the aim to enforce constitutional provisions of equality, liberty and social justice in reality.
Thursday, November 10, 2022
CFP Pandemonium -- Reflections on the Status, Health, Precarity and Promise of the Discipline of Feminist Studies
WSQ WOMEN'S STUDIES QUARTERLY SPECIAL ISSUE SPRING 2024
CALL FOR PAPERS: PANDEMONIUM
PRIORITY SUBMISSION DEADLINE: MARCH 1, 2023
Scholarly articles should be submitted to WSQ.submittable.com.
TRACEY JEAN BOISSEAU, Purdue University
ADRIANNA L. ERNSTBERGER, Marian University
This special issue of Women’s Studies Quarterly invites reflection on the status, health, precarity, and promise of the discipline of women’s, gender, sexuality, and feminist studies in light of our current state of pandemonium. By “pandemonium,” we point not only to those tragedies, inequalities, and disruptions to the university and higher education stemming directly from the Covid-19 pandemic but also to the crisis-roiled political context fomenting a barrage of assaults on feminist studies as a discipline in the United States and elsewhere that have been accelerating for several years prior to the pandemic and have only intensified since its outbreak.
Submissions should address ways our discipline--its individual practitioners and organizational institutions—have been affected by, or have encountered adversity and experienced struggle in the face of:
- The Global Pandemic and a panoply of consequences flowing from it
- Right-wing (white supremacist, anti-immigrant, anti- queer/trans, misogynist, etc.) movements
- Right-wing corporate media and social media
- Authoritarianism, illiberalism, and threats democratic institutions
- War, invasion, civil strife, and refugeeism
- Neoliberalism, corporatism, and commercialization
- Climate-change disasters, environmental degradation, and climate-change denial
- Impoverishment and the “austerity” measures and policies arising from the above
We are keenly interested in contributions that document and evaluate the ways that our discipline and its practitioners exercise and exhibit resistance, revolutionary praxis, and refusal to the above in the form of:
- Scholarly, pedagogical, and administrative strategizing
- Organizational-, institutional- and alliance-building (both inter- as well as intra-disciplinary)
- Public engagement, political activism, and direct action (both on- and off-campus)
- Escape hatches, off-ramps, and alternative social- cultural protest forms and modalities
We welcome contributions that recognize and share artistic and creative endeavors, performances, and cultural interventions offering insight and inspiration regarding the core themes of this issue.
Especially encouraged to submit are women; people of color; Black; Indigenous; gender-variant, LGBTQIA+; disabled people; and those whose work is located outside the United States or who collaborate cross-nationally.
PRIORITY SUBMISSION DEADLINE: MARCH 1, 2023
- Scholarly articles should be submitted to WSQ.submittable.com. Send complete articles, not abstracts. Remove all identifying authorial information from the file uploaded to Submittable. We will give priority consideration to submissions received by March 1, 2023. Scholarly submissions must not exceed 6,000 words (including un-embedded notes and works cited) and must comply with formatting guidelines at https://www.feministpress. org/submission-guidelines. For questions, email the guest issue editors at WSQEditorial@gmail.com.
- Artistic works (whose content relates clearly to the issue theme) such as creative prose (fiction, essay, memoir, and translation submissions between 2,000 and 2,500 words), poetry, and other forms of visual art or documentation of performative artistry should be submitted to WSQ.submittable.com. Before submitting, please review previous issues of WSQ to see what type of creative submissions we prefer. Note that creative submissions may be held for six months or longer. We do not accept work that has been previously published. (Simultaneous submissions are acceptable if the editors are notified immediately of acceptance elsewhere.) For questions related to creative prose submissions, email WSQCreativeProse@gmail.com. For questions related to poetry submissions, email the WSQ’s poetry editor at WSQpoetry@ gmail.com. For questions regarding other forms of artistic or creative work, email the visual arts editor at WSQvisualart@ gmail.com.
