Tag Archives: Kim Brooks

New issue of CJWL in Honour of Dianne Pothier "Critical Disability Studies and Feminisms: On Getting It"

New issue of the Canadian Journal of Women and the Law is out!

This issue honours the contributions of legal scholar Dianne Pothier, who is retiring after a distinguished career at the Schulich School of Law, Dalhousie University. Her faculty colleagues, Richard Devlin and Dean Kim Brooks, guest edit this issue which features ground-breaking scholarship on topics such as poverty and disability, disability and care, the treatment of ameliorative programs in court decisions, and barriers to women with mental disabilities testifying in court.

Editorial  [This article is available open source & free of charge, Click here ]
Kim Brooks and Richard Devlin
Kim Brooks and Richard Devlin
Une analyse de la réglementation des personnes itinérantes selon une perspective pothienne de la discrimination
Suzanne Bouclin and Joëlle Pastora Sala
Dans cet article, nous nous appuierons sur les analyses critiques de Dianne Pothier concernant la discrimination et la dignité humaine pour établir ce que nous nommons la « perspective pothienne ». Notre objectif est de démontrer l’applicabilité de la perspective pothienne aux enjeux relatifs à la dignité des personnes itinérantes. Une analyse pothienne de l’adoption et des effets d’un règlement municipal—le Règlement sur la sollicitation obstructive de Winnipeg—nous permet de sonder la complexité des structures dans lesquelles les instances formelles créent ou renforcent des obstacles à l’épanouissement des personnes itinérantes. Entre autres, l’analyse pothienne complexifie la compréhension des dynamiques et des différentiations marginalisant les personnes itinérantes. Néanmoins, Pothier mise aussi sur la manière dont les personnes conçoivent divers moyens créatifs de composer avec leur réalité quotidienne en développant des tactiques pour maintenir leur dignité humaine malgré des expériences de discrimination. Son analyse apporte aux discussions sur le phénomène de l’itinérance à Winnipeg un éclairage original qui peut favoriser l’émergence de stratégies novatrices pour les groupes qui luttent contre la pauvreté.
More Than an Empty Gesture: Enabling Women with Mental Disabilities to Testify on a Promise to Tell the Truth
Janine Benedet, Isabel Grant
In this article, the authors use the recent Supreme Court of Canada decision in R. v DAI to examine the issue of competence to testify in sexual assault prosecutions for women with mental disabilities. The authors support the outcome reached by the majority of the Court but raise questions about some of the reasoning, including the equation of women with mental disabilities with children. The authors examine what types of questions are now appropriate in a competence inquiry and raise cautions with respect to the reliance on lay and expert witnesses to assist in the competency inquiry. It is argued that allowing women to testify who can communicate their evidence is a small step towards enabling the criminal justice system to respond to the high rate of sexual assault against women with mental disabilities.
The Supreme Court, Ameliorative Programs, and Disability: Not Getting It
Jonnette Watson Hamilton and Jennifer Koshan
Recent Supreme Court of Canada decisions on section 15(2) of the Canadian Charter of Rights and Freedoms raise concerns for the equality rights of persons with disabilities. Although R. v Kapp gave independent force to the protection of ameliorative programs as an aspect of substantive equality, Alberta (Aboriginal Affairs and Northern Development) v Cunningham gave governments significant deference even in relation to targeted benefit programs that are under-inclusive and potentially discriminatory. This article examines the impact of the Supreme Court of Canada’s recent section 15(2) jurisprudence on people with disabilities. We argue that the Court’s extreme deference to targeted benefit programs may perpetuate the social exclusion and marginalization of persons with disabilities to whom the government denies benefits. The Court’s section 15(2) approach also runs the risk of reinforcing essentialized, categorical, and medicalized views of disability and creating hierarchies of disability. These risks are of particular concern in the current climate of fiscal restraint. While the recent Supreme Court of Canada decisions on section 15(2) do not deal specifically with issues of discrimination on the basis of disability, we argue that the Court’s apparent failure to think through how its decisions would impact people with disabilities is a serious shortcoming indicative of Pothier and Devlin’s notion of “dis-citizenship.”
Vulnerability, for Example: Disability Theory as Extraordinary Demand
Kate Kaul
