Category Archives: Equality
Nov 27, 2018 Nancy LeongEquality
The notion of property enshrined in the American legal system is a poor fit for what scholars have termed cultural property—tangible and intangible items of great importance to tribal cultural heritage. As Chante Westmoreland deftly reveals in her Note, An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age, property law addresses only some of the concerns associated with cultural items of significance to tribes. Property law is designed to protect the object itself, but tribes are often concerned not only with an actual object, but also with the cultural and spiritual significance of the item. (In order to track Westmoreland’s own language, I will use the word “tribe” or “tribal” to refer to people indigenous to what is now the United States. Other scholars might use the words indigenous, Native American, Indian, or their variants. The choice of language is a vital conversation, but one I will not take up in this short review.)
Of particular importance today—when it sometimes seems that everyone wants to make everything available on the Internet—are the new problems associated with digitization of important tribal artifacts. Westmoreland offers a balanced account of the benefits and problems associated with digitization. On the one hand, digitization enables what some have called a “museum without walls”—an opportunity for anyone with an Internet connection to learn about tribal practices around the world. Such a virtual museum would benefit scholarly research and enhance understanding by laypeople. Moreover, digitization would help mitigate the risk of loss of irreplaceable cultural items in a natural disaster or a war. The recent fire at Brazil’s National Museum, which caused the tragic loss of many irreplaceable items, vividly illustrates the benefits of digitization. One researcher, a member of the Tenetehára-Guajajara tribe who had been studying his people’s heritage, offered a stark assessment: “It felt like a genocide.” Continue reading "Protecting the Intangible"
Oct 31, 2018 Sonia LawrenceEquality
In her summer 2018 article in Feminist Legal Studies, Silvana Tapia Tapia takes a close look at a fundamental concern for many contemporary feminists – the ways in which penal expansion under neoliberalism was a “feminist-sponsored” reform project, one which feminist movements took up while ignoring, neglecting or rejecting more redistributive efforts. Tapia Tapia’s exploration takes place in Ecuador, in 2012 – and Ecuador, part of Latin America’s “pink tide,” explicitly rejected neoliberalism in 2007. The Ecuadorian constitution of 2008 had “unprecedented constitutional provisions.” One of these, “Sumak Kawsay, the indigenous approach to community life, as a fundamental principle” could support alternatives to carcerality in Andean justice, among other “counter hegemonic” possibilities. In this “post-neoliberal” environment, Tapia Tapia asks, what is the relationship of feminist interventions in criminal law to feminist alignment with redistributive claims in law and politics?
Beginning with a discussion of current scholarship on “carceral feminism” and “governance feminism,” Tapia Tapia outlines the argument that penal expansion operates to shift resources away from redistribution, that it has become transnational via human rights based discourses, and that it is fundamentally punitive. She reads scholars like Elizabeth Bernstein, Janet Halley and Prabha Kotiswaran as positing a link between carceral feminism and a neoliberal form of feminism, but in reading the Ecuadorian ”post-neoliberal” context, she finds that “many feminists demanding criminalization are strongly committed to a redistributive agenda.” (P. 6.) Why and how, Tapia Tapia asks, do Ecuadorian feminists who are operating in a post-neoliberal context, and a context in which the constitutional framework embraces a plurality of sources of law (“Andean Constitutionalism”), continue to support criminalization? Continue reading "Planning for a Post Neoliberal Future"
Jun 20, 2018 Ruthann RobsonEquality
Maya Manian,
The Story of Madrigal v. Quilligan: Coerced Sterilization of Mexican-American Women, in
Reproductive Rights and Justice Stories (forthcoming 2019), available at
SSRN.
The meaning of “success” in litigation challenging inequalities is at the core of Professor Maya Manian’s essay about the extensive effort to end sterilization of Mexican-American women at the Los Angeles County + USC Medical Center in the 1970s.
In one sense, the case of Madrigal v. Quilligan is a great victory. The federal judge who first heard the case issued a preliminary injunction directed at making the Spanish language consent forms understandable to patients. This judge then signed off on a settlement agreement between the Madrigal plaintiffs and the California Department of Health, approving California’s enhanced sterilization consent requirements, which themselves had been the product of lobbying and media efforts by Chicana activists. The United States Department of Health issued new guidelines requiring bilingual consent forms and instituting a federal monitoring program. The case “galvanized Chicana feminist activism” in ways that made it clear that a broader notion of “reproductive justice” was necessary: it should not be limited to the emphasis by white feminists on abortion and contraception but must also include abusive practices intended to limit reproduction by women of color and impoverished women. Continue reading "Resisting Attempts to Control the “Hyper-Fertile”"
May 24, 2018 Ann E. TweedyEquality
Despite the fact that bisexuals are, by most counts, the largest sexual minority group in the United States, they remain woefully under-researched and under-theorized. This invisibility in the realm of research and scholarship may be tied to the fact that bisexual programs and organizations receive only a minuscule amount of funding compared to either gay or lesbian organizations. As one study noted, over a forty-year period, bisexual programs and organizations received less than 0.3% of the funding awarded to their gay or lesbian counterparts. See Anthony Bowen, Forty Years of LGBTQ Philanthropy: 1970–2010 33 (2012). Furthermore, bisexuals face alarming physical and mental health disparities—including higher levels of mood and anxiety disorders and of suicidal ideation—compared to individuals of other sexual orientations, which may well be a consequence of the fact that bisexuality is stigmatized by both heterosexual and homosexual communities.
