Bouclin on Women in Prison Movies as Feminist Jurisprudence @sbouclin @utpjournals

ICYMI:

Suzanne Bouclin, University of Ottawa, Common Law Section, has published Women in Prison Movies as Feminist Jurisprudence, at 21 Canadian Journal of Women and the Law (2010). Here is the abstract.

In comparison to the significant body of research around audience reception and generic conventions of, as well as the progressive or regressive assumptions behind and the legal meaning-making potentialities within, prison movies, women in prison movies (WIPs) have received far less theoretical or critical attention. This is noteworthy from a feminist law and society perspective that aims to link questions of popular culture to broader issues of gendered social stratification and social conflict. On one level, WIPs can be read as an overt critique of the masculinism of the prison genre. In the traditional prison movies, women appear in flashback sequences as supportive wives, girlfriends, mothers, and/or deceitful vixens that coerce, frame, or seduce men into lives of crime. In WIPs, female characters move from the margins of the story to its centre. On another level, WIPs problematize broader legal, economic, and political apparatuses that operate to criminalize women without the well-rehearsed and recognizable markers of social power. They invite viewers to look beyond abstracted statistics about female “criminality” through believable – though not exactly realistic – accounts of the manner in which the law operates to criminalize particular women.

Download the article from SSRN at the link.

Call For Applications: St. Mary's Unviersity, PhD Fellowship (Studentship), Feminist Legal History or Cultural Legal Studies. Closing Date Feb. 26, 2017 @ThomGiddens @YourStMarys

Via @ThomGiddens

PhD Studentship - Feminist Legal History, or Cultural Legal Studies

St Mary's University, Twickenham - Centre for Law and Culture

Qualification type:	PhD
Location:	Twickenham
Funding for:	UK Students, EU Students
Funding amount:	£13,000
Hours:	Full Time

Placed on:	12th December 2016
Closes:	26th February 2017

School of Management and Social Sciences
Applications are invited for a three-year PhD studentship at the Centre for Law and Culture, St Mary’s University, Twickenham, beginning October 2017, working with Dr Judith Bourne and/or Dr Thomas Giddens.
The Centre for Law and Culture is an interdisciplinary hub for research at the intersections of law, justice, and the humanities. It aims to incubate and promote research crossing and challenging traditional legal boundaries from across critical and cultural legal studies. Visit www.stmarys.ac.uk/law-and-culture
The studentship provides full-time PhD home/EU student fees (£4,020 pa), £13,000 pa bursary, and £300 pa conference attendance budget. Applicants should have a Masters with Distinction, or with Merit and a distinction in the dissertation.
Details of Research Areas
A single PhD Studentship is available in either:

• Feminist legal history, or
• Cultural legal studies

Applications that traverse or combine these areas are also welcome.
Feminist Legal History
Feminist legal history is committed to uncovering women’s legal agency and how women have used the law to change their position. Feminist lawyers and historians have long recognised the contradictions at the heart of efforts to transform the law in ways that serve women’s interests. They demonstrate women’s denial of legal rights, women’s use of law to gain rights, and how, empowered by law, women worked to change gendered legal realities.
Applications are encouraged in (but not limited to) the following areas:

• The development and impact of the Sex Disqualification (Removal) Act 1919
• The legal networks developed by women before 1919
• Comparative studies of ‘self-publicising’ hearings heard by the Bar Council and Inns of Court, 1919-1940
• The pre-1919 lobbying carried out for women’s admission to the legal profession
• Women ‘outside’ lawyers pre-1919
• The history of the involvement of women in law
• The barriers to women’s promotion in law

Cultural Legal Studies
Emerging from the tradition of studying law and humanities, cultural legal studies is an internationally growing area of legal study. From representations of law and justice in popular culture, to art as a form of jurisprudential knowledge, to the development of innovative jurisprudences based around particular cultural experiences, cultural legal studies is a burgeoning area of study, rich with potential, and ripe for the engagement of new and developing postgraduate researchers interested in engaging critically with law.
Applications are encouraged in, but not limited to, the following areas:

• law, legality, and justice in visual culture and media (including film, comics, games, popular culture, etc)
• the nature of cultural legal studies
• the form of legal knowledge
• legal aesthetics and the visuality of law and its institution

