Thursday, March 14, 2019
*** “Last Days at Hot Slit,” a new anthology of Dworkin’s work, shows that the caricature of her as a simplistic man-hater, a termagant in overalls, could only be sustained by not reading what she actually wrote
The editors, Johanna Fateman and Amy Scholder, present a chronological selection from Dworkin’s books, essays, novels and unpublished fragments, making it clear that her “restless output,” as Fateman puts it in her excellent introduction, amounted to much more than saying that all sex is rape. Dworkin herself never wrote that, though she did deem a common sex act tantamount to colonialism: “The woman in intercourse is a space inhabited, a literal territory occupied literally.” Her verdict on pornography was even more extreme, equating fantasies of domination and submission with a fascist wish-fulfillment — “Dachau brought into the bedroom and celebrated.”
Such categorical edicts were what Dworkin became known (and lampooned) for, though they also happened to be the least interesting aspect of her work. A new generation of feminists have reclaimed her, seeing in Dworkin’s incandescent rage a source of illumination, even as they bristle at some of her specific views. As Moira Donegan states it succinctly in a recent essay for Bookforum, Dworkin’s “inflexible opinions” on pornography and sex work have “fallen dramatically out of fashion;” Rebecca Traister, who cites Dworkin as an inspiration in her book “Good and Mad,” says the same. The Times columnist Michelle Goldberg suggests that Dworkin’s adamant refusal to seek approval from men expands the terms of a circumscribed discussion: “To treat her writing with curiosity and respect is itself a way of demonstrating indifference to male opinion.”
Tuesday, March 5, 2019
Robin Kar & Lesley Wexler, #MeToo: Counting the Collective Harm of Missing Women's Work, Justia
As a grassroots movement fostered by social media and amplified by traditional journalism, the #MeToo movement has helped countless victims find the courage to share experiences of sexual harassment that might otherwise have gone unreported. Public acts of storytelling like these can galvanize social reform. They can raise public consciousness about a problem, create bonds of mutual concern and commitment to solve it, and help people who lack experience with sexual harassment understand the qualitative nature of its harms. Grassroots developments are especially important to bring attention to problems that have traditionally been denied, normalized, or unduly diminished in importance.
Given its grassroots origins, the early #MeToo movement fits a wider pattern of women’s empowerment movements from around the world, and over the course of world history, which often begin with self-organized efforts of just this kind. Over time, however, successful movements typically evolve to further stages, which give them broader impact, by attracting “supporters and mentors who offered their struggle the credibility they needed, and offered material resources including funds, professional expertise, mentoring, and training for developing necessary skills for members of the movement.” To broaden its support base and deepen public understanding of the harms of sexual harassment, #MeToo may similarly need to form alliances that combine grassroots public storytelling with other modes of knowledge production.
Academic research institutions—and especially those concerned with broader community needs—may prove pivotal at this juncture. This is because academic institutions are especially well positioned to measure the scope of the collective harms generated by sexual harassment and identify the most promising causal interventions to reduce those harms. As an analogy, consider economist and Nobel Prize winner Amartya Sen’s pathbreaking work More Than 100 Million Women Are Missing. Before he produced this work, it was well known anecdotally that female children were not being born or surviving as often as male children in many parts of the world due to phenomena like sex-selection during pregnancy, femicide, and inadequate care for female children. Individual stories of these problems abounded—and they were heartbreaking. But it took thoughtful econometric modeling and a creative search for reliable indices of the problem for Sen to measure it and establish that there were literally more than 100 million fewer women in the world than there should have been at the time.
Once the jaw-dropping scope of the problem was made clear, it garnered the attention of many more people with a broader range of skill sets.
Tuesday, February 5, 2019
Robin West & Cynthia Grant Bowman, eds., Research Handbook on Feminist Jurisprudence
The Research Handbook on Feminist Jurisprudence surveys feminist theoretical understandings of law, including liberal and radical feminism, as well as socialist, relational, intersectional, post-modern, and pro-sex and queer feminist legal theories.
Friday, January 18, 2019
Jon Penney & Danielle Keats Citron, When Law Frees Us to Speak, Fordham Law Review (forthcoming)
A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We present new empirical research showing cyber harassment law’s salutary effects on women’s online expression. We consider the implication of those findings for victims of sexual privacy invasions.
