Symposium - Intersections: Sexuality, Cultural Tradition, and the Law - Introduction

This Symposium inhabits two intersections: the intersection linking sexual orientation with other axes of social stratification, and the intersection linking the legal future to the legal past, legal reform to legal history. Francisco Valdes examines the relationship between sex and gender in Euro-American cultural and legal history to support a reform proposal on behalf of "sexual minorities"; Robert J. Morris excavates the cultural history of same-sex relationships in Hawai'i to support a claim that Hawaiian cultural preservation, mandated by the Hawai'i State Constitution, includes recognition of same-sex marriage; and Mary Coombs and Angela Harris provide critical comments on sociological, affiliative, intellectual, and historiographical intersections that structure Morris' and Valdes' claims. Valdes and Morris offer perhaps the most richly researched and polemically targeted cultural-historical accounts of sexual orientation in the law review literature. Particularly with the addition of Coombs' and Harris' critical responses, this Symposium frames the debate for queer legal history and historiography. It should be read under the immemorial motto: Those who don't study historiography are doomed to repeat it

Notes from the Editorial Advisory Board

My classmates Jim Tourtelott, Joe Sommer, and Eva Saks invented the Yale Journal of Law & the Humanities at a Mexican restaurant one night in the fall of 1987. When they announced their idea to me the next day, my first thought was: "Great, now there can be a place to publish the things I want to write." How greedy, and (to say the same thing in a different way) how abject! My reaction reflects not a sense of marginality or deviance (both of these always being tinged with an adventurous self-confidence that was quite absent from my attitude at that moment), but rather a sense of isolation. I could not have had this bland reaction to the proposed oasis unless I had accepted it as a given that my most urgent projects on the Law and Humanities borderline were mine alone. But the idea of the Journal swept through the law school and various graduate departments on a wave of excitement. Clearly I had not been alone and would not be able to imagine myself as isolated again

Equivocation and the Legal Conflict Over Religious Identity In Early Modern England

During the trial of the so-called Powder Men--Guy Fawkes and his co-conspirators in the Gunpowder Plot to blow up Parliament with the King, Queen, and heir apparent all in attendance-the King's Attorney General Sir Edward Coke presented into evidence a curious manuscript with two titles. The text's original name was A Treatise of Equivocation, but that had been scratched out and replaced with a new title, A Treatise Against Lying and Fraudulent Dissimulation. It had been discovered in the rooms which one of the conspirators had used in the Inner Temple, and mere possession of this book, Coke clearly thought, spoke loudly of all the defendants' guilt. By delaying the trial long enough to secure this manuscript, Coke ensured that he would be able to continue in a prosecutorial tradition he had established in the trial of the Jesuit Robert Southwell - a tradition of proving treason against English Catholics by representing them as ready equivocators. The Treatise of Equivocation was written to instruct priests sent on a "mission" established by the Society of Jesus, whose aim was to preserve the Catholic Church in the newest heathen territory, England. The Treatise prepared priests to face the perilous questions asked of them by official interrogators, who as enforcers of the Anglican settlement had devised a series of interrogatories widely known as the "bloody questions" because they could force a Catholic priest to elect between the Queen and the Pope. The stakes were high: the penalty for being a priest in England, an act of treason, was death by public torture

Does Law Have an Outside?

I’ve been pondering this problem as I participated in this sparking conference titled “Beyond the Law”: What, if anything, is “beyond the law”? The better parent’s risk aversion, the propertyless man’s hunger: should we insist that these are non-legal attributes about these characters which interact with legal rules to condition legally important decisions? Are they inside or outside of the law? We can think of it either way. Most of the time, to be sure, I’m engaged in descriptive projects that are basically attempts to extend the reach of law. Not that I want it to be big, I’m trying to understand how big it is. But in the rest of my remarks I’d like to spool out my ambivalence about this. Why does it feel more critical, more decisive, to insist on the coercive character of background rules, no matter how far in the background they lurk? And why does the resulting picture of the world seem so narrowed, so reduced, once we have succeeded in drawing it? What’s at stake in positing that law is everywhere – or that there is something beyond it