Additional Information
Possible roles include aiding in conference organisation and limited undergraduate teaching; the successful applicant should thus be located within Greater London during their studies.
To Apply
Download and complete a PhD application form and send, with a 3,000-4,000 word research proposal, two academic references, copies of your Master’s qualification(s), a current CV, and a cover letter, to:
Prof Mahendra Raj
School of Management and Social Sciences
St Mary’s University
Twickenham, TW1 4SX
Email: mahendra.raj@stmarys.ac.uk
Tel: 020 82404079
Enquiries
Informal enquiries regarding topic areas:

• Dr Judith Bourne (judith.bourne@stmarys.ac.uk – feminist legal history)
• Dr Thomas Giddens (thomas.giddens@stmarys.ac.uk – cultural legal studies)

Enquiries about application procedures and requirements: Prof Mahendra Raj (mahendra.raj@stmarys.ac.uk)
More here

A Conference on Feminist Legal Theory and Applied Feminism at the University of Baltimore School of Law, March 30-31, 2017

From the mailbox:

CALL FOR PAPERS

 APPLIED FEMINISM AND INTERSECTIONALITY: 

EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference.  We hope you will join us for this exciting celebration on March 30-31, 2017.

This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways.  While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/. 

We seek submissions of papers that focus on the topic of applied feminism and intersecting identities.  This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory?  How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression?  What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality  theory changed over time and where might it go in the future?

We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.

To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to ubfeministconference@gmail.com. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

Special Issue of Studies in Law, Politics, and Society: Feminist Legal Theory

Clare Huntington, Fordham University School of Law, and Maxine Eichner, University of North Carolina, Chapel Hill, School of Law, have published an introduction to Studies in Law, Politics, and Society in volume 69 of Studies in Law, Politics, and Society, Special issue: Feminist Legal Theory (2016). Here is the abstract.

Half a century after the beginning of the second wave, feminist legal theorists are still writing about many of the subjects they addressed early on: money, sex, reproduction, and jobs. What has changed is the way that they talk about these subjects. Specifically, these theorists now posit a more complex and nuanced conception of power. Recent scholarship recognizes the complexities of power in contemporary society, the ways in which these complexities entrench sex inequality, and the role that law can play in reducing inequality and increasing agency. The feminist legal theorists in this volume – Susan Appleton, Katharine Baker, Naomi Cahn, June Carbone, Maxine Eichner, Angela Harris, Jennifer Hendricks, Michelle Oberman, and Susan Stiritz – are emblematic of this effort. They carefully examine the relationship between gender, equality, and power across an array of realms: sex, reproduction, pleasure, work, money. In doing so they identify social, political, economic, developmental, and psychological and somatic forces, operating both internally and externally, that complicate the expression and constraint of power. Finally, they give sophisticated thought to the possibilities for legal interventions in light of these more complex notions of power.

The full text is not available from SSRN. Link to publisher's website.

Stanchi, Berger, and Crawford on Feminist Judgments: Rewritten Opinions of the U.S. Supreme Court

Kathryn Stanchi, Temple University School of Law, Linda L. Berger, UNLV School of Law, and Bridget J. Crawford, Pace University School of Law, are publishing Introduction: U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court in U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Kathryn M. Stanchi, Linda L. Berger & Bridget J. Crawford eds.), Cambridge University Press, 2016). Here is the abstract.

What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? To begin to answer this question, we brought together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant U.S. Supreme Court cases on gender from the 1800s to the present day. While feminist legal theory has developed and even thrived within universities, and feminist activists and lawyers are responsible for major changes in the law, feminist reasoning has had a less clear impact on judicial decision-making. Doctrines of stare decisis and judicial language of neutrality can operate to obscure structural bias in the law, making it difficult to see what feminism could bring to judicial reasoning. The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions show that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice, not only for women but for many other oppressed groups. The remarkable differences evident in the rewritten opinions also open a path for a long overdue discussion of the real impact that judicial diversity has on law and of the influence that perspective has in judging. Included here are the table of contents for the book, and the introductory chapter to the book.

Download the Introduction from SSRN at the link.

Jurisprudence, Law, and Gender

Leslie Green, University of Oxford Faculty of Law, and Queen's University Faculty of Law, has published Gender and the Analytical Jurisprudential Mind as Oxford Legal Studies Research Paper No. 46/2015. Here is the abstract.