This background of invisibility and stigmatization helps illustrate the importance of Brian Dodge et al.’s Attitudes Toward Bisexual Men and Women Among a Nationally Representative Probability Sample of Adults in the United States, published in the journal PLoS ONE. The article—and the study on which it is based—fills an important gap in the existing research on bisexuality as to prevailing societal attitudes toward bisexuals and the persistence of common stereotypes of this group, despite the considerable advances in societal attitudes towards gays and lesbians. Continue reading "Illuminating Societal Stereotyping of Bisexuals and the Need for Strategies to Reduce Stigmatization"
Apr 25, 2018 Maneesha DeckhaEquality
Mathilde Cohen,
Animal Colonialism: The Case of Milk, 111
Am. J. Int’l L. Unbound 267 (2017), available at
SSRN.
Many progressive scholars and advocates on the Left presume that the animal rights movement is culturally imperialist (at least in its American and Canadian iterations). This presumption holds steadfast in spite of the considerable scholarship, notably originating in ecofeminist thought, demonstrating the multiple ideological, discursive, and material links between human and nonhuman animal oppression advanced through dominant Western epistemologies and political, social, economic, and legal orders. Or, put differently, in many ways, arguments highlighting what is wrong with animal commodification and exploitation often indict Western worldviews on animals rather than seek to extend such worldviews elsewhere.
Why this presumption nonetheless persists is a complex issue. Certainly, one reason is the real and imagined whiteness of the movement (again, in its American and Canadian iterations). A further reason may be the related insufficient adoption of an intersectionalist ethic in high-profile animal rights campaigns where animal injustice is disconnected from human injustices. The perception can then flow that those who care about equality for animals do not care about vulnerable (often racialized and indigenous) humans.
Most legal scholarship on animals in the United States does not embrace an intersectionalist orientation when discussing injustice against animals. To the extent the dearth of intersectional analysis in animal law scholarship fuels the association of animal rights with cultural imperialism, Mathilde Cohen’s Animal Colonialism: The Case of Milk is a very welcome corrective. Her short yet informative analysis about milk’s global rise compellingly illustrates the transspecies nature of law’s violence and ensuing inequalities. Specifically, Cohen shows how Eurocentric international law and trade, European dietary and legal norms in relation to animals, and European and American modernist discourses championing cow’s milk over traditional breastfeeding and maternal care occasioned a global rise of the human consumption of cow’s milk that was pivotal to empire-building throughout the world. This entailed devastating harms for colonized peoples and animals both. Continue reading "Milk’s Global Rise: A Case Study to Illuminate the Transspecies Violence of Law and Colonialism"
Apr 4, 2018 Elaine CraigEquality
Amanda Dale,
Gun Control and Women’s Rights in Context: Reflections of the Applicant on Barbra Schlifer Commemorative Clinic v Canada, 13
J.L. & Equal. 61 (2017), available at
HeinOnline.
In Gun Control and Women’s Rights in Context: Reflections of the Applicant on Barbra Schlifer Commemorative Clinic v Canada, Amanda Dale not only provides the reader with an embodied account of law that exemplifies the limits of legal discourse, she also offers a compelling (and disheartening) explication of how and why the Stephen Harper government’s repeal of the long-gun registry threatens the lives of women.
As Dale points out, gun control in Canada is different from that in the United States. Canadian gun control laws are, of course, much more robust. For example, restricted weapons, such as handguns, have been subject to gun control legislation, including a registry, since 1932. However, a Canadian registry for long guns (shotguns and rifles) was not put into place until 1995 – following a mass shooting in Montreal that engendered significant activism aimed at reducing violence against women. The shooter targeted women and said he was motivated by a hatred of feminists. Noting that most women are shot by people they know and that most domestic violence involving firearms involves legally owned shotguns and rifles, Dale explains the connection between the protection of women’s physical safety and the need for a long-gun registry. Continue reading "Women and Guns"
Feb 26, 2018 Kim BrooksEquality
Claire L’Heureux-Dubé was Canada’s second woman to join our Supreme Court of Canada. She was famous for her strong personality, her charm, her directness, and eventually her willingness to dissent. She was loved by some, loathed by others.
