- Much of Covers work is collected in Narrative, Violence, and the Law: The Essays of Robert Cover, Martha Minow, et al. eds., (Ann Arbor: University of Michigan Press, 1992). Citations to Cover's work throughout this Article are to this book. For work of other scholars inspired by Cover's thought, see Milner S. Ball, The Word and the Law (Chicago: Chicago University Press, 1993); Anthony V. Alfieri, “The Ethics of Violence: Necessity, Excess, and Opposition,” 94 Columbia Law Review 1721 (1994); Drucilla Cornell, “From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation,” 11 Cardozo Law Review 687 (1990); Richard K. Sherwin, “Law, Violence, and Illiberal Belief,” 78 Georgetown Law Journal 1785 (1990). Other scholars who have explored the significance of religious narratives for law include Robert Burt, “Constitutional Law and the Teaching of the Parables,” 93 Yale Law Journal 455 (1984); Howard Lesnick, “The Wellsprings of Legal Responses to Inequality: A Perspective on Perspectives,” 1991 Duke Law Journal 413; Steven L. Winter, “Legal Storytelling: The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning,” 87 Michigan Law Review 2225 (1989).
- See Martha Albertson Fineman, The Neutered Mother, The Sexual Family (New York: Roudedge 1995), pp. 22–24; Rosemary Ofei-Aboagye, “Domestic Violence in Ghana: Some Initial Questions,” The Public Nature of Private Violence: The Discovery of Domestic Abuse, Martha Albertson Fineman & Roxanne Mykitiuk, eds. (New York: Roudedge, 1994), pp. 260, 262. This vision of power and institutions also owes a great debt to Michel Foucault. Commentators have noted in passing how such a conception of power complicates Cover's arguments. see Austin Sarat & Thomas R. Kearns, “Making Peace with Violence: Robert Cover on Law and Legal Theory,” Law's Violence, Austin Sarat and Thomas R. Kearns, eds. (Ann Arbor: University of Michigan Press, 1992), pp.211, 228.
- That Cover's vision was stark should not obscure the humor present in much of his work. see “Coda: Your Law Baseball Quiz,” Narrative, Violence, and the Law, supra note 1 at 249.
- For an important discussion which alludes to domestic violence in analyzing problems with the conception of law as violence, see Patricia M. Wald, “Violence Under the Law: A Judge's Perspective,” in Law's Violence, supra note 2 at 77, 92–96. For perspectives on domestic violence, see Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and violence Against Women of Color,” After Identity: A Reader in Law and Culture, Dan Danielson & Karen Engle, eds. (New York: Roudedge, 1995); Naomi R. Cahn, “Civil Images of Battered Women: The Impact of Domestic Violence on Custody Decuisions,” 44 Vanderbilt Law Review 1041 (1991); Beverly Horsburgh, “Lifting the Veil of Secrecy: Domestic Violence in the Jewish Community,” 18 Harvard Women's Law Journal 171 (1995); Martha R. Mahoney, “Legal Images of Battered Women: Redefining the Issues of Separation,” 90 Michigan Law Review I (1990); Peter Margulies, “Representing Domestic Violence Survivors as a New Paradigm of Poverty Law: Towards Access, Connection, and Voice,” 64 George Washington Law Review__ (forthcoming 1995); Joan Meier, “Notes from the Underground: Integrating Psychological and Legal Perspectives on Domestic Violence in Theory and Practice,” 21 Hofstra Law Review 1295 (1993); Elizabeth M. Schneider, “The Dialectic of Rights and Politics: Perspectives from the Women's Movement,” 61 New York University Law Review 589 (1986).
- See Schneider, “Rights and Politics,” supra note 4. By reification, I mean the conversion of an abstract concept, such as legal rights, into a thing which can be possessed. Reification obscures the contingent nature of rights, and their dependence on power relations. Critical race and feminist scholars address this difficulty by enriching rights discourse with stories and struggle. see Patricia J. Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press), pp.163–65; Martha Minow, “Interpreting Rights: An Essay for Robert Cover,” 96 Yak Law Journal 1860 (1987); Schneider, “Rights and Politics,” supra note 4.
- I generally use the term, “survivors,” here to refer to women who have suffered from domestic violence. No term is perfect; every term, whether “survivors” or “victims,” risks trivialization or stigmatization. see Cynthia Bowman and Elizabeth Mertz, “Legal Intervention in Sexual Abuse Survivor Therapy,” __ Harvard Law Review __ (1996).
