Janet E. Halley

Left Legalism/Left Critique

In recent decades, left political projects in the United States have taken a strong legalistic turn. From affirmative action to protection against sexual harassment, from indigenous peoples’ rights to gay marriage, the struggle to eliminate subordination or exclusion and to achieve substantive equality has been waged through courts and legislation. At the same time, critiques of legalism have generally come to be regarded by liberal and left reformers as politically irrelevant at best, politically disunifying and disorienting at worst. This conjunction of a turn toward left legalism with a turn away from critique has hardened an intellectually defensive, brittle, and unreflective left sensibility at a moment when precisely the opposite is needed. Certainly, the left can engage strategically with the law, but if it does not also track the effects of this engagement—effects that often exceed or even redound againstits explicit aims—it will unwittingly foster political institutions and doctrines strikingly at odds with its own values. Brown and Halley have assembled essays from diverse contributors—law professors, philosophers, political theorists, and literary critics—united chiefly by their willingness to think critically from the left about left legal projects. The essays themselves vary by topic, by theoretical approach, and by conclusion. While some contributors attempt to rework particular left legal projects, others insist upon abandoning or replacing those projects. Still others leave open the question of what is to be done as they devote their critical attention to understanding what we are doing. Above all, Left Legalism/Left Critique is a rare contemporary argument and model for the intellectually exhilarating and politically enriching dimensions of left critique—dimensions that persist even, and perhaps especially, when critique is unsure of the intellectual and political possibilities it may produce. Contributors: Lauren Berlant, Wendy Brown, Judith Butler, Drucilla Cornell, Richard T. Ford, Katherine M. Franke, Janet Halley, Mark Kelman, David Kennedy, Duncan Kennedy, Gillian Lester, Michael Warner

After Sex?: On Writing since Queer Theory

Since queer theory originated in the early 1990s, its insights and modes of analysis have been taken up by scholars across the humanities and social sciences. In After Sex? prominent contributors to the development of queer studies offer personal reflections on the field’s history, accomplishments, potential, and limitations. They consider the purpose of queer theory and the extent to which it is or is not defined by its engagement with sex and sexuality. For many of the contributors, a broad notion of sexuality is essential to queer thought. At the same time, some of them caution against creating an all-embracing idea of queerness, because it empties the term “queer” of meaning and assumes the universality of ideas developed in the North American academy. Some essays recall the political urgency of the late 1980s and early 1990s, when gay and lesbian activist and queer theory projects converged in response to the AIDS crisis. Other pieces exemplify more recent trends in queer critique, including the turn to affect and the debates surrounding the “antisocial thesis,” which associates queerness with the repudiation of heteronormative forms of belonging. Contributors discuss queer theory’s engagement with questions of transnationality and globalization, temporality and historical periodization. Meditating on the past and present of queer studies, After Sex? illuminates its future. Contributors . Lauren Berlant, Leo Bersani, Michael Cobb, Ann Cvetkovich, Lee Edelman, Richard Thompson Ford, Carla Freccero, Elizabeth Freeman, Jonathan Goldberg, Janet Halley, Neville Hoad, Joseph Litvak, Heather Love, Michael Lucey, Michael Moon, Jose Esteban Munoz, Jeff Nunokawa, Andrew Parker, Elizabeth A. Povinelli, Richard Rambuss, Erica Rand, Bethany Schneider, Eve Kosofsky Sedgwick, Kate Thomas

The Move to Affirmative Consent

In “The Move to Affirmative Consent,” I argue that, though affirmative consent has great appeal because of its respect for norms about good sex that we all share, as a rule intended to be enforced in actual punitive processes, whether on campus or in the criminal justice system, it will be vastly overinclusive, deeply repressive, and socially conservative in its enforcement of traditional gender roles. I show how affirmative consent reforms represent a partial victory (and thus also a partial defeat) for dominance feminists ultimately seeking to criminalize subjectively unwanted sexual behavior without respect to the intent or knowledge of the accused; the relationship history of the parties; the racial, cultural, or other social distance between the parties; and the character of the complainant’s memory of the events. I further demonstrate how existing affirmative consent rules will allow decision makers to hold people responsible for serious misconduct based on one or more of three states of mind that have been consistently muddled in the debates so far: the accuser’s subjective consent (described as “positive” if it is rests on her positive desire and as “constrained” if she consents to sexual conduct to avoid something she disfavors) and as “performative” if it rests on an indication of consent through physical or verbal signs. Each of these rules includes some conduct that, almost all feminists agree, deserves sanction and should be deterred, but they are all overinclusive in ways that many feminists would reject. One such way, I demonstrate, is an affirmation of female passivity and male activity in sex—a legal affirmation of, and incentive to reawaken, the gender roles of the gilded age. This current contribution asks feminists to consider carefully how affirmative consent will operate in practice, in the real world, before offering it their support.