My opening paragraph so dramatically understates the significance of Justice L’Heureux- Dubé. It pretends that the life of one woman – a woman who faced substantial personal and professional challenges – can be adequately captured in a few words.
Enter Constance Backhouse’s brilliant biography. Biography is an art. How to render a person visible? To be appropriately honest about her failings and reflective about her successes? To situate her life within its broad context – social, political, economic, and scientific? To reflect her social character – her relationships and the effects of those relationships on the path of her life?
Backhouse’s considerable work answers these questions. Continue reading "Justice for Equality"
Feb 1, 2018 Toni WilliamsEquality
My reading of Deliberating Racial Justice: Toward Racially Democratic Crime Control (Chap. 18 of The Routledge Handbook of Criminal Justice Ethics) came about because of a research project about the role of law in implementing inclusionary practices. That project focuses on practices intended to overcome exclusion in specific parts of society in Latin America and Europe, but as Ward and Hanink observe, historical practices of exclusion, and their legacies, appear everywhere: “Worldwide, racial and ethnic group domination of legal authority—through legislation, within courts, in policing, and among influential associations—has proven a fundamental mechanism of oppression and domination, that is, a practical means by which groups defined by race have been denied self-realisation and societal participation.” (P. 283.)
With these words, the authors neatly pinpoint the problem — the injustices — that strategies and policies intended to remedy racial oppression and advance racial equality must address. In the body of this well-crafted essay, the authors critically examine one familiar response to racial oppression, “representation,” looking in particular at its capacity to change existing practices of domination through legal authority and to enable self-realisation and societal participation regardless of race. They situate their examination of this topic in the specific context of crime control administration in the United States of America. However, the paper’s exploration of how representation is typically implemented, exposure of the limitations of mainstream approaches, and advocacy of a more substantive model of “deliberative representation” as a means to advance racial justice gives the paper significance outside the United States and beyond criminal justice. Continue reading "Now What? Substantive Racial Justice in Turbulent Times"
Jan 10, 2018 Earl M. MaltzEquality
The tenor of the debate over the propriety of creating religious exemptions to generally applicable laws has changed dramatically in recent years. As recently as 1993, progressives and conservatives joined forces to secure passage of the Religious Freedom Restoration Act, which requires the granting of such exemptions in cases where compliance with a statute would “substantially burden a person’s exercise of religion” unless the denial of the exemption was necessary to serve a “compelling” governmental interest. However, as the focus has turned to requests for exemptions by employers who object to the contraceptive mandate of the Affordable Care Act and merchants who wish to avoid providing goods and services for same-sex weddings, the debate over religious exemptions has taken on a starkly partisan aspect, with advocates for both sides often eschewing reasoned argument in favor of emotionally charged rhetoric that demonizes their opponents and effectively denies the possibility of good faith disagreement.
Against this background, Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, is a particularly welcome contribution to the debate. After a brief overview of the legal and political background of the current dispute over religious exemptions, Debating Religious Liberty presents a series of essays designed to illuminate the different positions on the issue. Corvino, a longtime advocate for LGBT rights, makes the case against all but the narrowest religious exemptions to laws designed to protect people from discrimination on the basis of sexual orientation or gender identity (SOGI laws). By contrast, Anderson and Girgis, both of whom are well-known for their opposition to government recognition of same-sex marriages, contend that religious objections should be honored in a much broader range of circumstances. Continue reading "Reasoned Debate on Religious Exemptions"
Nov 21, 2017 Robert LeckeyEquality
While few seriously hold up litigating as a path to happiness, lawyers, historians, and activists often associate an expanded capacity to sue with increased justice. Thus the married woman’s right to sue in her name and minorities’ prerogative to respond to discrimination and hate crimes via legal proceedings are markers of progress. However costly and uncertain litigation is, the real issue is of course the potential for oppression wherever the powerful unjustifiably limit one group’s scope for legal action relative to that enjoyed by others. Crucially, my examples don’t typically evoke the worry that increasing one potential plaintiff’s options imposes costs on another historically subordinated group. The example in Suzanne Lenon and Danielle Peers’ engaging new essay in Feminist Legal Studies does precisely that.
The authors invite us to scrutinize the content and context of a lawsuit that a short time ago would have been unthinkable. Their point of departure is the complaint for wrongful birth brought by Jennifer Cramblett, a white lesbian, against the sperm bank that mistakenly provided her with sperm from an African-American donor, leading to a child of mixed race. The novelty inheres in the space for a committed lesbian couple to present in court its ambition to have a child by assisted reproduction as ordinary and reasonable. Lenon and Peers call us to examine the set of assumptions – the legal and social inheritance of white privilege – by which having a healthy child of mixed race might occasion compensable harm. They argue convincingly that the white lesbian’s lawsuit confirms, indeed reinforces, discourses that subordinate others. Continue reading "Suing on the Shoulders of Others"