Tuesday, January 15, 2019
Catherine Martin Christopher, Nevertheless She Persisted: Comparing Roe v. Wade's Two Oral Arguments, 49 Seton Hall L. Rev. 307 (2018).
There is a longstanding and popular sentiment in the legal profession that oral arguments do not really matter; rather, everything rides on the written briefs. This Article takes that old adage head on, and does so through analysis of one of the most controversial cases ever decided by the United States Supreme Court: Roe v. Wade. It is a little-known fact that Roe was argued before the Court not once, but twice, which presents a unique opportunity to consider the place and power of oral arguments in Supreme Court jurisprudence.
This Article offers a comprehensive analysis and critique of the two oral arguments in Roe. The Article first analyzes the oral arguments pragmatically, undertaking a scholarly investigation of the arguments to investigate their impact on the majority opinion. Next, the Article proceeds theoretically, engaging in a feminist legal theory analysis to assess how the Roe arguments were both a product of their time and shaped feminist legal theory going forward.
Wednesday, November 28, 2018
Relevant to today's legal debate re: #MeToo. Adopting a tort construct for sexual harassment claims might also mean changing the "reasonable person" standard to define the aggressor rather than the victim.
Marcia McCormick, Let’s Pretend that Federal Courts Aren’t Hostile to Discrimination Claims, 76 Ohio State Law Journal Furthermore (2015)
Professor Sandra Sperino’s article, Let’s Pretend Discrimination Is a Tort, makes a valuable contribution to the debate about the proper interpretation of Title VII and other employment discrimination laws in light of Supreme Court trends. Professor Sperino ably describes the way that the Supreme Court has used tort concepts increasingly in recent cases, even having gone so far as to have called employment discrimination statutes federal torts. This development has created significant concern among scholars, including Professor Sperino herself.
Rather than simply reiterate those concerns, however, in her article Professor Sperino adopts a novel approach: she takes the Court at its word, spinning out how embracing tort concepts and tort methodology would transform discrimination law. In sum, she explores how using tort concepts could “clarify the roles of intent and causation in discrimination analysis, [should] alter the way courts conceive intent, [should] lower the harm threshold for some sexual harassment cases,” and would transform current approaches to statutory interpretation, allowing the law greater “flexibility to respond to changing circumstances.” This response essay applauds Professor Sperino’s work in this area, her suggestion of a silver lining in a problematic trend, and the roadmap she lays out for a more positive trajectory. At the same time, I worry that she is unlikely to succeed because the actors she relies upon to effect the changes she projects are unwilling to do so.
Monday, November 19, 2018
Deborah Hellman, The Epistemic Commitments of Nondiscrimination
A commitment to nondiscrimination at times appears to require both that one not act in particular ways and that one not believe certain things. This is potentially troubling if one ought to believe what one has warrant to believe, and to the extent that one can take actions that affect what one comes to believe, one ought to do so with the aim of acquiring true beliefs. This article argues that current social controversies – like the debate over the memo by the Google employee which claimed that women are less suited for careers in technology fields – demonstrate that some defenders of norms of nondiscrimination understand these norms as including epistemic commitments. The article articulates what these epistemic commitments are, explores whether they can themselves be epistemically justified and, if not, situates the popular controversy in a philosophical debate about whether moral considerations properly encroach on epistemic norms.
From the Introduction:
"My aim in what follows is to connect up these political controversies to the philosophical debate about whether moral and pragmatic considerations can and should affect beliefs and credences. Doing so illuminates what is at stake in these disputes by enabling us to locate the precise points of philosophical disagreement. At the same time, reflecting on how the political controversies play out may tell us something about how to make progress in the philosophical domain."
Thursday, November 15, 2018
Sharon Thompson, Feminist Relational Contract Theory: A New Model for Family Property Agreements, 45 J. Law & Society 617 (2018)
In this article, a new model named Feminist Relational Contract Theory (FRCT) is explained, justified, and applied to the context of family property agreements and specifically nuptial agreements. Most nuptial agreements are created amidst a complex web of power relationships and the dynamic of these relationships often evolves over time. However, the courts in England and Wales have not yet found a way to recognize this without adopting a paternalistic approach. This article proposes an alternative that could, in practice, recognize issues of power between parties entering family property agreements, exploring a recent Australian case on nuptial agreements which adopts a more contextual understanding of contract law.
