Law

Cyberspace allows individuals to create representations of themselves that bear little or no similarity to their offline identities. Internet users can create a multitude of “avatars” for themselves, from video game identities to message board monikers. This creative capacity can be personally liberating in many ways, providing legitimate grounds for what could be termed “cyberspace idealism.” However, cyberspace also allows users to create online representations of others without their consent, and this practice has powerful discriminatory effects. Users who create false profiles on social networking sites, upload sexual images on “revenge porn” sites without consent, or launch graphic personalized attacks on message boards make their targets into unwilling avatars. This kind of online abuse has discriminatory consequences when, as is frequently the case, it is directed at groups already marginalized in offline society. This Article addresses the impact that this phenomenon has on women in particular. Online harassment and abuse directed at women undermines the creative and liberating possibilities of cyberspace for women, amplifies the sexual stereotyping and gender inequality of the offline world, and generally compromises women’s ability to share cyberspace on equal terms with men. Cyberspace idealism has served to obscure the realities of online discrimination and must be called to account for its shortcomings.

This article interrogates an American self-identity predicated on a model of absolute difference from the Taliban (good versus evil, etc.) by exploring affinities between their respective ideologies. The place of " woman, " within and through the preponderance of sexual exploitation/violence common to both, is the starting point of this analysis. This article reads the two conflicting powers in a Lacanian/Žižekian dyad of the " Law " and its " obscene superego underside. "

Supporters of Stand Your Ground laws claim that these laws are necessary to protect public safety, but all available credible evidence indicates that these laws seriously undermine public safety. As the brainchild of the National Rifle Association (NRA), Stand Your Ground laws serve to merge self-defense and gun use in the American public imagination. The lethality and volatility of firearms make them poor instruments of self-defense, particularly in the hands of untrained individuals. The effects of Stand Your Ground laws on public safety are grim: more gun use, more aggression, and more deaths, none of which has had the slightest deterrent effect on crime rates. The laws have moreover widened the gap between the powerful and the marginalized, endangering vulnerable communities while reinforcing the privileges of those least at risk. Stand Your Ground proponents have cynically exploited Americans’ irrational fear of crime, carefully avoiding any acknowledgment of the racism, sexism, and classism that structures criminal victimization and violence. Encouraging people to resolve conflicts with firearms has unequal effects on the populations most vulnerable to violence, in particular women and minorities.

President Obama's praise of empathy as a valuable judicial trait triggered a shamefully partisan misrepresentation of both the concept of empathy and the nature of our judicial system more generally. In this manufactured debate, the Right presented the judicial status quo as objective and universal, contrasting it starkly with a caricature of judicial empathy as biased and activist. To speak of the law or of the judiciary as impartial in a descriptive, as opposed to an aspirational, way is to lie. It is a very effective lie for the defenders of the status quo, because it makes the status quo seem both natural and right. And if the status quo is natural and right, any attempt to change it will be viewed as unnatural and wrong. If one instead views the law is a product of the biases, assumptions, and self-interest of those who write, enforce, and uphold it, then it seems both wise and necessary to encourage the diversification of our moral and legal imagination. Empathy is one way to engage in this reflective project. I define empathy as the exercise of our moral imagination against, or at least indifferent to, our own self-interest. Empathy is to be distinguished from sympathy, which is what we feel when others remind us of ourselves or our own experiences. Empathy forces us to imagine and to have concern for those who are radically different from and even threatening to us when the principles of justice demand it.

