Elaine Craig

Most of us never have to be concerned about being forsaken.  We have permanent homes, we have family doctors, we have jobs… But imagine you have none of these things.  You don’t know where you are going to sleep tonight.  You do not have access to regular health care.  You have no employer…You are consumed by fears [...]]]>

Anna Carline, Of Frames, Cons and Affects: Constructing and Responding to Prostitution and Trafficking for Sexual Exploitation, 20 Feminist Legal Stud. 183 (2012).

Elaine Craig

Most of us never have to be concerned about being forsaken.  We have permanent homes, we have family doctors, we have jobs… But imagine you have none of these things.  You don’t know where you are going to sleep tonight.  You do not have access to regular health care.  You have no employer…You are consumed by fears about your physical safety.  You are afraid to contact the police.  In these circumstances, you are largely on your own, easily forsaken.¹

It is difficult to imagine a more intentional account of vulnerability than the above passage introducing British Columbia’s recently released Report of the Missing Women Commission of Inquiry into the disappearance and murder of more than sixty Vancouver women – most of whom had been involved in the city’s Downtown Eastside sex trade.  It is also difficult to imagine an opening sentence that more explicitly constitutes a “vulnerable other” subject position.

What does it mean to be a vulnerable person and what are the political and legal implications of framing a particular subject position as vulnerable? These are the central questions posed by the contributors to a recent special volume of Feminist Legal Studies – Sex Work and The Regulation of Vulnerability(ies). The aim of this collection is to examine how discourses of women’s sexual vulnerability are invoked in order to advance specific political agendas.  The volume as a whole engages thoughtfully with existing work attempting to theorize human vulnerability.  One theme recurrent throughout a number of the pieces is the lack of critical examination in much of the previous vulnerability scholarship on the ways in which legal and political actors have deployed the concept in service of agendas that ultimately result in a differential distribution of life’s precarity.

Anna Carline’s piece, Of Frames, Cons and Affects: Constructing and Responding to Prostitution and Trafficking for Sexual Exploitation, was of particular interest to me.  Carline’s contribution interrogates the invocation of the vulnerable subject as a justification for state intervention with respect to sex work.  She draws upon Judith Butler’s recent work theorizing life’s precarity in order to examine the race, class, and gender based differences in the distribution of vulnerability perpetuated by the Policing and Crime Act 2009 in England and Wales.  Carline uses Butler’s framework to highlight how official discourses surrounding the adoption of this legislation framed the State as concerned with recognizing and protecting the vulnerable sex worker.  This is a strategy that, according to Carline, ultimately resulted in reforms reflective of a law-and-order/morality approach to the sale of sex rather than a victim-centered approach.

Borrowing from Butler’s assertion that the framing of issues is itself an operation of power that guides the interpretation of facts in ways that produce particular affective responses and political outcomes, Carline argues that “the vulnerability of those engaged in prostitution …was framed by official discourses in a manner that avoided the complexities of their ‘life-worlds.’” (P. 209.)  She suggests this was done deliberately, in an effort to support increased criminalization and stricter immigration policies – an outcome that belies the official state discourse of care for the vulnerable other.  Carline demonstrates how the New Labour Government relied on the notion of vulnerability to justify revisions to sex work laws in England and Wales that are conservative, class based, racist, and antithetical to policies aimed at resolving the increased precarity (due to factors such as unequal distribution of wealth) faced by those involved in prostitution.

Carline’s piece is useful for its clear illustration of the discursive operation of power during the lawmaking process, and its call to develop an ethical responsibility to recognize and address the social, economic, and political factors that heighten the vulnerability of those constructed as “others.”  But her contribution offers more.  It, along with other contributions to this collection, offers a cautionary tale about uncritical reliance on concepts of vulnerability.  Carline accepts as a starting position that there is a relationship between the occurrence of prostitution and poverty and other untenable conditions of life.  Her interrogation of state reliance on the concept of vulnerability is not a rejection of the reality of vulnerability for some sex workers.  Indeed, she accepts and relies upon the broader proposition (endorsed also by Butler) that we are all fundamentally vulnerable but that certain lives have been constructed as grievable and in need of protection while others have been forsaken.  Carline’s piece is a call to approach the concept of vulnerability cautiously and critically, while remaining attuned to the ethical responsibility to improve the “social, political and economic networks of support which are essential to supporting and maintaining life.” (P. 208) She raises issues that should be of great concern to academics, law reformers and sex worker advocates in jurisdictions, like Canada, where governments have responded to constitutional challenges to the laws criminalizing the exchange of sex for money with arguments about their interest in protecting vulnerable women.

1. “Foresaken”: Report of the Missing Women Commission of Inquiry, British Columbia Ministry of Justice, November 19, 2012.

Margaret Davies

Legal consciousness studies is an area of socio-legal research that looks empirically at the narratives of law constructed in people’s everyday lives. It challenges the distinction often made between law and society by illustrating their mutually constitutive relationship. Put simply, not only does law affect individual and collective lives and the nature of social groupings, but social patterns and narratives also constitute the law. Influential work by Patricia [...]]]>

Rosie Harding, Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives (Routledge 2011).

Margaret Davies

Legal consciousness studies is an area of socio-legal research that looks empirically at the narratives of law constructed in people’s everyday lives. It challenges the distinction often made between law and society by illustrating their mutually constitutive relationship. Put simply, not only does law affect individual and collective lives and the nature of social groupings, but social patterns and narratives also constitute the law. Influential work by Patricia Ewick and Susan Silbey made the point emphatically that “legal consciousness” is not only about people’s subjective experiences of law, but also about how people live the law, how they interpret, use, and resist law, and how they embed those meanings in their practical everyday settings.

In Regulating Sexuality, Rosie Harding takes the concept of legal consciousness in two new directions. First, she integrates it with legal pluralism, and in particular the critical legal pluralism which also defines legality by reference to everyday meaning-making and practice. Secondly, she undertakes an extensive empirical analysis of the legal consciousness of lesbians and gay men, an analysis that is important in its own terms, but that also contributes to the theoretical understanding of the effects of power on legal consciousness and how resistance by marginalised groups contributes to the legal meaning-making they engage in. Both elements of Harding’s work are significant, not only for legal consciousness studies but also for legal theory, for understanding the legal agency and conditions of lesbian and gay lives, and also for providing additional grounding to the alternative conceptions of legality which underpin legal pluralism.

