Author: Mangala Kanayson

by Atieno Mboya

“Climate change is the most pressing environmental issue of the 21stcentury. The problem has arisen from exploitation of Earth’s carbon-based resources such as oil, coal and natural gas, which produce more than two-thirds of the global greenhouse gas emissions that are fueling climate change. These gases accumulate in the stratosphere and re-radiate heat rising from Earth back to the planet, causing an enhanced greenhouse effect, also known as global warming. This warming is precipitating more frequent extreme and unpredictable weather events, such as typhoons, floods, droughts, heat waves, wild fires, ice melts and rising sea levels. Earth’s climate is changing.

Climate change is bringing new socio-economic vulnerabilities into human lives and livelihoods, which are being felt in agricultural production, human health, access to potable water and threats to habitats of coastal communities, to name a few. In the agricultural arena, for example, unpredictable rainfall patterns are destabilizing planting and harvesting seasons. In human health, the spread of deadly diseases like malaria and dengue fever into new areas is an emerging threat. Floods and droughts are restricting communities’ access to sufficient, reliable potable water. Rising sea levels especially imperil coastal and island communities, threatening to engulf homes and, in cases like Tuvalu’s, entire island states, portending a climate refugee crisis. It is now understood that intensive carbon-based industrialization is unsustainable.

Rajendra Pachauri, chairman of the Intergovernmental Panel on Climate Change (IPCC) during the preparation of its Fifth Assessment Report, notes that while all societies stand to suffer some negative impacts of climate change, “there is an equity issue, because some of the poorest communities in the poorest countries in the world are going to be the worst hit.” Inequality in the fallout from climate change, coupled with inequality in access to resources to adapt to the new normal or mitigate it, raises issues of justice for “the world’s poor and marginalized,” which are captured in a growing civil society platform for climate justice. The 2007 Malé Declaration notes that climate change “has clear and immediate implications for the full enjoyment of human rights, including, inter alia, the right to life, the right to take part in cultural life, the right to use and enjoy property, the right to an adequate standard of living, the right to food, and the right to the highest attainable standard of physical and mental health.”

The international community’s response, as exemplified in the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and its 1997 Kyoto Protocol and the 2015 Paris Agreement, has been primarily market-based. Markets, however, are concerned with profit-generation, not social justice. This paper will discuss human rights implications of the global market-based approaches to climate change. The neoliberal foundations of those approaches are a cause of concern, given the link between neoliberalism and growing global inequality. Neoliberalism calls for free markets and deregulation, opening domestic markets to foreign competition, and privatizing state enterprises to reduce the role of the state. This approach to climate change has negative implications for human rights protections for constituencies that have limited economic resources and yet face the worst impacts of climate change.

This paper examines human rights implications of the market-based approaches to climate change and argues that greater attention to human rights will promote a more equitable climate regime. Section 1 discusses the urgency of the climate problem and the need for the duty bearers to respond to the claims of rights holders. Section 2 traces the development of the climate regime. Section 3 examines the market-based responses and critiques the skewed nature of emissions rights allocations that have left developing countries disadvantaged in the growing carbon market. Section 4 discusses parallels and disparities between the carbon market and the global currency market, underlining the imbalance between developed and developing countries in the established currency market and the burgeoning carbon market. The section also discusses human rights impacts of the market-based approach to climate change. Section 5 concludes the analysis.”

Atieno M. Samandari, Human Rights and the Global Climate Change Regime, 58 Nat. Resources J.50 (2018).                                                                                     Available at: https://digitalrepository.unm.edu/nrj/vol58/iss1/4

by Ani B. Satz

“Abstract: Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination—an approach for which activists fought for twenty years prior to the enactment of the ADA—may not adequately address disability discrimination. Some critics advocate a return to the social welfare model that ADA activists struggled to avoid, namely, a model focused on material supports for disabled persons.
I argue that reforming disability law requires a blend of the civil rights and social welfare models as informed by a novel lens: vulnerability as universal and constant. The current antidiscrimination approach to disability law reform is limited because it views disability as a narrow identity category and fragments disability protection. Fragmentation, a new concept I develop in this Article, results when susceptibility to disability discrimination is treated as if it arises in discrete environments, such as the workplace and particular places of public accommodation. Viewing vulnerabilities as situational generates a host of problems: it results in a patchwork of protections that do not coalesce to allow meaningful social participation, fails to appreciate the hyper-vulnerability (extreme sensitivity) of disabled individuals to certain environmental changes, artificially restricts the protected class by creating a false perception that some individuals with significant impairments are not disabled because they are able to function in particular circumstances or environments, and disregards the benefits of conceptualizing vulnerability to impairments as affecting disabled and nondisabled persons alike.