Wednesday, November 9, 2022
Feminist Cyberlaw Perspectives Offer a Clear View of the Nature of Digital Privacy Threats from Abortion Bans
Michela Meister & Karen Levy, Digital Security and Reproductive Rights: Lessons for Feminist Cyberlaw,
Feminist Cyberlaw (Meg Leta Jones and Amanda Levendowski, eds.), University of California Press, Forthcoming
Reproductive rights in the United States are under threat, and the threat is growing more serious by the day. The 2022 Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, overturning the fundamental right to abortion enshrined in Roe v. Wade, cast into danger the lives and livelihoods of millions of people. The rise of digital technologies has exacerbated these threats in multiple ways, and digital threats have a marked impact on abortion access. Threats to reproductive rights are of paramount importance to people interested in the gendered relationship between law and technology. But they also offer a case study in what a feminist viewpoint provides to cyberlaw even beyond abortion. In this chapter, we offer three lessons for feminist cyberlaw in the wake of Dobbs. Feminist perspectives offer a clear-eyed view of the nature of threats to reproductive privacy. They illustrate that privacy threats indeed lead to physical harms and “dead bodies,” if you prioritize looking for them; they show the insufficiency of protecting discrete pieces of particularly sensitive data while continuing to collect massive amounts of other more general data; and they emphasize the entanglements and interdependence of multiple kinds of vulnerabilities, multiple kinds of attacks, and multiple kinds of targets. Recognizing these characteristics shows an appreciation for the complexity of the problem—a first step toward devising adequate solutions to protect the lives and livelihoods of abortion seekers and providers in the post-Dobbs era.
Friday, October 21, 2022
Deborah Brake, Theory Matters—And Ten More Things I Learned from Martha Chamallas About Feminism, Law, and Gender,83 Ohio State L.J. 435 (2022)
This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; gender is intersectional; gender is constructed and gender constructs, to name a few), along with Chamallas’s scholarly works, remain as relevant as ever, and continue to spark new insights into perennial controversies touching on law and social change, gender and inequality, and feminism’s influence on law.
Tuesday, October 11, 2022
Stephanie Frisinger, Commodification of Feminism: Consequences and Insight for the Millennial Generation of Young Women, 55 Creighton L. Rev. 193 (2022)
After Donald Trump’s election and the Harvey Weinstein sex abuse scandal’s aftermath, many millennial young women shared a collective sense of grief and betrayal. Growing up in the millennial generation provided a generation of young women with a false sense of security when it came to gender equality. An entanglement of commodified feminism, post-feminist rhetoric, and raunch culture created an environment for millennial young women to be susceptible to the belief that they lived in a post-feminist society. Millennial women spent their childhood, adolescence, and early adulthood wearing these rose-colored glasses. And wearing these rose-colored glasses at this critical time in development came with its consequences. Following the events of 2016 and 2017, the rose-colored glasses came off as millennial women had to come to terms with their misplaced optimism in a post-feminist society. Now, as a generation of young women emerge from this impasse, where they have coped with their misplaced optimism, a new feminist wave emerges, eager to learn from the mistakes of the past and continue the fight for gender equality
Tuesday, September 20, 2022
One of these women was Martha Albertson Fineman, who in the early 1980s launched the Feminism and Legal Theory Project at University of Wisconsin Law School. For decades, the project has brought together scholars and activists from the U.S. and abroad to explore the most pressing contemporary legal issues affecting women. In multiple-day sessions, organized around specific, evolving sets of issues, feminists presented working papers and debated women’s legal rights. Fineman recorded and preserved these groundbreaking conversations, as well as the working papers and other written material prepared for these sessions.
Fineman is now struggling to convince librarians more accustomed to collecting individuals’ or organizations’ papers of the importance of this historic trove of audio, visual and written materials documenting the collective development of feminist concepts, aspirations and theory.***
For close to four decades, Fineman’s Feminism and Legal Theory Project has hosted hundreds of conversations where feminist thinkers from across the United States and world have shaped and explored a wide range of concepts relating to women’s position within law and society. Those conversations delved into the “public nature of private violence,” the legal regulation of motherhood, feminism’s reception in the media, the relevance of economics to feminist thought, the complexities of sexuality, conflicting children’s and parental rights, the origins and implications of dependency and vulnerability, and the extent and nature of social responsibility.
