Category Archives: Equality
Oct 14, 2013 Camille NelsonEquality
I like the article Self-Defense and the Suspicion Heuristic; consistent with Jotwell’s tagline, I like it lots. The timing of this short review is apt. The Zimmerman verdict was recently rendered. It is still fresh in our minds, protests are taking place across the United States, President Obama has delivered a landmark speech on race in America, reflecting that, “Trayvon Martin could have been me . . . .” Self-Defense and the Suspicion Heuristic is an important work that lends insight into thought processes that could have led both to the killing of Travyon Martin and the verdict of acquittal.
This Iowa Law Review article, authored by a law professor (Richardson) and social psychologist (Goff), explores the subtle “mental processes [that] can conspire to produce racially discriminatory behaviors.” (P. 295.) In attempting to disabuse the reader of the assumption that Mr. Zimmerman must have been a bigot or a racist, meaning a conscious discriminator, Richardson and Goff elucidate predictable and pervasive unconscious racialized psychological processes that “warp the perceptions of even the most egalitarian of individuals.” (P. 295.) They call for “a new legal and theoretical framework that can account for these biases—one that does not rely upon the fiction of the objective decision-maker or the scapegoat of the consciously biased actor.” (P. 295.) Tapping the mind sciences to illuminate unconscious psychological processing that “can lead to systematic errors in judgment about criminality,” the authors introduce “the suspicion heuristic.” They employ this heuristic, which is defined as a “mental shortcut that often leads to systemic errors in determining who is and is not suspicious” (P. 297) to interrogate reasonableness determinations in self-defense doctrine. Continue reading "Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic"
Sep 11, 2013 Toni WilliamsEquality
Gary Dymski, Jesus Hernandez & Lisa Mohanty, Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, 19 Feminist Econ. 124 (July, 2013), available at SSRN.
Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, by Gary Dymski, Jesus Hernandez, and Lisa Mohanty, is a reminder of the power that mainstream economic analysis wields to shape social understandings of inequalities in personal credit markets and the terms on which potential legal and regulatory solutions are debated. At the same time, the article exposes the inadequacy of mainstream economic analysis when dealing with important questions about financial subjects and their exploitation in subprime lending markets.
The authors ask: what is it about the circumstances of minority women and men that renders these financial subjects too risky for lenders to trust with the relatively safe and affordable credit supplied by mainstream personal finance markets and at the same time the sub-prime market’s preferred borrowers of risky, dangerous, and unaffordable loans? They ask also: why did the well-documented over-supply of credit at the turn of the 21st century fail to exert competitive downward pressure on the predatory pricing of the subprime mortgages marketed to minority households, particularly minority female-headed households? It perhaps seems odd that such crucial questions about the performance of subprime markets have received little attention in conventional economic accounts of the crisis. But, as noted in the article, their absence reflects economic analysis’s robust assumptions that markets are socially neutral institutions populated by financial subjects that are abstracted from relations of racialization, class, and gender. The centering of this ahistorical, pre-political disembodied financial subject within economic analysis then perpetuates the invisibility of systemic racialized and gendered inequalities in the law reform and policy debates that economics influences. Continue reading "Challenging Inequality in Credit Markets—Towards a Reconstituted Financial Subject"
Jul 26, 2013 Ruthann RobsonEquality
That we are still strategizing how to achieve gender equality—the equality of women’s constitutional and legal status, social and economic opportunities, and daily realities with those of men’s—is the perplexing truth at the heart of Penelope Andrews’ important book, From Cape Town to Kabul. Known for her work on South Africa and legal feminism, Andrews here posits questions about how gender equality can be achieved on a global scale. She offers no easy answers or totalizing theories, but proposes a notion of “conditional interdependence” as a method of situating women within their various cultures as a way to move forward with the project of equality. It’s a concept that could go far in resolving some of the thorniest arguments about “choice” and “autonomy” that permeate questions of women’s equality.
