Reva B. Siegel

Bio: Reva B. Siegel is an academic researcher from Yale University. The author has contributed to research in topics: Supreme court & Abortion. The author has an hindex of 29, co-authored 94 publications receiving 2017 citations. Previous affiliations of Reva B. Siegel include University of Miami & Duke University.

"The Rule of Love": Wife Beating as Prerogative and Privacy

Abstract: III. THE DISCOURSE OF AFFECTIVE PRIVACY IN DOMESTIC ASSAULT LAW .................................... 2150 A. Marital Violence and Marital Privacy in the Criminal Law ............................... 2154 B. Affective Privacy in the Emerging Law of Interspousal Tort Immunity ................................. 2161 C. A Brief Reprise: Marital Privacy in the Criminal Law of the Twentieth Century .......................... 2170

Reasoning from the body: a historical perspective on abortion regulation and questions of equal protection.

Abstract: [T]HERE ARE SERIOUS constitutional concerns presented by abortion-restrictive regu­ lation that [Roe v. Wade] does not address. Restricting women's access to abortion im­ plicates constitutional values of equality as well as privacy.... A growing number of commentators have begun to address abortion regulation as an issue of sexual equal­ ity, l articulating concerns scarcely recognized in prevailing accounts of abortion as a right of privacy. Properly understood, constitutional limitations on antiabortion laws, like constitutional limitations on antimiscegenation laws, have moorings in both pri­ vacy and equal protection. There are, however, substantial impediments to analyzing abortion-restrictive reg­ ulation in an equal protection framework, which few proponents of the claim have con­ fronted. The Court has yet to characterize laws governing pregnancy as sex-based state action for purposes of equal protection review;2 but, even if it did so, a deeper ju­ risprudential problem remains. The Court typically reasons about reproductive regu­ lation in physiological paradigms, as a form of state action that concerns physical facts of sex rather than social questions of gender. It has often observed that the reality of reproductive differences between the sexesjustifies their differential regulatory treat­ ment. This mode of reasoning about reproductive regulation obscures the possibility that such regulation may be animated by constitutionally illicit judgments about women. Thus, while sex-based state action is generally scrutinized to ensure it is free of "old notions of role typing" or other vestiges of the separate spheres tradition-such as the assumption that women are "child-rearers" or the assumption that "the female [is] destined solely for the home and the rearing of the family"3-regulation which di­ rectly concerns women's role in reproduction has yet to receive similar scrutiny. Like any other form of sex-based state action, regulation directed at women's role in reproduction demands exacting scrutiny to ensure it does not reflect or enforce traditional gender role assumptions. Equal protection jurisprudence has repeatedly articulated principles that would support such an inquiry. But current doctrine lacks the critical capacity to discern gender bias in reproductive regulation, a grasp of how

