Introduction

Each year Columbia Law School’s Center for Gender Sexuality Law selects a scholar whose work has made an important impact on the study and practice of gender and/or sexuality law. For 2010 we selected Judith Butler, the Maxine Elliot Professor in the Departments of Rhetoric and Comparative Literature at the University of California, Berkeley. In March of 2010, we held a Symposium recognizing the multiple domains of theory and activism in which Butler’s mark has been profound, and oft times paradigm shifting. Columbia Law School has the great fortune of having developed one of the deepest and most diverse faculties engaged in the study of the law of gender and sexuality. In turn, this has drawn a most magnificent body of students to our law school, many of who were involved in making this Symposium a success. I want to acknowledge and thank them for their hard work. Our students, no less than those of us who work in the academy, are the beneficiaries over and again of the creativity and sheer courage of Butler’s ideas

Becoming a Citizen: Reconstruction Era Regulation of African American Marriages

While many Black people regarded slavery as a form of social death, some nineteenth-century white policy-makers extolled the virtues of slavery as a tool to uplift the characters of Africans in America: [Slavery in America] has been the lever by which five million human beings have been elevated from the degraded and benighted condition of savage life ... to a knowledge of their responsibilities to God and their relations to society, observed a Kentucky Congressman in 1860. These sentiments were echoed by abolitionist northern officers not three years later when the institution of marriage was lauded for its civilizing effect on the newly freed men and women: [Marriage] is the great lever by which [the freed men and women] are to be lifted up and prepared for a state of civilization. With an increasingly heterogeneous population in the United States, nineteenth-century social reformers considered it their project to lift uncivilized people up from a natural savage state and mold them into proper citizens. Institutions such as slavery and marriage provided these reformers with a domesticating technology or lever that could pry the uncivilized apart from their savage ways

On Discipline and Canon

While the title of the panel I participated in was Why Do We Eat Our Young? , I think I prefer: On Discipline and Canon, or to rework the title of the panel in the program, Why Do We Eat Our Girlfriends? In my short remarks, I would like to raise a set not of answers, but of questions that over the last year or so a few of us have been discussing outside of our published work. These questions seem apt both for this panel and for this conference. Last November a group of really wonderful women at the University of Texas put together a conference called Subversive Legacies: Learning From History/Constructing the Future. A number of the people attending this conference at Columbia were in Austin for that gathering. What took place there was what Martha Fineman has termed an uncomfortable conversation about what it means to write as a feminist, what it means to write about feminism, and what it might mean to write from outside feminism on issues that have been thought of as the intellectual property and proper terrain of feminism. Janet Halley raised some of these questions in Austin, and again at this symposium. I regard this last move as one that is epistemic in nature. It is primarily one of vantage point and offers an important heuristic opportunity. What if we stepped outside of a perspective self-consciously labeled feminist and re-examined issues typically regarded as the target of feminist inquiry? What do we see differently about them? What do we learn differently? I would like to pick up a set of those conversations that were started for me last fall in Austin and try to engage them here. This conference takes place at a particularly interesting moment for feminist theory, a time when we can say that feminist jurisprudence has in many ways become a discipline. We have mountains of casebooks. Many law schools – not all, and I do not think that I can say most – offer a course called feminist jurisprudence, feminist legal theory, or the jurisprudence of gender. There is even an endowed chair in feminist theory that Martha Fineman held up at Cornell Law School. We might even say that a kind of canon has been established in feminist legal theory, concretized, or canonized if you will, in the various readers that many of us know well. There is Fran Olsen\u27s two-volume set collecting the writings that were, in 1995, formative and that position[ed] feminist theory within the law. There are Bartlett and Kennedy\u27s reader, Adrien Wing\u27s Critical Race Feminism, and Martha Chamallas\u27s Introduction to Feminist Legal Theory, that many of us use in our own teaching. While there are doubtless new readers in press – this is an evolving area of jurisprudence – I think you will see similarities across books that both create and reflect the canonical texts in feminist legal theory

Taking Care

In this Commentary, Franke seeks to historically contextualize the Symposium contributions of Fineman and Williams. Given that both Fineman and Williams urge a larger role for the state, the market, and private employers in addressing the demands of human dependency, Franke turns to the experiences of African Americans in the immediate post-Civil War period to illuminate the precedent for externalizing the costs of dependency outside the family, as well as the complexities of so doing. The experiences of African Americans during this time instruct that public support brings with it a set of disciplinary norms that render that support a new site for both subjectivity and subjection. This historical example demonstrates how new opportunities for political identity and for agency cannot be analyzed apart from how private and public power is organized