Continue reading Disability, Vulnerability, and the Limits of Antidiscrimination

by Mangala Kanayson

On the first day of Pride Month this year, the White House issued a proclamation on LGBTQ Pride Month while the governor of Florida signed a bill preventing some women from participating in women’s sports. The “Fairness in Women’s Sports Act” bans women and girls whose assigned sex does not match their gender identity from participating in women’s sports sponsored by public middle schools, high schools, and publicly funded colleges and universities. This year has already broken the record for state anti-transgender initiatives and lawmakers in Florida, Maine, Wisconsin, and South Carolina have pushed anti-transgender legislation all month long.

Policing the bodies of people of color, women, and minorities is nothing new to American policy. School and workplace dress codes, body shaming, hiring discrimination, and racism thinly veiled as “professionalism” permeate American culture. There is always some level of institutionalized repression when it comes to self-expression in formal social settings. Anti-transgender laws, however, do more than restrict self-expression. They exclude and alienate an entire identity and ultimately aim to criminalize the existence of an already marginalized group of people.

Continue reading A Reflection on Pride Month

by Virginia Sapiro

ONE OF MY CHIEF AIMS IS TO DEVELOP CRITICAL THINKING IN MY STUDENTS. How many times have how many aspiring faculty written this about their teaching philosophy? But what do they mean? I often sense that this statement is a kind of hand wave in the direction of reading and thinking carefully.

So what does critical thinking mean, and how can professors help develop that in their students when the course is supposedly aimed at some subject other than how to think critically?

Continue reading Reposted from “The Retirement Letters”

by Lario Jose Albarran

In February 2020, Professor Martha A. Fineman visited my class (a seminar on archival research) and answered questions about her career and work. In discussing the latter, Professor Fineman introduced the class to vulnerability theory. The elegance in centering everything’s vulnerability interested me to learn more, so I enrolled in the Law & Vulnerability seminar for the 2021 spring semester. In this short piece, I detail my experience in the course and its impact on me—both were fantastic. First, I describe how the class discussion kept me engaged in my last semester of Zoom law school. Second, I explain why taking the course was one of my best law school decisions.

Continue reading A Student Reflects on Vulnerability Theory

by Matt Lawrence

II. THE SAFETY NET TERM IS A RORSCHACH TEST IN CONTEMPORARY SCHOLARSHIP

What do you think of when you hear or read the term “social safety net”? Which specific programs are included? Which are excluded? Are student loans part of the safety net? Life insurance? Is the U.S. Equal Employment Opportunity Commission part of the safety net? Mandatory vaccination? Are needle exchange programs?

Odds are, a writer’s or reader’s understanding of the term matches one of five very different senses in which the term is used in contemporary health and welfare law and policy scholarship. The safety net is thus a Rorschach test for health and welfare law and policy: what it means shifts, narrows, or expands depending on the writer’s or reader’s underlying vision of the problems that health and welfare policy seek to solve and the role of law in that effort.

Continue reading An Excerpt from: Against the ‘Safety Net’

by Fabrizia Serafim

In my SJD dissertation, I used a vulnerability approach to think of alternative solutions to current legal problems in Brazil. In a nutshell, a vulnerability approach is one based on vulnerability theory, a critical legal theory that starts from the ontological body, that is, the physical experience of embodiment we all share, and from the dependencies this embodiment creates on others and on the institutions human societies create collectively to have resilience, that is, to produce and to have access to the different resources we need to survive and to thrive and to bounce back if we fall. After articulating this description of the human condition, the theory goes on to interrogate social institutions with a normative bent: are social institutions providing resilience; are they responding to our shared vulnerability in fair ways or are they privileging some to the detriment of many?

Continue reading In Defense of Vulnerability – SJD Student Fabrizia Serafim Defends Her Thesis

by Hila Keren

A year passed since the brutal murder of George Floyd. As I wrote for the LA Times earlier this week, no effective lessons and no adequate response can arise without understanding the role of humiliation in acts of police violence against Blacks and other people of color. Here, on this blog, I would like to draw on the vulnerability theory to place a demand on the state to proactively ensure that its police force cannot use its powers to humiliate anyone.