What is Family Law?: Genealogy Part I

What is the place of the family in legal scholarship and teaching, and in deep, implicit ideas about how our legal order is arranged? How did it get to be that way? Published in two separate Parts, this Article tells a story of American family law: how the law of Domestic Relations emerged as a distinct legal topic in late-nineteenth-century legal treatises, and what ideological conditions facilitated its renaming and reconstruction as Family Law in the Family Courts and casebooks of the twentieth century. Almost without exception, throughout this account Domestic Relations/Family Law are what they are by virtue of their categorical distinction from the law of contract and, more broadly, the law of the market. This distinction did not always seem natural: this Article tells how it was invented. The resulting market/family distinction remains a latent but structural element of the legal curriculum and the legal order more generally today. This Article calls that distinction into question and suggests that family law should be restructured to connect it for the first time to domains of law more readily understood to relate directly to the market: economically significant productivity, social security provision, and the fair or unfair distribution of economic resources. My story comes in three time periods, corresponding with Duncan Kennedy\u27s three globalizations of legal thought. The first is the classical era, roughly the last half of the nineteenth century. The second is the era of the social - characterized by the sociological jurisprudes\u27 and legal realists\u27 attack on the classical legal order and restructuring of legal taxonomy-spanning roughly the first half of the twentieth century. And the last is the era of conflicting considerations, roughly the last half of the twentieth century

Feminist Scholarship on International Law in the 1990s and today: An Inter-Generational Conversation

The world of international relations and law is constantly changing. There is a risk of the systematic undermining of international organisations and law over the next years. Feminist approaches to international law will need to adapt accordingly, to ensure that they continue to challenge inequalities, and serve as an important and critical voice in international law. This article seeks to tell the story of feminist perspectives on international law from the early 1990s till today through a discussion between three generations of feminist international legal scholars: Hilary Charlesworth, who, with her colleagues, contributed to the area in the immediate post-Cold War years, Gina Heathcote, who over the past decade has published extensively on feminist perspectives on the use of force and collective security, and Emily Jones, an early career scholar working on feminist approaches to international law. The conversation, which began as a Skype discussion, considers both the ways in which feminist approaches to international law have changed over the past two decades, as well as the ways in which they have been shaped by global politics, before turning to consider the future for feminist approaches to international law. The impact of feminist approaches to international law has been considerable. However, it seems that feminist approaches still lack legitimacy and credibility in many mainstream circles, remaining on the disciplinary periphery. Charlesworth, Heathcote and Jones discuss potential ways in which to manage some of these tensions, noting both the importance of ‘speaking to ourselves’ (Charlesworth in Feminist perspectives on contemporary International Law: Between resistance and compliance? Hart, Oxford, pp. 17–32, 2011) as a creative and nurturing space, as well as the need to be seen as a more credible voice in the mainstream. They note the need, too, for further feminist work beyond the realms of sexual violence and women’s representation. While the great amount of work in this area is, indeed, foundational, having achieved many important legal and political outcomes, feminist approaches should now develop beyond these areas. Doing so will not only propel this area of scholarship in new and exciting directions, but it might help feminist scholarship gain further traction by avoiding categorisation only under the umbrella of “women’s issues” and thus ready dismissal as just another specialist area of international law in the era of fragmentation

What is Family Law?: Genealogy Part II

This Article offers a genealogy of domestic relations law (later renamed family law). It comes in two Parts. Part I is an account of how it emerged as a distinct field in American law in the latter half of the nineteenth century. This Part, Part II, is an account of its successive transformations over the course of the twentieth century. I argue that domestic relations/family law did not always exist; rather, it was invented, and the ideological implications of that act of creation remain embedded in the field today. The central idea which, I argue, recurrently characterizes the field is that the family and its law are the opposites of the market and its law. Born in the middle of the nineteenth century as the notorious status/contract distinction, it has shown amazing powers of resilience, surviving three highly intentional and collectively organized attacks and gathering to itself new ideological and practical implications as the presuppositions about law that permeate legal consciousness have changed and changed again over time