Thursday, December 15, 2011
Tuesday, November 29, 2011
These evasive shifts are well illustrated in the story of a knight
who entered the lists upon a case which he knew
was wrong, and who, to change the issue, fled at the
first onset." Turn, coward !" exclaimed his
antagonist. "Thou liest!" retorted the knight:
"coward I am none, and in this quarrel will I fight
to the death; but my first cause of combat was
unjust, and I abandon it."
It remains to be seen if Cain will make like the knight in the story.
Friday, October 28, 2011
The notion of the “office wife” has been rendered more gender neutral via “office spouse” (or the addition of “cubicle hubby”). Some modern renditions view such relationships as reciprocally beneficial for men and women. However, many commentators have observed that notwithstanding a move toward gender neutrality, women are still often expected to be subservient to men in office settings. In even modern times women secretaries and assistants are often constructed as office wives who are “deferential and ladylike” and who act as “loyal, trustworthy and devoted” extensions of their usually male bosses, according to Rosemary Pringle’s iconic essay “What is a Secretary?” “Office wife” is a phrase that conveys mixed notions of work, domesticity, and sexual promise, even in some modern contexts. For instance, some relatively recent court case have involved women claiming to have served as “office wives" to men in workplaces; not all of the claims were by way of complaint. Even in modern times , women employees have often been expected to serve as helpmates in office settings.
Monday, September 19, 2011
Monday, August 29, 2011
In the Op-ed about “The Help,” the author is concerned that we may forget that "good" people were sometimes racist, too. I have much more to say about the film, but, in direct response to the Op-ed, I think that the larger problem is the way that being "racist" or "not racist" seems to consume so much social space in discussing relations between people. I didn't find it particularly surprising or offensive that the black "help" would be treated as social inferiors by the affluent white people for whom they worked. That was, and, indeed, despite denials by some, is often the way of things. I would have been more surprised and offended if the film had depicted an absence of racial and class bias (see my post on The Princess and the Frog). I don't think that we are in any more danger of forgetting that "good" or ostensibly discerning people can be racist than we are of forgetting that "bad" (or undiscerning ) people can be distinctly anti-racist. At the end of the day, it is about how we treat each other on the most fundamental levels.
Saturday, July 9, 2011
Delhi women aren’t marching for the right to walk down the street dressed in barely-there clothes, as critics suggest. They’re fighting for the right to walk down the street. Period…“Women can wear whatever they want [when marching]. … The point we’re trying to make is that it is not the clothes you wear that cause harassment,” said SlutWalk Delhi organizer Umang Sabarwal to The New York Times.
Many of you are familiar with the slutwalk concept. Slutwalk was triggered by the comments of a Toronto police officer. According to the Toronto Star, the officer commented at a public safety meeting at Osgoode Hall (one of my alma maters!) in early 2011 that "women should avoid dressing like sluts in order not to be victimized.” The officer later apologized, but his comments were something of a watershed event.Women in cities the world over have gathered and walked (sometimes dressed in provocative clothing) to protest against the notion that sexual assault is caused by the victims’ clothing or appearance. In part, protesters want to reclaim the word slut, in much the same way that other groups have attempted to reclaim slurs that have been wielded against them (see e.g. the n-word, which is not entirely rehabilitated, or queer).
Slut, however, has perhaps a different discursive imprint than other slurs. One of the concerns about slutwalk is how it translates across cultures, customs or national borders. This is the point made in the Ms. blog article about the planned walk in Delhi. Many women in the West have long taken for granted the right to go out into public unaccompanied. This is emphatically not the case for women in some other parts of the world, or even for all women in Western countries. As one women notes in the Ms. blog in discussing the situation in Delhi, “On the street … you’re never called ‘slut’”. Indeed, it’s not necessarily what they call you. It’s how they treat you.