- Indeed, important strands of feminist analysis, including cultural feminism, which supplements an ethic of rights with an ethic of care, parallel Cover's distrust of law. see Thomas Ross, “Despair and Redemption in the Feminist Nomos,” 69 Indiana Law Journal 101 (1993); Ann C. Scales, “The Emergence of Feminist Jurisprudence: An Essay,” 95 Yale Law Journal 1373 (1986); cf., Kathleen Daly, “Men's Violence, Victim Advocacy, and Feminist Redress,” 28 Law and Society Review 777, 782–83 (1994) (out-lining debate in feminist scholarship about legal responses to domestic violence). See, generally, Carol Gilligan, In A Different Voice (Cambridge: Harvard University Press, 1982) (outlining cultural feminist theory).
- See Crenshaw, “Mapping the Margins,” supra note 4.
- On the complex links between Cover and the Jewish mystical tradition, see Suzanne Last Stone, “In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” 106 Harvard Law Review 813 (1993).
- “Nomos and Narrative,” supra note 1 at 107.
- Here, too, terminology is both crucial and imperfect. The terms female circumcision and female genital mutilation are also employed. “Circumcision” does not reflect the adverse effects of the procedure, while “mutilation” is so loaded that it prejudges consideration of the role of women in perpetuation of this practice—the subject of this Article's discussion. see Karen Engle, “Female Subjects of Public International Law: Human Rights and the Exotic Other Female,” After Identity, supra note 4 at 210; Joan Fitzpatrick, “The Use of International Human Rights Norms to Combat Violence Against Women,” Human Rights of Women: National and International Perspectives, Rebecca J. Cook ed. (Philadelphia: University of Pennsylvania Press, 1994), pp. 532, 540–543; Isabelle Gunning, “Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries,” 23 Columbia Human Rights Law Review 189 1991–92); Bronwyn Winter, “Women, the Law, and Cultural Relativism in France: The Case of Excision,” 19 Signs 939 (1994).
- The classic statement of this dialogue is in Schneider, “Rights and Politics,” supra note 4. Schneider uses the term, “dialectic.” I use “dialogue,” instead, in an attempt to encompass the varied and contingent conversation which I think Schneider also envisions. Stressing these factors seems particularly important in addressing cross-cultural issues in the national and international realms.
- “Nomos and Narrative,” supra note 1 at 115–20.
- State V. Wanrow, 88 Wash. 2d 221, 559 p.2d 548 (1977). The case is discussed in depth by one of the lawyers representing Wanrow on appeal in Schneider, “Rights and Politics,” supra note 4 at 606–610. The discussion here relies largely on Schneider's account.
- 88 Wash. 2d at 234; 559 p.2d at 555.
- Id., at 224–25; 559 p.2d at 550–51.
- See Schneider, “Rights and Politics,” supra note 4 at 606.
- According to Cover, while rights discourse has emancipatory potential, it atomizes communal life and legitimizes the power of the state. In response to these perceived short-comings, Cover adances a vision of a social order based, like Judaism, on obligation rather than rights. see Robert Cover, “Obligation: A Jewish Jurisprudence of the Social Order,” Narrative, Violence, and the Law, supra note 1 at 239.
- See Schneider, “Rights and Politics,” supra note 4 at 608–09.
- Id., at 611. This is a view shared by many critical feminist and race scholars. Cf., Minow, Williams. It is also a view which shares much with Cover's vision of “redemptive constitutionalism,” outlined in “Nomos and Narrative.” However, Cover, even in “Nomos and Narrative,” downplays the role of courts. For example, in discussing the civil rights movement, which Cover identifies as an example of redemptive constitutionalism, Cover discusses only one case in depth: Walker v. City of Birmingham, 388 U.S. 307 (1967), which upheld the contempt of court convictions of civil rights marchers who marched in defiance of what turned out to be an overbroad injunction. see “Nomos and Narrative,” supra note 1 at 157–58. Cf., David Luban, “Difference Made Legal: The Court and Dr. King,” Legal Modernism (1994), p. 209 (discussing context of Walker). For the Cover of “Nomos and Narrative,” courts are at best uncertain allies, and at worst active foes, of the redemptive vision. Cover's wariness about courts only increased with his tightened focus on judicial violence in later pieces like “Violence and the Word.”
- Schneider, “Rights and Politics,” supra note 4 at 606.
- The specific police response to complaints about Wesler in the Wanrow case—that they could do nothing until after the weekend—buttresses this story. 88 Wash. 2d at 225, 559 p. 2d at 550–51.