Continue reading Police Brutality, Humiliation, and Resilience Allocation

by Martha LA Fineman

In my chapter for this collection, I was asked to revisit my critique of equality as the appropriate measure or objective for family law reform as it was set forth in The Illusion of Equality: The Rhetoric and Reality of Divorce Reform, a book published over fifteen years ago. In that book as well as in articles developed in the 1980s, I argued that equality and gender neutrality were not appropriate concepts to employ in thinking about reform of the family and family law. The gist of my argument then was that the family, as our most gendered institution, was not susceptible to the imposition of a regime of equality, at least not as it was understood in American law. This argument was built on the observation that the nature of the equality reforms urged in the family mimicked the equality reforms sought in the political and public arenas. Outside of the family, legal feminists seemed wedded then (as now) to a liberal regime of equality, which mandated sameness of treatment. I suggested that what we needed in the family was not formal or rule equality, but some notion of substantive or result equality that considered past circumstances and future obligations. The imposition of a mere formal equality regime would only further and deepen existing inequalities.

I identified three sites of entrenched inequality affecting most marriages. First was the inequality in wages and employment opportunity that existed in the market. Next was the inequality of power that persisted and was manifested in family negotiations over whose individual interests should be sacrificed for the larger family good. This was a process that systematically disadvantaged women due to their lower earnings and culturally imposed altruism (they were the ones who were supposed to be making sacrifices for others). Finally, there are inequalities post-divorce, with the responsibilities of custody overwhelmingly assigned to women. This continued and compounded the unequal allocation of the disadvantages and burdens associated with care work that often disadvantaged married women in the paid work force. It can be argued that those inequalities I wrote about a generation ago have lessened in our post-egalitarian family law world, but it is also true that they continue to persist in many marriages, even if to a somewhat lesser degree. While gender-neutral, equality-based reforms are firmly in place in the statute books and have proved successful on a rhetorical level, structural family disadvantages associated with caretaking still typically burden women more than men, even after decades of feminist equality reform.

My hope in 1991 was that we might fashion a more substantive or result-sensitive version of equality in the family context. The law would allow unequal or different treatment of divorcing spouses, such as unequal distribution of family assets and obligations in order to address the existing inequalities created or exacerbated by past and future family responsibilities. This more result version of equality – substantive equality – would be considered just and appropriate in that it would satisfy the need that arose because one spouse typically assumed primary responsibility for children both within and after marriage.

While I still believe in the justness of the substantive equality outcome, my vocabulary and arguments have changed to become less focused on gender and more inclusive of those whose family or other uncounted labour is not valued in a formal equality regime. I now talk about need in terms of dependency and vulnerability. This articulation may not be any more palatable to those who buy into the rhetoric of independence and self-sufficiency, but it is more theoretically promising. Vulnerability is universal and constant. As embodied individuals, we are all just an accidental mishap, natural disaster, institutional failure, or serious illness away from descending into a state of dependency. Furthermore, dependencies are multiple and complex in form.

There are two types of dependency with which I have been concerned. On one hand, dependency is inevitable – a part of the human condition and developmental in nature. On the other hand, those who care for inevitable or natural dependents through essential caretaking work are themselves dependent on resources in order to undertake that care. Those resources must be supplied by society through its institutions. In our American scheme of social responsibility, both dependencies are relegated to the family and, typically within that family, to women in their roles as mothers, wives, daughters, and so on.

When I look at the family through the lens of vulnerability and dependency, I find it enhances and expands beyond that institution the critique of the imposition of a formal equality regime that I earlier developed with marriage and divorce primarily in mind. My subsequent work in developing a theory of dependency, which led to work on the idea of universal human vulnerability, demonstrated to me that both state and market are of necessity implicated in situating the family within society. That work also convinced me that formal equality is a flawed and poorly articulated objective, even when applied beyond the realm of the family. In fact, some of the very same reasons that formal or rule equality is inappropriate for the family also illuminate why it is inadequate to address justice and allocation problems in the larger society. Formal equality is inevitably uneven equality because existing inequalities abound throughout society, and a concept of equality that is merely formal in nature cannot adequately address them.

Gender was an obvious entry point from which to build this larger analysis in part because women have historically been marked as different in relationship to the state and public sphere. Their citizenship and concurrent responsibilities were anchored in the family, not in the wider polity or free-wielding market. The residues of that distinction remain in many ways that implicate the image of women as citizens. We may have secured political and civil rights, been successful in our search for equality in a formal way, but we continue to stand outside the ebb and flow of mainstream power. Equality for women remains elusive in practical and material terms, in part because they remain mired in a prelegal notion of the family, in which they are understood to have unique reproductive roles and responsibilities that define them as essentially different and necessarily subordinate in a world that values economic success and discounts domestic labour.

Of course, the distinction between the position of women in the family and their position within the larger society is incoherent theoretically. The family is not a separate sphere isolated from the norms and standards applied in the larger society. The notions we have about the mandates of citizenship, the appropriateness of claims to liberty and autonomy, and beliefs about relative equality resonate across societal institutions. This is true on an ideological level as well as on a structural level.

