Category Archives: Equality
Apr 29, 2021 Maneesha DeckhaEquality
Despite the dominance of COVID-19 in our media feeds this past year, we still do not hear much about the anthropogenic origins of zoonotic diseases or the anthropocentrism that frames anthropogenic activity. We hear even less about the corresponding need to combat anthropocentrism, the monumental roadblocks legal systems erect in this regard, and how legal systems can and should adopt anti-anthropocentric perspectives in order to make inroads against an array of inequality-producing social phenomena. Going against this grain, and exacting much-needed pressure against Western legal orders’ exclusionary anthropocentric worldview of “nature” as property, is Alyse Bertenthal’s Standing Up for Trees: Rethinking Representation in a Multispecies Context.
In this elegantly-written article—that reads more like a cogent literary meditation than standard law review writing itself—Bertenthal casts a critical lens on the anthropocentrism of Western legal cultures and, in particular, the legal devaluation of trees in the American landscape (figuratively and literally). But she also challenges us further by asking us to interrogate the human-made legal constructs that are meant to rectify the subordinate position of “nonhuman nature” (P. 356)—such as the extension of legal personhood—for their residual anthropocentric exclusions. Continue reading "Legal Human Humility: Contending with the Representation of Trees and Other “Nature” Beings"
Mar 25, 2021 Ann E. TweedyEquality
Recasting the Vote: How Women of Color Transformed the Suffrage Movement is an essential read for anyone interested in women’s history, the history of voting rights in the United States, Indigenous history, or the history of other under-represented groups. Cathleen D. Cahill brings to light the little-known contributions of Native, African-American, Asian, and Latina women to the struggle for voting rights in America. Cahill combed multitudinous sources to paint robust portraits of these women, including Native activists Laura Cornelius Kellogg, Marie Louise Bottineau Baldwin, and Zitkala-Ša, African-American voting rights advocate Carrie Williams Clifford, Chinese-born activist Mabel Lee, and Latina activist Nina Otero-Warren, among others.
The book rightfully complicates the notion of women’s suffrage, revealing that a singular focus on women’s suffrage both obscures the larger struggles that these women were engaged in to secure the voting rights of all members of their communities and elides the contributions of these women to the suffrage movement. As Cahill explains, “[t]he suffrage histories of women of color bridge 1920, so to see that year as an end point leads us to tell a story that inevitably ignores them and truncates our understanding.” (P. 205.) Another invaluable aspect of this book is that Cahill refuses to shy away from the complexities of the important history she is unveiling. Thus, as readers, we are forced to reckon with the fact Native and Latina activists, for instance, sometimes drew distinctions between themselves and African-Americans to demonstrate the worthiness of their own communities for voting rights. More broadly, we are faced with the shameful history of exclusion within the women’s suffrage movement. White suffrage parade organizers, for instance, tried to relegate Ida B. Wells (then going by Mrs. Wells-Barnett) to the portion of the 1913 Washington D.C. suffrage parade reserved for African-Americans, rather than allowing her to march with the Illinois delegation as planned. As a consequence, she had to jump into the parade after it had already started in order to march with her fellow Illinois citizens. (P. 104.) Continue reading "Uncovering the Little-Known History of Suffragists of Color"
Jan 25, 2021 Kim BrooksEquality
If you’re having one of those days where you feel like change may never come; here’s a fabulous volume for you. This special issue of the Canadian Journal of Law and Society centres the lives of trans people, grapples with daily experiences of exclusion and discrimination, and claims new shared ground for legal change in ways that requires us to de-centre law. It is exciting work.
The collection of articles addresses all manner of cites of legal contest—from employment law to human rights, to education law, to health law. As a collection it is neither rigidly theorized nor staunchly pragmatic. Instead, the articles, many of them authored collaboratively, acknowledge theoretical foundations and legacies, and seek to build from those foundations while still keeping the real lives of trans people in sharp view. And while the collection is ground-breaking as a venue for a collective conversation about trans legal change, it makes no claims to be definitive or comprehensive. Each article both stands independently as a contribution rooted in a specific set of experiences and legal frames and weaves with the other contributions to form a coherent, but of course incomplete, whole. The collection is a conversational moment: it results from an effort to bring together a growing number of Canadian trans scholars, activists, and allies in dialogue and to let things unfold from there. Continue reading "A Lively Conversation on Trans Legal Change"
Dec 9, 2020 Chao-Ju ChenEquality
Deborah A. Widiss,
Equalizing Parental Leave, 105
Minn. L. Rev. __ (forthcoming, 2021), available at
SSRN.