Even women in Western countries who go out alone or travel alone are often subject to certain forms of treatment that imply that they are not quite proper. I’m thinking of some of my recent travels wherein I stayed in hotels alone and managed to be harassed by a hotel guest, hotel workmen, and a hotel security guard. The guest looked like a perfect model of an American businessman and father. We chatted briefly and innocuously in the lobby while standing and waiting for an elevator. He chuckled amiably as we stepped into the elevator together. He then took out a large billfold of money and started counting it slowly and talking pointedly about how “lonely” it is when traveling for business. I looked down, tightened my grip on my briefcase (the better to whack him with) and went silent; much to his credit he reddened and put his money away. In another hotel the security guard who responded to my room when I called to complain about jeering workmen in the hallway suggested that I looked as if I was ready to go “on a date” and asked if I wanted him to give me a tour of the hotel. I am sure I looked quite ready for a day in the office in a boxy business pants suit and glasses perched on my head. No matter. It’s clearly not what you wear. The whole discussion of women in hotels raises the specter of DSK—but I won’t go there now. I will remark that the idea that women traveling alone are “suspicious” in more ways than one is a pretty old one and still holds sway. I was watching So Long at the Fair some weeks ago (it was Jean Simmons night!) and in the film, set at the 1889 Paris Expedition and said to based on a partly true story, a woman’s brother and traveling companion goes missing at their hotel. Part of the undercurrent in the film is that she was somehow tainted by the mere fact of being alone.
Some people are prone to draw a sharp line between sexually-tinged remarks and actual sexual assault. And yes, there is a huge difference. But such remarks are along the spectrum of harmful behaviors, and because they are too often deemed “minor” or even “charming” and "flirtatious", they go undiscussed and unaddressed. I am encouraged by events such as slutwalk even despite the difficulties of translating it across cultures. Slutwalk helps to air a problem that has proven intractable despite years of take back the night marches—women’s ability to be free from sexual assault or harassment in public spaces. The only way we will make any headway is for women to talk openly and honestly about the problem.
Wednesday, June 15, 2011
Monday, June 13, 2011
There are many ways of writing about history. Three somewhat related genres within the larger historical enterprise are non-fiction history, historicized fiction and fictionalized history. Mrs. Dred Scot, to my read, manages to fall somewhere in the interstices of all three of these. Read more about this at Osgoode Hall's Institute for Feminist Legal Studies blog!
Sunday, May 1, 2011
Theft is, from a moral and legal perspective, a bad thing. Theft that occurs by lying, faking or other subterfuges as opposed to by good old-fashioned five-fingered grabbing is often considered even more reprehensible. Though typically thieves do no physical harm to their victims when they abscond with other people’s stuff, thieves are high on the list of most disliked criminals. As my late grandmother-in-law Nen used to say in her Caribbean accent: “I don’t want nothing to do with someone who thief me.” In her parlance, “thief” was a verb that was synonymous with “steal from” as well as a noun. A thief thieves people. Nen also seemed to envision a special place in hell for people who thiefed people by pretense or fraud. Some of the worst people, she said often, are people who give a six for a nine.
In Norwalk, Connecticut Tonya McDowell has been indicted for first-degree larceny. She faces a maximum sentence of 20 years in prison and a $15,000 fine. She is charged with stealing education: she allegedly enrolled her son in Norwalk schools from September 2010 to January 2011 when she did not live there. She is alleged to have used the address of her babysitter who did live in Norwalk. You can read about it here in the New York Times. Several people have expressed outrage that a parent seeking a better education for her child would be subjected to such charges. They argue that what should be under indictment is the system of school funding in much of the United States that relies upon local tax funding and thus makes schools in wealthy neighborhoods more likely to be excellent while leaving schools in poor areas deficient.
There are however, a large number of people who remain silent through all of this. They are the quite rational, well-meaning, sympathetic and even empathetic people who, though they might not have criminally charged Ms. McDowell if it appeared that she had enrolled her child in a school district where she did not live, certainly would have advocated the prompt removal of her child from the school. One of their arguments goes something like this: “I worked hard for years to be able to afford a house in this neighborhood. I work even harder to pay the taxes that support the schools in this neighborhood. Why should someone who hasn’t done those things get to take advantage of the school system here?” I get this argument; I really do. Good quality education can be expensive. Yes, we do in many cases pay taxes for certain other services that may be used by all comers whether or not they live in our neighborhood, such as roads, firefighters, and police. But these, we might assert, are in the realm of the really necessary from a health, safety and welfare standpoint. Moreover, these tend to be services that do not always rely entirely on local funding, or that are not frequently used by non-residents (and still, there are sometimes calls to limit use or to charge a fee for use of even these essential services).