- Of course, men who kill their partners may also conceive of themselves as restoring a nomos, here, a nomos of male dominance. This argument is often most explicit in case involving “cultural defenses” to charges arising out of male violence against women. see Holly Maguigan, “Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?,” 70 New York University Law Review 36 (1995). Similar factors are more subtly present in cases in which male defendants assert that the “heat of passion” should excuse or mitigate their crime. see Elizabeth Rapaport, “The Death Penalty and the Domestic Discount,” The Public Nature of Private Violence, supra note 2 at 224; Donna K. Coker, “Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill,” 2 Southern California Review of Law & Women's Studies 71 (1992).
- See Elizabeth V. Spelman and Martha Minow, “Outlaw Women: An Essay on Thelma & Louise,” After Identity supra note 4 at 314; Susan N. Herman, “Thelma and Louise and Bonnie and Jean: Images of Women as Criminals,” 2 Southern California Review of Law and Women's Studies 53 (1992).
- See State V. Norman, 378 S. Ed. 2d 8, 15 (N.C. 1989). This is a particularly insensitive decision, incisively discussed in Mahoney, supra note 4 at 92.
- See State V. Stewart, 763 p. 2d 572, 579 (Kan. 1988).
- “Nomos and Narrative,” supra note 1 at 139.
- It is telling that in Greek myth, courts of law originated when the god Apollo balked at the harshness of consigning Orestes, who had killed his mother Clytemnestra after she had killed his father Agamemnon, to the vengeance of the Furies or Erinyes, ancient goddesses who tormented blood-murderers. Cf, “Nomos and Narrative,” supra note 1 at 139, n.116. At Orestes' trial, Apollo represented him, and prevailed by arguing successfully that killing a mother—Orestes' misdeed—is less blameworthy than killing a father: Clytemnestra's misdeed against Orestes. For a provocative reading which argues that the Athenian turn to the order of courts over the private justice of the Erinyes also connoted the subordination of women, see David Luban, “Some Greek Trials,” Legal Moderism, supra note 20 at 283. However, as Luban surely would acknowledge, linking the feminine with a “private” form of justice and the masculine with a “public” form of order risks reinforcing the public-private distinction which has traditionally trivialized the role of women. Cf., Jeanne L. Schroeder, “Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination,” 70 Texas Law Review 109 (1991)(arguing against dichotomy of women as relational and as rational).
- See Alfieri, “Ethics of Violence,” supra note 1.
- A rich literature recently has emerged on issues of client voice and the limits of traditional rules of legal ethics. see Gerald P. Lopez, Rebellious Lawyering (Scranton: Westview, 1992); Alfieri, The Ethics of Violence, supra note 1; Anthony V. Alfieri, “Reconstructing Poverty Law Practice: Learning Lessons of Client Narative,” 100 Yale Law Journal 2107 (1991); Naomi R. Cahn, Inconsistent Stories, 81 Georgetown Law Journal 2478 (1993); Peter Margulies, “The Mother with Poor Judgement and Other Tales of the Unexpected: A Civic Republican View of Difference and Clinical Legal Education,” 88 Northwestern University Law Review 695 (1994); Lucie E. White, “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G.,” 38 Buffalo Law Review 1 (1990).
- See Schneider, “Rights and Politics,” supra note 4 at 608, citing 88 Wash.2d at 240–41, 559 p. 2d at 559.
- Id..
- See Holly Maguigan, “Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals,” 140 University of Pennsylvania Law Review 379 (1991); for a critique of the development of women's self-defense doctrine, see Anne M. Coughlin, “Excusing Women,” 82 California Law Review 1 (1994).
- See Mahoney, supra note 4.
- The law-creating efforts of community organizing can, if not coupled with an ability to listen to community members, become as oppressive as the lawyer's assertion of superior professional expertise. Cf., Derrick Bell and Preeta Bonsal, “The Republican Revival and Racial Politics,” 97 Yale Law Journal 1609, 1609 (1988) (recounting story in which a long-time resident of Harlem in the 1930s, after listening to the stirring Marxist oratory of a young street worker who is “an exile from the upper class,” asks the activist, “[W] hen you revolutionaries take power and change all the world over—will you still be white?”); Lucie E. White, “Collalsorative Lawyering in the Field? On Mapping the Paths from Rhetoric to Practice,” 1 Clinical Law Review 157, 167 (1994) (noting the impatience of participants in Central American refugee literacy project with consciousness-raising techniques from Paulo Freire's vision of liberation pedagogy); Kathleen Stewart, “On the Politics of Cultural Theory: A Case for “Contaminated” Cultural Critique,” 58 Social Research 395, 401–12 (1991) (using example of poor listening skills of community organizer to convey dialogic nature of “authentic” community discourse in the context of an Appalachian mining dispute).