This article considers the function of analogy and example in interdisciplinary disability theory, taking vulnerability as an extended example of the shared concerns and the contrasting demands of disability studies and feminist theory. It centres a politicized disabled subjectivity and considers the interplay of the universal and the particular in the operation, or function, of disability as a category. The first section of the article, “Examples, Analogies,” presents theories of example and analogy and relates them to strategies of example and analogy in disability studies and in feminist theory, particularly in the work of Robert McRuer, Rosemarie Garland-Thomson, Joan W. Scott, and G. Thomas Couser. The second section, “Translation into Politics,” considers Debra Bergoffen’s discussion of vulnerability and the gendered universal as well as the possibility of its translation into disability theory. The third section, “Vulnerable Subjects,” discusses Judith Butler’s articulation of vulnerable subjectivity and Martha Fineman’s notion of the vulnerable subject. The fourth section, “More Vulnerable Subjects?” shifts to the particular with a reading of Sherene Razack’s argument that feminist law reform must recognize disability’s specific difference and of Couser’s and Paul Longmore’s examples of the particular operation of vulnerability in disability experience.
Disability and Care: Still Not “Getting It”
Nancy Hansen and Lorna Turnbull
In this article, the authors, one a critical disability studies scholar and the other a legal academic, critically consider a decision of the Federal Court of Appeal that engages questions of gender and disability. The case deals with access to Canada Pension Plan (CPP) disability benefits. Cynthia Harris, a mother who has multiple sclerosis, challenged the application of the CPP child-rearing drop-out rules contained in the legislation. Harris’s challenge is made on the basis that her child’s disability required parental care for a longer period of time than would be required for a non-disabled child. The authors critique the different approaches to understanding equality and its application to issues of disability and gender. Particular attention is paid to the manner in which workforce attachment tests in social benefit legislation have an impact on women and, in particular, on women with disabilities. The formalistic approach to, and understanding of, equality, coupled with the absence of an intersectionality analysis in the judgment, is considered. Systemic rather than individualized responses are required to properly accommodate equality seekers. The authors argue that a theoretical approach that places inclusion and social citizenship at its core is how such equality claims should be approached.
“I Wish the Supreme Court Thought More Like Dianne”: A Comment on Krangle v Brisco
Darcy L. MacPherson
The author begins by detailing his experiences with Dianne Pothier as law professor and mentor. He then turns to the Supreme Court of Canada’s decision in Krangle v Brisco, which centred on the alleged obligation of a negligent doctor to pay for the adult care of a child who had been injured by that negligence. There were two complicating factors. First, there was a government in place at the time of the suit that would cover these adult-care costs. Second, the child was only ten years old at the time of the Supreme Court of Canada hearing. Would the government continue to offer the program throughout the life of the child? The Court dealt with these issues through a contingency. The author argues that a better solution exists. While he agrees with the Court that the government should take responsibility for the care of disabled adults, there is no constitutional imperative to do so. Someone (the parents or the government) is going to be paying the more than $1.5 million that is not included in the damage award. The use of a trust would prevent a windfall to the parents while ensuring that the defendant doctor paid for the full amount of damage caused. The two payees of this trust would be the government and the parents—either of these parties could be reimbursed by the trust. In the view of the author, this solution is consistent with prior Supreme Court of Canada case law on damages. Pothier would have taken a broader view of how to achieve the social goals that the Court says are important. The author hopes that the next time the opportunity arises, the Supreme Court of Canada will follow her lead.
The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program
Elaine Craig
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. Institutions with discriminatory policies that are antithetical to fundamental legal values are not competent providers of legal education. The Federation of Law Societies of Canada, the national coordinating body for Canada’s fourteen law societies, should not approve programs from institutions with discriminatory policies. A decision not to approve TWU’s application would survive a court challenge by TWU. The legal framework within which a decision of the Federation would be judicially reviewed has changed since the Supreme Court of Canada ruled in favour of Trinity Western in Trinity Western v B.C. College of Teachers. The Federation’s decision would be reviewed on a standard of reasonableness rather than correctness. Based on the Federation’s mission, mandate, and current academic requirements, a decision to deny TWU’s application would be upheld as reasonable by the courts. TWU should be free to pursue research and education in a manner in keeping with its religious commitments. TWU should not be permitted to impose upon the public a religiously grounded program that is incompetent to deliver a legal education consistent with what the regulators of the law profession in Canada have identified as necessary to protect the public.