There is also the argument made by those who would have supported the removal of Ms. McDowell’s child that school excellence is the result of more than just well-funded schools or excellent teachers. Excellent schools are often attended by large numbers of children who come from safe, warm, clean homes with plentiful, nourishing food, attentive if not loving well-educated parents and other relatives, books and music, private lessons that supplement schooling, opportunities for travel, and all sorts of enrichment. Even if we could insure that all children attend well-funded schools, we would likely have to do a great deal more to create optimal educational conditions for all children. I get this argument, too. Education is, after all, more than instruction. Education has to do with the formation of an individual in numerous ways, ranging from the intellectual all the way to the moral, social and cultural. In contrast, instruction is more precise, and has to do with specific methods used for the transmission of knowledge. Instruction is a part of education, but education is not necessarily instruction. Education begins at home and continues at home long after instruction at a school or anywhere else is over.
So what does this say about whether or not we should be lodging theft charges against a mother for seeking to educate her child in a place where she does not live in order to obtain what she believes (and what many objective measures show to be) a better school? Do the Ms. McDowell’s of the world thief those of us who reside in better neighborhoods when they enroll their children? Is their behavior even more reprehensible because they must by necessity give sixes for nines to school enrollment officials when making representations about where they live?
The answer lies in how one views public education. If we conceive of the provision of public education as a consumer good or service that is subject to being “stolen”, then it is right to charge Ms. McDowell as if she had stolen an item from a luxury store or failed to pay for a hotel stay after representing that she could in fact pay. Such a view is deeply problematic, however. Public education is not a good at all, and though it is a service, it is a really unique type of service. It is a cornerstone of civic engagement and of democracy itself. However, while many of us would agree that we owe a public education to all children in our society, far fewer would agree that we owe a quality public education to every child. That seems to be something reserved for those with the price of admission. This is at the heart of the matter. It could be that by not providing quality education to all children it is we who thief the Ms. McDowell’s of the world. Through some combination of sympathetic tut-tutting and sophistic language about the nature of school funding, we give sixes for nines to the least advantaged persons in our society.
(This post is based on a paper in progress titled Thief Us: The Use of Criminal Sanctions for Enrolling Non-Resident Children in Public School Districts)
Friday, March 25, 2011
Today is the International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade. On this day we pause to remember the untold numbers of African women, children and men who were victimized in the Transatlantic slave trade over a period of four hundred years. Although there is sometimes debate about just how many persons were transported, one thing is clear: it numbered in the many millions, as illustrated by much of the data in Emory University's Transatlantic Slavery Database. In memory of the victims, the U.N. General Assembly, in its resolution 62/122 of 17 December 2007, declared 25 March the International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade, to be observed annually. The resolution called for the establishment of an outreach program to inculcate in future generations the “causes, consequences and lessons of the transatlantic slave trade, and to communicate the dangers of racism and prejudice”.
The specific goal of this day is to honor the memory of those Africans and African-ancestored people who suffered and died as a result of being enslaved, especially those who underwent the horrors of the Middle Passage. However, in making this declaration, Member States recalled that the treatment of African-ancestored slaves is also at the foundation of many present-day situations of social and economic inequality, injustice, racism and hatred aimed at African-ancestored people. This is a day not only to remember the past, but to promote contemporary awareness of the continuing ills of this particular form of slavery.
We might well wonder how something of the magnitude of the African slave trade could be little known or at risk of being forgotten. The problem lies not, however, in whether we are ignorant of or forget about slavery, but in the nature of what we know and in the manner in which we remember slavery. In the case of African-ancestored slavery in the West, history and memory are often contentious distant kinsman instead of close siblings. There is, for instance, a tendency to historicize African-ancestored slavery as an institution instead of simply (or complexly) remembering it as a series of ongoing events with very real, material consequences for individual and collective groups of enslaved black people. As scholar Pierre Nora wrote in his discussion of the relationship between memory and history, memory and history are far from synonymous; they appear often to be in fundamental opposition. The opposition is between an actual past phenomenon and a representation of the past phenomenon. The treatment of African-ancestored people during slavery and in its aftermath is part of a somber past. This past is not, however, personal to African-ancestored people themselves, or to former slave societies, but to the entire world. African women, children and men were removed from their homes and introduced into a system of bondage that was not only sometimes violent and capricious but which also deprived them of the essence of their humanity: freedom and hope for future.
