by Elisa Baiocco (Sapienza University, Rome; Current VHC Visiting Scholar, Emory Law)
On January 24, I had the great opportunity to attend the lecture “Taxing Nudity: Sex Work and the Constitution”, organized by the Emory Law School Centre for International and Comparative Law and given by Clinical Professor of Law Randee Waldman, Associate Professor of Law Alexander Volokh and Visiting Associate Professor of Practice John Acevedo.
The lecture revolved around the reasons behind and the critiques of the part of the 2015 Safe Harbour/Rachel’s Law Act of Georgia establishing a tax on the gross revenues of adult entertainment activities in order to finance a recovery fund for sexually exploited children, with many interesting insights that I am going to underline.
December 15-16, 2023, Emory University School of Law, Hybrid Workshop
This year marks the 40th anniversary of the Feminism and Legal Theory Project (FLT). During that time, we have held workshops, hosted visitors, and sought to encourage and facilitate feminist analyses of law and institutions. The Project was designed to move thinking from the more assimilationist tendencies of a “women in the law” perspective to explore the transformative possibilities of feminist theory. The participants over the years have contributed important pieces to both the books and special issues of law reviews that FLT has organized, as well as publishing innumerable individual articles on their own. But these influential publications are not the only FLT legacy.
The FLT archive (preserved at Emory University) contains the audiovisual recordings of each workshop. It also includes the calls for papers and hard copies of working drafts from sessions over the years (also available in HeinOnline). The archive offers an interesting roadmap for understanding the evolution of the distinctive FLT approach – it is a unique historical record of the processes whereby feminist concepts were explored and applied in conversations and contestations that ultimately helped shape the direction(s), not only of feminist legal theory but critical theory itself. Unfortunately, the archive is an (as of yet) underutilized resource for scholars. In order to pique interest in and encourage more use of the FLT archive, we are holding several workshops centered around some of the past themes the Project explored that remain critically relevant today.
For this session, we seek working papers exploring what a feminist legal theory approach to the State or the process of governance should entail. We set out some tentative questions to consider on the next page – one set that might benefit (but does not require) using the archive material, as well as a set of some more un-anchored suggestions. We also include below a list of some of the past workshops documented in the archive relevant to this session in particular, along with information as to how to possibly access the archive remotely.
Translated by Ursula Basset, Professor of Family Law, Law of Persons and Law of Successions, Director of the Interdisciplinary Department of Research in Family Matters at Austral University (Argentina)
Understanding How Vulnerability Can Serve as a Legal Category That Can Be Applied by the Judiciary:
Vulnerability is a universal characteristic shared by every human being. It derives from its embodiment and its finiteness.
The vulnerability perspective considers the person not as an individual, but as a being in relation, interdependent with other persons, and it is from this relationality that resilience is possible.
Vulnerability has perceptive, hermeneutic, and corrective functions when applied in the judiciary.
The perceptive function allows, through empathy, to perceive the vulnerability of each subject in a legal relationship, thus making it possible to conceive a more precise and concrete description of the legal species. The perceptive function of vulnerability requires the attitudinal skills of the legal operator and, eventually, interdisciplinary approaches.
The hermeneutic function of vulnerability implies that if two or more interpretations of a norm are possible, the operator adopts the one that is most favorable to the vulnerable subject in the legal relationship.
The corrective function is of exceptional application, and it is the one that allows correcting a law applying the criteria of fairness when the case is included in the law, but due to its exceptionality, the consequences of applying the law to the case have not been foreseen by the legislator and, if the law was to be applied to this case, the outcome would be manifestly contrary to what the legislator would have intended, generating a disproportionate impact.
Although we are all vulnerable, the right must be corrected by virtue of the vulnerability only in specific cases that must emerge from factual evidence. The corrective function of equity is exceptional because it is presumed that the legislator has already made a preventive judgment to protect vulnerability, so in all cases, in principle, vulnerability is already contemplated in the legal remedy.
Vulnerability is an open legal concept: its advantage lies in its breadth and flexibility. Its richness lies precisely in its breadth, in its polysemy, and sometimes trying to define requirements or trying to characterize it rigidly ends up limiting it.
Despite its indeterminacy, it is possible to approach the concept of vulnerability through the categorical approach offered by international instruments and jurisprudence, such as the 100 rules of Brasilia, the International Treaties, or the jurisprudence of the Inter-American Court. For example, older people, children, women, people with disabilities. The categorical approach allows a first approach in an abstract manner, calling for the attention of the judiciary.