Why does contemporary jurisprudence have so little to say about law and gender? I think that is because gender is not relevant to theories of the nature of law. Joanne Conaghan disagrees. She says the methods of analytic philosophy screen out gender by abstracting concepts from social contexts, smuggling in hidden values, and ignoring empirical evidence. My own work on the law of marriage is said to exemplify this. But Conaghan is comprehensively mistaken in her diagnosis. She misunderstands analytic jurisprudence, misunderstands the relation between sex and gender, and misunderstands the role of social facts in legal philosophy. Feminist legal theory is made poorer if it accepts the caricature she offers. Legal scholars should be more open to the contributions of analytic philosophy to feminist inquiry.

Download the article from SSRN at the link.

Assessing Feminist Legal Studies: Also Available As a Free Download From Springer Website

Ruth Fletcher's Responding to Submissions and Introducing Issue 23(1), in volume 23 of Feminist Legal Studies (2015), previously blogged here, is also available here as a free download. 

Call For Papers: U.S. Feminist Judgments Project

From Bridget Crawford, Pace Law School, comes this Call for Papers:

 

The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues. Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process. The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.
The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of Feminist Judgments: From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received. Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had a feminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here:
https://www.surveymonkey.com/s/feministjudgments
Applications are due by September 15, 2014 at 5:00 p.m. eastern. Editors will notify accepted authors and commentators by October 7, 2014. First drafts of rewritten opinions will be due on February 1, 2015. First drafts of comments on the rewritten opinions will be due on March 15, 2015. The editors are in the process of identifying a publisher; publication of the final volume is anticipated for late 2015.
A list of cases tentatively scheduled for rewriting is available here:
http://www.law.temple.edu/pdfs/faculty/FeministJudgmentsSurveyResults.pdf
Applicants may indicate their preferences among the list of cases. Applicants also may suggest other cases for rewriting. The tentative cases were chosen with the input and advice of an Advisory Panel of distinguished U.S. scholars including Kathryn Abrams, Katharine Bartlett, Devon Carbado, Mary Anne Case, Erwin Chemerinsky, April Cherry, Kimberlé Crenshaw, Martha Fineman, Margaret Johnson, Sonia Katyal, Nancy Leong, Catharine MacKinnon, Rachel Moran, Melissa Murray, Angela Onwuachi-Willig, Nancy Polikoff, Dorothy Roberts, Dan Rodriguez, Susan Ross, Vicki Schultz, Dean Spade, Robin West, and Verna Williams.

---

Feminism Here and There

Yxta Maya Murray, Loyola Law School, Los Angeles, has published 'Creating New Categories': Anglo-American Radical Feminism's Constitutionalism in the Streets, at 9 Hastings Race & Poverty Law Journal 454 (2012). Here is the abstract.

In 1968 and 1970, U.S. and British radical feminists organized provocative protests at the Miss America and Miss World beauty pageants. While the American New York Radical Women expressed their outrage at women’s objectification by picketing, engaging in street theater antics, and organizing a brief if peaceable outburst, British feminists raised a panic in London by throwing flour bombs and rotten produce at audience members and celebrity MC’s, scattering plastic mice, spraying ink-filled squirt guns, and even snubbing out a cigarette on a policeman.
Why were the U.S. radical feminists so much more decorous than their British sisters? In this article, I analyze how each of these radical feminist camps employed the strategies of outrage, law-breaking, and violence, noting that U.S. beauty pageant protesters were outrageous, but avoided the scandalous scofflawing and aggression of the London rebels. Investigating the historical and contemporary political worlds in which these two revolutionary groups worked, I show that U.S. and British attitudes toward law-breaking and violence were shaped by their native, early 20th century histories of feminism, as well as the American and European tumults and tragedies that characterized the age.
Drawing on the work of Reva Siegel, Jack M. Balkin, and Lynda G. Dodd, I will then consider how the U.S. and British protesters influenced their countries’ respective constitutional cultures and future feminist legal theories. Each camp’s approach to outrage, law-breaking, and violence in street protest would later be felt in successes and failures on the constitutional front, and also resound in a law-faithful U.S. feminism that differs significantly from its skeptical, anti-authoritarian British complement.