In relation to the first point – the connection between legal consciousness and legal pluralism – Harding argues that legal consciousness studies has an implicit openness to the alternative understandings of “law” and “legality” which pluralism offers. This openness is under-developed in legal consciousness theory, sometimes leading to an over-emphasis on state law or a reversion to the assumption that law is essentially state law. If, as Ewick and Silbey argued, legal consciousness refers not only to what people know or understand about law, but also how they themselves make the law in their own lives, then law can never simply be state law but must open out onto different beliefs and alternative normative patterns. Nonetheless, a more restrictive view of consciousness has sometimes emphasised subjective understandings of state law, obscuring the complexity of normative environments and in particular the ways in which power and social marginalisation are written into consciousness of law. As Harding says:

…a plural approach to legal consciousness studies can help to address some of the limitations of previous legal consciousness research. By explicitly recognising that the ‘legal’ part of legal consciousness can include structural or normative pressures, as well as ‘official’ law, a plural legal consciousness framework has the potential to be more sensitive to the position of marginalised individuals in society (32).

Bringing pluralism and consciousness of law together allows for a much more expansive definition of legality and a more nuanced analysis of everyday narratives of law. Engagement with and resistance to the formal law is refracted through a variety of normative lenses other than the state law itself.

The empirical dimension of Harding’s book is equally significant and produces an amazingly rich picture of the complexities of lesbian and gay engagements with law, including the myriad forms of resistance and the diversity of positions which form lesbian and gay legal identities. Four very distinct empirical/textual sources are engaged in the analysis – a large online survey, published narratives about lesbian and gay parenting, semi-structured interviews about general regulation of sexuality, and utopian fiction. As Harding comments, only one of these, the semi-structured interviews, fall into the normal methodological parameters of legal consciousness studies, but the other three add texture and dimensionality to the exercise of unpacking legal narratives around sexuality regulation. This may appear far-fetched in the case of utopian fiction, which has little to do with “real” law but this chapter of the book casts a reflexive light on the possible and imaginable of thinking about sexuality and its regulation, and in this sense is entirely relevant to our present “everyday” contexts. It is illustrative of consciousness, not in the direct way that interviewing a participant might be, but because it taps into a cultural consciousness about alternative normativities – whether these are to do with genuine formal equality or a more substantial and thoroughgoing reimagining of sexual identities.

Different readers will undoubtedly find different things in Harding’s book. I responded in particular to its theoretical sophistication, and the way it draws together different strands of theory in a logical and very thought-provoking way. The empirical and textual investigations, which illustrate the themes of power and resistance in extraordinary detail, are also very compelling. The book offers a thorough and fresh analysis of the regulation of sexuality and is not only an important contribution to sexuality studies but also to the theoretical paradigms which it draws upon and develops.

Davina Cooper

Erik Swyngedouw’s exploration of the spacing of politics is embedded within a trajectory of work in political theory (and political philosophy) that asserts the specificity and distinctiveness of the political in the face of left politics’ conventional emphasis on the economy and domination. At the heart of this body of work is post-foundationalism – a philosophical project that recognizes the significance and necessity of ongoing moves to [...]]]>

Erik Swyngedouw, Interrogating post-democratization: Reclaiming egalitarian political spaces, 30(7) Political Geography 370 (2011).

Davina Cooper

Erik Swyngedouw’s exploration of the spacing of politics is embedded within a trajectory of work in political theory (and political philosophy) that asserts the specificity and distinctiveness of the political in the face of left politics’ conventional emphasis on the economy and domination. At the heart of this body of work is post-foundationalism – a philosophical project that recognizes the significance and necessity of ongoing moves to ground political and social order, while simultaneously refusing the notion of a pre-existing, non-contingent base or essence, whether derived from human nature, democracy, rights, justice, or the people.

Working within this framework, Swyngedouw’s article opens with a challenge: how to understand the coexistence and relationship between insurrectional political activism and violent discontent, on the one hand; and post-democratic, technocratic, consensus-based politics, on the other. Swyngedouw seeks to explore this tension through three moves: through the character of the post-political; the politics/political distinction in post-foundational thought; and the question of egalitarian political space.

The post-political suggests privatization, marketization, the power of business lobbies, and the erosion of democratic rights. It suggests a form of doing politics based on the public management of consensus, where democracy is split from equality, and instead of being embedded in an agonistic encounter is aligned with consumer choice in public market conditions. Post-democratic consensus and technocratic administrative logics, however, do not fully efface the political; as tendencies they remain incomplete. To explore the continuing presence of “the political,” Swyngedouw considers its relationship to politics – a distinction and relationship extensively debated within continental political thought. While the political signifies the absent foundation (as an open, dislocating force), politics identifies the actions, strategies, and assemblages of public sphere governing; in other words, it identifies everyday practical kinds of politics, or what Rancière describes as “police.” Through these institutionalized routines and modes of representation, people, things, and activities get placed and allocated. Always precarious, contingent, and unable to completely suture the social field, the everyday of post-democratic politics (and its imagined community) colonizes the space of the political. Yet, all is not lost. For, as Swyngedouw and others argue, there will always be an outside – a radically different way of rendering life intelligible that challenges the prevailing institutionalized common sense. Here, the political returns as “a retro-actively revealed moment of eruption.”

Adopting Rancière’s conceptual framework, an emancipatory politics can be understood as the refusal to be restricted to places allocated within the “police” order. Staging equality in order to make visible the wrong of a given situation, as in Rosa Parks’s decision to sit in the “wrong” seat, the non-egalitarian practices of a racialized order are disclosed.  In the process, classifications and institutionalized distinctions are disrupted.