On Election Day, Colorado voters approved an initiative that makes Colorado the tenth state (including D.C.) in the U.S. to install a state-run paid family and medical leave insurance program. It will provide, among others, at least 12 weeks of paid time for childbirth and adoption, hence extending the entitlement of paid parental leave to Colorado workers who are not covered by the Federal Employee Paid Leave Act. Paid parental leave is increasingly considered to be a crucial measure to advance sex equality by transforming parenthood on double fronts: enabling working mothers to stay employed and paid while caring for children, and encouraging working fathers to provide hands-on infant care. Internationally, many countries have enacted various parental leave policies, which provide either equal amounts of leave to parents regardless of sex or distinct leave policies for mothers or fathers, while mindful of the risk that accommodating working mothers’ need for childcare without engaging working fathers in childcare will likely deteriorate the unequal division of childcare. It follows that a feminist inquiry into parental leave policies typically centers on the issue of which approach best promotes equal parenthood so that mothers do not shoulder the sole responsibility of childcare.
In Equalizing Parental Leave, professor Deborah A. Widiss argues that the above vision of equal parenthood is an incomplete picture. Widiss has examined the efficacy of different paid parental leave policies as an equality-promoting measure from a comparative perspective in a related article, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia (reviewed by Naomi R. Cahn on JOTWELL). Equalizing Parental Leave takes a step forward to shed light on the sex inequality of nonmarital families under U.S. parental leave laws. Both federal and state parental leave laws provide the same benefits to mothers and fathers, but they not benefit all families equally: families with two legally recognized parents are entitled to receive as much as twice the benefits of families with one legally recognized parent, and marital families are more protected than nonmarital families. Continue reading "Equality for Whom? Nonmarital Inequality and the Paradox of Parental Leave"
Oct 13, 2020 Sonia LawrenceEquality
To Surveil and Predict is longer than the usual Jotwell suggestion. The authors carefully document and then explore the rights implications of the use of algorithmic and predictive tools by police forces in Canada. They conclude with a series of recommendations focused on public policy. My recommendation here is focused on the method and the equality focused parts of the report, although I like it all–a lot.
First, method. The Report works to expose and explore something that’s only just starting up. So classic doctrinal methods–where are the cases?–are not going to work well. But some of the analysis is quite legal, running things through Canadian human rights and charter provisions. At the same time and contrary to much (also very good) early work in this sector, they do not spend much time speculating about potential future technologies. Instead, Robertson, Khoo and Song pursued information (inter alia) about what was happening “on the ground” through freedom of information (FOI) requests. One of the many aspects of their work that I like: they provide information about how these requests were received and negotiated. (P. 13; Appendix A.) FOI is a critically important tool for researching the administrative state. How the process plays out is usually connected to the quality, volume and nature of the information obtained, but the process of making requests (and receiving replies, or not) is rarely described in articles. In my view, discussion of how the FOI requests worked in context is a good reason for adding length to research reports and analysis. Continue reading "Beyond Predictions About Predictive Policing"
Sep 14, 2020 Erez AloniEquality
In July 2020, newspapers reported a study that ranked the United States as the second-worst country—after Mexico—to raise a family out of 35 OECD countries. The US failed, in particular, in the categories of cost to raise a family, time parents have to spend with their children, and safety as related to raising a family. Sadly, for families who struggle with this issue, this report held nothing surprising. The Free-Market Family (2020), by Maxine Eichner, affirms the study and adds much more. The book details, in a comprehensive and nuanced manner, the failure of the US to support its families. Eichner argues that over the past five decades the US has gradually adopted an extreme version of “free-market family policy,” in which the government’s role in helping families to care for their children, especially in their early years, is minimal. Families are sacrificed to the market’s mercy, juggling work and caregiving, in what becomes a mission impossible for all but the ultra-rich. The result is devastating: the well-being of most US families—measured across such standards as happiness, academic achievement, mental health, time to spend with family, and economic mobility—is significantly worse in comparison to other similar countries.
The Free-Market Family is mandatory reading for anyone who wants to understand how laissez-faire public policies fail most US families. Diligently and elegantly, Eichner maps and analyzes the various policies that contribute to this failure. One of the book’s primary strengths lies in the richness of disciplines, resources, and methodologies she engages—from history to political economy, from major news stories to economic data, from interviews with 39 parents to comparative policies across various nations. Together, the book provides a thorough and rigorous account of the policies that the US has embraced, including their political origins and their harm, and offers suggestions about how to correct them. Eichner’s style is crisp and delightful, making even her meticulous detailing of policies and data accessible to a broad audience without compromising the critical nuances of these issues. The personal narratives make the story less abstract, and are often very touching. Continue reading "“Free” Market Too Costly for US Families"
May 8, 2020 Maneesha DeckhaEquality
The rule of law is a ubiquitous if elusive policy and legal term deployed worldwide. It is also a founding narrative of British colonialism. It thus strikes some as anathema to equality. But given its foundational stature in numerous legal orders, when equality-promoting measures are perceived as promoting the rule of law, they can receive the validation they may desperately need. Conversely, when such measures are seen to offend the rule of law, they risk being dismissed as constitutionally illegitimate. What we understand the rule of law to be, then, vitally matters to substantive equality goals. Currently, a formal or thin conception prevails in many jurisdictions. In this narrow conceptualization, the rule of law is directed at maintaining formal separation of powers and a system of positive laws where all exercise of public authority has a legal source, and no one is above the law.
