Showing papers in "Stanford Law Review in 1991"

Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color

Abstract: Over the last two decades, women have organized against the almost routine violence that shapes their lives. Drawing from the strength of shared experience, women have recognized that the political demands of millions speak more powerfully than the pleas of a few isolated voices. This politicization in turn has transformed the way we understand violence against women. For example, battering and rape, once seen as private (family matters) and aberrational (errant sexual aggression), are now largely recognized as part of a broad-scale system of domination that affects women as a class. This process of recognizing as social and systemic what was formerly perceived as isolated and individual has also characterized the identity politics of people of color and gays and lesbians, among others. For all these groups, identity-based politics has been a source of strength, community, and intellectual development. The embrace of identity politics, however, has been in tension with dominant conceptions of social justice. Race, gender, and other identity categories are most often treated in mainstream liberal discourse as vestiges of bias or domination-that is, as intrinsically negative frameworks in which social power works to exclude or marginalize those who are different. According to this understanding, our liberatory objective should be to empty such categories of any social significance. Yet implicit in certain strands of feminist and racial liberation movements, for example, is the view that the social power in delineating difference need not be the power of domination; it can instead be the source of political empowerment and social reconstruction. The problem with identity politics is not that it fails to transcend difference, as some critics charge, but rather the opposite- that it frequently conflates or ignores intra group differences. In the context of violence against women, this elision of difference is problematic, fundamentally because the violence that many women experience is often shaped by other dimensions of their identities, such as race and class. Moreover, ignoring differences within groups frequently contributes to tension among groups, another problem of identity politics that frustrates efforts to politicize violence against women. Feminist efforts to politicize experiences of women and antiracist efforts to politicize experiences of people of color' have frequently proceeded as though the issues and experiences they each detail occur on mutually exclusive terrains. Al-though racism and sexism readily intersect in the lives of real people, they seldom do in feminist and antiracist practices. And so, when the practices expound identity as "woman" or "person of color" as an either/or proposition, they relegate the identity of women of color to a location that resists telling. My objective here is to advance the telling of that location by exploring the race and gender dimensions of violence against women of color. Contemporary feminist and antiracist discourses have failed to consider the intersections of racism and patriarchy. Focusing on two dimensions of male violence against women-battering and rape-I consider how the experiences of women of color are frequently the product of intersecting patterns of racism and sexism, and how these experiences tend not to be represented within the discourse of either feminism or antiracism... Language: en

A Critique of "Our Constitution Is Color-Blind"

Abstract: II. COLOR-BLIND CONSTITUTIONALISM AND THE PUBLICPRIVATE DISTINCTION 7 A. The Private Right to Discriminate 8 B. The Normative Content of the Public-Private Distinction. 12 1. Public and private relations 13 2. Public and private actors 14 III. NONRECOGNITION 16 A. Nonrecognition as Technique 16 B. Self-Contradiction and Repression ... 17 1. The impossibility of private sphere nonrecognition .... 18 2. The incoherence of discounting "racialness" ......... 21 3. Repression and denial of racial subordination ....... 21 IV. RACIAL CATEGORIES 23 A. American Racial Classification: Hypodescent 23 1. The rule of hypodescent 24 2. Alternatives to hypodescent 25 3. Support for racial subordination 26 B. Assertion of Racial Subordination 26 1. Equality and the social metaphor of racial purity .... 26 2. Subordination in recognition 27 C. Disguising the Mutability of Racial Categorization ...... 28 1. The scientific legitimation of race 28 2. The tradition of physiognomy 30