- See Margaret J. Radin, “Market-Inalienability,” 100 Harvard Law Review 1849 (1987). Restrictions on sale of body parts, on surrogate mothering, and on selling oneself into slavery all fit under this rubric.
- See William H. Simon, “Social-Republican Property,” 38 UCLA Law Review 1335, 1351 (1991).
- The law sometimes uses the concept of “competence” to deal with such situations. see David Luban, “Paternalism and the Legal Profession,” 1981 Wisconsin Law Review 454; Peter Margulies, “Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity,” 62 Fordham Law Review 1073 (1994); Susan Stefan, “Silencing the Different Voice: Competence, Feminist Theory and Law,” 47 University of Miami Law Review 763 (1993).
- There are other reasons, too, that may often be more significant, including the difficulties of maintaining economic independence, fear of retaliation, and continued affective ties. see Martha R. Mahoney, “Victimization or Oppression? Women's Lives, Violence, and Agency,” The Public Nature of Private Violence, supra note 1 at 59. To the extent that a choice to drop a case stems from economic concerns, inalienability rules in the domestic violence context parallel the concern about market excesses that animate most inalienability rules. The issue of affective ties creates special problems, which I discuss, infra, at notes 51–58 and accompanying text.
- The domestic violence movement, while it is premised on overturning the public/private distinction mentioned in the text, has always had an antinomial element, of which Cover would approve. see Ross, supra note 7; cf., Jo Dixon, “The Nexus of Sex, Spousal Violence, and the State,” 29 Law and Society Review 359 (1995) (discussing images of gender and the state in discourse about domestic violence). Shelters, for example, came into being because the police, housing authorities, and family courts were not coping with domestic violence. In addition, sometimes shelters do not cooperate with authorities, because shelters are often unwilling to reveal information about their location, or about their clients, for fear that abusers will use the information to perpetuate their terror. Antinomial sentiments are also a strong element in debates about lesbian battering. Here, feelings against the state as a vehicle for patriarchal oppression are often intense. See Ruthann Robson, Lesbian (Out)Law (Ithaca: Firebrand Books, 1992), pp. 157–167.
- See Rosemary J. Coombe, “The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy,” After Identity, supra note 4 at 251.
- Mandatory arrest policies and no-drop rules, which require the arrest and prosecution of abusers, are two further examples.
- A Coverian approach which more specifically addresses the issue of domestic violence stresses the affective attachments of survivors, including attachments to their abusers, as a kind of nomos which is subject to violence at the hands of insensitive lawyers. see Linda Mills, “On the Other Side of Silence: Affective Lawyering for Intimate Abuse” (unpublished manuscript on file with the author). I take up this issue in greater depth in Part B of this Section.
- An injunction is available, often in a relatively streamlined, pro se procedure, to order a halt to future violence. Frequently, the injunction, which is also referred to as a TRO (temporary restraining order) or order of protection, also enjoins the respondent from coming within a fixed distance of the petitioner or the petitioner's residence, and determines provisionally issues such as custody.
- I have told Ms. Novo's story in two previous pieces. see Peter Margulies, “Representing Domestic Violence Survivors,” supra note 4; Id., Political Lawyering, “One Person at a Time: The Challenge of Legal Work Against Domestic Violence for the Impact Litigation/Client Service Debate,” __ Michigan Journal of Gender and Law __ (forthcoming 1996). I retell Ms. Novo's story here because it testifies to the diversity of voices among and within domestic violence survivors.
- Cf., Richard Delgado, et al., “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution,” 1985 Wisconsin Law Review 1359 (discussing how legal formality can promote empowerment).
- See Coombe, supra note 4.
- See Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (?:?,1993) (discussing how client preferences are not given, but rather emerge from attorney-client dialogue).
- See Amartya K. Sen, “Rational Fools: A Critique of the Behavioral Foundations of Economic Theory,” Beyond Self-Interest, Jane J. Mansbridge, ed. (?:?, 1990), p. 25.
- See Naomi R. Cahn, “Inconsistent Stories,” 81 Georgetown Law Journal 2475 (1993); Stephen Ellmann, “The Ethic of Care as an Ethic for Lawyers,” 81 Georgetown Law Journal 2665, 2704–05 (1993).