Roe Rage: Democratic Constitutionalism and Backlash

Abstract: After decades of assault on the jurisprudence of the Warren Court, many progressive legal scholars have lost faith in judicial enforcement of constitutional rights. Some have responded by embracing popular constitutionalism and advocating mobilization against the Rehnquist and Roberts Courts; others, chastened, urge a minimalist jurisprudence that will avoid giving any group offense. There is fear of provoking the kind of backlash that many associate with Roe, which is often regarded as having caused the rise of the New Right. In this article, we offer a new account of the relationship between adjudication and popular constitutionalism, which we call democratic constitutionalism. Democratic constitutionalism affirms both the need for judicially enforced rights and the fundamental significance of popular constitutional engagement. We begin from the understanding that, in the American tradition, constitutional politics and constitutional law depend on one another, however insistently they assert their autonomy. This article offers an account of democratic constitutionalism which emphasizes the interdependence of judicial and popular enforcement of constitutional rights, despite perpetual friction between them. Judicially enforceable rights give concrete and institutional form to constitutional values; ongoing popular constitutional engagement ensures that these values retain democratic legitimacy. Interpretive disagreement is a normal condition for the development of constitutional law. We identify understandings and practices that enable citizens to make claims on the Constitution and government officials to resist and respond to their claims; these interactions shape the Constitution's meaning over time in ways that sustain citizen engagement in our constitutional order and reconcile Americans' competing commitments to the rule of law and to self-governance. We draw on these understandings to question leading accounts of backlash featured in the work of Michael Klarman, William Eskridge, and Cass Sunstein. Each of these theorists tends in his own way to overestimate the costs of backlash and to underestimate its benefits. They are each attuned to the harms that attend constitutional conflict, but they do not sufficiently consider how citizen engagement in constitutional contestation can contribute to social cohesion in a normatively heterogeneous polity. Roe symbolizes the fears of those who counsel courts to avoid controversy. Legal scholars and political commentators commonly assert that judicial overreaching produced Roe rage, arguing that legislatures might have liberalized access to abortion if only the Court had stayed its hand. We examine scholarship on Roe's reception, as well as primary sources of the era, which together undermine this conventional account. Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. During the 1970s, opponents of the Equal Rights Amendment and the school prayer decisions condemned the abortion right as an expression of "secular humanism," giving birth to the coalition politics we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state. Roe rage opposes ideals of individualism and secularism that lie at the foundation of our modern constitutional order. Accommodating resistance to Roe thus presents normative questions analogous to those posed by accommodating resistance to Brown. The article concludes by illustrating how the themes of Roe rage have recently found expression in the Supreme Court's opinion in Carhart.

Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action

Abstract: In this essay, Professor Siegel examines efforts to reform racial and gender status law in the nineteenth century in order to raise questions about the ways antidiscrimination law operates today. The essay demonstrates how efforts to dismantle an entrenched system of status regulation can produce changes in its constitutive rules and rhetoric, transforming the status regime without abolishing it. Part I illustrates this reform dynamic in the nineteenth century, a period when protest movements were demanding the abolition of slavery and reform of marital status law. Legislatures and courts responded by eliminating some of the more overtly hierarchical features of marital status law, yet adopted gender-biased policies governing domestic labor and domestic violence that were justified as promoting family privacy, rather than marital hierarchy. Similarly, in the aftermath of the Civil War, legislatures and courts granted the newly emancipated slaves "civil" rights, yet denied them "social" rights, rationalizing miscegation laws and segregation as preserving associational liberty, rather than racial hierarchy. As these examples illustrate, the rules and reasons the legal system employs to enforce status relationships evolve as they are contested. Part II of the essay uses this dynamic model of status regulation to analyze the operations of equal protection law today. We know that doctrines of heightened scrutiny have disestablished overtly classificatory forms of race and gender status regulation dating from the nineteenth century. Yet the doctrine of discriminatory purpose currently sanctions facially neutral state action that perpetuates race and gender stratification, so long as such regulation is not justified in discredited forms of status-based reasoning. Once we recognize that the rules and reasons the legal system employs to enforce status relations evolve as they are contested, we ought to scrutinize justifications for facially neutral state action with skepticism, knowing that we may be rationalizing practices that perpetuate historic forms of stratification, much as Plessy v. Ferguson once did.

Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown

Abstract: When Brown v. Board of EducationI prohibited racial segregation in public education, it inaugurated a great debate about equal citizenship and federalism that spanned the second half of the twentieth century. The case reverberates with conflict, with stories about the possibilities and limits of constitutional law. This Article explores the relation of constitutional principle and constitutional politics in the ways we talk about the decision's meaning. It shows how convictions about the principle on which Brown rests were forged in conflicts over enforcing Brown, and demonstrates how such conflicts have produced indirection and contradiction in doctrines that enforce the equal protection guarantee. By revisiting early arguments about Brown, we are better able to describe the values and concerns that have shaped the development of equal protection law, and to debate those that might shape its future. At the same time, exploring the impress of constitutional conflict in our constitutional commitments invites us to reflect again on the ways that the Court and the nation make claims on one another to ask questions about how the Court forges a constitutional principle that can compel the allegiance of the people whose lives it would constrain. Today, many understand Brown to have ended the era of segregation in America by declaring the constitutional principle that government may not classify on the basis of race. Judicial and popular speakers invoke this Brown, the anticlassification Brown, quite commonly.2 Most recently, the Brown that prohibits classification on the basis of race was prominently cited by proponents of a law that would have outlawed racial data collection by the State of California. Summoning Thurgood Marshall's arguments in Brown, the legacy of Mar-