“Feminism teaches us that the best ideas come from working together in inclusive, supportive groups,” said Fineman. “Feminism has grown through consciousness raising and the sharing of experience. The best ideas and the best politics emerge from collective engagements and processes.”***
“In the Feminism and Legal Theory Project, we created what I called ‘uncomfortable conversations’—events where people who shared values, but disagreed about strategies and implementation, could talk,” said Fineman. “If there were areas of disagreement around collective objectives, you could talk about them and work through them hopefully in a constructive manner. That’s how actual progress can be made.”***
Fineman recorded all of these conversations—a treasure trove of close to four decades of feminist intellectual history. But she is now struggling to find a home for this invaluable archive of the first generation of feminist legal thinkers.
“History has something to teach us. If we don’t collect the history and preserve it, then it can’t teach us,” said Fineman.***
After speaking with people at women’s history archives, Fineman is concerned about how decisions to preserve women’s history are made. “Who makes the determination about what and who in the past matters? How and why they make such decisions ultimately shapes what will constitute women’s or feminist history,” said Fineman. “An important piece of feminist history is at risk of being lost or isolated and sidelined.
The International Research Conference Aims and Objectives
The International Research Conference is a federated organization dedicated to bringing together a significant number of diverse scholarly events for presentation within the conference program. Events will run over a span of time during the conference depending on the number and length of the presentations. With its high quality, it provides an exceptional value for students, academics and industry researchers.
International Conference on Feminist Legal Theory, Gender and Law aims to bring together leading academic scientists, researchers and research scholars to exchange and share their experiences and research results on all aspects of Feminist Legal Theory, Gender and Law. It also provides a premier interdisciplinary platform for researchers, practitioners and educators to present and discuss the most recent innovations, trends, and concerns as well as practical challenges encountered and solutions adopted in the fields of Feminist Legal Theory, Gender and Law.
Call for Contributions
Prospective authors are kindly encouraged to contribute to and help shape the conference through submissions of their research abstracts, papers and e-posters. Also, high quality research contributions describing original and unpublished results of conceptual, constructive, empirical, experimental, or theoretical work in all areas of Feminist Legal Theory, Gender and Law are cordially invited for presentation at the conference. The conference solicits contributions of abstracts, papers and e-posters that address themes and topics of the conference, including figures, tables and references of novel research materials.
Thursday, September 15, 2022
Jodi Lazare & Kelsey Warr, A Gender-Based Approach to Historical Child Support: Comment on Colucci v Colucci. Canadian Journal of Family Law 2022
In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law. The comment argues that in changing the applicable framework, the Court has endorsed a gendered approach to historical child support law that responds to many of the concerns that flowed from DBS.
Drawing on the text of the decision, as well as relevant case law and scholarship, we outline the theoretical foundations for the changes brought by Colucci, as well as their practical implications. We suggest that in clarifying child support as the right of the child, decreasing the emphasis on certainty for payors, and stressing the necessity of financial disclosure, the Court has feminized the law of historical child support. We explain how, using that feminist lens, Colucci modifies the framework for adjudicating historical child support claims, by creating a presumption in favour of an award in the presence of a change of income, softening the three-year time limit of so-called retroactivity, and repositioning and reconceptualizing the DBS factors which now inform how far back a historical child support award should go. In fleshing out and analyzing these changes, we consider the ways in which Colucci may better serve to promote substantive gender equality in historical child support law by responding to women and children’s lived realities.
Wednesday, September 7, 2022
The AALS Section on Women in Legal Education invites submissions for its program Emerging Voices in Feminist Theory at the 2023 AALS Annual Meeting in San Diego, California (January 3-6, 2023).
This works-in-progress session will give scholars writing on any topic concerning feminist theory the opportunity for engagement on a current project with others in the field. Each selected scholar will present a work-in-progress and receive comments from an assigned commentator, as well as from other participants. The session will provide selected scholars with a supportive environment in which to receive constructive feedback.
