Tag Archives: SSRN

Reading list / twitter roundup

applejack with lasso

1. Inglis v. BC Minister of Public Safety (trial level successful demand for mother/baby in women’s prison to be reinstated on Charter grounds)

2. Homicide verdict from inquest jurors (5 women who performed this service for 8  months) in the death-while-incarcerated of 19 year old Ashley Smith.

3. Bedford.  SCC unanimously strikes down all Canada’s prostitution laws (for non Canadians –  sale of sex for money is legal but almost all the things you need to engage in it – especially safely engage – are not).  Suspended judgement for a year.

 

OTHER NEW IN PRINT

A Legal History That’s Really About the Place of Law in History http://jotwell.com/?p=3884 

Introduction: #Feminist #Jurisprudence and the Question of #Home Ann Genovese | feminists@law http://bit.ly/1iLdLOU  +4 more papers

Univ of Toronto Law ‏@UTLaw12 Dec  Prof. Lisa Austin, @mgeist and others write “Our data, our laws” in @nationalpost http://fullcomment.nationalpost.com/2013/12/12/our-data-our-laws/ …

A fun read! The fourth wave of feminism: meet the rebel women | World news | The Guardian http://bit.ly/18A8DU1 

[ok not new but!] from 2005 Remembering Favourite Feminist Legal Scholarship by Backhouse, Buss, Cairns Way, Gilbert http://bit.ly/18k8SHZ  #remake?

in @Feministsatlaw Maria Drakopolou (Kent) Revisiting Feminist Jurisprudence: A Rehabilitation http://bit.ly/1gOjPll 

“rape” law: Rubenfeld’s deception thesis taken on: ‏@YaleLJournal Jed Rubenfeld responds to comments on his article from four scholars including Gowri Ramachandran (SWestern) in the YLJ Delineating the Heinous: Rape, Sex, and Self-Possession http://bit.ly/1iLcFmo  (find the others here http://www.thepocketpart.org/.  Rubenfeld then reiterates that sex-by-deception remains a problem for rape law: http://www.yalelawjournal.com/criminal-law-and-sentencing/1225-rape-by-deceptiona-response …

Higher Education: Look around – not a pretty sight

UK (if you are not following recent happenings in the UK, you should)

#highered in UK – Cdns, have a look at #fairpayinHE #occupysh [+context @guardiannews http://www.theguardian.com/higher-education-network/2013/dec/03/university-strike-3-december-pay … ) & ask: how long do we have?

Brenna Bhandar on “A Right to the University” on LRB blog http://bit.ly/18A2yXL  #injunctions #protest #HigherEd #UK (for now)

USA

 

Bright Spot! Quebec

 

Prof. Aya Gruber defines "Neofeminism"

Interesting.   I have a lot of overlap for the positions that Gruber takes –  I look forward to the discussion this should generate!

Neofeminism by Aya Gruber 50 Houston Law Review 1325 (2013)  [open access]

Today it is prosaic to say that “feminism is dead.” Far from being moribund, feminist legal theory is breaking from its somewhat dogmatic past and forging ahead with new vigor. Many modern feminist legal scholars seek innovative ways to better the legal, social, and economic status of women while simultaneously questioning some of the more troubling moves of second-wave feminism, such as the tendency to essentialize the woman’s experience, the turn to authoritarian state policies, and the characterization of women as pure objects or agents. These “neofeminists” prioritize women’s issues but maintain a strong commitment to distributive justice and recognize that subordination exists on multiple axes. In defining “neofeminism,” this Article examines how the troubling nature of certain second-wave feminist principles engendered new schools of feminist thought. It then illustrates this process in the domestic violence law reform context. The Article concludes that recognizing a new and vibrant progressive feminism can counter exaggerated claims of feminism’s demise, the belief that feminism has been devastated by postmodern critique, and the appropriation of the feminist label by conservative women’s groups.