Tuesday, November 13, 2018
Priscilla Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191 (2018)
Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States. Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country. Women have been uniquely devastated by this shift toward incapacitation. Indeed, the United States is home to the largest and fastest growing women’s prison population in the world. Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.
This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women. The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood. Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers. Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms. Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.
Wednesday, November 7, 2018
Jessica Clarke, They, Them, and Theirs, 132 Harvard Law Rev. (2019)
Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But the idea of nonbinary gender as an identity itself only appears at the margins of U.S. legal scholarship. Many of the cases recognizing transgender rights involve plaintiffs who identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend those categories. The increased visibility of a nonbinary minority creates challenges for other rights movements, while also opening new avenues for feminist and LGBT advocacy. This Article asks what the law would look like if it took nonbinary gender seriously. It assesses the legal interests in binary gender regulation in areas including law enforcement, employment, education, housing, and health care, and concludes these interests are not reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts.
Tuesday, November 6, 2018
Asked whether she was a feminist, Amy McGrath, the former Marine fighter pilot running for Congress in Kentucky, was emphatic: “Hell yeah, I’m a feminist.” Her opponent, Representative Andy Barr, turned her words into an attack ad.
Many politicians have considered the word “feminist” toxic. But that might be changing. In 11 battleground districts nationwide, including Kentucky’s Sixth, about half of voters said they supported electing feminists, compared with roughly a third who opposed it, according to Upshot/Siena House polls this fall. About a fifth said they didn’t know.
We don’t have past surveys asking the same question to compare with these results, and support of feminist candidates is still not a majority opinion — more Republicans opposed electing them than supported it. But the overall support our polls found would have been unthinkable in even recent elections, scholars say. Some compare this moment to the feminist political movements of the 1920s and 1970s.
The spark, people across the political spectrum said, was the MeToo movement, after the misogyny seen in the 2016 presidential campaign.
“An embrace of the term in political candidates? That’s news,” said Estelle Freedman, a professor at Stanford who specializes in women’s history. “We know that women have been really politicized by the perceived assault on women’s rights writ large. The kindling was there, and it got ignited by the misogyny.”
One reason that voters’ support for feminist candidates is surprising is that in a variety of surveys, only a fifth or fewer identify as feminists themselves. (The share goes up when the word is defined as equal rights for men and women, or when specific feminist policies are mentioned.) Our polling question, asked in 14 districts, was whether respondents supported or opposed electing more people who describe themselves as feminists. It did not define the term.
Wednesday, October 31, 2018
Brenda Cossman, #MeToo, Sex Wars 2.0 and the Power of Law, Asian Yearbook of Human Rights and Humanitarian Law (Forthcoming)
In this essay, I explore these contestations between and among feminists within the #MeToo movement. Some feminists have expressed discomfort and disagreement with elements of the #MeToo. This critique was quickly framed as a generational one, with media reports focusing on the conflict between millennials and second wave feminists. I argue that it is more productive to situation the disagreements and contestations of #MeToo within the context of what I refer to as Sex Wars 2.0 – that is, the return of the feminist sex wars of the 1970s and 1980s. I also explore the controversies around role of law in the #MeToo movement. #MeToo critiques, including some feminist voices, have denounced the absence of the rule of law, with individual men losing their livelihoods without the due process of law. I argue that this critique is itself symptomatic of the broader role of law in the legal regulation of sexual violence. Law has long been the arbiter of sexual violence, both defining and harms and deciding whether that harm has occurred. Even in its apparent absence, law is I argue deeply present. It is this power of law that casts a long shadow over #MeToo and helps explain the due process critiques and some of the feminist contestations around the overreach of law.
Wednesday, October 24, 2018
Margaret Johnson, Feminist Judgments & #MeToo
The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate gender justice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.