Full-time faculty members of AALS member and fee-paid law schools are eligible to submit works-in-progress. Visiting faculty (not full-time on a different faculty) and fellows are eligible to apply to present at this session. We especially encourage submissions from members of groups who are underrepresented in the academy, including people with disabilities.
Please submit an abstract (500 words or less). Scholarship may be at any stage of the writing process from early stage to almost-completed article, but cannot yet be accepted for publication at the time of abstract submission. Each potential speaker may submit only one abstract for consideration.
To be considered, abstracts should be emailed to Professor Danielle C. Jefferis, University of Nebraska College of Law, at email@example.com by Friday, September 16, 2022.
Submission review, selection, conference attendance: Abstracts will be reviewed by members of the Section's Works-in-Progress subcommittee, which also includes Katherine Macfarlane, Southern University Law School, Suzanne Kim, Rutgers Law School, and Naomi Cahn, University of Virginia School of Law. Selected presenters will be announced by October 1, 2022. The Call for Paper presenters will be responsible for paying their own AALS registration fee, hotel, and travel expenses. If paper presenters want anything beyond their abstracts discussed at the AALS session, then papers must be submitted by Dec. 15, 2022, to ensure distribution.
Wednesday, August 24, 2022
Sex positivity — the idea that feminism should privilege sexual pleasure and fight sexual repression — has dominated feminism for most of my life. It was a reaction to puritanical trends in feminism that ignored the reality of women’s desires.
Some second-wave feminists had treated heterosexual sex — as well as remotely kinky queer sex — as inherently degrading, if not counterrevolutionary, which naturally drove many women away from feminism. (In a 1972 Village Voice essay, Karen Durbin described dropping out of the women’s movement in part because she was “hopelessly heterosexual.”) Sex-positive feminism understood the demand for celibacy or political lesbianism as a dead end, and saw sexual fulfillment as part of political liberation.
But sex positivity now seems to be fading from fashion among younger people, failing to speak to their longings and frustrations just as anti-porn feminism failed to speak to those of an earlier generation. It’s no longer radical, or even really necessary, to proclaim that women take pleasure in sex. If anything, taking pleasure in sex seems, to some, vaguely obligatory. In a July BuzzFeed News article headlined, “These Gen Z Women Think Sex Positivity Is Overrated,” one 23-year-old woman said, “It feels like we were tricked into exploiting ourselves.
I started noticing the turn away from sex positivity a few years ago, when I wrote about a revival of interest in Dworkin’s work. Since then, there have been growing signs of young women rebelling against a culture that prizes erotic license over empathy and responsibility. (A similar reorientation is happening in other realms; generational battles over free speech are often about whether freedom should take precedence over sensitivity.)
Post #MeToo, feminists have expanded the types of sex that are considered coercive to include not just assault, but situations in which there are significant power differentials. Others are using new terms for what seem like old proclivities. The word “demisexual” refers to those attracted only to people with whom they share an emotional connection. Before the sexual revolution, of course, many people thought that most women were like this. Now an aversion to casual sex has become a bona fide sexual orientation.
Monday, July 18, 2022
Joan Macleod Heminway, Corporate Management Should All Be Feminists, 40 Law & Ineq. 409 (2022)
The title of this essay may alienate some readers, including the very people who may benefit from it most—corporate directors and officers. Specifically, the title directs the reader to a potentially uncomfortable normative conclusion, using what may be an off-putting “f” word. However, the essay is less about feminism (although it is about feminism) than it is about effective, efficient corporate management in the United States.
The essay offers an operational definition of feminism (as anti-sexism) derived from the merger of two foundational literary texts. It is hoped that the resulting reflections and observations will refocus at least some broader academic and practical discussions of gender— and other elements of difference, for that matter—in the corporate board context on structures, systems, and processes rather than on counting female directors (or other directors of difference) or on analyzing and specifying the particular roles they may serve in corporate governance. In doing so, the essay seeks to change not only the beliefs of corporate management, but also those of external corporate constituents and the public at large. In sum, this essay urges that directors and officers be feminists to change what they do and change what they see—in order to effectuate change in what we all see. me readers, including the very people who may benefit from it most—corporate directors and officers. Specifically, the title directs the reader to a potentially uncomfortable normative conclusion, using what may be an off-putting “f” word. However, the essay is less about feminism (although it is about feminism) than it is about effective, efficient corporate management in the United States.