The nature and functioning of other societal institutions profoundly affects the nature and shape of the family. By the same token, the nature and functioning of the family profoundly affects other societal institutions. As I have argued earlier, the metaphor of symbiosis seems more appropriate to describe the family in relationship to the state than does the separate spheres imagery. The family is located within the state and its institutions – they are interactive and define one another. Alterations in the scope or nature of one institution will correspondingly alter the scope or nature of the other. By the same token, if formal equality is inadequate or unattainable in the family, the chances are that is because it has failed or will fail as a regime in the larger society. These are the lessons we need to learn.

by Camilla S. Jydebjerg

 

#agovernmentinmyname?

 

The hashtag #notinmyname is widely used on social media as a way to show discontent with current politics as well as to distance oneself from them. In Denmark (where I live) I have recently seen people use it to distance themselves from the government’s politics concerning refugees, especially the decision to consider areas of Syria safe. This decision has led to the suspension of the residence permits of a number of Syrian refugees. These suspensions of residence permits have been perpetuated despite international critique.

I understand the hashtag #notinmyname and I share the need to distance myself from a government that acts in ways that are thoroughly and utterly disconnected from my morals and worldviews. The question I want to broach here is if that is possible. Is it possible to distance oneself from the government or should the hashtag read #thisishappeninginmyname. After all the cornerstone of a representative democracy is that the politicians are the representatives of the people acting on our behalf. Lately, I have been pondering how we can think about government and representative democracy and indeed if the ideals of these institutions still hold through. These thoughts are inspired by my current visiting scholarship at the Vulnerability and the Human Condition Initiative at Emory University.

As part of this visiting scholarship, I have been fortunate enough to be able to participate in the classes held by Professor Martha Fineman and Postdoctoral Fellow Jennifer Hickey. In these classes the topic of government and trust in government has been debated in different ways often in connection to a seemingly growing political polarization of society and a failing  of trust in government. According to the Pew Research Center only “20% of U.S. adults say they trust the government in Washington to ‘do the right thing’ just about always or most of the time.” OECD numbers show the same trend. Furthermore, 67 percent believe that most politicians are corrupt. These are shocking numbers revealing a state of government considered neither for nor by the people. This is not just an American problem as numbers across national borders point to lack of trust in national governments and a wish for a change in political systems.

Trust in the national government seems to run quite a lot higher in Denmark (76,6 percent of the Danes answer yes to having confidence in National Government in the 2020 OECD numbers). However, as the above-mentioned hashtag shows there are also feelings of discontent and distance between the Danish government and at least some of its people (e.g., me). The Danish Governments handling of COVID-19 has in general been commended as the numbers have been kept down and a third wave seem to be avoided. However, the response has not only been cause for celebration and in particular a decision to kill all mink to inhibit the possibility of transmission of disease from mink “seems to have accelerated the growth of both pro-government and anti-government groups on Facebook, indicating a polarization within the Danish population regarding trust in the government and the political handling of the COVID-19 crisis” (Kristensen 2020).

Even though the philosophy of national government can be criticized for its roots in colonialism, privilege blindness, and institutionalized oppression, it can still be argued that lack of trust in government and political polarization are problematic in many ways e.g., it might lead to falling voter turnout, political apathy and make political problem-solving harder. OECD research shows that trust in government is closely tied to the government’s will and ability to provide public services as well as to anticipate change, protect its citizens and to improve living conditions for all. The idea of government thus seems to be tied to the governments ability to protect us from harm and misfortune. This is very much in line with vulnerability theory’s call for a (more) responsive state. This call rests on the theory’s understanding of the human legal subject as always, and inherently vulnerable. Vulnerability is a constant condition of human life because all living “embodied beings” are “susceptible to change and alteration” (Fineman, 2017, p.4). It is the very nature of human vulnerability that forms the basis for a claim that the state must be actively responsive to human vulnerability and dependency (Fineman 2010 & 2019).

Vulnerability theory asks of us that “we imagine responsive structures whereby state involvement actually empowers a vulnerable subject by addressing existing inequalities of circumstances that result from undue privilege or institutional advantage” (Fineman 2010, p. 40). This is both a refusal of the idea of the restrained state as a societal ideal and a potent reminder that there is no such thing as an inactive or unresponsive state. All the actions of a State are a response to someone. Societal institutions, laws and politics are always responsive and responding to someone (Fineman 2018). The question then becomes to whom they are responding and who should we hold accountable if we feel disfranchised, despondent, and not represented. The numbers quoted above show that we need to start imagining a responsive state, that we need to start discussing what kind of state we want and what kind of governments. How does a responsive state look and how do we hold it accountable? Let us start the discussion so that we can get the government that we deserve to act in our name.