Many equality initiatives, however, to be seen to have rule of law backing and thus legal legitimacy, need a thicker account of the rule of law, one that can keep pace with changing social mores and normative commitments. How, then, to move our legal systems toward this thicker conceptualization? In The Spousal Support Advisory Guidelines, Soft Law, and the Procedural Rule of Law, Jodi Lazare deftly contributes one answer to this all-embracing question with her analysis of a particular tool meant to ensure women’s substantive equality: the Spousal Support Advisory Guidelines (“the Advisory Guidelines”) in Canada. Continue reading "Thickening Rather than Abandoning the Rule of Law: Revisiting What Counts as “Law” through a Controversy about What Should Guide Judges in Awarding Spousal Support"
Apr 10, 2020 Ann E. TweedyEquality
Bethany Berger’s article Savage Equalities is an excellent exploration of the importance and varied meaning of equality in the context of tribal rights and Federal Indian Law. Berger carefully evaluates the various types of equality claims that are levied in relation to tribes, including the idea that recognition of tribal sovereignty creates special rights for tribes that denigrate the equality rights of non-Indians (or even, according to some formulations, Indians), the idea that recognition of tribal sovereignty is necessary to foster equal treatment of tribes and tribal citizens, and finally the concern that Indian tribes’ governmental actions sometimes violate their own citizens’ rights to equality. She traces the prevalence and deployment of these ideas through the tortuous history of the federal government’s relationship to tribes, showing how, for example, the idea of unfair “special rights” for tribes was used during particularly dark periods of federal-tribal relations such as the allotment period, when the idea purportedly justified harming tribes by unlawfully taking their property. The taking of tribal property at the time was deemed necessary to level the playing field for individual non-Indians who were seen as unfairly lacking these special rights.
Berger similarly traces the understanding of the right to tribal sovereignty as rooted in, and necessary for, equality through more positive periods of history, and she additionally identifies instances where individuals under tribal jurisdiction have been denied their rights to equality at the hands of tribal governments. Continue reading "Reconciling Competing Claims to Equality Relating to Tribal Governments and Native and Non-Native Individuals"
Mar 12, 2020 Elaine CraigEquality
Were I to describe Rachel Louise Snyder’s new book – No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us – in three words they would be: comprehensive, concrete, and captivating.
No Visible Bruises offers a truly comprehensive exploration of the problem of domestic violence and our socio-legal responses to it. The book is framed around key stories and insights from victims and perpetrators, law enforcement, and academics and advocates who have worked to reform social and legal responses to intimate partner violence. The book convincingly demonstrates the systemic nature of the problem in part because it is so comprehensive in its assessment of the issue. Snyder draws connections between the pervasive and silent character of domestic violence and the economy, education systems, social stigma, sexism and intergenerational abuse. Using specific examples like family justice centers, multidisciplinary high risk response teams, batterer intervention programs, police protocols, researchers and fatality review teams No Visible Bruises canvasses the past several decades of reform to socio-legal responses to domestic violence. Snyder traces the history of the movement to reform how law enforcement, social workers and courts address domestic violence and examines how these efforts take shape today. Continue reading "Communication, Knowledge Sharing and Danger Assessments: Key Factors in the Prevention of Domestic Violence Fatalities"
Feb 21, 2020 Katherine KleinEquality
When you picture the rural, what does it look like to you? Perhaps you think of cowboys and the Wild West or Midwestern farmers or coal miners in Appalachia. When you think of the characters that inhabit your mental image, aren’t they White? This is the widespread image that Maybell Romero challenges in her recent law review article, arguing that such a homogenously White perception of rural spaces has significant institutional impacts for people of color living in these areas. Romero uses her article to advocate for mandatory cultural competency trainings and data collection in rural prosecutorial offices. Proper collection and analysis of this data will help shed light on the extent of racial disparities in the rural criminal justice system. Romero also challenges us to view rural areas with more nuance; they are not the racially monolithic places that inhabit most Americans’ perceptions. Expanding our racial view of the rural will help us adopt a “thicker” definition of justice, one that truly serves all those living in rural communities.
Romero notes that in pop culture, rural America is often conceptualized in one of two dichotomous ways. The rural is either an Andy Griffith-esque heartland of traditional American values or it is a lawless wasteland characterized by drug-addiction and violence. The thing both of these conceptualizations share is that the inhabitants of both are exclusively White. The focus of Romero’s article is rural Maine, a place that many Americans would expect to be almost entirely homogenous. When considering challenges faced by rural Mainers, people of color are very often overlooked or forgotten completely. Continue reading "Whitewashing the Rural: How Cultural Views Influence Access to the Justice System for Communities of Color"