Research on household labor : Modeling and measuring the social embeddedness of routine family work

Abstract: This article reviews more than 200 scholarly articles and books on household labor published between 1989 and 1999. As a maturing area of study, this body of research has been concerned with understanding and documenting how housework is embedded in complex and shifting social processes relating to the well-being of families, the construction of gender, and the reproduction of society. Major theoretical, methodological, and empirical contributions to the study of household labor are summarized, and suggestions for further research are offered. In summary, women have reduced and men have increased slightly their hourly contributions to housework. Although men's relative contributions have increased, women still do at least twice as much routine housework as men. Consistent predictors of sharing include both women's and men's employment, earnings, gender ideology, and life-course issues. More balanced divisions of housework are associated with women perceiving fairness, experiencing less depression, and enjoying higher marital satisfaction.

Commensuration as a social process

Abstract: Although it is evident in routine decision-making and a crucial vehicle of rationalization, commensuration as a general social process has been given little consideration by sociologists. This article defines commensuration as the comparison of different entities according to a common metric, notes commensuration's long history as an instrument of social thought, analyzes commensuration as a mode of power, and discusses the cognitive and political stakes inherent in calling something incommensurable. We provide a framework for future empirical study of commensuration and demonstrate how this analytic focus can inform established fields of sociological inquiry.

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

Interpretation and Method : Empirical Research Methods and the Interpretive Turn

Abstract: This book demonstrates the relevance, rigor, and creativity of interpretive research methodologies for the social and human sciences. The book situates methods questions within the context of broader methodological questions--specifically, the character of social realities and their "know-ability." Exceptionally clear and well-written chapters provide engaging discussions of the methods of accessing, generating, and analyzing social science data, using methods ranging from reflexive historical analysis to critical ethnography. Reflecting on their own research experiences, the contributors offer an inside, applied perspective on how research topics, evidence, and methods intertwine to produce knowledge in the social sciences.

The Measure and Mismeasure of Fairness: A Critical Review of Fair Machine Learning.

Abstract: The nascent field of fair machine learning aims to ensure that decisions guided by algorithms are equitable. Over the last several years, three formal definitions of fairness have gained prominence: (1) anti-classification, meaning that protected attributes---like race, gender, and their proxies---are not explicitly used to make decisions; (2) classification parity, meaning that common measures of predictive performance (e.g., false positive and false negative rates) are equal across groups defined by the protected attributes; and (3) calibration, meaning that conditional on risk estimates, outcomes are independent of protected attributes. Here we show that all three of these fairness definitions suffer from significant statistical limitations. Requiring anti-classification or classification parity can, perversely, harm the very groups they were designed to protect; and calibration, though generally desirable, provides little guarantee that decisions are equitable. In contrast to these formal fairness criteria, we argue that it is often preferable to treat similarly risky people similarly, based on the most statistically accurate estimates of risk that one can produce. Such a strategy, while not universally applicable, often aligns well with policy objectives; notably, this strategy will typically violate both anti-classification and classification parity. In practice, it requires significant effort to construct suitable risk estimates. One must carefully define and measure the targets of prediction to avoid retrenching biases in the data. But, importantly, one cannot generally address these difficulties by requiring that algorithms satisfy popular mathematical formalizations of fairness. By highlighting these challenges in the foundation of fair machine learning, we hope to help researchers and practitioners productively advance the area.