Narrative’s power is evidenced by the #MeToo movement, which resurged on October 16, 2017. People posted their personal stories of being subjected to sexual harassment or assault—often contradicting previously assumed or accepted narratives told by powerful people. Within twenty-four hours, there were more than twelve million #MeToo posts on Twitter, Facebook, and other social media platforms. And people listened to the en masse telling of how (generally) men had exercised the power and control of sexual assault, harassment or misconduct. The listening shifted power structures. In less than two months, these narratives led to the removal of influential men from their previously vaunted positions. ***
The Feminist Judgments Project questions the assumption that published court opinions are the only acceptable narrative of a judicially addressed conflict. In rewriting landmark opinions from a feminist perspective, the project brings to the surface untold, ignored, and suppressed alternative narratives of those conflicts. The project examines court opinions and rewrites them using the same facts and case precedent as the original opinion—but in a new light. That new light is feminist legal theory. With the new perspective, or what Professor Carolyn Grose calls “goggles,” in place, different facts and precedent may come into view.
Thursday, October 18, 2018
Marc Chase McAllister, Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims Involving Multiple Discriminatory Motives, 60 Boston College L. Rev. (forthcoming)
This article examines a double judicial split in age discrimination cases, one pertaining to Title VII and the other to the ADEA. First, this article considers whether the Title VII sex-plus discrimination doctrine should apply to discrimination claims specifically combining sex and age, and contends that such claims should be more routinely permitted to combat discrimination against older female employees. Second, this article considers whether the sex-plus discrimination doctrine should extend to age-plus discrimination claims under the ADEA. In a thorough analysis, this article shows that the ADEA’s “but for” standard of causation permits discrimination claims based on the combination of age and another immutable characteristic, like race or gender. Nevertheless, because Congress has not amended the ADEA to clarify how it applies in cases involving multiple discriminatory motives, courts will likely remain hesitant to recognize ADEA plus discrimination claims. Accordingly, this article proposes that Congress amend the ADEA to state that an ADEA plaintiff may prevail upon proof that his or her age was “a motivating factor for an adverse employment action, even though other discriminatory or illegitimate factors may have also motivated the employer.”
In 1995, I published the attached article in the Cornell Law Review, arguing that a proper application of agency law would impose strict vicarious liability on employers for nearly all on-the-job sexual harassment. (See Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).) Three years later, the U.S. Supreme Court decided the cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Ellerth v. Burlington Industries, 524 U.S. 742 (1998), taking a different approach. The Court held that in the absence of a tangible employment decision (such as termination of employment), an employer sued for sexual harassment could assert an affirmative defense that it had an anti-harassment policy that the employee unreasonably failed to invoke, and that it vacted properly once on notice of the harassment.
As the #MeToo movement dramatically illustrates, in the ensuing twenty years, the law of harassment has woefully failed to protect women workers. All too often women harassed on the job find their cases dismissed or decided against them on summary judgment because they failed to properly follow their employer’s anti-discrimination policy, even when the employer knew of the harassment. As Lauren Edelman argues in Working Law (2016), courts have accepted the existence of anti-discrimination policies as persuasive proof of a lack of discrimination/harassment, even in the face of evidence that the policies are ineffective, or serve only a symbolic purpose.
This may be a good time, then, to return to the common law of agency, and the duties it imposes on employers to protect the safety of employees. For good reasons of public policy, worked out over many years, those rules usually impose strict liability on employers for harm caused by or to employees, and treat these as duties an employer may not delegate to others. Re-visiting Exacerbating the Exasperating seems like a good place to start.
Tuesday, October 9, 2018
The Center for Applied Feminism at the University of Baltimore announces its call for papers its call for papers for the 2019 Feminist Theory Conference.
2019 Feminist Legal Theory Conference
Call for Papers
APPLIED FEMINISM AND #METOO
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Eleventh Feminist Legal Theory Conference. We hope you will join us for this exciting conference on Friday, April 12, 2019. The theme is the #MeToo movement.
