Robin L. West

A Comment on Consent, Sex, and Rape

During the last 25 years, rape law has undergone a profound transformation, as the articles in this symposium clearly show. To mention just three of the more striking doctrinal reformations: All states have repealed the most egregious aspects of die marital rape exception; most have abandoned the “utmost resistance” requirement; and all have enacted rape shield laws to protect complaining witnesses from intrusive inquiries into their sexual history. All three reforms were the product of feminist agitation, all three were aimed toward the general end of redirecting rape law toward the protection of womens, rather than mens, interests, and all three did, to some degree, broaden and democratize the scope of the laws protection: Wives, prostitutes, promiscuous girls, and women not inclined to risk their deaths by fighting off their rapists “to the utmost” are now protected by the law of rape against sexual assault, at least in theory, and at least to the same degree as non-wives and non-prostitutes, fighters, and virgins. All of this, virtually every contributor to this symposium agrees, is very much to the good.

Comments on Roger Cotterrell's Essay, 'The Struggle for Law: Some Dilemmas of Cultural Legality'

First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell as arguing, first, that traditional Anglo-American jurisprudence has not sufficiently theorised the role of culture and cultures, second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations, and third, that one possible way for law to contribute constructively to a moral and peaceful multicultural society would be to conceive of itself not just as an instrument for the fulfillment of private and conflicting individual purposes, not just as the target of passions from a more-or-less unified culture, but rather, as a means of respectful communication between cultures, albeit one that imposes individualist and liberal side-constraints on the conversation so fostered: to wit, that the law itself, and its parts, must be rigorously respectful of the autonomy and decency of all individuals, and must demand as much from citizens. I am sympathetic to all three prongs of this project. I agree entirely that jurisprudence has not well theorised the cultural; I agree that some of the strains in the general facade of liberal legalism are a result of multicultural forces and aspirations; and I am happy to share in the call for legal doctrine that is civil and respectful. So in these comments, I will just voice some worries about the overall thrust of the project, and offer some friendly amendments. The worries are threefold: the first is jurisprudential, the second is political and the third might best be called aspirational.

Comment: Rationality, Hedonism, and the Case for Paternalistic Intervention

Let us take, as a starting assumption, the Benthamic understanding of the point of law: We should make laws that will increase the overall happiness of the people whose lives are affected by them. But how should we go about doing that? And more particularly, what role, if any, should our held desires play in the task of ascertaining the content of our happiness? And when, if ever, should we defer to the desires of the affected masses, and when should we not, in determining what will or will not promote happiness? The classical, or “hedonic,” utilitarians of the eighteenth and nineteenth centuries suggested a number of answers to these related questions, of which I will mention two.

In Praise of Richard Weisberg's Intransigence

Abstract The article defends and celebrates Richard Weisbergs current brief for intransigence, in part by revisiting his early and groundbreaking reading of Billy Budd, Sailor.

Constitutional Culture or Ordinary Politics: A Reply to Reva Siegel

Reva Siegel’s lecture, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA,’ explores the interaction between the courts and social movements in creating constitutional meaning. In the primary part of this response I focus my comments on Siegel’s three major contributions: First, the historical explanation of the source of the Court’s authority in the development of the so-called de facto ERA; second, the articulation of a general, jurisprudential thesis regarding social contestation as a source of constitutional authority apart from text, history, and principle; and third, the quasi-sociological descriptive account of the form social contest must take to be juris generative. I find Siegel’s historical interpretation, jurisprudential thesis, and sociological analysis compelling, and in this response I offer thoughts on how Siegel’s basic thesis might be expanded and strengthened. The subsequent part of this response raises some questions and doubts about Siegel’s underlying invitation in this lecture: an invitation to social activists, whether or not legally trained, to participate more frequently and self-consciously in the umbrella of social processes commonly referred to as “popular constitutionalism.” While we should worry – as the popular constitutionalists do – about the Supreme Courts outsized role in the development of constitutional meaning, it does not necessarily follow that we should transport those constitutional modes of thought into our politics. Instead, the more sensible response to the hubris and over-reach of the Supreme Court’s monopolization of constitutionalism in this culture may be to give ordinary politics long overdue respect. To do so, it might sometimes be wise to curb our inclination to cast political views and values in the framework of constitutional argument.

Breaking the Abortion Deadlock? Twenty-Five Years After Roe v. Wade

A quarter-century has passed since the U.S. Supreme Court decided Roe v. Wade in 1973. In recognition of the intense debates that continue to surround the question of abortion rights, the editors present the following forum, based on Eileen McDonaghs recent book, Breaking the Abortion Deadlock, published by Oxford University Press. The discussion was first presented at the 1997 Meetings of the American Political Science Association in Washington, D.C., on a panel moderated by Sue Davis, University of Delaware.