Download the article from SSRN at the link. 

Women's Speech

Eileen Hunt Botting, University of Notre Dame, is publishing Ascending the Rostrum: Hannah Mather Crocker and Women's Political Oratory in the Journal of Politics. Here is the abstract.

Although Hannah Mather Crocker (1752-1829) apparently presented a prescription against women's political oratory in her Observations on the Real Rights of Women (1818), she provided philosophical and historical challenges to this conventional rule of early nineteenth-century feminine propriety elsewhere in the first American treatise on women's rights. By analyzing new archival findings of two of her oratorical works from the early 1810s — her 1813 "Fast Sermon" against the War of 1812 and her 1814 "Address" to the advisory board of the School of Industry for poor girls in Boston's North End — I argue that Crocker also provided a personal challenge to this conventional rule. In philosophically, historically, and personally redefining women's political oratory as compatible with feminine propriety — during the post-revolutionary backlash against women's rights — Crocker helped pave the way for the strategic use of the constitutional rights of speech and association in the nineteenth-century American women's rights movement and beyond.

The full text is not available from SSRN. 

A New Book on Nineteenth Century Women, Law, and Literature

Now available:

In Contempt: Nineteenth-Century Women, Law, and Literature

by Kristin Kalsem

Available from Ohio State University Press http://www.ohiostatepress.org/books/book%20pages/kalsem%20in.html

In Contempt: Nineteenth-Century Women, Law, and Literature explores the legal advocacy performed by nineteenth-century women writers in publications of nonfiction and fiction, as well as in real-life courtrooms and in the legal forum provided by the novel form.

The nineteenth century was a period of unprecedented reform in laws affecting women’s property, child support and custody, lunacy, divorce, birth control, domestic violence, and women in the legal profession. Women’s contributions to these changes in the law, however, have been largely ignored because their work, stories, and perspectives are not recorded in authoritative legal texts; rather, evidence of their arguments and views are recorded in writings of a different kind. This book examines lesser-known works of nonfiction and fiction by legal reformers such as Annie Besant and Georgina Weldon and novelists such as Frances Trollope, Jane Hume Clapperton, George Paston, and Florence Dixie.

In Contempt brings to light new connections between Victorian law and literature, not only with its analysis of many “lost” novels but also with its new legal readings of old ones such as Emily Brontë’s Wuthering Heights (1847), George Eliot’s Adam Bede (1859), Lewis Carroll’s Alice’s Adventures in Wonderland (1865), Rider Haggard’s She (1887), and Thomas Hardy’s Jude the Obscure (1895). This study reexamines the cultural and political roles of the novel in light of “new evidence” that many nineteenth-century novels were “lawless”—showing contempt for, rather than policing, the law.

“Kristin Kalsem’s In Contempt makes a significant contribution to scholarship on the history of feminist jurisprudence. She covers thorny legal issues including married women’s property, infanticide, and lunacy law, as well as birth control, imperialism, and women’s admission to the bar. In her afterword she urges scholars to engage the ‘new evidence’ she has brought to light—and I have no doubt that this evidence will be welcomed enthusiastically.”

Christine L. Krueger, professor of English, Marquette University

Kristin Kalsem received her J.D. from the University of Chicago Law School and her Ph.D. in English from the University of Iowa. She is professor of law and co-director of the Center for Race, Gender, and Social Justice at the University of Cincinnati College of Law.

Pedro Almodovar's "High Heels"

Monica Lopez Lerma, University of Helsinki Faculty of Law, has published Law in High Heels: Performativity, Alterity, and Aesthetics, at 20 Southern California Interdisciplinary Law Journal 2 (2011). Here is the abstract.

Pedro Almodovar's High Heels (the original Spanish title, Tacones Lejanos, literally means 'distant heels') is a 1991 postmodern film that celebrates performance, fluidity, and fragmentation as ways of being in and understanding the world. In a generic combination of melodrama, comedy, musical, and film noir, High Heels tells the story of a turbulent mother daughter relationship, and a judge's criminal investigation following the murder of the daughter's husband (who also happens to be the mother's former lover). In recent years, Almodovar's film has received the attention of Orit Kamir, a law-and-film feminist scholar who opens up a refreshing line of inquiry. Kamir uses the film as a powerful site and as a means to explore alternative feminist images of law, judgment, and justice. In this Article, I provide new insights into Kamir's feminist jurisprudential reading of the film by placing it within the framework of postmodern jurisprudence, performativity, and queer aesthetics. My aim is to reconceptualize law through an ethics of alterity, and to further theoretical developments in postmodern accounts of judgment, ethics, and justice.