The resurgent #MeToo movement and the Kavanaugh confirmation hearings have put a spotlight on sexual harassment and sexual assault in our society. Across America, the #MeToo movement has spurred women to share their stories of sexual harassment, run for office, advocate for change, litigate abuses, and build coalitions. As a result of this social movement, there are emerging proposals to change the law, workplaces, schools and family dynamics to decrease sexual harassment and assault and ensure better responses to complaints. In addition, the Kavanaugh hearings have created discussions about credibility, trauma, anger, and employment qualifications. In sum, we are at a critical moment, a reckoning, of the persistent systemic sexual harassment and assaults of women. At the same time, certain voices seem less visible in the movement, such as men who are harassed and assaulted, women who are low-income, women of color, women living with disabilities, and those who are imprisoned or subject to police violence. And proposals for change may be too limited.
We seek submissions of papers that focus on the topic of Applied Feminism and #MeToo. This conference aims to explore the following questions: What impact has #MeToo had on feminist legal theory, critical race feminist theory, class crit feminist theory, and other critical legal theories? How has #MeToo changed law and social policy? What more needs to be done, and how? How can #MeToo be expanded to address all victims and survivors of sexual harassment and assault? How can we respond to intersecting forms of oppression like race, class, and disability? How can law and theory address the barriers to persons making claims of sexual harassment and assault? How can law and theory address distrust and anger towards sexual harassment and assault claims? What should be individual and systemic responses to sexual harassment and assault claims? What more can be done to eradicate sexual harassment and assault in the workplace, institutional, and other settings?
We welcome proposals that consider these questions and any other related questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners, and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, U.S. District Judge Nancy Gertner, and Obama administration official Jocelyn Frye.
To submit a paper proposal, by Friday, November 2, 2018, please complete this form and include your 500 word abstract: https://docs.google.com/forms/d/e/1FAIpQLSeTVf_gKjDmLaMlx_OX_AvKY9iUPCNy-CULsiThkpb_ie89ZQ/viewform?usp=sf_link. We will notify presenters of selected papers by early December. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, the form requests that you indicate if you interested in publishing in the University of Baltimore Law Review's symposium issue. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 22, 2019. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at firstname.lastname@example.org. For additional information about the conference, please visit law.ubalt.edu/caf.
Thursday, September 20, 2018
Chao-Ju Chen, Catharine A. MacKinnon and Equality Theory in Robin West and Cynthia Bowman eds, Research Handbook on Feminist Jurisprudence (2018, Edward Elgar), Forthcoming
This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.
Wednesday, September 19, 2018
Linda McClain, Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects, 67 Emory L. J. (2018)
This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In evaluating Fineman’s call to move beyond identities and antidiscrimination law, the essay explores the rhetoric of vulnerability in the briefs in the recent Masterpiece Cakeshop litigation. This essay also charts my own critical engagement with Fineman’s critique of liberalism and the liberal subject in my constructing a form of liberal feminist legal and political theory. The essay identifies parallel concerns about the role of the state and civil society, comparing a liberal feminist formative project of fostering capacity and vulnerability theory’s project of building resilience.
Tuesday, September 18, 2018
Martha Chamallas, Will Tort Law Have its #MeToo Moment?, Journal of Tort Law (forthcoming)
Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.
Wednesday, August 29, 2018
Domestic Violence as a Form of Torture: A Feminist Expansion of the Theory of the Prohibition of Torture
Natalie Davidson, The Feminist Expansion of the Prohibition of Torture: Towards a Post-liberal International Human Rights Law, Cornell Int'l L. J. (forthcoming)
International human rights law (IHRL), discourse and activism have been the subject of well-known critiques. Two categories of critique are closely linked to the liberal ideology underlying the human rights project, and point to the project's limited ability to further profound change. The "critique of justification" exposes the field's formalist argumentative practices, which struggle to justify proposed normative solutions. The "critique of representation" highlights the narrow ways in which injustice and violence are portrayed, denounced and addressed in international human rights discourse. These weaknesses are all the more troubling in the contemporary populist authoritarian era. Yet contrary to many critical scholars who advocate abandoning the human rights discourse, this article argues that it is possible to transform the discursive practices of IHRL so as to be more convincing and better address structural inequalities. It does so by analyzing the discursive practices of the feminist campaign to frame domestic violence as a form of torture, an explicit attempt to release the prohibition of torture, a central norm of IHRL, from the constraints of liberalism. While the discourse of domestic violence as torture reproduces some of the problematic features of better-known feminist engagements with international law, it also suggests IHRL's potential for profound reform, both at the level of justification and representation.