In 2005 Florida passed the nation’s first so-called stand-your-ground law. By 2014 stand-your-ground laws had been passed in thirty-three states, transforming the legal landscape of self-defense. These laws significantly alter the historical understanding of justifiable force, ostensibly in order to clarify and strengthen the concept of justifiable self-defense and enhance public safety. The real accomplishment of these laws, however, has been to encourage the use of deadly force as a first, instead of a last, resort. Not only have these laws failed to deter crime, they have encouraged the escalation to deadly force in situations that do not call for it. Homicide rates increased in states with stand-your-ground laws after passing the legislation, and these states have higher homicide rates than states without stand-your-ground laws. The laws have encouraged the unnecessary use of deadly force on the part of those who have least reason to use it, and inhibited the use of deadly force by those most vulnerable to attack. These laws have undermined the limited protections victims of domestic violence have achieved after decades of reform efforts and worsened existing racial disparities in the criminal justice system. Stand-your-ground laws do violence to the very concept of self-defense by conflating self-defense with gun use, encouraging vigilantism and violent escalation, and exploiting delusions of heroic prowess. True reform of the legal and social concept of self-defense should focus on clarifying when deadly force is truly necessary and reasonable. Such a reform effort should expand protections for women defending themselves against abusers, critically evaluate the disproportionate use of deadly force against unarmed minorities, and encourage training in and access to non-fatal methods of self-defense.

In 1990, Angela Harris wrote an article that interrogated the limitations of feminist legal theory. Nearly a quarter of a century later, the insights and challenges Harris offered in Race and Essentialism in Feminist Legal Theory continue to reverberate. The influence of her ideas can be seen in the fractured and passionate conversations about gender, race, and solidarity occurring both inside and outside of academia. In recent years, we have witnessed an explosion of debate of these topics in social media forums such as Twitter and Facebook. Far from being trivial, the intensity and persistence of these conversations suggest a welcome expansion of popular political and social consciousness. Harris's work provides important context, depth, and insight to contemporary reflections on the nature and practice of feminism.

Sexual harassment is a complex and evolving practice. The rise of sexual discrimination in cyberspace is only one of the most recent and most striking examples of the phenomenon's increasing complexity. Sexual harassment law, however, has not kept pace with this evolution. Discrimination law has not been adequately " updated " to address new and amplified practices of sex discrimination. Its two principal limitations are (1) it treats only sexual harassment that occurs in certain protected settings (e.g. the workplace or school) as actionable and (2) it assumes that both the activity and the resulting harm of sexual harassment occur in the same protected setting. Thus, it is unable to address any harassment that occurs completely or partially outside of traditionally protected settings. By proposes a " multiple-setting " conception of sexual harassment that both moves beyond traditionally protected settings and explicitly acknowledges that sexual harassment in one setting can produce harms in another. In order to address multiple-setting harassment, a third-party liability regime similar to that of traditional sexual harassment law should be introduced into non-traditional contexts. In the particular case of online harassment, liability should attach to website operators. This regime will create an incentive for website operators to adopt preemptive, self-regulatory measures against online sexual harassment, much as employers have done in the offline setting.

In the debate over how to regulate cyber harassment, there those who believe that cyber harassment is a serious phenomenon (condemners) and those who think cyber harassment is not a serious phenomenon (defenders). What condemners often mean by calling cyber harassment serious is that it creates some kind of harm, whether criminal, tortious, discriminatory, or some combination of the three. What defenders often mean by arguing that cyber harassment is not serious is that it is an expected, predictable, and even valuable aspect of Internet interaction, the virtual equivalent of frat-boy antics and bathroom wall scribbles. In this short piece I argue that the defenders are largely correct in their description of cyber harassment as predictable, commonplace, and juvenile – in a word, banal – but that this very banality is what makes it both so effective and so harmful, especially as a form of discrimination. While there is little new or radical about the content of cyber harassment – the racist, sexist, and homophobic epithets, adolescent exultation in mindless profanity, and cheap camaraderie of sexual objectification and violence are all tropes straight from high school – the form of online harassment makes a world of difference. The capacity of the Internet to amplify, aggregate, and permanently record harassment can transform banal behavior into powerful discrimination.

If a man in prison says that he was made " to feel like a woman, " this is commonly understood to mean that he was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison but also sexual abuse generally. These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both men and women. It is as unnatural and wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced feminized performance—a coerced drag—this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and we can form social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting— where sexual abuse is generally perpetrated by men against women—are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions, but also for forcing law and society to consider sexual abuse in a productively counterintuitive way.