To apply the vulnerability perspective, a second step is however needed, consisting of contextualizing vulnerability, by empathizing with the concrete and specific vulnerability of the person who appears before the justice: their correlative position, their circumstances, their relational context. For that, it is necessary to contract the categorical approach in the circumstantial perception of each subject of the legal relationship. For example, a man with a disability can, in a sense, hold his caregiver down with his demands. A consumer may have excessive relative claims based on a very favorable legislative framework. Or the reverse, in both cases.
The immediacy of the judge and interdisciplinary teams are useful tools in the to the perceptive function of vulnerability.
The vulnerability perspective requires certain attitudinal skills from the operator. Among the personal and social skills that the workshop participants recognize as essential, we find empathy and active listening: the first to be able to understand the situation of the defendants in the process; and the second to be able to recognize within each segment in the abstract, the vulnerability in the specific case.
Empathy has several advantages:
It allows providing the parties with the possibility of exercising their rights within the process under conditions of equality and dignified treatment, since it starts from the “recognition” of all the parties and their circumstances in the process.
It also allows for a connection with citizens, who perceive justice as rigid, cold, inflexible, and removed from social needs and expectations.
Preventive mechanisms should be devised regarding the abuse of the vulnerability perspective.
It was pointed out that the excessive and decontextualized use of vulnerability as a category can lead to the crystallization of unwanted inequities within the process and incur in arbitrariness.
Another form of abuse of the perspective is to use it only in a categorical sense, without making a specific analysis: belonging to a vulnerable category in the abstract does not necessarily mean being vulnerable specifically in that specific legal relationship.
“In a market society characterized by record-level socio-economic inequalities, many business opportunities for exploitation arise. Greed competes with conscience; to exploit or not to exploit becomes a pressing question. Each time greed wins, an oppressive contract is born, depriving the exploited party of limited resources, further enriching the exploiter, and increasing the ever-growing gap between the powerful and powerless.
Such was the case of Henrietta Charley as described in a 2014 decision of the Supreme Court of New Mexico.3 Ms. Charley worked hard to make ends meet. A mother of three and a medical assistant earning $10.71 per hour working in a medical center, she found herself under financial distress and had to take out a loan of $200 “to buy groceries and gas.”4 Although she had never done this before,5 taking the loan was easy. The lender’s storefront was one of many similar businesses crowding Farmington’s Main Street, only a few minutes’ drive from Ms. Charley’s workplace.6 Inside, employees of “Cash Loan Now” were trained to offer a swift ten-minute lending process to anyone with a job.7 They were instructed to misrepresent the interest rate in daily terms ranging “between $1.00 and $1.50 per day” for every one hundred dollars borrowed.8 The lender’s manuals further scripted the interactions with the borrowers, requiring employees to conceal the payment schedule and never explain that the loan was interest-only.9
For two days, scholars from law, history, environmental justice, geography, and sociology gathered in Oñati, Spain at the International Institute for the Sociology of Law to explore how housing problems that become complicated by property systems, environment and energy challenges, and politics may be approached. Starting from the view that these problems are often “wicked” with no universal defining point, the discussants worked to find common approaches to advance the problems beyond their ideological frames.
A primary theme of the discussion was finding pathways to solve problems from the material realities on the ground, considering the unique normative place that property plays in each jurisdiction. The workshop featured discussions around vulnerability theory, engaging in how embodied vulnerability is ubiquitous and asking how assets of resilience emerge in housing solutions. Observing the role of property and housing as assets of resilience, the workshop keyed in on how an active state navigates the legal limits of property to solve pressing that impact all persons, including climate, environment, shelter and disaster relief.
The discussants came from 8 countries, including Spain, the United States, Germany, Canada, Israel, Ireland, England, Scotland, The Netherlands, Chile, South Africa, and Australia, working in Universities, Law Reform, and for NGOs. Participants in the workshop were Bram Akkermans (Maastricht University, The Netherlands), Koldo Casla (University of Essex, U.K.), Rashmi Dyal-Chand (Northeastern University, U.S.), Alexandra Flynn (University of British Columbia, Canada), Diego Gil (Pontificia Universidad Catolica de Chile, Chile), Amnon Lehavi (Reichman University, Israel), John Lovett (Loyola University New Orleans, U.S.), Robin Paul Malloy (Syracuse University, U.S.), Gustav Muller (Pretoria University, Republic of South Africa), Sergio Nassare Azner (Universitat Rovira I Virilli, Spain), Chris Odinet (University of Iowa, U.S.), Kate O’Reilly (University of Maastricht, The Netherlands), Jessica Owley (University of Miami, U.S.), Jacob Remes (NYU, U.S.), Jill Robbie (Glasgow University, Scotland), Samuel Tyrer (Monash University & Australian Law Reform Commission, Australia), Sue-Mari Viloen (University of the Western Cape, Republic of South Africa), Elsabe van der Sijde (Stellenbosch University, Republic of South Africa, & Amnesty International), Rachael Walsh (Trinity University, Ireland), Lua Kamál Yuille (Northeastern University, U.S.). Prior vulnerability fellows Marc Roark and Lua Kamàl Yuille were a part of the program.