At its most hopeful, Andrews’ book presents the struggle for equality in South Africa as it was mounted against the Apartheid state, resulting in a new constitutional regime devoted to transformative law and politics. Andrews attributes the fact that this transformation included gender equality to a confluence of forces, but most importantly women’s participation. She suggests that the path chosen by South Africa is a model for many other nations, stressing that the involvement of women at all levels and phases is vital. Continue reading "The Global Problem of Women’s Equality"
Jun 24, 2013 Sonia LawrenceEquality
After reading Presumed Incompetent: The Intersections of Race and Class for Women in Academia and attending the Symposium organized around the book by the Berkeley Journal of Gender, Law and Justice, I came home to find Sara Ahmed’s On Being Included: Racism and Diversity in Institutional Life waiting in my mailbox (this Jot is about On Being Included, although I’m quite prepared to say that I like Presumed Incompetent (lots) as well). The combination of these two books, both filled with personal stories and institutional insight, cracked my vision of my own place in the legal academy, and the “practice” of diversity, wide open. I read this work as a person who shares a (not surprising, really) number of experiences-as-academic with Ahmed. I read it just after reading the often deeply personal essays in Presumed Incompetent. I also read it as a person who has worked to avoid being noticed as “the problem” while trying to maintain a commitment to anti-racist work. These days, that means deep concern that my own strategies and efforts are nothing more than thinly veneered cooptation. All of these things, I think, amplified the impact of the book on me. But I still do not hesitate to recommend it to you, Jotwell reader.
On Being Included is a different kind of offering from a well-known Black British feminist, Professor in Race and Cultural Studies at Goldsmiths (University of London), whose work draws on feminist theory, queer theory, critical race theory and post colonialism. She writes, “It develops my earlier arguments about ‘stranger making’ by thinking more concretely about institutional spaces…” (P. 3.) The book is a study of “diversity” as work inside institutions of higher education. Unlike most of her other work, this one developed out of an empirical study she undertook with a team (read the Introduction for the description of how this happened). Ahmed’s interviews, her personal connection to the subject matter (her presence is part of how her institution does diversity (P. 153), and she has done ‘diversity work” there as well), and her linking of empirical and theoretical insights make this a deeply engaging read. Continue reading "Law As Unfinished Social Action"
May 22, 2013 Isabel GrantEquality
Pascale Fournier, Pascal McDougall & Anna R. Dekker, Dishonour, Provocation and Culture: Through the Beholder’s Eye?, 16(2) Can. Crim. L. Rev. 161 (2012), available at the University of Ottawa. In their thought-provoking work Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Pascale Fournier, Pascal McDougall and Anna R. Dekker use a unique blend of historical, cross-cultural and empirical analysis to reveal the connections between so-called “honour killings” and intimate femicides where the defence of provocation is invoked. While “honour killings” typically involve “non-Western” defendants, and concerns about gender equality are more explicit, intimate femicides raise similar equality concerns which are often unrecognized and concealed. The authors acknowledge that there are differences between our typical conception of honour killings and the spousal homicides in which provocation is raised by Western defendants. For example, traditional honour killings invoke the idea of public honour, whereas in the provoked intimate femicides, “the locus of honour has shifted from the traditional extended family to the individual man” (178). However, there are underlying features that link spousal homicides to honour killings: both are “cultural claims tied to male domination of the family” (180) and both turn on the desire to control women’s sexuality. In essence, the defence of provocation is portrayed as a privatization of honour, with aspects of honour manifested through Western understandings of “passion”.
The defence of provocation in Canada has not been explicitly linked to male honour in the case law. Instead, the defence is viewed as making concessions to human frailty, and is limited by the concept of the “ordinary person”. The insult which triggers the killing must be grave enough to cause the ordinary person to lose self-control, and the accused must have reacted suddenly, before there was time for his “passions to cool”. But this concession to human frailty masks the historical basis of the defence and the meaning embedded in spousal homicide cases. The idea of women and children as property of their male partners looms large even in recent cases. The public framing of honour killings as something “other” than Western obscures the foundations of spousal femicides in Canada, which are rooted in individual conceptions of male honour. Continue reading "Provoked Intimate Femicides: A Privatized Version of “Honour”?"
Apr 17, 2013 Elaine CraigEquality
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.
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. Continue reading "Forsaking Vulnerable Sex Work"
Mar 25, 2013 Margaret DaviesEquality
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. Continue reading "Sexuality and Legal Consciousness"
Feb 12, 2013 Davina CooperEquality
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. Continue reading "Political Splits"
Jan 9, 2013 Robert LeckeyEquality
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. Continue reading "Uncomfortable Marriage"
Nov 23, 2012 Kim BrooksEquality
Mary Louise Fellows & Lily Kahng,
Costly Mistakes: Undertaxed Business Owners and Overtaxed Workers, 81 Geo. Wash. L. Rev. (forthcoming 2013),
available at SSRN.
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. Continue reading "Costly Mistake: Failing to Read This Article"