Putting Sex to Work

When I was living in New Haven a number of years ago, a miracle happened that drew people by the thousands to witness evidence of the Divine. A crucifix had been found to appear in the body of an oak tree in the middle of Worchester Square. I went – after all, how often do you get to see that kind of thing? Not surprisingly, at first I couldn\u27t see anything but the usual trunk and limbs of a tree. Yet a believer took the time to show me what was really there, something that my untrained eye could not at first see: the cross upon which Jesus Christ had been crucified. Well, maybe there was something there. To the believers, the shape of the oak tree was evidence of something that was really there – a corporeal manifestation of an omnipresent Divine Being. For them, once you\u27ve seen the crucifix, you really can\u27t not see it, you can\u27t un-see it. For most people, sex is like the Divine Being: It is an obscure and powerful domain that reveals itself in expected and unexpected places, and which is immediately visible to the trained eye. Indeed, once you see it, it\u27s hard to look away. Like the tree in Worchester Square, the human body is an inscribed surface which is discursively marked in such a way that renders certain body parts and particular behaviors essentially sexual. What are we seeing when we recognize something as sexual? How do we know what makes a practice sexual in nature? That is, how do we distinguish a practice which is fundamentally sexual from one which is not? I ask these questions in order to beg two more normative questions: Why do we do so, and what happens to what we know once we have done so? My curiosity derives from a concern that to call something sexual is at once to say too much and not enough about the meaning of a practice so named. When men in a workplace make life intolerable for their female coworkers by calling them sexual names, putting up pictures of naked women, and touching their breasts and behinds, their conduct – unwelcome conduct of a sexual nature – is legally described as sexual harassment. When a group of male police officers viciously assault a man in their custody by shoving a toilet plunger up his anus, those cops are charged with aggravated sexual abuse. When an adult male forces a ten-year-old boy to fellate him, this man is arrested for having sexually molested a minor. These offenses receive special legal regulation by our civil and criminal laws as sexual misconduct. Yet the use of excessive violence when placing handcuffs on a suspect, the aggressive use of choke-holds, or chaining a stranger to a pipe in the basement – whatever crimes these are, they are not sex crimes. By focusing, often exclusively, on what we regard to be the sexual aspect of conduct of this kind, we tend to ignore or eclipse the ways in which sex operates as an especially dense transfer point for relations of power – often gender, race, or sexual orientation-based power. For a complex set of reasons, we almost intuitively label some behavior as sexual – take workplace sexual harassment for instance. Yet, if pressed, most people would not be able to either identify or defend a set of criteria they apply in such nominalist moments. To uncover a satisfactory and stable definition of sex is, to borrow an expression from Abraham Lincoln, like undertaking to shovel fleas: You take up a shovelful, but before you can dump them anywhere they are gone. \u27 It is the initial regulatory move, the marking of behavior as fundamentally sexual, that I want to interrogate. If it is in fact true that there is not some ahistorical Stoff of sexuality, some sexual charge that can be simply added to a social relationship to \u27sexualize\u27 it in a constant and predictable direction, or that splits off from it unchanged, then it is worth asking what we are doing and what we are missing when we assume that such Stoff exists. The questions I ask directly here are ones I first considered in my earlier work on sexual harassment. In What\u27s Wrong With Sexual Harassment?, I explored how workplace sexual harassment could be a species of sex discrimination. I criticized both courts and commentators who identified the wrong of sexual harassment to lie in the sexual nature of the conduct. Rather, I argued, sexual harassment must be understood as a technology of sexism, that is, as a tool or instrument of gender regulation which feminizes women as sexual objects and masculinizes men as sexual subjects

Eve Sedgwick, Civil Rights, and Perversion

It is hard to imagine where queer theory would be without Eve Sedgwick. Indeed, I can\u27t imagine where my own thinking would be had it not been informed, enriched, challenged, repulsed, and seduced by Sedgwick\u27s writing. Between Men: English Literature and Male Homosocial Desire and The Epistemology of the Closet, the early work, gave me the tools to think about the fundamental landscapes of my intellectual world in ways that decoupled and reconfigured the binaries of male/ female, heterosexual/homosexual, friend/lover, and public/private. Sedgwick gave us the idea of homosociality and a critique of identity and identification that exploded the male/female and homo/hetero divide. From that point forward our previous work undertaken without the benefit of these ideas seemed pathetically naive and, well, modernist (not that!) for their absence. Stopping myself from lapsing into the bromides of hagiography, I\u27ll resist elaborating further on the debt I owe to Eve Sedgwick\u27s intellectual estate, except to offer some thoughts on her short essay, A Poem is Being Written, when held up against Freud\u27s important tract on female psychic development, A Child Is Being Beaten

Gendered Subjects of Transitional Justice

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and future. This is no easy task, and shortcuts, both in dealing with the past and in building a just future, often appear irresistible. In Martha Minow\u27s words, justice at this juncture amounts to replacing violence with words and terror with fairness, and steering a path between too much memory and too much forgetting. The template of mechanisms available to undertake transitional justice are familiar to those who work in this field: prosecutions (domestic and international); truth and reconciliation commissions; lustration (the shaming and banning of perpetrators from public office); public access to police, military and other governmental records; public apology; public memorials; reburial of victims; compensation or reparation to victims and/or their families (in the form of money, land, or other resources); literary and historical writing; and blanket or individualized amnesty. In most cases, justice demands the deployment of a number of these tools, given that no one of them can adequately address and repair the injuries of the past nor chart a fully just future. Transitional justice will always be both incomplete and messy