The Changing Nature of Employment Discrimination Litigation

Abstract: Two major pieces of employment discrimination legislation were passed in the early 1990s: the 1991 Civil Rights Act and Americans with Disabilities Act. Using some simple regression models, we examine the effects of this legislation on the volume, content and outcomes of employment discrimination cases filed in federal courts. We find, first, that the volume of discrimination cases nearly doubled between 1992 and 1997, in contrast to a 10 percent decline during the previous 8 years, and despite a sharply falling unemployment rate that–in the past–would have substantially reduced the amount of litigation. We also observe a significant shift in the composition of suits filed, with race and age discrimination cases declining substantially as a share of the total and sex and disability discrimination cases increasing. We tie these developments, as well as changes in the relationship between plaintiff win rates and the business cycle, to changes in the law that diminish the importance of back-pay damages. We conclude by tentatively suggesting how the meaning of and protection afforded by employment discrimination law has changed over the past 35 years. Yale Law School, j.donohue@yale.edu Univ. of Connecticut Law School, psiegelm@law.uconn.edu. This work was completed while Donohue was at Stanford Law School and Siegelman was at Fordham Law School. We benefitted from helpful comments by seminar participants at UConn. Law School, Fordham Law School, the American Bar Foundation, and conference participants at the American Law and Economics Association. Thanks to Katie Bilodeau and Jinhui Pan for excellent research assistance.

Cleaning Up/Kept Down: A Historical Perspective on Racial Inequality in "Women's Work"

Abstract: With the recent surge in public attention to the "feminization of poverty,"1 feminist policy analysts have tended to subsume the economic privations of women of color under the general rubric of "problems of working women."2 Indeed, recent economic trends provide some support for the argument that gender inequity at work has become the crossroads at which the interests of all women intersect. The rise in female employment rates, the decline in real earnings among male workers, and the increasing incidence of divorce and of female-headed households suggests a growing convergence in the economic circumstances of White women and women of color.3 Women of all races and classes confront systematic disadvantages as workers. Despite twenty years of equal opportunity legislation, women continue to be confined to female job ghettos. Today, two-thirds of all working women are employed in predominately female occupations.4 Largely because of this continuing occupational segregation, the discrepancy between men's and women's earnings has changed very little in the past half-century. Since the 1940s, women have earned between 58 and 65 percent of what men

Ideology as Constraint

Abstract: The debate between the Critical Legal Studies movement and its critics has often seemed little more than a collection of arbitrary dismissals from both sides. For this reason, few books can be more welcome than the philosopher Andrew Altman's recent study of the Critical Legal Studies movement. Altman discusses and critiques CLS writings from the standpoint of a scholar deeply committed to liberal political theory. But there is nothing dismissive about Altman's work; if Altman's is a criticism of CLS, it is a very sympathetic criticism. Altman is a liberal who nevertheless recognizes the potential failings of liberal legal theory. He agrees with Morton Horwitz that the Rule of Law is not an "unqualified human good," despite its obvious importance in preserving human liberty.' He accepts the claim that social rules and practices affect the justice of the legal system as much as do legal rules, and argues that without a culture of tolerance and respect for freedom, legal guarantees of human rights will not be sufficient to prevent oppression.2 Thus, Altman has much in common with the CLS thinkers he purports to criticize. Nevertheless, he has an abiding faith in liberalism as a political theory that can adapt to changes in human affairs and reform itself in order better to protect human rights and human values.3 In his view, the soundest versions of liberalism have nothing to fear from CLS critiques, and much to gain. His book is not an apology for liberalism but rather a call for an invigorated version of it.

On the legal status of the proposition that "life begins at conception.

Abstract: For eighteen years, a majority of the Supreme Court has upheld abortion rights without deciding whether or when a fetus may be regarded as an independent person. Today, another set of Justices would deny those rights on the ground that the fetus's status is an issue for state legislators to resolve. These mirror-image strategies share a common aim: Each allows the Court to evade the single question that, in every discourse but the judicial one, is by now synonymous with the abortion debate itself-the question of when human life begins. The policy of avoidance began at the outset of the Court's abortion jurisprudence. In Roe v. Wade,2 the Court expressly refused to "speculate" about "this most sensitive and difficult question."3 Instead, the Roe Court predicated governmental power to forbid abortion on the putative state interest in "protecting the potentiality of human life."4 It was this interest in "potentiality" that the Court held to become "compelling" when the fetus reaches viability.5 Roe's "potential life" holding had distinct advantages. In particular, by sustaining a prohibition of abortion on the basis of the fetus's status as a "potential" person, the Court avoided the necessity of deciding at what point in a woman's pregnancy a state could deem the fetus an actual person.6

The changing face of death: computers, consciousness, and Nancy Cruzan.