Founded in 1985, the same year as the equality guarantee of the Canadian Charter of Rights and Freedoms came into force, the Canadian Journal of Women and the Law has been publishing ground-breaking, multi-disciplinary scholarship on the impact of law on women’s social, economic and legal status for twenty-five years.
For more information about the Canadian Journal of Women and the Law or for submissions information, contact:
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IFLS Book Club [5] Kim Brooks (Dalhousie) on Mrs. Dred Scott

Find all the other IFLS book club commentary on Mrs. Dred Scott here.


Find the next book club book here.

Kim Brooks is, I think, getting the last word on this book – unless some of you out there have something to add (I would love to hear from you if you have a moment – or just put your thoughts in the comments here).  I’ll try to do a wrap up next week and then we’re on to the next book!


Kim Brooks probably needs little introduction on this blog.  Suffice it to say that given her energy level, it might not be a surprise that she had to go outside legal/academia to find inspiration.  Seriously, you can read about it here (“I have a soft spot for Bruce Springsteen. When I was a little kid, my father would play “Hungry Heart” on high volume on our stereo, and we would jump around on our living room couches screaming the lyrics. It meant little that neither of us could carry a tune.”) and here (where she “…likens learning tax law to seeing Bruce Springsteen in concert – and to drive the analogy home, she even uses his music and lyrics in her classes: “When you see him in concert, there’s no fancy stuff, no glitz, no magic light and balloon show. But he just goes so hard, and that is a really fabulous thing to see. So I use him as an example to show what it is to be truly engaged in something.”).

I should probably just start calling her the Boss – why not?  Anyway, enjoy her thoughts on the book below and on other subjects by looking at her papers on SSRN  here.

Entitled to Justice and Holding Fast to the Possibility:  Mrs. Dred Scott

One of my favourite movies is Léa Pool’s Emporte-moi. The film is a poignant coming of age story.  Scratch that.  Coming of age is appropriate, but it understates the richness of the film and its narrative, which uncovers what it is to be 13 in 1963 in Quebec.

Despite the film’s strengths, here’s what floored me most about it. Pascale Bussières. Bussières plays the protagonist’s mother, the “mère de Hanna”.  She is in myriad scenes through the movie.  But her role is to be absent.  She is the most absent presence I have witnessed on a big screen.

Enter Harriet Robinson Scott.   Harriet.  A procedural paragraph (as described in the introduction to Mrs. Dred Scott:  A Life on Slavery’s Frontier).  A woman who allegedly motivated a case that stood for the idea that black people were not legal citizens and that changed the shape of American constitutional history.

What Lea VanderVelde does in this book is what Bussières does with mère de Hanna.  She puts on to our radar a figure about whom we can feel only ambivalent.  A figure forced into our consciousness by the title of the book, by our understanding that this is a book “about Harriet”, by our hope that it might be possible to shine light on “[t]he lives of subordinate people [who] are consistently erased by time and memory” (at 2).  And yet, of course, when the whole modality of the character, set in racism and colonialism, requires her to be silent, absent, unseen, illiterate…we are forced to be satisfied, as in Léa Pool’s film, to read a character without a centre.

Frustrated, gripped, and moved.  My response to Harriet (and to mère de Hanna).  In each case, the creator of the work creates a space for an impossible figure.  And in each case I wanted more.  Mrs. Dred Scott tracks Harriet’s life.  Follows her path, relates with significant detail the moments that surrounded and must have shaped her life.  We learn in the first half of the book about the period between 1835 and 1840 when Harriet lived on the Wisconsin/Minnesota frontier.  In the second part of the book, we learn about Harriet’s life in Saint Louis and the course of her legal path for freedom.  But there is none of the lint of Harriet’s life.  There is none of the detail that would render her real.  We don’t know when she smiled or whether she liked carrots.  We aren’t sure if she wept at goodbyes or split infinitives.

And yet, despite this limit, Mrs. Dred Scott is a brilliant contribution.  Perhaps the most profound contribution, and this may seem odd, is that it organizes history around the life of Harriet.  Set aside the thornier debates around whether biography can be history: I think it can.  Perhaps the most significant contribution of the book is not that we know more about Harriet, but that Harriet becomes fundamentally centred.  She becomes the anchor for the period of history around which VanderVelde weaves her story.  VanderVelde does not get to discuss 1877, for Harriet dies in 1876.  To allow a woman to shape the period of history that gets told, to mould its geography, seems a profoundly centring act.  Harriet literally shapes history.  We learn, in a sense, a telling of the history as it unfolded in the world occupied by Harriet.

