Confronting Difference and Finding Common Ground

On sitting down to write my contribution to this Colloquy, I found myself pulled in many directions, as Joan Williams’s new book is rich with fascinating and provocative ideas. From the incredibly valuable documentation of how rigid masculine norms harm men who want to do right by their families, to the highlighting of deep tensions between “femmey” and “tomboy” feminists, to the courageous exploration of cultural and political tensions driven by class performance, there is much in Reshaping the Work-Family Debate to discuss. One of the aspects of the book I deeply admire is Williams’s attempt to spur different groups to make nice—femmes and tomboys, working-class parents and upper-middle-class progressives. This is driven not by a Pollyannaish desire to see us all get along, but by an acknowledgement of political reality. Without collaboration among these currently divided groups, the progressive policies that Williams hopes will improve the lives and chances of many will never gain wide enough support. I’m admittedly skeptical about coming together with femmes or working-class parents, particularly in the context of the work-family debate, because I’m skeptical that we really share enough common ground to create policies all these groups can get behind. But there’s no way that common ground, if it exists, could ever be discovered without confronting and examining our differences, and Williams is doing just that. Thus, this book is the only thing I’ve read in the past five years that even begins to mitigate my skepticism. Unwillingness to confront these differences is a major barrier that Williams is bravely breaking down. With that in mind, in this Essay I hope to explore some of my hesitations, in the hopes of making finding common ground more likely

Assault and Battery on Property

Both criminal and tort law seek, in part, to respond to the harm inflicted on persons\u27 organic, human, continuous bodies, through hitting, offensive groping, rape, stabbing, gunshots, vehicular homicide, and more. But could there be such a thing as assault and battery on a person\u27s inorganic, non-human, discontinuous body? A battery on one\u27s prosthetic arm, on one\u27s wheelchair, on one\u27s cochlear implant? Even a battery on one\u27s iPhone or computer, which some users have provocatively begun to call an exobrain ? This Article investigates whether there is any use in employing metaphors such as exobrain, battery on a wheelchair, and the like. It first demonstrates that the metaphors are not entirely fanciful because the social, as opposed to pre-social, body is the body that matters, and the social body extends beyond organic, human, continuous material to inorganic, non-human, discontinuous entities. An assessment of the variables that lead one to decide whether an object is or is not part of the social body yields no clear-cut test. The Article then explores what is gained, and potentially lost, by calling an iPhone an exobrain, rather than merely a very important piece of property. The author concludes that this rhetoric holds the promise of helping us recognize and remedy underappreciated injuries, but that it also bears the risk of reifying a cramped conception of the body, and of what injuries count

Pay Transparency

Pay discrimination, like many forms of discrimination, is a particularly stubborn problem. In many instances, just as with other forms of discrimination, it is unrealistic to allocate all the blame and burden on a single actor, whether it be an employer or employee. Thus, the traditional civil rights regime in which an individual actor is held liable for the discrimination does a poor job of dealing with this problem. I propose an intervention-pay transparency-that would help prevent, root out, and correct the discrimination in the first place, instead of relying on after the fact blame and liability. Pay transparency-the ability for employees to find out what other employees in their workplace make-is rare outside of public employment, and cultural norms against talking about one\u27s income may make the concept anxiety-producing to some readers. Yet, unlike many other approaches to reducing seemingly blameless discrimination, such as targeting unconscious discrimination, or potentially counterproductive debiasing efforts, incentivizing pay transparency can fit very comfortably within our legal framework. By turning pay transparency into an affirmative defense to pay discrimination claims, this preventive measure can be woven neatly into our current approach to civil rights enforcement and notions of individual responsibility

Confronting Difference and Finding Common Ground

On sitting down to write my contribution to this Colloquy, I found myself pulled in many directions, as Joan Williams’s new book is rich with fascinating and provocative ideas. From the incredibly valuable documentation of how rigid masculine norms harm men who want to do right by their families, to the highlighting of deep tensions between “femmey” and “tomboy” feminists, to the courageous exploration of cultural and political tensions driven by class performance, there is much in Reshaping the Work-Family Debate to discuss. One of the aspects of the book I deeply admire is Williams’s attempt to spur different groups to make nice—femmes and tomboys, working-class parents and upper-middle-class progressives. This is driven not by a Pollyannaish desire to see us all get along, but by an acknowledgement of political reality. Without collaboration among these currently divided groups, the progressive policies that Williams hopes will improve the lives and chances of many will never gain wide enough support. I’m admittedly skeptical about coming together with femmes or working-class parents, particularly in the context of the work-family debate, because I’m skeptical that we really share enough common ground to create policies all these groups can get behind. But there’s no way that common ground, if it exists, could ever be discovered without confronting and examining our differences, and Williams is doing just that. Thus, this book is the only thing I’ve read in the past five years that even begins to mitigate my skepticism. Unwillingness to confront these differences is a major barrier that Williams is bravely breaking down. With that in mind, in this Essay I hope to explore some of my hesitations, in the hopes of making finding common ground more likely