Wednesday, June 29, 2022
Reva Siegel, The Politics of Constitutional Memory, 20 Georgetown J. Law & Public Policy 19 (2022)
Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law.
This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law.
To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents.
But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.
Friday, June 24, 2022
Emily Suski, Institutional Betrayals As Sex Discrimination, 107 Iowa L. Rev. (2022)
Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe than those resulting from the original sexual harassment. Further, schools do not passively cause institutional betrayals; they impose them in three affirmative ways: Schools punish students for their sexual harassment, blame them for it, and communicate an automatic, default disbelief of students’ harassment.
Because Title IX’s statutory mandate is broad—it prohibits sex discrimination without limitation—courts could recognize as sex discrimination the institutional betrayals that schools impose on students because of their status as survivors of sexual harassment. None of the three extant judicially created forms of sex discrimination under Title IX, however, has the capacity to meaningfully do so. When schools impose institutional betrayals, therefore, courts find that they do not violate Title IX.
To remedy this jurisprudential failing, this Article develops a theory of institutional betrayals as a new form of sex discrimination under Title IX. Drawing on empirical research on institutional betrayals, this theory contends that when schools impose institutional betrayals, they knowingly injure students because they have suffered gender-based harm. This Article also offers a framework for evaluating this new type of sex discrimination that would compel courts to assess institutional betrayals as sex discrimination. With such changes, Title IX jurisprudence would not only effectively recognize institutional betrayals as sex discrimination but also remedy their harms and better fulfill Title IX’s protective purpose.
Monday, June 20, 2022
Susan Faludi, Op-ed, NYT, Feminism Made a Faustian Bargain with Celebrity Culture. Now Its Paying the Price
The ruination of Roe and the humiliation of Ms. Heard have been cast as cosmic convergence, evidence of a larger forced retreat on women’s progress. “Johnny Depp’s legal victory and the death of Roe v. Wade are part of the same toxic cultural movement,” a Vox article asserted. “These examples may seem disparate, but there’s an important through line,” a USA Today reporter wrote, citing academics who linked the Alito draft opinion, the Depphead mobbing and, for good measure, the “public consumption” of cleavage at the Met Gala (held the same night the Supreme Court draft leaked): “This is backlash.”
Backlash it may be. Even so, putting the pillorying of Ms. Heard in the same backlash-deplorables basket as the death rattle of Roe is a mistake. Lost in the frenzy of amalgamation lies a crucial distinction. There’s a through line, all right. Both are verdicts on the recent fraught course of feminism. But one tells the story of how we got here; the other where we’re headed. How did modern feminism lose Roe v. Wade? An answer lies in Depp v. Heard.***
Using celebrity and hashtag feminism is a perilous way to pursue women’s advancement because it falls victim so easily to its own tools and methods. In Ms. Heard’s case, her ex-husband turned #MeToo’s strategy against itself. Mr. Depp claimed victimization because he’s a money-generating personality — he could be de-famed because he’s famous. And his massive (and vicious) fan mobilization on social media (nearly 20 billion views for #JusticeForJohnnyDepp on TikTok by June 2) was overwhelming, even by #MeToo standards. By contrast, #JusticeForAmberHeard had about 80 million views on TikTok in the same period.
Celebrity representation of feminism is a double-edged sword. If an individual embodies the principle, the principle can be disproved by dethroning the individual. In that way, Ms. Heard became both avatar and casualty of celebrity feminism. When she took the stand, she brought the modern incarnation of the women’s movement into the dock, too, and mobilized those who would see it brought down. If an ambassador for women’s rights wasn’t credible, Ms. Heard’s mob of haters was quick to conclude, then the movement wasn’t, either. No need to fret over those legions of unfamous women who may now think twice before reporting domestic violence.
Coupling the fortunes of feminism to celebrity might have been worth it if it had led to meaningful political victories. But such victories are hard to achieve through marketing campaigns alone, as the right wing understands.