Let me remark in a disorganized way on a few additional characteristics of the book.  First, I was struck throughout at the work it must have taken to write the book.  Mrs. Dred Scott is extraordinary scholarship.  While framed around one life, the life of Harriet, the book is like a good stage play.  The curtain rises, and we catch a framed glance at life on the frontier and in St. Louis.  Writing the book required thirty-three research assistants (see acknowledgements) and 113 pages of very small font endnotes.  It was carefully researched and it changes the way we see a time and place.

Second, for the most part, I found reading the book, work.  It’s not a book that delights the imagination.   In contrast, it demands much.  There is no easy way to create a sense of what Harriet’s life must have felt like.  The reading fell between pleasure and reading I would do as part of my own scholarly pursuits.  It could not be skimmed.  The print is small.  And yet, there are moments where the writing struck me as markedly elegant:

Hers was a life that could be equalled by few that century.  She had lived for several years surrounded by Sioux and Objiwa people who spoke languages at first unknown to her.  She endured brutally cold Minnesota winters.  She traveled the extent of the nation on the steamboat, the most advanced means of travel of the time.  She had served some of the century’s most important, best-educated, engaging, and ambitious men at her master’s table.  She returned as a free black person to live in a slave state that increasingly turned to law to circumscribe her personal liberties.  She nursed her aging husband and kept her family intact through fires, floods, and epidemics.  She sat silently beside her husband in the courtroom and hid her children for their safety, while holding out for her family’s freedom in a hostile environment for more than a decade, a legal battle that extended to the highest court of the land.  (10-11)

Second, the book enables consideration of the relationship between the biographer and her material.  Where should VanderVelde show up in the work?  We no longer pretend, at least for the most part, that there can be an objective review of the evidence.  The degree to which the biographer makes herself known in a text is worth some attention.  In this case, for the most part, it is hard to sense VanderVelde.  And yet there are moments where I acutely felt her presence.  While most of the book is characterized by a careful, detailed accounting of the evidence, VanderVelde does sporadically pause in places where she must have felt curious:

In bidding farewell, the several chiefs left 22 peace pipes as tokens of respect.  The agent was expected to reciprocate.  Taliaferro gave Chief Wah-na-tah his umbrella at the chief’s request.  The Chief of the Yanktons left with the master’s umbrella tucked under the blanket of his horse.  What could a Yankton chief do with this symbol of civilization?   Did he use it to keep the rain off, to provide sunshade on the plains, as a rode, a staff, a symbol of authority, or did he keep the umbrella in the same way that Dr. Jarvis collected Indian goods, as a curious contraption of another culture? (82-83)

Similarly, we occasionally get a feel for the analytical queries of the biographer.  She asks, “[w]hat determines whether a person is free or enslaved in a wilderness area where purportedly no law keeps slavery in place and what law there is forbids slavery, but with weak legal enforcement?” (117). Or later, she questions, “[w]ho was the real enslaver in a system so pervasive and so seamless?” (234).

Third, the gendered nature of life in the world around Harriet is brought into relief by VanderVelde’s work.  This book is a piece of a larger project to document the roughly 250 freedom suits of St. Louis.  That larger project has enabled VanderVelde to offer broader context on the freedom litigants, and to shed light on Harriet’s place in that part of the social history of the time.  For example, VanderVelde notes and explains why most freedom suits were commenced by women:

Harriet fit the profile of freedom litigants better than did Dred, since most freedom suits filed in the St. Louis courts were initiated by women.  Men could run.  They could take the risk of depending on their own wits, physical stamina, and speed.  Men’s chances of successfully escaping were better, particularly if they travelled alone.  Running with children was doomed to fail.  Moreover, most of the women, like Harriet, were mothers with children.  Women frequently invoked as their reason for suit that a sale threatened to separate them from their children. (231)

VanderVelde’s obvious knowledge of the freedom suits provides the second part of Mrs. Dred Scott with particularly fascinating detail.  She is able to link the Scott’s case with related cases in the same era, speculating on the implications of those cases both for the outcome in the Scott case and for how Harriet and Dred must have felt about their chances.

