Showing papers in "New York University Law Review in 2018"

The Dialectic of Rights and Politics: Perspectives from the Women’s Movement [1986]

Abstract: The idea that legal rights have some intrinsic value is widespread in our culture. A rights claim can make a statement of entitlement that is universal and categorical. Critical legal studies (CLS) scholars question whether rights claims and rights discourse can facilitate social reconstruction. The CLS critique has several interrelated themes which flow from a more general critique of liberalism. CLS scholars argue that liberalism is premised on dichotomies, such as individual and community or self and other, that divide the world into two mutually exclusive spheres. CLS scholars criticize the use of rights claims by social movement groups on related grounds. Feminist theory emphasizes the value of direct and personal experience as the place that theory should begin, as embodied in the phrase "the personal is political". Looking at the gains and losses together, the chapter concludes that the struggles around legal rights have moved the women's movement forward and reinforced a sense of collective experience for the movement.

Addressing Inequality in the Age of Citizens United

Abstract: The United States has reached a point of economic inequality that has not been seen since the 1920s. According to the median voter theorem of redistribution, democracy is supposed to act as a check on growing economic inequality. The intuition behind this theorem is simple: If a majority of the population sees their incomes stagnate while a wealthy minority gets richer, the majority will demand redistributive policies, and representatives will respond by addressing inequality. But in the United States, very little redistribution has accompanied rising economic inequality. Why has democracy failed to check economic inequality in the United States? Political scientists and legal scholars have pointed to political inequality as the culprit. Political scientists have shown that elected representatives are much more responsive to the wealthy than any other income group. Legal scholars have argued in favor of equalizing campaign finance and regulating lobbying as ways to reduce political inequality. Empirical studies, however, have raised doubts about the effectiveness of any reform efforts aimed at those areas, and constitutional law disfavors solutions aimed at diminishing the political voice of the wealthy. In this Article, I argue that reducing the income class imbalance of the electorate — i.e. the tendency of wealthier voters to vote at higher rates than less affluent ones — will be a more constitutionally viable and effective means of ameliorating political inequality. I base this argument on the median voter theorem, which suggests that elected officials decide whether or not to adopt redistributive policies based on whether they believe the median voter desires such policies. Because the poor vote less and have less access to their elected representatives, representatives perceive the electorate to be better off than the population as a whole actually is, diminishing the pressure to redistribute in contexts of rising economic inequality. The ideal solution to this form of political inequality is to induce the participation of the poor and enhance their engagement with elected officials through campaign mobilization. Mobilizing the poor would not only increase the proportion of the poor in the electorate, but more importantly, would change how representatives perceive the electorate and its demands for redistribution. Achieving these goals will require looking to new legal strategies aimed at incentivizing mobilization. I examine three legal strategies that could increase the incentives for political campaigns to mobilize the poor: campaign finance vouchers, earmarking campaign contributions, and a mobilization-matching fund. I conclude by suggesting a path to advancing these strategies in the current political climate.

Sexual Consent and Disability

Abstract: Author(s): Harris, JE | Abstract: Our nation is engaged in deep debate over sexual consent. But to date the discussion has overlooked sexual consent’s implications for a key demographic: people with mental disabilities, for whom the reported incidence of sexual violence is three times that of the nondisabled population. Even as popular debate overlooks the question of sexual consent for those with disabilities, contemporary legal scholars critique governmental overregulation of this area, arguing that it diminishes the agency and dignity of people with disabilities. Yet in defending their position, these scholars rely on empirical data from over twenty years ago, when disability and sexual assault laws and social norms looked quite different than those of today. Current scholarly discussions about sexual consent and mental disability suffer from an outdated empirical baseline that masks critical information about the profile and experience of sexual violence. This Article creates a new empirical baseline for modern scholarship on sexual assault and disability. Based on an original survey of all fifty states and jurisprudence from the past twenty years of state sexual assault and rape appeals where the victim has a mental disability, this Article updates and critiques four major claims about sexual consent and disability in the current literature. First, through a review of statutes across the country, it complicates the traditional notion that statutes are unduly vague in their definition of disability, and as a result, either over- or under-emphasize disability. The author advances a new organizing taxonomy for sexual assault statutes addressing consent for people with mental disabilities. Second, this dataset upends the prevailing claim by legal scholars that courts overemphasize standardized evidence such as intelligence quotient (IQ) or mental age when judging a person’s functional capacity to consent to sex. Instead, this Article shows that courts frequently look at adaptive abilities to augment standardized evidence but, in doing so, overvalue certain kinds of adaptive evidence that have low probative value, to the detriment of persons with mental disabilities. Third, legislators and legal scholars focus on people in large institutional settings in their critiques of overregulation, but this new data shows that people in community-based settings are more often the complainants in rape and sexual assault cases. This raises important questions about the types of relationships the state regulates (formal versus informal care relationships), the location of these relationships (community versus institutional settings), and issues of class that intersect with disability and sexual regulation. By not addressing the right issues and contexts, current law leaves people with mental disabilities simultaneously more susceptible to sexual violence and less empowered to exercise sexual agency. Finally, the Article more deeply examines the traditional assumption that people with disabilities rarely have access to testify by considering a rarely-mentioned risk: whether testimony by people with disabilities skews capacity determinations because factfinders cannot see beyond the existence of the disability—a phenomenon which the author terms “the aesthetics of disability.” This Article calls upon scholars, courts, and policymakers to consider difficult questions of regulating sexual consent in ways that are consistent with the current profile and experience of sexual violence for people with mental disabilities reflected in this study.