This book review evaluates Janet Halley's hedonics of critique, a theoretical approach that prioritizes the celebration of pleasure over harm - harm that Halley claims Feminism has not only unduly emphasized but has in many cases created in and for women. This review suggests that this hedonics of critique ignores harm, especially sexual harm, in favor of a quasi-Foucauldian imperative to enjoy.

Proponents of Stand Your Ground laws cynically exploit the image of vulnerable women to defend expansions of self-defense doctrine, despite the fact that such laws actually reinforce and exacerbate existing gender divides in self-defense law that disproportionately harm women. The appropriation of women's right to self-defense by Stand Your Ground supporters masks the law's hostility toward women's use of force and obscures the real achievement of such legislation: the normalization and promotion of (often white) male violence in an ever-expanding variety of scenarios. Battered Women's Syndrome, the chief narrative available to women who fight back, forces women to plead for mercy and subjects their behavior to extensive scrutiny and evaluation. Stand Your Ground, the chief narrative men can now use to justify provoking deadly fights, often allows men to escape evaluation altogether by granting immunity from prosecution and even from arrest. This two-track system of self-defense—Battered Women's Syndrome for women and Stand Your Ground for men—has far-reaching implications outside of the courtroom. Battered Women's Syndrome sends the legal and social message that women should retreat even from their own homes in the face of objective, repeated harm to their bodies; Stand Your Ground sends the legal and social message that men can advance against strangers anywhere on the basis of vague, subjective perceptions of threats. Male violence is not only tolerated, but celebrated; women's violence is not only discouraged, but stigmatized. Invoking the image of vulnerable women to promote aggressive self-defense rhetoric serves to distract from the reality that violence remains chiefly a male privilege.

Free speech defenders generally treat bad speech – hateful, offensive, obscene speech – as a necessary evil, not something that should be celebrated in itself but an inevitable byproduct of a system that protects expressive flourishing. This essay instead praises the content of bad speech, arguing that the very badness of some bad speech can serve to dilute and delegitimize other forms of much more dangerous speech. To see how this is possible, it is important to differentiate between confused bad speech and focused bad speech. Confused bad speech makes declarations, targets wide-ranging or poorly defined groups, and seeks primarily to aggravate or provoke its audience. Focused bad speech issues imperatives, targets specific individuals or groups, and seeks primarily to aggregate supporters. Focused bad speech is dangerous because it can be transformed into violent action, as genocidal speech does, but it relies on a strong signal-to-noise ratio to do so. Confused bad speech can often provide beneficial noise to drown on focused bad speech's signal. The more confused and noisy the variety of speech is, the harder it is for any one form of speech to emerge as a dominant discourse. Speech overload produces effects similar to choice overload, which produces disorientation, fatigue, and general passivity. While these effects may be regrettable in many contexts, they can be beneficial in the context of violent calls to action.

Today, everyone is watched. While surveillance is not new, “mass surveillance” is a relatively recent phenomenon. The mainstreaming of surveillance has helped spark an antisurveillance, pro-privacy movement that extends across legal scholarship, policy debates, civil rights advocacy, political discourse, and public consciousness. There is much to praise in this burgeoning privacy movement, but also much to criticize. Privacy’s popularity hit this peak only when elites and members of mainstream society were targeted for surveillance, which means that this popularity is in many ways driven by self-interest rather than principle. If we fail to fully confront the particular convergence of interests that led to the current pro-privacy, antisurveillance movement, the result is likely to be an uneven and unjust distribution of privacy protections. The current movement does too little to acknowledge the long, dark history of surveillance of marginalized populations and gives too little thought to what that history means for the future of privacy. The fact that surveillance has been made democratic provides a unique opportunity to make privacy democratic, but this revolutionary possibility can only be realized by addressing longstanding race, gender, and class inequalities in the theory and practice of privacy.