Fourth, the book goes some way to providing the reader with a glimpse into the cruelty of the slave trade, to the impossible conditions of the frontier, and to the racism that underlined seemingly every moment of existence.  There are moments where VanderVelde’s understated writing style achieves this end almost without being remarkable: “For white folks, New Year’s was a day of visiting; for black folks, New Year’s brought the annual spectacle of the slave leasing auction on the courthouse steps” (247).  (The semi colon in this sentence, linking and yet keeping visibly distinct the different realities seems particularly apt.)  I longed, sometimes for greater connection to the critical race literature and yet was heartened at least to notice that VanderVelde finds some inspiration in the work of subaltern scholars, for example, Gayatri Spivak (see note 9, Introduction).

Ultimately, Mrs. Dred Scott remains an account of Harriet that never becomes a story.  But it is an account that shapes the tale of a period of history in ways that will change the way we think about it.


World of Work Roundup: Moments in which to turn your mind to gender

[oops, the original version of this post went out a bit unfinished]

Two moments: One, when you`re writing, or reading, a reference letter. And two, when you`re listening to someone talk about how good they are.  Also, the Fifth Annual National Survey on Retention and Promotion of Women in Law Firms from the U.S. National Association of Women Lawyers came out in October.  Here’s the conclusion:

We report the results of the 2010 Survey with some consternation. Progress for women lawyers in large firms is not occurring quickly. Moreover, the evolving structural changes in law firms – such as expansion of jobs at the lower end of firms, the increasing dominance of two-tier or multi-tier firms, and other non-traditional factors – along with the difficulty of obtaining credit for business development, portend stagnation or, at best, continued slow improvement in key areas such as numbers and compensation of women equity partners. Against this disappointing background, we are all the more heartened by and appreciative of the continued cooperation of participating law firms, whose efforts make a very meaningful contribution to a goal that we all share: parity of women lawyers in private practice.


The study described in this blog post is called The Emergence of Male Leadership in Competitive Environments (click here for the original paper).  The subjects were MBA students.

First, they gave 134 MBA students 150 seconds in which to add up as many sets of 4 two-digit numbers as they could.
Then, 15 months later, they split the students into 33 groups and asked them to choose a representative to do the same adding-up task, with the best representative winning money for the whole group.
Very few women were chosen as representatives; only 4 out of the 33 groups chose one, which is only half as many as would be expected.
This was not because the women were worse at adding up. Instead, it’s because men claimed to be better at the task, and so the group chose them.
This was not because the men simply lied; men and women lied roughly equally. It’s because the men misremembered their past performance. When the researchers offered the students $50 if they correctly recalled how many correct answers they got, men over-estimated their performance by an average of 2.4 answers, whilst women over-estimated by only 0.9 answers. This over-estimate of past performance led to an overconfidence about prospective performance, and hence a greater likelihood of being picked. source

Thanks to Dal`s Dean Kim Brooks for pointing me to this one – there`s one woman who could easily afford to underestimate herself by .9 – she`s still head and shoulders above most humans.

Finally, just right for hiring/ref letter season. Do not try to support a woman in a reference letter by saying that she’s supportive! Here’s the article, from Inside Higher Ed: Too Nice to Land a Job.  This one is via Kate of lawandlit, one of the best twitter streams out there and [cannot resist] a very supportive colleague. Excerpt follows:

The research is based on a content analysis of 624 letters of recommendation submitted on behalf of 194 applicants for eight junior faculty positions at an unidentified research university.

The study found patterns in which different kinds of words were more likely to be used to describe women, while other words were more often used to describe men. In theory, both sets of words were positive. There’s nothing wrong, one might hope, with being a supportive colleague. But the researchers then took the letters, removed identifying information, and controlled for such factors as number of papers published, number of honors received, and various other objective criteria. When search committee members were asked to compare candidates of comparable objective criteria, those whose letters praised them for “communal” or “emotive” qualities (those associated with women) were ranked lower than others.

Why are there so many fabulous feminist legal/socio-legal Australians?

[Dispatch from Dean Kim Brooks of Dal]

Why are there so many fabulous feminist legal/socio-legal Australians?

I just picked up “Feminist Internationalisms”, the introduction to a special collection of articles in The Australian Feminist Law Journal, volume 32 (2010).  The introduction is co-authored by Hilary Charlesworth and Susan Harris Rimmer.

The conference that led to the collection of papers was held at ANU in November 2009.  The keynote speech (Ann Tickner, not an Australian) for the conference can be found here: http://asiapacific.anu.edu.au/podcasts/20091123_Feminist_Internationalism_01a_Keynote.mp3