From Class Actions to Miss Saigon: The Concept of Representation in the Law

The representation debates over casting Miss Saigon and law school faculties reflect the prevalence of contemporary assumptions about group differences. They reflect arguments made on behalf of historically excluded groups that group membership serves as a proxy for shared experiences and especially common experiences as victims of societal prejudice. Opponents, styled as defenders of neutrality, resist such arguments because they undermine the commitment to treating individuals as individuals. Maybe we can understand the debates better by seeing connections to deeper confusions about the concept of representation throughout our society, made especially vivid in legal and political contexts. If treated as problems of representation, these issues must be examined in light of the questions: who may speak for someone else? What is the difference between symbolizing or standing for another, on the one hand, and advancing the interests of another? Which should a representative pursue? These are hard issues. With the help of some philosophic debates I will suggest that we have long been confused about them. I will then argue that two specific developments in legal and political thought cast new confusion - but also new light - on the problem of representation. I look first to the contributions of people concerned with difference, such as feminists and critical race theorists, and then to the contributions of a variety of scholars interested in empathy. After exploring the genuine tension between these two emerging schools of thought, I will return to a few of the legal questions I have just mentioned about who can and who should represent another. And perhaps, I will also get a chance to return to theater before I am done

From Class Actions to Miss Saigon: The Concept of Representation in the Law

The representation debates over casting Miss Saigon and law school faculties reflect the prevalence of contemporary assumptions about group differences. They reflect arguments made on behalf of historically excluded groups that group membership serves as a proxy for shared experiences and especially common experiences as victims of societal prejudice. Opponents, styled as defenders of neutrality, resist such arguments because they undermine the commitment to treating individuals as individuals. Maybe we can understand the debates better by seeing connections to deeper confusions about the concept of representation throughout our society, made especially vivid in legal and political contexts. If treated as problems of representation, these issues must be examined in light of the questions: who may speak for someone else? What is the difference between symbolizing or standing for another, on the one hand, and advancing the interests of another? Which should a representative pursue? These are hard issues. With the help of some philosophic debates I will suggest that we have long been confused about them. I will then argue that two specific developments in legal and political thought cast new confusion - but also new light - on the problem of representation. I look first to the contributions of people concerned with difference, such as feminists and critical race theorists, and then to the contributions of a variety of scholars interested in empathy. After exploring the genuine tension between these two emerging schools of thought, I will return to a few of the legal questions I have just mentioned about who can and who should represent another. And perhaps, I will also get a chance to return to theater before I am done

Privatisation, outsourcing and employment relations in Israel

This chapter focuses on the effect that outsourcing, as a subset of privatization, has had on employment relations in Israel. In particular, chapter highlights the adverse, and perhaps counter-intuitive, effects that the law has had on the plight of Israeli contract workers. Israeli governmental agencies and local councils have turned to outsourcing as a means to circumventing post limits and due to the Ministry of Finance’s pressures to increase ‘flexibility’ in the civil service. Intriguingly, paradoxically, and tragically, the law’s effort to regulate this growing phenomenon has led employers resorting to tactics which have redefined agency workers (teachers, nurses, etc) as workers subject to the “outsourcing of services” (teaching, nursing, etc). This has moved such workers into a legal void, depriving them of rights and protection

Four year follow-up of a randomised controlled trial comparing open and laparoscopic Nissen fundoplication in children

The article examines why some postconflict societies defer the recovery of those who forcibly disappeared as a result of political violence, even after a fully fledged democratic regime is consolidated. The prolonged silences in Cyprus and Spain contradict the experience of other countries such as Bosnia, Guatemala, and South Africa, where truth recovery for disappeared or missing persons was a central element of the transition to peace and democracy. Exhumations of mass graves containing the victims from the two periods of violence in Cyprus (1963-1974) and the Spanish Civil War (1936-1939) was delayed up until the early 2000s. Cyprus and Spain are well suited to explain both prolonged silences in transitional justice and the puzzling decision to become belated truth seekers. The article shows that in negotiated transitions, a subtle elite agreement links the noninstrumental use of the past with the imminent needs for political stability and nascent democratization. As time passes, selective silence becomes an entrenched feature of the political discourse and democratic institutions, acquiring a hegemonic status and prolonging the silencing of violence

The problem of constitutional legitimation: what the debate on electoral quotas tells us about the legitimacy of decision-making rules in constitutional choice

Proponents of electoral quotas have a ‘dependent interpretation’ of democracy, i.e. they have formed an opinion on which decision-making rules are fair on the basis of their prior approval of the outcomes these rules are likely to generate. The article argues that this position causes an irresolvable problem for constitutional processes that seek to legitimately enact institutional change. While constitutional revision governed by formal equality allows the introduction of electoral quotas, this avenue is normatively untenable for proponents of affirmative action if they are consistent with their claim that formal equality reproduces biases and power asymmetries at all levels of decision-making. Their critique raises a fundamental challenge to the constitutional revision rule itself as equally unfair. Without consensus on the decision-making process by which new post-constitutional rules can be legitimately enacted, procedural fairness becomes an issue impossible to resolve at the stage of constitutional choice. This problem of legitimation affects all instances of constitutional choice in which there are opposing views not only about the desired outcome of the process but also about the decision-making rules that govern constitutional choice

From Class Actions to Miss Saigon: The Concept of Representation in the Law

The representation debates over casting Miss Saigon and law school faculties reflect the prevalence of contemporary assumptions about group differences. They reflect arguments made on behalf of historically excluded groups that group membership serves as a proxy for shared experiences and especially common experiences as victims of societal prejudice. Opponents, styled as defenders of neutrality, resist such arguments because they undermine the commitment to treating individuals as individuals. Maybe we can understand the debates better by seeing connections to deeper confusions about the concept of representation throughout our society, made especially vivid in legal and political contexts. If treated as problems of representation, these issues must be examined in light of the questions: who may speak for someone else? What is the difference between symbolizing or standing for another, on the one hand, and advancing the interests of another? Which should a representative pursue? These are hard issues. With the help of some philosophic debates I will suggest that we have long been confused about them. I will then argue that two specific developments in legal and political thought cast new confusion - but also new light - on the problem of representation. I look first to the contributions of people concerned with difference, such as feminists and critical race theorists, and then to the contributions of a variety of scholars interested in empathy. After exploring the genuine tension between these two emerging schools of thought, I will return to a few of the legal questions I have just mentioned about who can and who should represent another. And perhaps, I will also get a chance to return to theater before I am done