Feminist Philosophers

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Philosophical Change in the Shadow of the Law June 9, 2015

Filed under: academia,law — womandamus @ 2:05 am
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Womandamus is a new contributor to FP. They have some expertise in law and philosophy, but this series will not offer legal advice or counsel.

It is a well-known idea that people “bargain in the shadow of the law.” In other words, we take all kinds of legal information and facts about the legal system into account when we go through our lives, whether we are deciding to take a plea deal, run a red light, or make a billion dollar deal. Yet we also bargain in the shadow of what we perceive the law to be, rather than what it is. This is unsurprising since (1) most ordinary people are in no position to know what the law is and (2) even most lawyers are not in such a position. Law school does not teach anyone the law because it cannot do so. Rather, it teaches people to “think like lawyers” because the law may turn out to be one thing or another, depending on a whole host of contingencies.

This uncertainty, paired with the extreme coercive power of the law, can make it hard—even scary—to conform our actions to the law or know what the legal effect of our actions might be. This uncertainty and fear has the potential to stand in the way of real change even where everyone generally agrees that some change would be desirable. Philosophy has some problems, as you all know, that are increasingly involving the legal system head on. At least some of these problems are widely-recognized, and many philosophers are aching for some change. However, the shadow of the law looms menacingly over their efforts, whether this is reasonable or not.

Fears about defamation suits, concerns about due process, confidentiality requirements, complaints about Title IX, and other legal actions may be more or less warranted, more or less reasonable, but they often have the effect of discouraging people from pursuing change in philosophy, particularly in a public way. Philosophers and graduate students may fear coming forward or naming their colleagues lest they be sued for defamation or in violation of a confidentiality agreement with their University. Even if a case ultimately ends in a quick dismissal, it is still costly and exhausting to be on the receiving end. Many non-lawyers (and, I would venture, especially philosophers, who tend to be privileged and are less likely to be the target of heavy policing) will never have an interaction with the legal system beyond paying parking tickets and doing jury duty, so the fear of being involved in a lawsuit in any capacity can be crippling.

As the profession continues to grapple with issues relating to climate, it will increasingly confront the law. In a series of future posts, I would like to offer some analysis of legal issues that the profession has already confronted in some form or another: retaliation, defamation, settlements, due process, Title IX in general, and other topics that might improve legal literacy among philosophers. These posts will focus on the U.S. context, but Canada and the U.K. may be similar. It is important to remember that the answer to any legal question will always depend, in part, on what jurisdiction you are in. While I can’t offer legal advice, I do hope to clear up some general misconceptions about the law in a way philosophers can understand. If you have topics you would like to see addressed, please leave a comment, and I’ll try to get to them.

 

 

Rape conviction rates up, but… April 29, 2013

Filed under: domestic violence,law,police,rape — cornsay @ 5:25 pm
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It was reported last week that conviction rates for rape in the UK are higher than they’ve ever been. 63% of prosecutions in 2012/13 resulted in a conviction, which is 5% more than five years previously. Similar success is reported regarding domestic violence. This is, of course, good news. However, it’s not quite a straightforward success.

First,  the ‘conviction’ rate includes all convictions resulting from the prosecution, many of which are not actually for rape (someone might, for example, be tried for rape and convicted of a lesser sexual offence). In 2010/11, the actual rate of conviction for rape was 33% out of an overall conviction rate of 58%. The same is likely to apply to the reported figure for 2012/13.

Second, as the initial linked article points out, another main complaint about the legal process concerns the proportion of reported rapes which result in a prosecution. According to this article, an annual average of 15 670 reports results in an average of 2 910 prosecutions. That’s about 19%. So even if 63% of those 2910 cases result in convictions, that’s a mere 11% of the original reported total. In other words, 89% of reported rapes don’t result in any sort of conviction. Bear in mind that the Crown Prosecution Service recently released a report (pdf) which establishes pretty comprehensively that false allegations of rape are extremely rare.

Third, yet another problem with the legal process is the fact that so many people are discouraged from reporting rape in the first place. For fairly obvious reasons, statistics on under-reporting are hard to come by or verify (one estimate attributed to the Ministry of Justice in the Independent article above is 60 000 to 95 000 — that’s quite a variation between the upper and lower limits). But it’s apparent that this is a problem, and it’s apparent that even if conviction rates continue to increase, there’s a lot more to be done to improve the legal and policing environment which results in under-reporting and under-prosecution.

 

 

Walmart Case: Women don’t have enough in common June 28, 2011

Filed under: law,work — cornsay @ 9:39 am
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A quick update on the Walmart case that ednainthesea discussed here. The US supreme court has decided that one and a half million women cannot bring a class-action suit against Walmart, in which they were to argue that the corporation’s record on the promotion and pay of women belies institutional sex discrimination. The justices agreed unanimously that the suit failed to meet a particular technical requirement. More interestingly, a 5-4 majority ruled that the women do not have enough in common to bring a class action suit; according to Justice Scalia, the necessary common element is “entirely absent”.

You can read the full opinion here (direct link to .pdf). Part II of the court’s opinion (pp. 8-20) explains the reasoning behind the no-common-element decision. The appended dissenting opinion, written by Justice Ginsburg, takes issue with this part of the opinion (post, pp. 1-11).

Whatever the niceties of the legal arguments, it seems clear that the decision has greatly diminished the chances that large class-action suits could be used to address systemic discrimination.

 

 
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