Bridging the history and memory of slavery poses a number of problems. Perhaps chief among them is how not to stand in judgment on a slave past that in some measures defies critique by its very historicity: 1811 was not 2011, and it is at best facile and misguided to bring to bear on the slave past the norms that guide us in present times. Nonetheless, African-ancestored slavery remains a searing memory that scorches the fabric of modernity, and hence, is something that merits attention. The notion of people as property makes manifest Nora’s notion of lieux de mémoires, disparate sites where “memory crystallizes and secretes itself.” While Nora envisions such sites as places, concepts, or objects that symbolize the memorial heritage of a community, in the case of slavery the bodies of enslaved black women, children and men were and are themselves sites of memory. The bodies of the dead are, however, enshrouded by a historic past that obscures the memorial past inscribed upon their very remains.
Saturday, February 19, 2011
In recent days news circulated regarding an incident at Widener University’s school of law. It seems that a faculty member was called to task for repeatedly offering hypotheticals about killing the dean in the context of teaching his criminal law class. The dean happens to be a black woman, Linda Ammons. Some students complained about what they viewed as repeated instances of “violent, racist, sexist” behavior by the white male professor. There were also apparently claims by students that the professor had engaged in a “pattern” of misconduct , "cursing and coarse behavior, "racist and sexist statements" and "violent, personal scenarios that demean and threaten” the professor’s colleagues at the institution. You can read one newspaper's account of the matter here.
I have watched in horrid fascination the various deconstructive responses to this story from members of the legal academy:
1. Silence. This is perhaps the most interesting response, especially given that Dean Ammons has been in the academy for many years and is known to many.
2. Dispassionate equanimity. This mostly consisted of calls to wait and see, to not jump to conclusions until all of the facts are in. We are, after all, law professors. We wouldn’t be acting according to our training if we took a position before knowing all of the facts.
Moreover, many have asserted in response to this situation that an important part of the game is academic freedom. This mostly consists of assertions that making such statements is well within the rights of a professor. After all, one of the hallmarks of academia is the right to make remarks in the course of doing our work that may be unpopular. Indeed, the whole notion of tenure is closely tied to academic freedom, in recognition of the fact that academics may sometimes do and say things that are not well received or highly valued.
Somehow I have been troubled by all of these responses, so I offer my own deconstruction of the deconstruction.
Silence is perhaps the worst of the responses. Silence basically suggests that this just doesn't matter enough to comment upon one way or another. In some respects this is akin to another relatively recent situation involving a black woman academic. See my blog post On Being a Black Woman Lawyer (Or, the Sound of Silence).
The dispassionate equanimity approach, while making sense on its face, obscures the broader concerns here and hides itself in a cloak of legalism. No, we shouldn't make a decision until the facts are in. But given the nature of the claims here, where we are not really dealing with a denial (the professor under siege apparently admits that he made such remarks about the dean), there is plenty of room for righteous indignation. While the dispassionate equanimity approach is no doubt a tribute to legal formalism, it is also a marvelous example of what some people call the "formalist fiction": that broader normative and policy considerations have no relationship to formal articulations of law.