Monday, June 13, 2022
Catherine Ross Dunham, Social Truths in the Workplace: How Adversarialism Undermines Discrimination Litigation
This article explores the effectiveness of dispute resolution for gender discrimination claims in the American system of civil litigation. Adversarialism is a defining feature of the American system of civil justice, beginning with reduced trust in the quasi-inquisitorial system of Chancery in the nineteenth century and escalating with the increased importance of lawyers and public trials in the twentieth and twenty-first centuries. Although adversarialism remains of great importance in some aspects of the American system, this article questions whether the adversarial system is the best dispute resolution system to address workplace-based discrimination claims, as those claims are intimately connected to changes in social and cultural understandings within the workplace and within American society.
The tenets of our system over-rely on the assumption of a shared social context to define social truth. But that assumption is flawed in workplace discrimination litigation as workplace context varies by profession, and the worker experience varies based on the individual’s position in the hierarchy. For example, in a gender bias-driven workplace, a male supervisor may see the workplace culture as fair and merit-based, whereas his female contemporary may view the workplace culture as competitive and closed, seeing her position as that of an outsider who had to navigate her career path carefully. These varying perspectives create different social truths in the workplace, which are challenged by litigation. When the female employee claims that she was discriminated against in an unfair workplace, her social truth is thrust against the social truth of other supervisors and managers who view the workplace as fair. Litigation places those two conflicting understandings of workplace culture into direct controversy and positions the relevant parties as adversaries not only on the legal issues, but also on the issue of what is true about the workplace culture, reducing the opportunity for meaningful cultural change within and without the workplace.
This article asks what type of dispute resolution system can create a more reliable assessment of workplace social truth. By exploring options such as the quasi-inquisitorial systems of American Chancery and European conciliation, as well as the role of arbitration in American civil litigation, the article suggests that a non-adversarial approach allows for a more holistic resolution of workplace controversies. If a conflict is overseen by a judicial officer who can approach the conflict from a place of conciliation, cognizant of the relevant community and social context, resolution options can not only offer relief to the plaintiff within the subject workplace, but can also protect the relevant economic and cultural interests of the defendant. Conflict resolution which attempts to understand the competing social truths of the workplace, can offer an opportunity for voluntary change in the workplace without placing parties fully at risk, as they are in the “winner-take-all” litigation scenario. Furthermore, as our social truths evolve and change, our dispute resolution system, which de facto manages those truths through adversarial litigation, should be reconsidered for its role in creating new truths about whether the workplace is fair to all.
Carys Craig & Anupriya Dhonchak, Against Integrity: A Feminist Theory of Moral Rights, Creative Agency, and Attribution, Research Handbook on Intellectual Property and Moral Rights, Ysolde Gendreau (ed), Edward Elgar (Forthcoming)
The term “moral rights” captures a collection of personal rights of the author that run parallel to economic copyright interests. These moral rights include the right of attribution (the right to be associated with the work as its author) and the right of integrity (the right to object to modifications of the work that may prejudice the author's honor or reputation). It is generally agreed that moral rights occupy a unique place (the moral high ground, if you will) within the copyright realm, reflecting an intimate and ongoing personal connection between the author and their work that is deserving of acknowledgement and respect. Yet it is not generally recognized that feminist theory has something to say about the nature of this intimate personal connection and the rights that it seemingly entails.
This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. We begin by explaining why certain facets of conventional moral rights theory (typically based on the writings of Kant and Hegel) are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. Conceptually, they demand and support an individualized and romanticized conception of the (patriarchal) author-figure. In practice, to the extent that strong moral rights of integrity and association limit dialogic engagement and transformation of protected works, they risk suppressing the kind of critical and counter-hegemonic expression that is vital to a feminist political agenda. Employing alternative feminist conceptions of situated selfhood, relationality, and dialogic authorship, we then explore what it might mean to reimagine moral rights in a way that resists claims to exclusion and control, but reflects the personal, social, and political value of creative agency. We present a limited defense of the right of attribution on these terms, and conclude with a call for attribution as feminist praxis.