Some readers might be particularly interested in this bit of the conclusion:

“Neofeminism” is somewhat of a misnomer because the ideas and critiques it encompasses are not really brand new. Many of the ideas have been germinating since the late 1980s and some even before.330 For example, the racial critique of liberal feminism’s essentialist assumptions has been around for decades.331 Left feminists have also long been critical of dominance feminism’s down-playing of class and economic status.332 Even the critique of domestic violence criminal reform has existed for over twenty years, having been formulated in response to early discourse and efforts.333 In fact, neofeminism is quite similar to what Martha Minow identified in 1989 as “the third stage of feminism.”334

Professor Gruber is at University of Colorado Law School.  Here is her faculty page, and here is some of her other work (date ascending):

In order to build coalitions and advance a general strategy of antisubordination, one must, as Eric Yamamoto opines, envision oneself as both oppressed and oppressor

 

“One of the most celebrated successes of the feminist movement is its lasting impact on domestic violence criminal laws. …. I know all too well how far the pendulum has swung, having practiced as a public defender in the District of Columbia domestic violence system. Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men. Could this have been the result feminist law reformers hoped for when they began their movement of resistance against patriarchy that legitimized domestic violence?This Article answers the foregoing question with a resounding no. It demonstrates that domestic violence reform has become far removed from its progressive roots and now supports rather than supplants patriarchal ideology. The Article traces the history of domestic violence reform and explains how it transformed from a grassroots populist movement to a politically powerful lobby deeply allied with law enforcement. One of the reasons for this transformation was the influence of the powerful victims’ rights movement. This movement originated as a conservative counter to Warren Court civil liberties and employs essentialist discourse objectifying victims and characterizing defendants as purely autonomous agents to unmoor crime from its social roots. The Article argues that in recent times, victims’ rights reformers and the government have appropriated the domestic violence issue, not to change the patriarchal institutions that support battering, but rather to further a pro-criminalization agenda. In addition, feminists, whose original program was to vindicate women’s autonomy, have begun to adopt the essentialist discourse of objectifying battered women by characterizing abused women as helpless, scared, irrational, and sick. The Article suggests that feminists simply stop advocating criminal law reforms as the solution to the problem of domestic abuse and proposes some pedagogical methodologies for teaching domestic violence without characterizing abused women in an essentialist manner.”

” This Article cautions feminists to weigh carefully any purported benefits of reform against the considerable philosophical and practical costs of criminalization strategies before considering making further investments of time, resources, and intellect in rape reform. In advancing this caution, the Article systematically catalogues the existing intra-feminist critiques of rape reform and discusses reasons why these critiques have proven relatively ineffective at reversing the punitive course of reform. The Article then crafts a separate philosophical critique of pro-prosecution approaches by exposing the tension between the basic tenets of feminism and those animating the modern American penal state. Finally, it discusses why purported cultural and utilitarian benefits from rape reform cannot outweigh the destructive effect criminalization efforts have on feminist discourse and the feminist message. The Article concludes that feminists should begin the complicated process of disentangling feminism’s important anti-sexual coercion stance from a criminal justice system currently reflective of hierarchy and unable to produce social justice.”

A “Neo-feminist” Assessment of Rape and Domestic Violence Law Reform, 15 J. RACE, GENDER & JUST. 583 (2012) (not open access)

“It seemed to me that feminist criminal law reform had become less about critiquing the state and society’s treatment of women3 and more about allying with police power to find newer and better ways of putting men, who themselves often occupy subordinate statuses, in jail. 4 These personal experiences informed my view of feminism when I later became a law professor. Concerned over feminists’ embrace of the penal state and prosecutorial interventions, I produced critiques of feminist interventions like domestic violence mandatory arrest and prosecution policies. 5 Because my scholarship is critical of some of the most “successful” feminist law reform interventions, some view it as antifeminist.  However, I never intended to reject or recede from feminism. Rather, I dub my analysis a “neo-feminist” critique.”

 

Miscarriages of Race and Gender Justice, 76 ALBANY L. REV. 1571 (2012-13)

There is, however, a set of cases in which the lenient treatment of criminal defendants engenders critique from progressive scholars—scholars whose sympathies otherwise lie  with defendants‘ rights.

Interview with Vanessa MacDonnell via I*CONnect

New Scholarship Review: Interview with Vanessa MacDonnell.

Neat format.  Audio interview.  Prof interviews Prof.

In this outing, Professor Richard Albert, Boston College Law School speaks with Professor Vanessa MacDonnell  of the University of Ottawa (English common law) about her new (comparative) work on the role of government in advancing and securing constitutional rights.  The abstract of the paper (forthcoming in the UTLJ), is available on SSRN here.  I am teaching constitutional law at the moment and am consider how this might enrich the introduction to the Charter materials (next semester) and encourage students to think more broadly about the roles the state plays beyond violator-of-rights.  Not to mention the ways it may affect my own thinking as an “equality advocate”.