Download the article from SSRN at the link. 

Legal Intellectuals and Their Impact On Society

James R. Hackney, Jr., Northeastern University School of Law, has published Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory (New York University Press, 2012). Here is the abstract.

In this book the author examines the trajectory of American legal theory in the late 20th century by way of interviewing ten leading theorists. The interviews conducted with Bruce Ackerman, Jules Coleman, Drucilla Cornell, Charles Fried, Morton Horwitz, Duncan Kennedy, Catharine MacKinnon, Richard Posner, Austin Sarat, and Patricia Williams cover a wide breadth of contemporary legal theory — including law and economics, critical legal studies, rights theory, law and philosophy, critical race theory, critical legal history, feminist theory, postmodern theory, and law and society. The topics raised in the conversations include the early lives of interviewees as thinkers and scholars, their contributions to American legal theory, and their thoughts regarding some fundamental questions in legal academe.

Feminism and the Museum

Yxta Maya Murray, Loyola Law School, Los Angeles, has published Feminist Engagement and the Museum in volume 1 of the British Journal of American Legal Studies (2012). Here is the abstract.

One day in the summer of 2011, Los Angeles law professor Yxta Maya Murray visited the Tate Britain and was shocked to see there Cathy Wilkes' installation (We are) pro-choice, a phantasmagoria involving a "weeping" naked mannequin sitting on a toilet, as well as a ladder and some banged up kitchenware. Murray gleaned that something feminist was in the offing, but couldn't tell quite what that might be. It seemed evident that Wilkes was making a case that women are miserable in today's brutalist western-capitalist society. However (she wondered), were there any other, more hopeful, conclusions to draw from the work? Pro-choice sent her off on a six-months long adventure of trying to understand this amazing art – intellectual travels that drew her to the lands of French/Bulgarian feminist Julia Kristeva, U.S. legal theorist Drucilla Cornell, and to the strange ways of Irish Wilkes herself. In the resulting essay, Murray asks the following questions: What is this suffering that Wilkes' describes in (We are) pro-choice? How does art help us understand subordination that might be reversed through legal reform? And what kinds of radical changes have to be made to museum law and policy that would allow art institutions to help us liberate the oppressed?

Download the article from SSRN at the link. 

Rape, Law, and Art

Yxta Maya Murray, Loyola Law School Los Angeles, has published Rape Trauma, the State, and the Art of Tracey Emin in volume 100 of the California Law Review (2012). Here is the abstract.

Prosecutors use “rape trauma syndrome” evidence at rape trials to explain victims’ “counterintuitive” behaviors and demeanors, such as their late reporting, rape denials, returning to the scenes of their attacks, and lack of emotional affect. Courts and experts, in instructions and testimony, usually describe victim reticence as a product of “shame” or “trauma.” Feminist critics of R.T.S. evidence posit that the syndrome’s profile is based on incomplete evidence, because most rapes are unreported. Furthermore, they object to its condescending, sexist, and colonial construction of rape victims and their emotions.

In this Article, I respond to feminist critics by studying the work of Tracey Emin. Emin is a British-Turkish artist who suffered an unreported rape at the age of 13, and who has been commenting on that rape through her art ever since. Expanding and innovating upon the work of law and humanities scholars, I apply the insights found in art – or, what I describe as “artifacts,” with a deliberate play on the word – to rape law. Through my study of the facts limned in art, I show how the complexities of Emin’s reactions to rape challenge the too-streamlined and often confusing stories of victims told by prosecutors, experts, and courts. Emin’s art demonstrates that she harbors suspicions of the state, a skepticism based in part on her failure to correspond to “real rape” victim stereotypes. Her critique adds much needed insight into problems of the R.T.S. model. Based on the lessons learned, I make suggestions for rape law reform, and for changes to be made to the administration of rape prosecutions in the U.S. and U.K.

Download the Article from SSRN at the link.