Swyngedouw suggests democratic political spaces are active moments in constructing new egalitarian spatialities inside and through existing geographies of the police order. These active moments go beyond demands for inclusion that work to sustain a post-political consensus; they go beyond rituals of resistance which leave the police order intact; and they go beyond acts of violence that generate and legitimate, in turn, the reciprocating violence of the state. “Proper politics,” Swyngedouw suggests, involves practices that challenge the symbolic order of the police; it involves designing space as an egalitarian and libertarian field of disagreement, opening up room for other speech acts; and it involves radically re-organizing what can be heard, seen and known. At the same time, politics may take shape as refusal: “I’d prefer not to” — a strategy Swyngedouw argues that is also an invitation to think again, and to form new egalitarian imaginaries. Fundamentally, Swyngedouw argues we need to rethink equality politically – not as a sociological concept which demands policy responses to inequality but as a presupposed condition of democracy.

In this intellectually packed article, Swyngedouw engages with a vast array of different post-foundational political scholars. While some would quibble with his readings, and while, at times, the encyclopedic coverage detracts from Swyngedouw’s own account, the strength of this article is the way it brings together and works different currents within this field.  For readers far more familiar with feminist, social democratic or traditional Marxist political analysis, what is striking about Swyngedouw’s analysis (and of the literatures he works with) is its drive to give politics, or more accurately, “the political” autonomy and distinction from “the choreography of the social.” This also is its challenge, and when substantive political issues are tackled, it is not always clear what this framework adds. Speaking in the name of a new universal, feminist, gay, and other non-class based left agendas often become reduced to interest-based identity politics in ways that ignore the substantial challenge they pose to common-sense thinking. As a consequence, post-foundational political thought risks significantly under-estimating how political movements, such as feminism, have for decades (and longer) ruptured existing consensuses around intelligible speech — identifying previously unrecognized harms, and re-imagining and re-valuing new forms of social organization and ways of living – a process far more resonant with Rancière’s dissensus than with his police.

Post-foundational political theory’s intellectual insularity and limited engagement with a more multi-dimensional left politics can be frustrating. Frequently, it leaves many contemporary political challenges unaddressed (for instance, the problem of equality’s indeterminacy, when deployed by conservative as well as more progressive forces). However, what this body of work does productively contribute is a challenge to how we think about political form – of how, where, and what politics involves – in the face of tendencies to reduce politics to administration and government on the one hand, or to social antagonisms on the other.  Insistence on the unpredictable, contingent, supplementary character of political engagement, and on the interrelationship between organizing and disorganizing raises important questions for a left politics that seeks to develop new forms of institutionalization (or hegemony) while accepting and working with its contestation – from the right as well as from the left. Both parts of the ordering-rupturing tension are important. However, the emphasis on challenge and the unexpected, within post-foundational theory, can sometimes too quickly dismiss or bypass political contradictions within the state, in other words, the dissensus operating at the very heart of governmental and regulatory practice. For, public institutions and political activity are not worlds apart; and while the state may work to “tame” more radical politics, the potential for their irruption remains ever-present.

Robert Leckey

Much legal scholarship about same-sex marriage by liberals presents arguments for judges to use when interpreting constitutional rights. Another current of critical research, from queer, feminist, or other left scholars, explores how expanding access to marriage may disadvantage those who will not or cannot marry, undermine an intersectional queer politics, or both. Much less writing has explored the impact, for gay men and lesbians who might marry [...]]]>

Yuvraj Joshi, Respectable Queerness, 43 Colum. Hum. Rts. L. Rev. 415 (2012).

Robert Leckey

Much legal scholarship about same-sex marriage by liberals presents arguments for judges to use when interpreting constitutional rights. Another current of critical research, from queer, feminist, or other left scholars, explores how expanding access to marriage may disadvantage those who will not or cannot marry, undermine an intersectional queer politics, or both. Much less writing has explored the impact, for gay men and lesbians who might marry or who have married, of the lobbying and litigation that made doing so possible.

Some reasons for this relative neglect are obvious. It may be too early to have meaningful data. The question may be one for sociologists. But surely another is that a lot of people assume that same-sex marriage is a good thing for at least those who take it up. Yuvraj Joshi’s paper joins the critical research about the potential harms arising from the campaign for same-sex marriage and its realization for those who wouldn’t walk down the aisle even if they could. But it also enriches legal scholarship by exploring the psychological effects of same-sex marriage for those who marry.

Joshi develops “respectable queerness” as a theoretical framework for understanding the implications of recognizing same-sex domestic relationships. For him, the crucial distinction lies between respectability—the state or quality of being proper, correct, and socially acceptable—and respect—due regard for the feelings, wishes, or rights of others. Respect, he argues, connotes acceptance of difference; respectability connotes acceptance of the norm. Respectability is a system of hierarchy grounded on distinctions between the respectable and the degenerate.

On Joshi’s reading, and it is a fair one, the push for same-sex marriage has proceeded less by demanding respect than by attempting to demonstrate gay men’s and lesbians’ respectability. The agency associated with respectability is a key analytical insight: while assimilation refers to pressures imposed by the mainstream, respectability gestures to efforts made by gay men and lesbians to remake themselves as worthy of recognition. Think of the factual accounts of model plaintiffs advanced to courts in same-sex marriage litigation, which were advanced in order to establish couples’ stability and heteronormativity.

Drawing on Judith Butler’s work, Joshi suggests that respectability is performative. It consists in performing the actions associated with it. One result is the potential gap between what a person does and who a person is, between performance and self. (Joshi is sensibly alert to the complexity of claims to authenticity and his analysis does not depend on a person’s having “a true identity or essence that is independent of social context”; it is enough that situated individuals have a sense of who they are and who they wish to become.)

In particular, there may be a gap between the respectable, public self and the private self’s ways of living. What exacerbates the gap is that the legal and social movement for recognizing respectable same-sex couples has re-privatized queer desire and sexual practices. Openness about queer desire and its expression becomes harder, argues Joshi, as public recognition of gay relationships is secured on the basis of their respectability. Desire may split into two parts, as the same non-heterosexual subjects desire to be publicly respectable and privately queer. He continues: “[E]ven as more gay people ‘come out’ into the public world, aspects of their sexual identities remain hanging like skeletons in their closets.” Concretely, some couples experience a dissonance “between the appearance of monogamy in public and their privately non-monogamous existence.” (It is exemplary of the paper’s theoretical and methodological eclecticism that the discussion moves from Frantz Fanon’s “dual consciousness” to evidence gleaned from online social networks such as Jake and Gaydar.)