My contribution to the volume Law and Lies begins with the observation that America is built on a lie. That lie inheres in its foundational text, the Constitution of the United States, which begins in the false claim to speak of and for “we the people” even as the majority of its population – in particular black men and all women – were denied access to the most basic forms of political participation. This simultaneous act of symbolic inclusion and material exclusion has never been fully acknowledged or confronted, which is another way of saying that it has never really ended. As many lies are, America’s constitutional lie is generative: it produces other, secondary, mutually reinforcing legal fictions that obscure the deception buried deep in the social and political structure. These fictions serve multiple purposes, including providing reassurance to those holding abstract commitments to equality as well as seducing and subduing excluded groups that might otherwise demand recognition and reparation for injustices done to them. As long as these constitutional fictions persist, the political existence of women and black men remains fundamentally unstable.

This book review essay considers the Guantanamo Bay detention facility both before and after it became the focus of international attention. Brandt Goldstein's 'Storming the Court: How a Band of Yale Law Students Sued the President - and Won' is a vivid account of the experience of Haitian refugees who were detained at Guantanamo in 1991. The review maintains that Guantanamo was then and continues to be a no-man's land, where individuals are detained by US force and yet not protected by US laws. The essay suggests that Guantanamo is in danger of becoming a site of unending exception, where sovereign power is allowed to determine indefinitely not only the law, but what lies outside the law.

A meditation on what two paintings, Gustave Courbet's L'Origine du monde and Kasimir Malevich's Black Square reveal and conceal about women and sex, through the lens of psychoanalytic and post-structural theory (Slavoj Zizek, Jacques Lacan, Luce Irigaray, Roland Barthes, Jean-Francois Lyotard).

Theodor Adorno's condemnation of the culture industry's attempt to erase the sensitivity to and memory of suffering is especially appropriate to contemporary cultural representations of sexual violence. The deadening (literally anaesthetic) effect of the compulsive and consumptive representation of female sexuality in popular culture depoliticizes and naturalizes sexual violence against women. Adorno's visionary aesthetic goal - of true aesthetic representation that decenters the viewer and compels him or her to resist the world as it is, including the importance of Betroffenheit (concern) - can serve as a powerful weapon against the hegemonic accommodation of sexual violence.

While both men and women can, and do, use violence against each other, men's violence against women is far more common, less justified, and more destructive than women's violence against men. One of the reasons for this asymmetry is that men do not fear retaliation for violence against women, whereas women do fear retaliation for their use of violence against men. The distribution of violence between the genders, then, is suboptimal. Society would be better off as a whole if more women were willing to engage in justified violence against men, and fewer men were willing to engage in unjustified violence against women. To that end, women's justified violence against men should be encouraged, protected, and publicized. This will require a reversal of the current trend in legal and social practices, which is to tolerate and encourage men's unjustified violence against women while discouraging and legally restricting women's violence against men. Even if encouraging an increase in women's justified violence against men may sometimes result in unjustified or disproportionate violence in individual situations, the overall effects of the redistribution of violence will be preferable to the current asymmetry.

This is the thesis I submitted in partial fulfillment of the requirements for the M.Phil. in European Literature at Oxford University in 2001. It is an investigation of the body in the works of the Austrian writer Ingeborg Bachmann and the French philosopher Jean Baudrillard. The thesis focuses on Bachmann's poems in Ich weiß keine bessere Welt, her novel Malina, and the short story “Undine geht.” Baudrillard’s texts Simulacres et simulation and Le crime parfait provide a significant theoretical intersection with Bachmann’s writings, insofar as they interrogate techniques of representation and their effects on cultural memory and human interaction. The crucial questions are the relationships among sex, sight, and the body, and the attendant questions of memory, sexuality, and representation. Le crime parfait in many ways is a text about the disappearance of women, and how that disappearance has been effected by and through, among other things, the mass media. This is not, of course, a literal disappearance, but rather an ideological extermination, paradoxically executed in the image of woman herself. Bachmann’s meditations on and strategies around the burden of the (female) body, and the related questions of sexuality and suffering, will be the primary focus of this study. Bachmann’s techniques of dis-embodiment, acorporeality, identification across ethnic, religious, and biological lines (i.e., identification with animals), are viewed as an anticipatory engagement with, possible means of resistance against, and correction for Baudrillard’s theorizations on the replacement of history and the memory of suffering with a mass produced media loop.