Sunday, October 14, 2007
Ruthann Robson (CUNY Law School) has posted Judicial Review and Sexual Freedom, 29 University of Hawaii Law Review (2008), on SSRN. Here is the abstract:
Sexual rights are flashpoints in contemporary debates about judicial review in democracies. However, although much has been published about both sexual rights and about judicial review, this is the first piece to thoroughly explore the two topics as they relate to each other.
The article elucidates the mainstream theorizing on judicial review, arguing that it is deficient for three reasons. First, although the debates regarding judicial review refer to sexual freedoms, the theorizing is abstracted from the actual controversies surrounding sexual freedom and often implies that sexual freedom itself is of less consequence than the “larger” issues at stake. Second, the mainstream jurisprudential debates have mostly failed to incorporate the perspectives of feminist and queer legal theorists, even when such work has been directly relevant. Third, the debates in the United States regarding judicial review often proceed as if the United States is “exceptional” and sui generis, usually with a reflexive privileging of originalism and historical exegesis.
This article addresses these deficiencies by centralizing the substance of the controversies related to judicial review, by incorporating queer and feminist theorizing, and by considering in depth the disparate approaches to judicial review in three jurisdictions often considered at the forefront of sexual freedom: California, the Netherlands, and South Africa. The conclusion posits principles for theorizing judicial review in constitutional democracies in order to promote sexual freedom.