Although other parts of the paper draw on authors such as Michael Warner, Nancy Polikoff, and Dean Spade to elaborate on the harms from respectable queerness for the political organizing of those queer constituencies whose members don’t want to marry, the paper’s originality lies in its focus on those who do marry. For me, the paper’s thrill—in an experiential, non-propositional way—lay in the clarity with which it identifies the predicament of those who take up the public forms of recognition now accessible in many western jurisdictions while knowing that their private lives do not match publicly articulated and sustained assumptions.

Reflection has led me to further questions. What degree of coherence or unity ordinarily bridges the public representations ascribed to non-queer people and their private experiences? Whose business is it, if anyone’s, when inaccurate assumptions are made about a legally recognized couple’s private life? Where a form of legal recognition has been secured via strategic but politically problematic arguments—respectability and equality-as-sameness, say, instead of respect and robust claims to privacy—what ethical responsibility attaches to those who take up that form years later?

If you want to impose a tax on income, you need to delineate the contours of the concept of income.  Importantly, you need to mark the line between income-producing activities and non-income-producing (or personal) ones.  When an individual or a business engages in costly activities that produce taxable income, the cost of those activities should be deductible.  When [...]]]> Mary Louise Fellows & Lily Kahng, Costly Mistakes:  Undertaxed Business Owners and Overtaxed Workers, 81 Geo. Wash. L. Rev. (forthcoming 2013), available at SSRN.

Kim Brooks

If you want to impose a tax on income, you need to delineate the contours of the concept of income.  Importantly, you need to mark the line between income-producing activities and non-income-producing (or personal) ones.  When an individual or a business engages in costly activities that produce taxable income, the cost of those activities should be deductible.  When that individual or business engages in costly activities that do not produce taxable income, the cost should not be deductible for tax purposes. Sounds simple.

Some legal concepts (like the distinction between business and personal expenses) are misleadingly simple to articulate and are confounding in their application, while some expenses cause tax scholars and policy-makers relatively little anxiety.  As Fellows and Kahng illustrate, if I pay to go on a vacation, drink a fine bottle of wine, or fall asleep on a high-end mattress, no one would suggest that my expenses should be tax deductible.  They are clearly personal.

But for scholars with an interest in equality, questions about some of the more ambiguous expenses remain.  What about when a person living in poverty pays to attend university with the objective of obtaining a more lucrative work position?  Or what about the person with a disability who has to pay for expensive equipment to return to the workplace?  Or what about the woman who has to pay for childcare so that she can return to work after having a child?  These expenses are often not considered to be expenses incurred to produce income for employees, and their deduction is routinely denied.

Many tax scholars have engaged in debates about the business/personal distinction over the years.  (And despite the richness of that literature, there is still a good deal to say.)  Fellows and Kahng don’t stop their analysis, though, by taking on only the business/personal distinction.  Instead, they center their analysis on the ways in which that distinction is differently operationalized when they taxpayer in issue is a worker rather than a business.  Central to their claim is the evidence that when legislators, policy-makers, and courts adjudicate the line between personal and business expenses for workers, they are highly restrictive: if there is an argument that the expense is personal, it is denied.  In contrast, when those same people or bodies adjudicate the line between personal and business expenses for businesses, they are highly liberal: if there is an argument that the expense is business, it is allowed.

To make that distinction more concrete, as noted above, many of the expenses workers incur that facilitate participation on the paid workforce (for example, education, medical expenses, or child care) are not deductible.  On the other hand,  many of the expenses incurred by a business’s managerial class (for example (borrowing from Fellows and Kahng), costly furniture, artwork, luxurious travel accommodations and meals) are regularly deductible.  As the authors state, “[i]t is unclear, for example, why a corporate executive must have a mahogany desk or a corporate jet to fly him to business meetings when a Steelcase desk and commercial air travel are available at a fraction of the cost” (at 36).

Fellows and Kahng’s argument unfolds in five parts.  Part I roots the distinction between business and personal expenses and the different alignment of that distinction for workers and businesses in the politics surrounding the enactment of the income tax legislation in 1913 and the immediately following years.  This part of their work provides a wonderful political economy of the entrenchment of attitudes about workers and businesses in income tax law in its early periods.  Part II focuses on the development of the deference decision-makers (and especially courts) give to businesses in allowing expenses to be deductible.  Part III centers on workers – exploring the ways in which the deduction workers expenses, even those with significant attachment to income-production, are routinely denied.  The authors describe the current approach as resulting in underinvestment in worker productivity, and misallocation of resources and misevaluation of assets; therefore, Part IV lays out an argument in favor of the more liberal deduction of expenses incurred by workers (and more restrictive deduction of expenses incurred by businesses) based on the economic incentives those tax changes would create.  Finally, Part V sets three goals for redefining the tax base.

Fellows and Kahng’s piece is not for the faint of heart:  it is dense, thickly argued, and ultimately, about tax law.  Yet the issue at the centre of their work, the conceptualization of our human action as fundamentally connected to income production or as a non-work-based-personal activity, is an important conceptual issue for equality scholars.  As the U.S. election debates have underscored, the design of our tax system reveals a good deal about what we value and who we value. For those who care about what the tax system exposes about what we think is private, this article (and the conceptual problems it addresses) is essential reading.

This working paper makes a thought-provoking contribution to debates about the value of litigating rights to advance social change. It asks whether litigating the socio-economic rights that have been incorporated into many of the constitutions drafted during the past 50 years or so has what the authors term “pro-poor” [...]]]> Daniel M. Brinks & Varun Gauri, Law's Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights, World Bank Development Research Group Working Paper 5999 (March 2012), available at SSRN.

Toni Williams

This working paper makes a thought-provoking contribution to debates about the value of litigating rights to advance social change. It asks whether litigating the socio-economic rights that have been incorporated into many of the constitutions drafted during the past 50 years or so has what the authors term “pro-poor” effects. And, to the extent that such effects occur, what political, economic, social and legal factors and institutions might account for them?  In response to these questions the authors offer a comparative analysis and reworking of data from five case studies of socio-economic rights litigation reported in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, a book edited by the same authors and published in 2008.