James Fitzjames Stephen and His Theory of Criminal Punishment

Marc O. DeGirolami, St. John's University School of Law, has published Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen, in volume 9 of the Ohio State Journal of Criminal Law (2012). Here is the abstract.

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a highly prominent public intellectual of the late Victorian period. Notwithstanding Stephen’s stature and importance, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen’s ideas about the nature of punishment serves two purposes, one historical and the other theoretical.



The historical aim is to elucidate Stephen’s own thought, a subject which has been thoroughly contested and, unfortunately, deeply misunderstood. The primary culprit has been exactly the effort to pin down Stephen’s ideas about punishment as retributivist, or consequentialist, or a specific hybrid. The drive to systematize Stephen’s thought has had the regrettable effect of flattening it, in some cases unrecognizably. Though he followed Kant, Hegel, Beccaria, and Bentham, Stephen wrote at a time that preceded the full flowering of the philosophy of punishment by roughly a century, and his assumptions and arguments about the nature and purposes of punishment are an uncomfortable fit within the modern hard-edged methodology of punishment theory.



The theoretical aim concerns whether punishment theory might learn from its serious misunderstanding and misrepresentation of Stephen, whether and to what extent its own methodological assumptions ought to be adjusted in light of the paper’s historical reconstruction. The article claims that that they might be, and arguably should be. Perhaps more than any other writer on the subject, Stephen poses a powerful challenge to the methodology of systematization in punishment theory; his ideas are an extended argument that an allegiance to system renders thought about the reasons for punishment less rich and more monolithic than they otherwise might be. The article suggests, first, that punishment theorists ought to open themselves to historical scholarship as a source of illumination in fashioning, and perhaps modifying, their sophisticated normative accounts; and second, the theoretical perspective that is most capable of internalizing historical studies and ideas would adopt a pluralistic view of the justification of punishment. The reason for examining neglected historical views is that one may actually improve one’s theory by beclouding and complicating it with perspectives that do not match one’s existing prescriptive views. And the reason for inclining toward pluralistic theoretical accounts is that it is precisely their untidy and unsystematic methodological commitments which make it possible for theory to learn from history.

Download the article from SSRN at the link.

Feminism, Liberalism, and Radicalism

Robin L. West, Georgetown University Law Center, has published The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory at 15 Wisconsin Women's Law Journal 149 (2000). Here is the abstract.

Part One of this article provides a phenomenological and hedonic critique of the conception of the human – and thus the female – that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the human – and thus the female – which underlies radical feminist legal criticism. Again, I will argue that in both cases the theory does not pay enough attention to feminism: liberal feminist legal theory owes more to liberalism than to feminism and radical feminist legal theory owes more to radicalism than it does to feminism. Both models accept a depiction of human nature which is simply untrue of women. Thus, both accept, uncritically, a claimed correlation between objective condition and subjective reality, which, I will argue, is untrue to women. As a result, both groups fail to address the distinctive quality of women's subjective, hedonic lives, and the theories they have generated therefore have the potential to backfire – badly – against women's true interests. In the concluding section I will suggest an alternative normative model for feminist legal criticism which aims neither for choice nor equality, but directly for women's happiness, and a feminist legal theory which has as its critical focus the felt experience of women's subjective, hedonic lives. My substantive claim is that women's happiness or pleasure – as opposed to women's freedom or equality – should be the ideal toward which feminist legal criticism and reform should be pressed, and that women's misery, suffering and pain – as opposed to women's oppression or subordination – is the evil we should resist. I will argue that feminist legal theorists, in short, have paid too much attention to the ideals of equality and autonomy and not enough attention to the hedonistic ideals of happiness and pleasure, and that correlatively we have paid too much attention to the evils of subordination and oppression, and not enough attention to the hedonistic evils of suffering and pain. My methodological assumption is that the key to moral decision-making lies in our capacity to empathize with the pain of others, and thereby resist the source of it, and not in our capacity for abstraction, generalization, or reason. My strategic claim is directly entailed: the major obstacle to achieving the empathic understanding which is the key to significant moral commitment, including the commitment of the legal system to address the causes of women's suffering, is the striking difference between women's and men's internal lives, and more specifically, the different quality of our joys and sorrows. This obstacle can only be overcome through rich description of our internal hedonic lives.

Download the article from SSRN at the link.