The Role and Reality of Emotions in Law

It is a great pleasure to participate in the celebration and exploration of Susan Bandes\u27 The Passions of Law in this symposium on emotion and gender jurisprudence. It may be worth reminding today\u27s law students that when Professor Bandes and I were classmates at the University of Michigan Law School in the mid-1970s, there were no such conferences. Jurisprudence existed, but the concept of gender had not yet emerged; we were still too busy defining feminism. Emotions were something we dutifully suppressed as we tried to assimilate into the legal profession. This is not to say we were wholly unaffected by the passions of law, or at least the passions of law school. Without question, law school had emotional content. I recall, for example, that Professor Bandes and I experienced despair, when, as first-year students, property grades were posted and ours were so low as to have fallen entirely off the graph the professor sketched on the board. In contrast, during our third year, we experienced elation when we learned we would be earning $13,000 upon graduation: instantly wealthy, in our view, we were unable to imagine how we would even spend such a sum. But, our primary reaction during the three years of law school was one of profound puzzlement. The puzzlement grew out of the peculiar nature of our legal education – the subjects we studied, the methods of intimidation used by the professors, and the uniformity of those who taught – for whether our professors were venable scions or newly hired boy-geniuses, no women ever stood before us

Placing the Adoptive Self

[A]doption law and practices are guided by enormous cultural changes in the composition and the meaning of family. As families become increasingly blended outside the context of adoption – with combinations of blood relatives, step-relatives, de facto relatives, and ex-relatives sitting down together for Thanksgiving dinner as a matter of course – birth families and adoptive families knowing one another may not seem so very strange or threatening at all. There will simply be an expectation across communities that ordinary families will be mixed and multiple. With that in mind, we should hesitate before establishing embeddedness as the source of mother\u27s authority over her child\u27s placement. It is a concept that only sounds cozy in great part because it simplifies the relational complexities of the world in which we live

Integrating Humanities into Family Law and the Problem with Truths Universally Acknowledged

Family Law differs from the other subjects under discussion today in at least two respects. As a matter of curricular location, it is not always considered a core course. I am therefore grateful for Melissa Murray’s public recognition of the “coreness” of Family Law within a legal education. Second, if one purpose of integrating humanities into the core curriculum is to humanize the law, it is probably safe to say that Family Law is already humanized enough. The subject comes fully loaded with all too human conflict and suffering: cruelty, anger, sex, disappointed expectations, and all of these play out along one or another gender matrix. Indeed, it’s hard to think of any subject in Family Law – maybe jurisdiction? – that doesn’t have at least a flash of pain below the surface. Students don’t need to watch Kramer vs. Kramer, to use an ancient example, in order to understand the aftermath of divorce. A fair few of them will have experienced both the run-up and the aftermath themselves. The problem in Family Law is more often tamping down classroom emotions than expanding them

The Reasonable Women and the Ordinary Man

Nineteen ninety-one was a seismic year for sexual harassment. The first localized shift occurred in January, when the Ninth Circuit established that the standard by which sexual harassment in the workplace would be judged was no longer the reasonable man or even the reasonable person but rather the reasonable woman. In October a larger audience felt a much stronger jolt when Anita Hill spoke before the Senate Judiciary Committee. Hill testified that Supreme Court nominee Clarence Thomas had sexually harassed her while she worked for him at the Department of Education and at the Equal Employment Opportunity Commission. Her testimony was graceful and firm and was supported by a superb panel of four corroborating witnesses, witnesses to die for, in the words of one court watcher: impressive credentials, no motive to lie, none overstating their case. But never mind. Thomas denied all of it and was confirmed by the Senate fifty-two votes to forty-eight. Polls taken after the hearings showed Thomas would have been confirmed by popular vote as well. Some people thought that even if Hill had been telling the truth she simply waited too long to speak up. Others thought that Hill was telling the truth but that what had happened just wasn\u27t that bad. And in the end more people believed Thomas\u27s testimony (nothing happened) than Hill\u27s (something rotten happened)

