Reva B. Siegel

“The Rule of Love”: Wife Beating as Prerogative and Privacy

III. THE DISCOURSE OF AFFECTIVE PRIVACY IN DOMESTIC ASSAULT LAW .................................... 2150 A. Marital Violence and Marital Privacy in the Criminal Law ............................... 2154 B. Affective Privacy in the Emerging Law of Interspousal Tort Immunity ................................. 2161 C. A Brief Reprise: Marital Privacy in the Criminal Law of the Twentieth Century .......................... 2170

Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880

I. GENESIS OF A RIGHTS DISCOURSE 1081 A. The Law of Marital Property in the Antebellum Era 1082 B. Womens Household Labor in the Antebellum Era 1086 C. Ideological Sources of Joint Property Advocacy 1. Utopian Communitarianism 2. Abolitionism and Political Antislavery 1091 1094 1098

Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart

This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Courts recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe - exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with woman-protective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting womens abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions. that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate womens dignity if protection is based on stereotypical assumptions about womens capacities and womens roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative - and constitutional - modes of protecting women who are making decisions about motherhood.

Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown

When Brown v. Board of EducationI prohibited racial segregation in public education, it inaugurated a great debate about equal citizenship and federalism that spanned the second half of the twentieth century. The case reverberates with conflict, with stories about the possibilities and limits of constitutional law. This Article explores the relation of constitutional principle and constitutional politics in the ways we talk about the decisions meaning. It shows how convictions about the principle on which Brown rests were forged in conflicts over enforcing Brown, and demonstrates how such conflicts have produced indirection and contradiction in doctrines that enforce the equal protection guarantee. By revisiting early arguments about Brown, we are better able to describe the values and concerns that have shaped the development of equal protection law, and to debate those that might shape its future. At the same time, exploring the impress of constitutional conflict in our constitutional commitments invites us to reflect again on the ways that the Court and the nation make claims on one another to ask questions about how the Court forges a constitutional principle that can compel the allegiance of the people whose lives it would constrain. Today, many understand Brown to have ended the era of segregation in America by declaring the constitutional principle that government may not classify on the basis of race. Judicial and popular speakers invoke this Brown, the anticlassification Brown, quite commonly.2 Most recently, the Brown that prohibits classification on the basis of race was prominently cited by proponents of a law that would have outlawed racial data collection by the State of California. Summoning Thurgood Marshalls arguments in Brown, the legacy of Mar-

Constitutional Culture, Social Movement Conflict and the Constitutional Change: The Case of the de facto ERA - 2005-06 Brennan Center Symposium Lecture

Social movements change the ways Americans understand the Constitution. Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding-a dynamic that guides officials interpreting the open-textured language of the Constitutions rights guarantees. To show how constitutional culture channels social movement conflict to produce enforceable constitutional understandings, I consider how equal protection doctrine prohibiting sex discrimination was forged in the Equal Rights Amendments defeat.

Principles, Practices, and Social Movements

Consider two current controversies in American law and politics: the first is whether the expansion of copyright, trademark, and other forms of intellectual property conflicts with the free speech principle; the second is whether government collection and use of racial data (in the census or in law enforcement) violates the antidiscrimination principle. What do these controversies have in common? Both involve constitutional challenges that call into question the legitimacy of existing practices. More importantly, these examples teach us something about how constitutional principles operate. In each case, controversy arises as people apply a longstanding principle to a longstanding practice—a practice that heretofore has not been understood to be implicated by the principle. People exercise creativity by applying the principles to these previously uncontroversial practices, and as they do, they can reshape the meaning of both the principle and the practice. The claim that a longstanding practice violates a longstanding principle draws into question not only the legitimacy of the practice, but also the authority and the scope of the principle. While some argue that the free speech principle delegitimates expansion of copyright terms and other intellectual property rights, others insist that the challenged practice is fully consistent with the free speech principle: restrictions on infringement of intellectual property rights regulate conduct, not speech, and the fair use defense and the idea/ expression distinction adequately protect free speech interests in

Employment Equality Under the Pregnancy Discrimination Act of 1978

Pregnancy discrimination exhibits a coherent social logic. The exclusion of women from employment on the basis of pregnancy perpetuates the sexual division of productive and reproductive labor, thereby confirming womens second class status in the work force. The Pregnancy Discrimination Act of 1978 amends Title VII of the Civil Rights Act of 1964 by clarifying that the Acts proscription of sex-based employment discrimination includes discrimination on the basis of pregnancy.3 The PDA has been construed to require that pregnant employees be treated comparably with others on the basis of ability or inability to work. This Note challenges the sufficiency of a standard of comparable treatment on statutory and broader, equitable grounds.

Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel

t Alexander F. & May T. Morrison Professor of Law, University of California, Berkeley (Boalt Hall). tNicholas deB. Katzenbach Professor of Law, Yale Law School. We would like to express our gratitude to Burke Marshall for sharing with us his recollections of the civil rights history of the early 1960s, and to thank the friends and colleagues who have discussed and debated drafts of this Essay with us as it took shape: Bruce Ackerman, Akhil Amar, Robert Burt, Evan Carninker, Jesse Choper, Michael Dorf, Ariela Dubler, Owen Fiss, Philip Frickey, Barry Friedman, Risa Goluboff, Don Herzog, Larry Kramer, Sanford Levinson, David and Miranda McGowan, Serena Mayeri, Frank Michelman, Paul Mishkin, Rachel Moran, Judith Resnik, Larry Sager, Neil Siegel, Jan Vetter, Jim Weinstein, and John Yoo. We also would like to acknowledge the able research assistance of Heather Elliot, Matthew Segal, and Cathy Shuck, and to express our heartfelt appreciation to Ben Gutman for his extraordinary and wide-ranging contributions to this project. t. The relevant sections of the Fourteenth Amendment provide: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Prejudicial Appearances: The Logic of American Antidiscrimination Law

In Prejudicial Appearances noted legal scholar Robert C. Post argues modern American antidiscrimination law should not be conceived as protecting the transcendental dignity of individual persons but instead as transforming social practices that define and sustain potentially oppressive categories like race or gender. Arguing that the prevailing logic of American antidiscrimination law is misleading, Post lobbies for deploying sociological understandings to reevaluate the antidiscrimination project in ways that would render the law more effective and just. Four distinguished commentators respond to Post’s provocative essay. Each adopts a distinctive perspective. K. Anthony Appiah investigates the philosophical logic of stereotyping and of equality. Questioning whether the law ought to endorse any social practices that define persons, Judith Butler explores the tension between sociological and postmodern approaches to antidiscrimination law. Thomas C. Grey examines whether Post’s proposal can be reconciled with the values of the rule of law. And Reva B. Siegel applies critical race theory to query whether antidiscrimination law’s reshaping of race and gender should best be understood in terms of practices of subordination and stratification. By illuminating the consequential rhetorical maneuvers at the heart of contemporary U.S. antidiscrimination law, Prejudical Appearances forces readers to reappraise the relationship between courts of law and social behavior. As such, it will enrich scholars interested in the relationships between law, rhetoric, postmodernism, race, and gender.