The problem with the particular brand of precedential analysis offered here is that the analogy to Ward Churchill is, in my view, a very inapt precedent, as it offers little that is substantively useful by way of analogy. A professor who writes an essay ostensibly assailing a group of people that most of us consider innocent victims is very different from a professor who apparently repeatedly makes remarks that invite the captive listeners to violently envision an actual individual known to the listeners. At a minimum, we can generally choose not to read essays. Students in contrast have little power to choose not to listen to their professors or to absent themselves. As I have written elsewhere, the paradigmatic approach of the “legal method” is sometimes flawed, as it is based upon the often unstated assumption that there is broad agreement on the warrants of the paradigm. Now, we usually understand that in undertaking analysis by analogy, there may be few cases that agree “on all fours,” and that part of the exercise is exploring the aptness of the cases cited as precedent. The problem comes in when such analyses take shortcuts whereby no one bothers to parse the analogy, usually based on the assumption that we all agree anyway, when really some of us, sometimes huge sums of some of us, disagree on the aptness of the precedent. This dissonance undermines the value of precedent as a legitimate tool for reaching conclusions, and works a startlingly odd form of legal discursive violence on those in disagreement.
The it’s all good, it’s part of the game approach also has much to recommend it on its face. As someone who worked as an assistant prosecutor in an office where we once passed around photos of a dismembered drug suspect and invited laughter (“there’s one we won’t have to try”), I really understand “morgue humor.” When I taught criminal law I had a hypo where a robber came into the classroom and held a small knife to my back, and I in turn pulled out my high powered assault weapon from the podium (where I repeatedly asserted that I kept it), aimed it at the robber, demanded that he drop his knife and then shot the robber repeatedly until he died. Self-defense or not?
I also get the urge to passive-aggressiveness in hypotheticals. I used to offer a long-running hypo about leaning out of the impossibly small, oddly-positioned window of the office to which administrators had assigned me (jab) and doing target practice by firing across the street to hit the window of a tobacco shop. The “joke”, and the key fact, was that I did this while hundreds of people gathered for a parade in the street below (as was sometimes the case). As I used to explain, I taught so many large classes and served on so many committees that there was little chance that a parade would occur when I was not present at the building (another jab). Is it manslaughter or murder if I kill someone during target practice? It all made for great discussions. But never, ever, did it occur to me to make an actual person, and certainly not an actual person in my workplace, the subject of my hypothetical homicides.
Passive-aggressive humor that explicitly or implicitly assails those who hold power over you is a time-honored part of what some scholars have called “carnivalization”. Carnivalization usually occurs where social subordinates breech the norms of polite discourse and behavior as a means of acting out against oppression. Carnivalization may include mockery of those in power or self-mockery by the oppressed group. I have written about this in the NYU Review of Law and Social Change.
The problem with carnivalization is that while carnivalization represents an upsetting of mainstream power and norms, it is possible to deploy carnivalizing norms to silence persistent outsiders, especially when those outsiders are perceived as "upstarts", that is, when they begin to have some claim to power or status themselves. In my previous writing on this topic I used as a principal example Imus’s calling members of the championship Rutgers women’s basketball team “nappy-headed ho’s”. I also offered the instance of upper middle class white college students throwing “pimp and ‘ho” parties right in the midst of their dismayed black classmates. This is ersatz carnival, a cynical inversion of carnival norms. Even in today’s post-racial, post-sexist United States, race, class and gender still frame relations of power. Even when the president is a black man, or the dean is a black woman, there is no disruption of mainstream power norms when those who have traditionally wielded power continue to deploy it in verbal assaults—it is racist, sexist, BAU: business as usual.
Follow-up February 27, 2011:
I received many comments to this post. Thanks all of you for reading! Most comments came directly to me via e-mail, and were signed. Three comments came via the blog and were anonymous. Two commenters expressed disagreement; they were among the three anonymous submissions (funny how that works.) I published the two dissenters below under comments. Quite unintentionally I'm sure, they actually make my point rather than counter it. The third anonymous commenter sent me a link (that I declined to click on, thank you) titled "Why I Hate American Women", LOL. It's all good, I guess. Free speech lives! Kind of. As many scholars have noted (key among them Chris Demaske), the power of discourse in modern societies, and of "First Amendment norms" in particular, lies mostly in the way that such discussions mask the true character of modern power and as a result conceal domination. The power of dominant groups is not via censorship, but in the illusion of the inclusiveness and accessibility of the debate. As long as mainstream discursive norms are able to exercise the equivalent of socio-political, socio-legal filibustering of discourse that drowns out response, and then call it all square, can speech be truly "free"? It is worth remembering that not everybody can speak. LBI