Abstract: The law of death and dying is exquisitely sensitive to our notion of what it means to be human. When the crucial aspects of "personhood" are irretrievably lost, we feel that an individual has died. But what are those crucial aspects? Changes in the legal definition of death over time suggest that our sense of what is unique to the human experience alters as science progresses. This essay maintains that the next few decades may bring a dramatic change in our sense of human uniqueness and a corresponding change in the definition of death. The engine of change will be developments in artificial intelligence, the field of study devoted to building thinking computers. It is not the rational power of those computers that will shake us but rather the prospect that they might become self-aware. As I argue below, the current heated debate over whether such a thing is possible demonstrates the centrality of self-awareness to our sense of human uniqueness. Part II of the essay traces the human desire to see ourselves as special, and relates that desire to the development of our current legal concept of death. Not only has brain death replaced heart-lung failure as the criterion for death over the past few decades, but the notion of higher brain deaththe death of those regions of the brain where consciousness resides-has gained force. Although not recognized in statutes, higher brain death is the approach our society usually takes in deciding when treatment should be terminated. As Part III explains, the United States Supreme Court's recent Cruzan decision2 does not contradict this approach. Indeed, Justice O'Connor's concurrence in Cruzan3 may strengthen even further the movement toward self-awareness as the critical issue in the determination of death.

Goldstein on Copyright Law: A Realist’s Approach to a Technological Age

Abstract: The treatise writer's dilemma is that while reliability requires faithful interpretation of the law as it stands, he or she must also remain sufficiently detached and forward-looking to assist decisionmakers in shaping the law as it ought to be The better treatise writers resolve this tension by devising jurisprudential and methodological approaches that broaden the horizons of experienced practitioners in the field Paul Goldstein's Copyright: Principles, Law and Practice fits this mold His ability to use economic analysis to illuminate discrepancies between judicial decisions and legal doctrines distinguishes this major new treatise from other useful commentaries in the field2 Professor Goldstein's treatise arrives at a time when economic and inter-

Safe harbor for health care cost containment.

Abstract: It does not follow [from Mr. Pauly's argument] that no constraints ought to be imposed or indeed that in certain contexts individuals should not impose constraints on themselves. [His] wording suggests that "rational economic behavior" and "moral perfidy" are mutually exclusive categories. No doubt Judas Iscariot turned a tidy profit from one of his transactions, but the usual judgment of his behavior is not necessarily wrong. Kenneth J. Arrow2

Tribe's Judicious Feminism

Abstract: The title of Professor Laurence Tribe's recent book, Abortion: The Clash ofAbsolutes, brings to mind the din and fury of battle. However, beyond the brash red, white, and blue book jacket, one finds not a battlefield, but a courtroom of quiet reason. The Harvard scholar's serene assessment of abortion rights promises to illuminate for a wide audience both why the demands of pro-choice feminists are not constitutionally extreme and why the purported policy compromises initiated by pro-life forces fail to qualify as compromises at all. Indeed, Tribe's judicious defense of the liberal prochoice perspective has already found favor in surprising quarters. Journalist Nat Hentoff, the self-described "atheist civil-libertarian pro-lifer," praises Tribe's presentation of the right to privacy as unusually "lucid."' The "absolutes" Tribe refers to are the strongly held belief in a woman's right to choose whether to terminate her pregnancy, and the equally strong belief in a fetus's right to life. Professor Tribe's optimistic central thesis is that the clash between these absolutes is not an insurmountable obstacle to compromise: that the abortion issue need not produce irreconcilable conflict between groups favoring women's rights on the one hand and those favoring fetal rights on the other. Acknowledging the development of seemingly absolute values on abortion in contemporary America, Tribe maintains that "[f]ar from being inevitable outgrowths of the natural order of things, these competing values are socially constructed."2 He concludes that understanding the social origins of these competing values paves the way for genuine compromise. The image of the abortion issue as a clash of absolutes is apt in many respects, whether one views the values at stake as natural and immutable or, with Tribe, as socially constructed. The aptness of Tribe's image is strongly