The workshop was convened and organized by Lorna Fox O’Mahony (University of Essex, UK), and Marc L. Roark (University of Tulsa, U.S.) and was built around themes, methods and theories explored in their book Squatting and the State: Resilient Property in an Age of Crisis (Cambridge University Press 2022). The workshop will produce an edited volume considering the way method interacts with applied analysis of problems.
The International Institute for the Sociology of Law (IISL) in Oñati is the only international establishment which is entirely devoted to teaching and promoting the sociology of law, socio-legal studies, and law and society research. The IISL is a joint venture of the Research Committee on Sociology of Law (also known as RC12 of the International Sociological Association) and the government of the Basque autonomous region in Spain. It is situated (since 1989) in the University of Oñati (the Ancient University of the Basque Country) in Oñati. Selection of workshops are a competitive process where applicants propose programs specific to the exploration of sociology and law.
On Friday, May 19th, VHC/FLT visiting scholar, Samuel S. Burry, gave a presentation on the research he conducted during his two weeks of research in the Feminism and Legal Theory Archives at Emory Law. Burry’s research uncovered what many of those who engaged with FLT and VHC workshops already know – that the FLT/VHC Workshops are a unique and invaluable location of knowledge production, where revolutionary ideas are generated, questioned, and tempered in a true collegiate spirit of feminist discourse. Sam articulated how a feminist ethic of non-hierarchical engagement and knowledge production shaped these workshops. He found that much current critical legal thought is rooted in these workshops and told us that this lineage of ideas is invisible to most feminist legal historians. It is our hope that Sam’s research and publications as a legal historian will help make visible the forgotten history and impact of the Feminism and Legal Theory Project workshops, especially as ethics of care are currently examined without regard to the work that has been done already.
As we approach the 40th anniversary of the Feminism and Legal Theory Project, we offer the FLT Archive as a repository of radical and relevant knowledge and ideas that even now has the potential to shape our world for the better.
Read the description of an upcoming book titled Law, Vulnerability, and the Responsive State: Beyond Equality and Liberty:
This book considers how vulnerability theory provides the basis for a reconceptualization of the liberal ideas of autonomy, equality, and freedom.
Vulnerability theory argues a ‘vulnerable legal subject’ should displace the ‘liberal legal subject’ that currently dominates law and policy. The theory is based on the fundamental empirical realities of the material body and offers an alternative to a social contract or rights-based notion of state responsibility, both of which tend to privilege abstractions such as rationality or dignity. A vulnerability analysis poses law and policy questions based on the “vulnerable legal subject” and requires new thinking about state or governmental responsibility. Importantly, to achieve a truly comprehensive and inclusive notion of what constitutes social justice or a universal or ‘common’ good, vulnerability theory mandates a reassessment of both equality and freedom as these concepts are currently conceived. Presenting the work of scholars from a wide range of doctrinal areas, it is this task that the book takes up. In particular, in recognizing that many social or institutional relationships entail uneven positions of dependence and reliance, it maintains that individualized notions of equality or freedom are inadequate and must be reformulated to include a sense of collective or social justice, incorporating asymmetric or unequal allocations of responsibility and requiring appropriate limitations on the individual.
This book’s reorientation of the subject, as well as the central objectives of law and policy will appeal to scholars and students in law, vulnerability studies, gender studies, critical legal and political theory, politics, philosophy, and sociology.
Martha Albertson Fineman is Robert W. Woodruff Professor of Law and the Founding Director of The Vulnerability and Human Condition Initiative at Emory University, Georgia, USA.
Laura Spitz is Vice Provost for Global Engagement and Professor of Law at Seattle University, Washington, USA.
Most lawyers will remember learning about the “penumbra” of the Constitution – the concept that the amendments imply an “attitude of will” that allows for interpretation beyond the plain meaning. The U.S. Constitution was written by and for an exclusive group of individuals who could not predict the needs of the diverse and growing community that makes up America today. Penumbral thinking has allowed the U.S. Constitution to stay relevant as a “living document,” the interpretation of which may change to serve the needs of the nation as it inevitably continues to develop and change over time. Since 1789, the nation’s laws and constitutional protections have thankfully progressed – always lagging just behind the needs of a quintessentially different time and population.