All five research sites are large so-called emerging economies with constitutions that recognise socio-economic rights, some more explicitly than others.¹ The case studies of socio-economic rights litigation in India, Nigeria, Indonesia, Brazil and South Africa that are discussed in the 2008 book provide extensive details of reported cases in the fields of health care and education in each country and the authors estimate the direct and indirect effects of the cases on each country’s population and public policy. This paper revisits the data, incorporating it into a small sample comparative study across the five jurisdictions; a study that makes intriguing, if cautious, claims about the capacity of some courts to decide some socio-economic rights claims in ways that are beneficial to some of the poor.

To investigate the distributive impact of socio-economic rights litigation is, of course, to engage with well-established and often-repeated findings about litigation processes and courts as tending either to favour the rich and powerful, the “haves” of the societies in which they are situated, or, more likely, to be ineffectual. Brinks and Gauri believe that such claims about the regressive impact and impotence of rights litigation over-generalise from a limited number and narrow range of courts, cases, constitutions and countries. They claim that a more systematic analysis, taking into account variation between different types of cases and characteristics of courts, shows that litigating social and economic rights may sometimes yield robustly pro-poor effects, at least in the areas of health care provision and education.

Brinks and Gauri’s framework for analysing the distributional consequences of socio-economic rights litigation is built on three core elements: the reach of a judicial decision, that is its broad applicability beyond individual litigants; the ‘impact’ of a decision, that is the size and scale of its’ benefits; and the distributional consequences of a decision, that is the share of those benefits received by the poorest 40% of the population. Reach is the basis for the paper’s estimates about the indirect effects of litigation, the type of effect that Brinks and Gauri regard as fundamental to the progressive potential of socio-economic rights litigation and largely absent from the literature on rights litigation. Making this point, the authors observe that “the areas were it is easiest to measure the distributive effect of litigation — direct effects on litigants, especially in individual cases — …. are the areas where effects are most likely regressive and least important in the overall  public policy context” (p.15 emphasis in the original).

Reach depends on procedural characteristics of the legal system, including the extent to which conventions about precedent and universality render specific cases as generally applicable. Reach also depends on non litigants having access to the benefits of a decision to uphold or extend a socio-economic right without having to surmount the multiple barriers to litigating individual rights claims. Finally, reach varies with the types of cases that are litigated.  The case typologies (drawn from categories elaborated in more detail in the book) differentiate between entitlements to public “provision” of socio-economic rights to educational and health care goods and services, litigation to secure or enforce “regulation” that enables access to or improves enjoyment of rights to health or education, and claims to the enforcement of a third party’s “obligations” in relation to educational and health care rights.

Brinks and Gauri reason that non-litigants might be expected to have reasonably good access to the benefits of successful regulation-type cases when they share the same policy space as the litigants and cannot easily be excluded from the policy environment that the regulation changes, that is when they use the same services in the same areas as successful litigants.  A court decision compelling the enactment and enforcement of cleaner fuels regulation in a major city, such as the Delhi clean air cases discussed at pp.32-33, for example, has considerable reach and the beneficial impact of such regulation on respiratory health may well be experienced disproportionately by those who lack the resources to protect themselves in heavily polluted public spaces. By contrast non-litigants may be wholly excluded from the benefits of an “obligation” type decision when they do not use educational or health care facilities run by private third party providers. Thus a decision to strengthen health care rights by facilitating malpractice lawsuits against doctors in India, a society where such lawsuits are associated with the private medical system, for example, is unlikely to have distributionally progressive consequences. As for the provision cases, the paper suggests that distributional effects of this type of litigation may be unpredictable. While the express purpose of such litigation is often exclusive in the sense that it seeks public provision of goods or services to the litigants, potential exists for more far reaching effects when the aggregation of a large number of cases forces a policy shift towards universal provision, as apparently has happened in some Brazilian states after thousands of individual cases seeking access to particular medications.

The paper applies the case typology to health and education rights cases across the five countries, assesses the social impact or effects of different cases, and estimates the share of any beneficial impact that goes to the two lowest income quintiles in each country. This analysis finds considerable variation in the distributional impact of socio-economic rights ranging from apparently “very much pro-poor” in countries (e.g. South Africa and India) and policy areas that are dominated by regulation type decisions through to “close to distribution-neutral” in countries (e.g. Brazil and Indonesia) where individualised results may be generalisable beyond litigants to “sharply anti-poor” consequences in settings (e.g. Nigeria) where the impact of socio-economic litigation is tightly confined to individual litigants.

This paper is interesting because it takes seriously the work of courts and legal mobilisation in countries of the Global South, because it engages with variation in the distributional consequences of decisions in different courts and about different socio-economic rights, and because it touches on the social, economic, political and institutional conditions associated with variation in distributional impact.  A rich paper and a stimulating read, Law’s Majestic Equality yielded few definitive answers, but its claims about the progressive potential of some types of socio-economic rights litigation pose plenty of theoretical questions, methodological questions, and political questions about the equality project of getting rights right.

1. There is considerable variation in what that recognition might entail. Eg., the socio-economic rights set out in the preamble to the Nigerian constitution are not justiciable as such see the OMCT, FIDH, Obs reportNIGERIA: Defending Human Rights: Not Everywhere Not Every Right, International Fact-Finding Mission Report, available at http://www.omct.org/files/2010/05/20688/nigeria_mission_report.pdf.  But as the Brinks & Gauri study shows, some individualised human rights claims have been crafted that draw on rights to education and healthcare

It is a good thing when those of us in education are urged to be more thoughtful about what we seek to achieve through our teaching and scholarship. An analysis of the possible impact that education can have moves beyond the standard questioning of pedagogy, and speaks to the societal value of education [...]]]> Angela M. Kupenda & Michelle D. Deardorff, Negotiating Social Mobility and Critical Citizenship: Institutions at a Crossroads, 22 U. Fla. J.L. & Pub. Pol'y 335 (2011).