 

NIP on SSRN from Elaine Craig: The Case against TWU's Law School [now updated, with letters]

[Update, thank you very much to Bev Baines of Queens, who sent along the (public) letters referred to below].

Elaine Craig (Dalhousie) (learn from her here, in a mini lecture on Understanding Sexual Assault Law) has posted The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program (forthcoming CJWL) to SSRN, here:

Should Canada have a law school that discriminates against gays and lesbians? Would the governing bodies of the legal profession in Canada approve a law school that prohibited mixed race sexual intimacy? Should a self-regulating legal profession require that the policies of the institutions that produce this country’s next generation of lawyers respect equality and academic freedom? Trinity Western University (TWU), a private Christian school in British Columbia is posed to become Canada’s first Christian law school. Trinity Western discriminates on the basis of sexual orientation in both its hiring and admissions policies. It has also been found to violate academic freedom.

Brief Background: Canada’s private Christian Universities, Trinity Western (perhaps familiar to you from British Columbia College of Teachers v TWU, 2001 SCC 31, here) has applied to open a law school, as this blog noted here.  See here for their announcement about the law school plan.

Last week, the Canadian Council of Law Deans wrote to the Federation of Law Societies of Canada opposing the new school, partly although not solely because the school prohibits students and faculty from engaging in homosexual behaviour, through a policy they ground in religion. [Addition: Here is the letter, excerpt below:

The covenant specifically contemplates that gay, lesbian or bisexual students may be subject to disciplinary measures including expulsion. This is a matter of great concern for all the members of the CCLD. Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools.
We would urge the Federation to investigate whether TWU’s covenant is inconsistent with federal or provincial law. We would also urge the Federation to consider this covenant and its intentionally discriminatory impact on gay, lesbian and bi-sexual students when evaluating TWU’s application to establish an approved common law program.

]

 

See link to Vancouver Sun story, since the letter does not appear to be available online). [Also provided via the intervention of Bev Baines, here is the reply from the Federation to the CCLD, excerpt below:

When my colleagues and I met with you in Kingston on November 9, 2012, we indicated that determinations of the Approval Committee would be referred to the law societies for consideration. On verification, we have determined that in fact the Implementation Committee Report makes clear that the mandate of the Approval Committee is to make the final determination on compliance for both existing and proposed law degree programs and to post its final report respecting each such program on the Federation website in accordance with the Implementation Committee Report. I regret any confusion we may have caused on this point.
The national requirement, approved by law societies, does not contemplate or authorize an inquiry into the admission philosophy of a law school program, either existing or new, or an investigation into whether the admission policies of an educational institution are consistent with federal or provincial law. The only reference to admissions policy in the national requirement pertains to the minimum number of years of post-secondary instruction required to be completed prior to entry to law school

TWU have asserted their right to exemption from provincial and federal law for religious reasons.  The Law Deans, let it be said, know the law.  Their concerns are beyond legality – one cannot just open up a law school here.  New law schools need to be approved by the Federation of Canadian Law Societies and the relevant provincial Ministry – more than just legality can go into that decision (see, for instance, this newspaper story about the approval of Lakehead’s new law school).

 

 

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New on SSRN Reva Siegel, Dignity and Sexuality: Claims on Dignity in Transnational Debates Over Abortion and Same-Sex Marriage

Dignity and Sexuality: Claims on Dignity in Transnational Debates Over Abortion and Same-Sex Marriage by Reva Siegel :: SSRN.

abstract:

Dignity’s meaning is famously contested. This essay explores competing claims on dignity in late twentieth-century debates over abortion and in the first decisions on the constitutionality of abortion legislation that these debates prompted. Advocates and judges appealed to dignity to vindicate autonomy, to vindicate equality, and to express respect for the value of life itself. Appeals to these distinct conceptions of dignity are now appearing in debates over the regulation of same-sex relations. Analyzed with attention to competing claims on dignity, we can see that in the debate over same-sex relations, as in the debate over abortion, a crucial question recurs: Do laws that restrict non-procreative sexuality violate or vindicate human dignity? Agonists who hold fundamentally different views about sexuality share an allegiance to dignity, enough to fight for the authority to establish dignity’s meaning in debates over sexual freedom. Today, as in the 1970s, dignity’s meaning is being forged in cross-borders conflict over dignity’s sex.

I am looking forward to reading this and thinking about Canadian jurisprudence which has struggled to define and operationalize “dignity” in a variety of equality rights contexts. See for instance, Denise Reaume, Discrimination & Dignity available on SSRN here.