In Griswold v. Connecticut (1965), Catherine G. Roraback, attorney for Griswold, successfully argued that the penumbra(s) created by the First, Third, Fourth, and Ninth Amendments establish a right to privacy. Roraback’s argument for this implied right to privacy guaranteed legal access to birth control, completely changing the lives of women in the United States through the possibility of planned pregnancy. Griswold laid the groundwork for cases like Eisenstadt v. Baird, which gave unmarried couples the right to obtain contraceptives, and the ever-controversial Roe v. Wade (1973), in which the court held that the state could only interfere with a woman’s right to choose whether to give birth after the fetus was “viable” and if an abortion was not necessary for the woman’s life or health. Recently overturned in 2022, Roe v. Wade protected this right for almost 50 years.
Although Griswold v. Connecticut may have been Roraback’s most famous case, her impact as a public interest attorney was not limited to reproductive rights. Roraback successfully defended Ericka Huggins, Black Panther Party leader and director of the famous Oakland Community School, in the New Haven Black Panther Trials. At the time of the trial, she was the only female criminal defense lawyer practicing in New Haven. Throughout her career, Roraback was committed to justice. She continued to defend those impacted by police coercion, corruption in the legal system, and those impacted during McCarthyism (despite being allegedly targeted by COINTELPRO herself).
Her service went beyond her role as a lawyer, taking the form of leadership roles in organizations including the American Civil Liberties Union, National Lawyers Guild, and Planned Parenthood throughout her life. Organizations like this are ever more important for sustained community organization to protect each other. In this particular moment of American history, when Roe v. Wade has been overturned and legislation and rhetoric increasingly endanger and destroy hard-won rights to dignity, we look to victories of the past to give us inspiration and hope.
Catherine Roraback donated her papers to Martha Albertson Fineman, who archived them as part of the Feminism and Legal Theory Project at Cornell University, where Fineman held the first legal endowed chair of feminist jurisprudence at a law school in the United States. Professor Fineman brought the collection with her when she came to Emory Law in 2014. This Women’s History Month, we invite you to explore Catherine G. Roraback’s legacy of activism, legal brilliance, and unwavering dedication to justice in the Catherine G. Roraback Papers at the Feminism and Legal Theory Project Archive at Emory Law.
Please note that exact times will be available later. This schedule is subject to change.
Workshop Schedule: March 31 – April 1, 2023
Friday, March 31
Introduction: Martha Albertson Fineman and Michael J. Perry
Panel 1: Vulnerability Theory
After Rights, Marc Lane Roark (Louisiana Outside Counsel of Health and Ethics Endowed Professor of Law, Southern University Law Center; Senior Fellow, Native American Law and Policy Institute; Research Associate Professor, University of Pretoria)
To Each Their Own: Understanding the Role of Human Rights and Vulnerability Theory in Defining State Responsibility, Tara Van Ho (Senior Lecturer, Co-Director of the Essex Business and Human Rights Project, Co-President of the Global Business and Human Rights Scholars Association, School of Law and Human Rights Centre, Essex Law School)
Panel 2: Religious and Spiritual Approaches
Comparative Conscientious: Negotiating Rights and Vulnerability with Confucianism’s Concept of Liangxin (良心), Bohao Zhao
A Larger We: Activism, Identity, Spirituality and Social Change in Pluralistic Societies, Dustin Sharp (Kroc School of Peace Studies, University of San Diego)
Social Justice and the Vulnerable Subject, Sean Coyle (Professor of Jurisprudence, Birmingham Law School)
Saturday, April 1
Panel 3: International Perspectives
Rights Could Be Enough: Understanding Social Rights from a Vulnerability and Latin-American Perspective, Fabrizia Serafim
A Vulnerability Analysis of the Role of Human Rights in the Formation of Kenya’s Second Republic, Atieno Mboya Samandari (Professor of Practice, Emory University School of Law)
Social Property, Vulnerability, and Democratic State, Xiaoqian Hu (Associate Professor of Law, University of Arizona)
Panel 4: Policy and Application
The constraints on Human rights and Vulnerability Theory as activators of State action to facilitate social justice: the case for implementing a universal Vulnerability Mitigating Response to determine the scope and content of the obligation of the responsive State, Jennifer Whelan (Senior Lecturer, Director of Clinical Legal Education, Western Sydney University School of Law)
The Role of State in Lessening Vulnerability and Advancing Social Justice under International Human Rights Law, Aikaterini Koula (Lecturer in Law, Manchester Law School)
This workshop will consider (comparing and contrasting) Vulnerability Theory and Human Rights as ways of thinking about state responsibility.
Human rights and human vulnerability theory are both concerned with the achievement of social justice and the role of the State in this endeavor. Their approaches to the State, however, are markedly different. Human rights in today’s neoliberal climate advocates for a “restrained State” while human vulnerability theory calls for a “responsive State”. We are pleased to announce a workshop on human rights and human vulnerability, bringing in dialogue the work of Professor Michael Perry on human rights and Professor Martha Albertson Fineman on human vulnerability.