- As Coverian lawyering theorists point out, this option may exist only in theory, at least if the lawyer exceeds the bounds of counseling and uses her professional power to browbeat the client into making the decision the lawyer favors. Where I differ from the Coverian theorists is in the leeway I would grant attorneys to persuade clients, including the leeway to invoke the lawyer's personal experience. see Margulies, “Political Lawyering,” supra note 44.
- See Kate Murphy, “Jury Acquits Moon of Spousal Abuse,” New York Times, February 23, 1996, B14. See also Clare Dalton and Elizabeth Schneider, “The Unwilling Witness,” New York Times, February 21, 1996.
- Id..
- See Crenshaw, “Mapping the Margins,” supra note 4.
- Id., at 340–42.
- See Sally E. Merry, “Domestic Violence Courts in Hawaii: Dilemmas of Rights,” Identities, Politics, and Rights, Austin Sarat and Thomas R. Kearns, eds. (Ann Arbor: University of Michigan Press, 1995), p. 301.
- See Crenshaw, supra note 4 at 341. Current attitudes about the reproductive rights of women of color and women with disabilities also have a punitive edge. see Taunya L. Banks, “The Americans with Disabilities Act and the Reproductive Rights of HIV-Infected Women,” 3 Texas Journal of Women and Law 57, 66 (1994); Dorothy E. Roberts, “Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy,” 104 Harvard Law Review 1419 (1991).
- See Crenshaw, supra note 4 at 341.
- Id; see also Horsburgh, supra note 4 (discussing problem of domestic violence in Orthodox Jewish communities).
- See Karen Engle, “Female Subjects of Public International Law: Human Rights and the Exotic Other Female,” After Identity, supra note 4 at 210; Isabelle Gunning, “Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries,” 23 Columbia Human Rights Law Review 189 (1991–92); Bronwyn Winter, “Women, the Law, and Cultural Relativism in France: The Case of Excision,” 19 Signs 939 (1994).
- FGS can lead to chronic infection, particularly in cases of infibulation, the most intrusive procedure, in which the external genitalia are removed and the vagina is largely closed, leaving only a small opening for urination. In addition, FGS can diminish sexual pleasure, and, again in the case of infibulation, make sex painful.
- See Winter, supra note 1 at 941–42. Women who have not undergone the procedure are virtually unmarrigeable in cultures which practice it. Id.
- See Gunning, supra note 11.
- Id., at 218.
- Id., at 219.
- Id., at 218.
- Id., at 220.
- See Engle, supra note 4.
- Cf., Mari Matsuda, “Pragmatism Modified and the False Consciousness Problem,” 63 Southern California Law Review 1763 (1990) (discussing false consciousness and noting voices for change within subordinated groups).
- See, supra, note 2 and accompanying text.
- Elizabeth M. Schneider, “Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Woman Abuse,” 67 New York University Law Review 520 (1992) (analyzing implications of domestic violence for feminism).
- Cf., Schneider, “Particularity and Generality,” supra note 4 (discussing how to situate domestic violence in feminist theory).
- It is important to note here that taking the cultural importance of FGS for indigenous women into account does not mean that all subordinated groups everywhere should temper their rights claims. Specifically, noting in this Article should be taken as supporting a “prudentialist” approach to the struggle for African-American rights. see Anthony T. Kronman, “Alexander Bickel's Philosophy of Pretenses,” 94 Yale Law Journal 1567 (1985). The difference is that legally enforced segregation was in no sense a form of law-creation for African-Americans, whatever message was conveyed by the apologies of white segregationists. Instead, segregation in this country, like apartheid in South Africa, was a regime imposed on a subordinated group—African-Americans—by a dominant group—whites. In contrast, the anti-colonialist element in the FGS debate makes the issue of who is subordinating whom more difficult, and suggests the wisdom of a more gradual approach which can take cultural differences into account.
- See Gunning, supra note 11 at 223–27.
- See Paul Gilroy, The Black Atlantic: Modernity and Double Consciousness (Cambridge: Harvard University Press, 1993), pp. 59–60.
- Cf., Benedict Anderson, “Exodus,” 20 Critical Inquiry 314 (1994) (discussing simultaneity of expression of national identity over formerly vast distances, aided by modern communications and transportation).
- See Gunning, supra note 11; Ofei-Aboagye, supra note 2 at 272–76.