Camille Nelson

It is a good thing when those of us in education are urged to be more thoughtful about what we seek to achieve through our teaching and scholarship. An analysis of the possible impact that education can have moves beyond the standard questioning of pedagogy, and speaks to the societal value of education as transformative, not just for the student and future graduate but also for society. Such higher order questions, as I like to call them, are not typically the stuff of faculty meetings, but they are at the core of a recent article by Professors Angela Mae Kupenda and Michelle Deardorff.

In their article, Negotiating Social Mobility and Critical Citizenship: Institutions at a Crossroads, the authors juxtapose two seemingly inconsistent struggles faced by institutions of higher education – improving the socioeconomic possibilities of our students versus preparing students for what they theorize as “Critical Citizenship.”:

“Preparing students to prosper in the present structure, while it may help them to individually succeed, is in a way teaching them to become participants in structures of continued oppression of others.” (339)

“Law schools provide tremendous opportunities for a concerned educator to prepare students to be active, engaged citizen students, able to challenge systemic forms of oppression and to negotiate and challenge a political process that maintains, often, a status quo of inequality.” (360)

This latter objective is, in the authors’ opinions, the ultimate value-add of education.  Such conscious education is founded upon, “preparing students to challenge societal injustice and to be critical citizens who are willing to challenge a government that engages in abusive actions or is exploitative of its citizenry”(337). This thesis might be expanded to include corporate citizenship in a globalized world. I am not certain that these objectives are mutually exclusive, or that the latter is not sometimes achieved through the former, but there are serious policy, practice and ethical questions underlying and informing the worthwhile project undertaken by these authors.

Assuming for the moment that education does have the transformative force that these professors posit, one must take seriously their question. Do faculty and university administrators have institutional and societal goals in mind, goals beyond educating the individual student, when we offer educational programs?  I hate to sound market-driven, especially when we are discussing education, but to ignore the role that increasing tuition rates has had in contributing to the consumer-like expectations of students in American higher education would be folly. It is not surprising that students, and parents, investing significant amounts of their income and savings in education expect a return that surpasses debt load in a reasonable amount of time. Further, as educators, especially those of us from non-traditional backgrounds, we must acknowledge that education, and the academy, have provided many of us with sustenance and the means to improve our lives, and those of our loved ones.

To position professors and higher education, including legal education, in this mix as fundamentally offering not improved socio-economic status (SES) and class mobility, but rather the tools to  dismantle the proverbial master’s house is surely a risky thesis, at least in these times of economic uncertainty and output-based educational assessments (339, 360, 363). Nonetheless, these inspired professors, who demonstrate a seemingly unflappable faith in not just faculty members, but also pedagogy and the transformative potential of education, have a point.

In Negotiating Social Mobility and Critical Citizenship the authors explain their admirable “long-term goal of creating a more just society” (339) by reminding us of education theory ranging from John Locke’s comments in Two Treatises of Government to Paulo Freire’s Pedagogy of the Oppressed (345-46). I respect their thesis, although I suspect that the goal identified might not resonate with everyone, including some of the students they teach, many of whom likely aspire to live comfortable lives with high incomes.

Without wading into that argument – which is far too complex and robust for this short essay – there is a very real economic lens that need not present the incompatible binary that the authors suggest. One of the things I liked about the article is it led me to ask whether these objectives could be pursued simultaneously:  can educational missions and visions (shared with readers of the article in detail) encompass both SES upward mobility and equality enhancing aspirations? Furthering one goal may not necessarily undermine the other. For example, one might think of a creative entrepreneurial graduate who starts a business that both reverses environmental degradation and makes that entrepreneur financially comfortable or even wealthy.

In addition to providing both institutional and professorial suggestions on how to support the critical citizenship of students, one of the most important contributions of this project is the way it forces us, as faculty and university administrators, to look inward and to ask ourselves if we are still willing to pursue, or even capable and equipped to tackle, the Lockean question of social justice or societal transformation (368-76). Do we take these parts of our missions seriously?  And if we do, how do those commitments manifest in our institutions?  Those are the tough questions, too easily lost in increasingly market-driven educational models. As the authors state, “fram[ing] our understanding of the academy” is essential (376). There may not be any uniformity, let alone consensus, here, but the conversation is not only worth having, but also is an essential part of how institutions might navigate the turbulent times we are in.  After reading this article, I am inspired to move forward with vision, commitment, and resolve to ensure that the value of an education includes, but is not limited to, quantitative measures, and embraces qualitative societal enhancement.

For anyone interested in a critical, practical, and political exploration of reconciliation, Colleen Murphy’s book is a wonderful resource. It is a fast-paced and well-written book that compels the reader to keep going. And, it is useful in the everyday world.

In Canada, over the past thirty years, almost 600 indigenous women and girls have gone missing or have been slain.1 Between 2000 and 2008, there were [...]]]> Colleen Murphy, A Moral Theory of Political Reconciliation (Cambridge: Cambridge University Press, 2010).

Val Napoleon

For anyone interested in a critical, practical, and political exploration of reconciliation, Colleen Murphy’s book is a wonderful resource. It is a fast-paced and well-written book that compels the reader to keep going. And, it is useful in the everyday world.

In Canada, over the past thirty years, almost 600 indigenous women and girls have gone missing or have been slain.¹ Between 2000 and 2008, there were 153 new cases. Most of the disappearances and deaths occurred in the western provinces in British Columbia, Alberta, Manitoba, and Saskatchewan.²  The majority of these women and girls were mothers. Some were students. Almost half of these cases remain unsolved. Time and time again, these women and girls are described as sex trade workers and addicts as if somehow that designation defines them all or explains them away. What is so disturbing is that their murders and disappearances seem to have become normalized – a part of Canada – but in the background or in the shadows.

Every year there are rallies and demonstrations in Canadian cities, usually small events. There are also various national legal and political actions spearheaded by groups such as the Native Women’s Association of Canada, Amnesty International, and others. In BC, there is currently a highly contested Missing Women’s Commission of Inquiry underway. Many criticisms have been expressed about this inquiry including the commission’s narrow mandate, who the commissioner is, and limited resources and timeframe.³

Given the trend toward truth and reconciliation processes, how might such an approach apply to the missing and murdered aboriginal women? I want to draw on the work of Colleen Murphy to argue that this issue, and others like it, require two kinds of repair – political and personal.