Infant Safe Haven Laws: Legislating in the Culture of Life

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use of Safe Havens less likely. The heart of the argument, however, focuses not on what Safe Haven laws fail to accomplish, but on what they achieve. This Article argues that these laws are properly understood within a larger political culture, one increasingly organized around the protection of unborn life, and that identifies itself as the culture of life. By connecting infant life to unborn life and infanticide to abortion, Safe Haven laws work subtly to promote the political goal of the culture of life: the reversal of Roe v. Wade. The laws\u27primary achievements may therefore be less criminological than cultural. Through an investigation of state legislative histories, this Article suggests that the rhetoric and politics of abortion set the stage for the quick enactment of Safe Haven laws nationwide. It also examines the legislative and social mechanisms by which unwed pregnancy and abortion have been taken off the table, creating a psychological crisis that leads some young women to fatally abandon their newborns

The Erotic of Torts

What kind of feminist would be accused of sexual harassment? asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: the sort of feminist ... that ... do[es] not respect the line between the intellectual and the sexual (p. 12). Gallop is firm and unrepentant about not respecting this line: I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser (p. 11). Figuring out what this means – and what its implications are for professors, for feminists, for law schools – is the task I\u27ve set for this review. I begin with a warning. As Margot Channing suggested some forty years ago, Fasten your seat belts. It\u27s going to be a bumpy night. The atmosphere that Gallop sexualizes is the Department of English and Comparative Literature at the University of Wisconsin at Milwaukee, where Gallop, one of the ornaments of the poststructuralist school, is a Distinguished Professor. Her best known books, Thinking Through the Body and The Daughter\u27s Seduction, offer close readings of Sade, Freud, Lacan, Cixous, and Irigaray at the intersection of feminism and psychoanalysis. Feminist Accused of Sexual Harassment seems an altogether different kind of project. It offers a close reading of one woman, Jane Gallop herself, as the subject of sexual harassment complaints brought by two graduate students after she kissed one of them in public. Feminist Accused – and Acquitted, although this outcome doesn\u27t make its way to the title – is Gallop\u27s effort to tell her story so that, as she puts it, everyone can understand what\u27s going on with sexual harassment

Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law

How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wadeno longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health of Supreme Court justices (although we wish them well). As Senator Obama said in 2008 on the 35th anniversary of Roe: With one more vacancy on the Supreme Court, we could be looking at a majority hostile to a woman\u27s fundamental right to choose for the first time since Roe v. Wade. The next president may be asked to nominate that Supreme Court justice. That is what is at stake in this election

Separating from Children

On September 1, 1939, in anticipation of the imminent German bombing of British cities, 150,000 children were assembled at the railway stations of London and sent throughout the day to \u27destinations unknown\u27 in the English countryside. Mothers and children under five were evacuated together but school-age children were shipped out to rural billets in school groups, accompanied only by their teachers and civil defense volunteers. Forty years later, an observer remembered the day vividly: [T]he mothers [were] trying to hold back their tears as they marched these little boys and girls in their gas masks into the centre …. The children were wild with excitement but most mums were pale and drawn, no doubt wondering when they\u27d see their sons and daughters again. It was certainly the first time the mothers had been parted from their schoolchildren. By the end of the week, the Times described London as a Childless City.” By the end of the month, over half a million children were boarding with foster families. The evacuations during the Blitz – bands of children marching away from sobbing mothers – establish a baseline of sorts for how we think generally about separations between mothers and children. Separating from one\u27s child is understood as an extraordinary measure, not lightly undertaken. It represents the greatest of maternal sacrifices: this is the very lesson of the two harlots before King Solomon. Little short of a child\u27s anticipated death could compel a loving mother to part from her child, though if his life or welfare were on the line no good mother would fail to do so. Thus in the days following the initial wartime evacuations, mothers who refused to separate from their children were socially censured: My neighbors blame me for keeping him; one woman this morning said I was wicked. ... \u27Downright wicked,\u27 she said, \u27making him wait to be murdered. Didn\u27t you see the Spanish pictures?\u27