- See “Violence and the Word,” supra note 1 at 237 (“We are left, then, in this actual world of the organization of law-as-violence with decisions whose meaning is not likely to be coherent if it is common, and note likely to be common if it is coherent”).
- See, generally, Gilroy, supra note 75 (discussing intercontinental web of influences on people of African descent in the West). Cf., Horsburgh, supra note 4 at 214–15 (noting that Cover says little about the possibility of change worked by sub-groups, such as women, within insular communities like Orthodox Judaism). Rosemary Ofei-Aboagye's metaphor of the traditional Ghanaian kente cloth is illuminating. Ofei-Aboagye observes that since the cloth is made by interweaving different-colored strands of fabric, “[d]ifferent colors of yarn can be added to change the basic pattern. The original piece can thus be left intact or changed…over time.” see Rosemary Ofei-Aboagye, “Altering the Strands of the Fabric: A Preliminary Look at Domestic Violence in Ghana,” 19 Signs 924, 931–32 (1994). Parallels between FGS and domestic violence are not exact, particularly because of women's active participation in FGS, as compared with their acquiescence in domestic violence. However, the line between participation and acquiescence is blurred, particularly as one looks at the impact of ideology on a community or a society.
- See Farida Shaheed, “Controlled or Autonomous: Identity and the Experience of the Network, Women Living Under Muslim Laws,” 19 Signs 997 (1994); Winter, supra note 1 at 971.
- In Islamic societies, where isolation of women is a religious, cultural, and political imperative, such efforts may be more difficult. see Shaheed, supra note 79. Yet, given the continuing struggles of women in the West, it is important to stress commonalities as well as differences in the international struggle for women's rights.
- See Gunning, supra note 11 at 225.
- Some measures may not pose problems under either a Coverian or an interdependent view, such as granting refugee status or other immigration relief to women fleeing FGS. See Matter of Oluloro, # A72 147 491 (Immigration Court, March 23, 1994). For commentary on Oluloro, see Priscilla Warren, “Women are Human: Gender-Based Persecution is a Human Rights Violation,” 5 Hastings Women's Law Journal 281 (1994).
- This is the gravamen of Gunning's “world-travelling” methodology. see Gunning, supra note 11.
- 461 U.S. 574 (1983), discussed in “Nomos and Narrative,” supra note 1 at 163–72.
- 461 U.S. at 595.
- Id., at 592.
- “Nomos and Narrative,” supra note 1 at 170–72.
- Id., at 170.
- Id., at 170–71.
- Id., at 170.
- Id., at 592.
- See Engel, supra note 4 at 214–15.
- See Gunning, supra note 11 at 237.
- Cf., Michael C. Musheno, et al., “Court Management of AIDS Disputes: A Sociolegal Analysis,” 16 Law and Social Inquiry 737 (1991) (noting value of public health professionals in diffusing fears of contagion). Medical authority on diagnosis is more likely to be challenged when the link between symptoms and causes is less clear. This, along with a history of disempowerment, helps account for the persistence of the view in some communities that AIDS stems from conspiracy or witchcraft. See, e.g., Paul Farmer, Aids and Accusation: Haiti and the Geography of Blame (Los Angeles: University of California Press, 1992), pp. 193–243; Scott Burris, “Education to Reduce the Spread of HIV,” Aids Law Today, Scott Burris, et al. eds. (New Haven: Yale University Press, 1993), pp. 82, 87; Harlon L. Dalton, “AIDS in Blackface,” The AIDS Reader: Social, Political, Ethical Issues, Nancy F. McKenzie, ed. (New York: NAL-Dutton, 1991), pp. 123, 126–129; Wendy L. Patten & Andrew Ward, “Recent Developments: Empowering Women to Stop AIDS in Cote D'Ivoire and Uganda,” 6 Harvard Human Rights Journal 210, 219–21 1993).
- Comparable strategies were employed by the Progressives in justifying minimum wage, maximum hour legislation for women, see Muller v. Oregon, and by Charles Houston, Thurgood Marshall, and Kenneth Clark in the campaign to end segregation in public education.
- A central problem with the argument from health is that proponents of FGS could seek to address health concerns by transferring responsibility for the procedure from midwives to doctors. see Gunning, supra note 11 at 237. However, this approach would not eliminate health concerns. Id.
- This work contributed mightily to the evolution of poverty law in the 1960 s. see Martha Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960–1973 (New Haven: Yale University Press, 1993), pp. 59–60.
Law & Literature
Volume 8, 1996 - Issue 1: A Commemorative Volume for Robert M. Cover