According to Murphy, if we only focus on the personal experience of survivors of violence, which is absolutely necessary, we will overlook the external changes that are necessary for dealing systematic wrongdoing and oppression. This external perspective means thinking about a political reconciliation process that is capable of imagining the end of injustice and oppression, and of addressing the conditions that facilitate and support injustice and oppression.

In other words, thinking about reconciliation as forgiveness usually means emphasising internal changes among victims. Murphy argues that a political reconciliation process should be about both ending violence and addressing the institutional and social conditions that make violence possible.

How might Murphy’s approach be applied to the missing and murdered aboriginal women and girls? First, there must be a careful and accurate understanding of the dynamics of the conflict and oppression, in this case, what is happening to aboriginal women and girls at every level from the community to the state. Second, this close analysis of the reality and experience of the oppression and violence must inform and anchor any larger political reconciliation process. Obviously, the big task is to consider and debate what a larger political reconciliation process might be, how it might be structured, and what its possible goals.

This means that any reconciliation process must derive from and speak to the actual problems in a way that acknowledges the depth and complexity of the damage done to both personal and political relationships. Again, this work will require many conversations about the multiple relationships with and around indigenous women – family, local, and beyond. Might the obvious complexity of indigenous women’s lives require more than one political process? Should there be multiple sites and levels of reconciliation facilitated? Murphy’s book is one way to begin some of these necessary conversations.

1.  Native Women’s Association of Canada, What Their Stories Tell Us: Research Findings from the Sisters in Spirit Initiative (2010). Over 150 of these women are still missing and over half the total cases remain unsolved.
2. See also Christine Welsh’s important documentary, Finding Dawn (2006) National Film Board, and Amnesty International, Stolen Sisters: A Human Rights Response to Discrimination and Violence Against Indigenous Women in Canada (2004). For an international perspective on missing and murdered women and girls, see the Backyard (El traspatio), a movie based on real life events in a Mexico-US border town.
3. The Missing Women’s Commission of Inquiry just released four reports.

Americans know that there is something wrong with a guilty verdict rendered by “an all-white jury.”  But translating that something into a constitutional issue, never mind a constitutional right, is not straightforward. Indeed, it has become downright complicated and, as Nina Chernoff argues, totally wrong.

Often, the first impulse when faced with the “all white [...]]]> Nina W. Chernoff, Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, Hastings L.J. (forthcoming 2012), available on SSRN.

Ruthann Robson

Americans know that there is something wrong with a guilty verdict rendered by “an all-white jury.”  But translating that something into a constitutional issue, never mind a constitutional right, is not straightforward. Indeed, it has become downright complicated and, as Nina Chernoff argues, totally wrong.

Often, the first impulse when faced with the “all white jury” problem is to conceptualize the problem as one of equality.  It seems discriminatory–unequal–when the person on trial is a member of a racial minority and is not “represented” on the jury.  And indeed, this may violate the Equal Protection Clause of the Fourteenth Amendment.  But not necessarily.  The Equal Protection Clause, as presently construed in American constitutional doctrine, generally requires discriminatory intent.  On the other hand, persons accused of crimes are afforded rights in the Bill of Rights that are not grounded in equality, but in fairness. The Framers of the Constitution, most of whom had committed the crime of treason during the Revolutionary War, were quite invested in fairness of process. For example, the Sixth Amendment guaranteeing an accused person assistance of counsel, confrontation of the witnesses against one, and a speedy and public trial.  The Sixth Amendment also guarantees an “impartial jury.”  In common parlance, this is a “jury one one’s peers.”  In constitutional doctrine, it requires that the jury members be “drawn from a fair cross-section of the community.”

This “fair cross-section of the community” requirement has become entangled with equal protection doctrine.  Nina Chernoff unravels the problem in Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards.  She does not argue for a theoretical revision of either the Sixth Amendment impartial jury guarantee or the Fourteenth Amendment’s equal protection provision.  She does not argue for a new rule or standard.  Instead, she simply argues that courts should correctly apply well-settled “fair cross-section” doctrine and not conflate it with equal protection analysis.

Chernoff’s seemingly modest argument, however, is far from timid.  She examined 167 cases decided from 2000- 2011 by federal circuit courts and state supreme courts.  In not one case did a court conclude that there was a “fair cross-section” violation.  This might mean, of course, that there are no problems, although a fair number of criminal defendants (or at least their lawyers) seemed to believe there was severe underrepresentation in the jury pool.  Chernoff also cites conclusions from a number of commissions and task forces investigating racial and ethnic underrepresentation on juries indicating significant disparities.  More compellingly, however, Chernoff demonstrates how the judicial opinions themselves undermine their own conclusions.  Even as the courts find no Sixth Amendment violation, the same courts aver there are “real problems with the representation of African-Americans on our juries, and the crisis of legitimacy it creates,” and describe the evidence of underrepresentation as “disquieting,” “troubling,” and “worthy of concern.”  One court devoted six pages to a discussion of possible remedies for the problem of racial disparity in that system and another court even mandated changes to the jury system; both courts, however, denied the defendant’s constitutional challenge.

The denials are understandable because the courts are “reading in” equal protection standards requiring intent rather than “fair cross-section” standards that rest on result.  Of the many cases Chernoff discusses, the one from the federal court in the District of Connecticut stands out.  There seemed to be no dispute that African-American and Latinos were underrepresented in the jury pool and that this occurred because not a single jury summons had ever been sent to New Britain or Hartford, the counties that contained over 60% of the voting-age Black and Latino population.  There was never any explanation regarding the New Britain residents, whose names were never entered into the computer.  There was, however, an explanation regarding the Hartford residents: a computer programming error caused the “d” in Hartford to be interpreted as “deceased.”  Thus, everyone in Hartfor“d” was “unavailable” to serve on a jury.  Both the unexplained and explained errors were not intentional.  Any fault was negligent at best:  the court stated that “as often happens in overburdened courts (like other institutions), the failure to adopt a proper procedure might have resulted simply from the unwarranted assumptions by all concerned” that the system is operating as it should.

Chernoff argues that the correct analysis in such cases ignores intent.  Supreme Court precedent is squarely on her side.  In Duren v. Missouri, 439 U.S. 357 (1979), a case involving the exclusion of women jurors and argued by now-Justice Ruth Bader Ginsburg, the Court clarified the standard.  The Court stated that in contrast to an equal protection claim regarding the jury pool, in a Sixth Amendment fair-cross-section claim the “systematic disproportion itself demonstrates an infringement of the defendant’s interest in a jury chosen from a fair community cross section.”  In other words, impact alone is sufficient.  Yet as Chernoff demonstrates, courts ignore this language and contaminate the systematic exclusion requirement with an intent element.  As a result, the fair cross-section of the community guarantee for criminal defendants is essentially nullified.

Chernoff does not speculate on the rationale for the confusion.  It may be that the courts cannot help but be concerned with blameworthiness, especially when it implicates judicial integrity.  It may be that courts misconstrue the meaning of the word “systematic.”  It may be that the right to have a “jury of one’s peers” sounds more like equality than other Sixth Amendment guarantees such as the right to assistance of counsel.  Or it may be that the equal protection standard requiring intent has so insinuated itself into our constitutional understandings that it is implied even when it is not present.

But these speculations also implicate a much larger issue.  It may be that the intent requirement in equal protection doctrine itself is wrong.  Certainly, this intent requirement comports with United States Supreme Court decisions, most notably Washington v. Davis, 426 U.S. 229 (1976), holding that discriminatory impact was insufficient to support an infringement of the right to equal protection.  An impact rule, the Court stated in Washington v. Davis, would raise “serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”

Chernoff raises serious questions about the misuse of equal protection’s intent requirement in the “fair cross-section” context.  She demonstrates how the doctrines have become convoluted and thus rendered the fair cross-section doctrine incorrect.  Yet she also exposes just how damaging the discriminatory intent requirement can be, whenever equality or fairness is at stake.

This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law.  In addition, deep into the piece, the [...]]]> Karen Knop, Ralf Michaels and Annelise Riles, From Multiculturalism to Technique:  Feminism, Culture and the Conflict of Laws Style, 64 Stan. L. Rev. 589  (2012).

Kim Brooks

This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law.  In addition, deep into the piece, the authors explicitly state that they chose the direction of the piece in part to highlight that feminists tend to prioritize culture and leave unaddressed the role of economics in constructing tensions, identities, and concerns.  Even if the article wasn’t so nicely written, even if it didn’t hold hints of something very interesting and hopeful, I would have been captivated by these motivations.

The authors drive the piece in surprising directions.  Part I outlines feminism’s engagement with culture as concept.  Part II situates a specific dispute (although in stylized form) that gives rise to a “clash” of cultures.  Part III illustrates how the technique of conflict of laws assists in reasoning through the particular dispute.  Part IV addresses possible objections and in Part V the authors argue that the approach delineated provides an intellectual style that might be adopted by feminists or cultural theorists.

Four reasons to read the piece…

First, the story is nicely told.  The authors self-consciously reflect on the directions in which  they take their narrative.  They appreciate that they are not engaged in truth telling; rather they are preoccupied with finding a route through.

Second, the authors do a beautiful job with their work on characterization (see Part IV. B. 2.).  This section should be essential reading for all third year students.  It tugs at the fundamental creativity of law(s).  The authors insist that we must think through the value, implications, results, and analytical clarity offered by alternate legal options.  They claim, additionally, uniquenesses in conflict of laws analysis – a self-reflexivity combined with an “as if” modality.  According to their rendering of the area, conflict of laws’ “open acknowledgement of the normative situatedness of characterization” is one of its analytical strengths.  In other words, conflicts requires an explicit judicial move-one where the decision-maker is forced to be clear about the legal claims that might be pursued and the legal jurisdictions in which those claims might be made, in a way that is at a minimum less explicitly required in other substantive law areas.

Third, the specific dispute the authors review is fascinating, and deceptively simple.  A father and daughter.  She lives in California; he in Japan.  He transfers all of the shares of the Californian subsidiary of a Japanese company to her.  He is the chair, principal shareholder, and CEO of the Japanese company.  She claims she has full decision-making control over the subsidiary.  He claims he intended to retain control.  What kind of law applies?  Corporate law? Trust law? Gift law? Should the underlying legal norms of Japan govern?  Those of California?  Should the history of Japanese corporate law or the practices of Japanese families matter?  The story isn’t drawn with precision from an underlying case, but it finds it basis in a real decision.

Fourth, the piece engages with a familiar story about the advantages of law (that one of law’s great strengths is its ability to resolve only the dispute before the decision-maker) in a new way.  The authors claim that “[o]ur interest is in asking how thinking through feminism/culture problems analogically, as if they were technical conflicts questions, might open up new avenues of theorizing. In other words, the conflicts doctrines we discuss are not simply tools for resolving disputes, although – and this is the trick – that is precisely how they are structured.  Rather, they are first and foremost tools with which to think.”  (P. 628.) One of the long recognized (and critiqued) strengths of law is that it enables the person thinking it through a dispute to focus on that one dispute only.  Ultimately the considerations one might bring to a single dispute have limits.  The dispute can be articulated, resolved (possibly) on these facts, under this law, and for now.  It is necessarily framed, delimited, contingent.  This may clarify thinking.  This is optimistic, of course, and refreshing.

Ultimately, in some ways the piece claims to be modest – it focuses on what is required to bring a single dispute to an equitable and legally defensible end and on how that approach might assist in the broad project of feminist theory.  Nevertheless, the tenor of the piece is marvellous – it calls to a long history of legal theory; it picks up from where feminists (and feminisms) stand on theorizing culture; and it does all of that in a way that left me curious.  Let me end with an excerpt from the article:

The insight of conflicts methodologies is that the tools sometimes exceed themselves, if we allow them to do so.  It may be that limiting the possibilities at one methodological or disciplinary level creates inadvertent surprises, unexpected discoveries in other places.  For legal scholars and lawyers this means recommitting to law, as opposed to say, popular culture, or fiction, as a medium of social change.

(P. 647).