Faculty Scholarship Digest

September 2010

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Article

Martha  Chamallas

Martha Chamallas, Past as Prologue: Old and New Feminisms, 17 MICH. J. OF GENDER & L. 157 (2010).

This article is the printed version of a speech Martha gave at the University of Michigan as part of a symposium on the present and future of feminist legal theory. Drawing on a taxonomy of feminist legal theories articulated by Rosalind Dixon, Martha surveys first the current state of what she calls the “Big Three” feminisms (liberal, dominance, and cultural) and the “New Three” feminisms (partial agency, intersectional, and postmodern/post-structural). The first part of the article points to the continuing relevance of each of the Big Three; whether or not expressly invoked by theorists and advocates, Martha argues, each continues to bring critical insight and, sometimes, change. With regard to liberal feminism and its emphasis on equal treatment, Martha points to the Lilly Ledbetter Fair Pay Act. With regard to cultural feminism, Martha highlights important recent changes in family leave policies and Equal Employment Opportunity Commission guidance on treatment of caregivers. With regard to dominance feminism, Martha points to scholars who highlight the importance of pornography to the internet and cyberlaw.

Turning to the New Feminisms, Martha positions partial-agency feminism as a challenge to “the premises of both dominance and cultural feminism” that stresses “possibilities for the exercise of women’s sexual agency, rather than focusing principally on . . . victimization.” This brand of feminism challenges characterizations of sex as dangerous and illegitimate, as well as the legal consequences of such characterizations. Intersectional feminism, in turn, “resists finding commonalities among all women,” paying close attention to the intersection of gender with race, class, age, and other characteristics. Martha sees in this strand the “promise of diversifying the feminist movement and keeping feminism relevant.” Post-modern feminists “target sex-based categories” by rejecting “the still-dominant conception that the sexes are opposite” and that the categories “men and women” can neatly sum things up. While noting that these scholars often “presume that the law is the problem” and have a “deregulatory impulse,” Martha also points to some powerful effects postmodern feminism has had in sexual harassment law. For the future, Martha predicts continued growth and relevance for postmodern feminism and intersectional feminism. With regard to the latter, she sees a connection to programs that john powell describes as “Targeted Universalism;” solutions that are “framed in universal terms,” but capture how “people are differently situated, and targets those who are the most marginalized.” As an example, she points to certain proposed changes to the Family Medical Leave Act.


Book

John B. Quigley

John Quigley, THE STATEHOOD OF PALESTINE (Cambridge Univ. Press 2010).

Is Palestine a state? The question is obviously a politically powerful one, as seen in the Palestinian reassertion of statehood in the past quarter century. The question also has important legal consequences; for example, the question arises with regard to the International Criminal Court’s jurisdiction to investigate war crime allegations in Gaza and in civil suits in which defendants seek sovereign immunity under a claim of Palestinian statehood. In this book, John argues that Palestine (which, at the time of World War I, was territory within the Ottoman Empire) became a state at the time of the League of Nation Mandates of 1924, which also established statehood for Syria and Iraq, and remained a state although it lacked independence, had its territory administered by different states and set in different configurations. In constructing this view, John examines not only the history of Palestine, but also the remarkably murky question of what constitutes a state. As John notes, quoting another scholar, “the creation of a state [is] ‘a mixed question of law and fact.’”

Following an introductory overview, the book follows a chronological course, carefully charting the treatment of Palestine from the League of Nations Mandates in the 1920's, through the continued administration by Britain as other “Mandates” became independent (e.g., Iraq in 1932, Lebanon in 1941 and Syria in 1946), through the establishment of Israel, the creation of the Palestinian National Council (“PNC”) and the Palestinian Liberation Organization, the 1967 war, subsequent international actions and negotiations, the PNC’s 1988 declaration of independence, to the present stage of “Palestine in the new century.” At each step, John applies the factual history he describes to the soft criteria relevant to determining statehood, in support of his thesis that Palestine became and remained a state. The final part of the book addresses the broader issue of what constitutes a state, discussing the Montevideo criteria established by treaty in 1933 (“The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other states”) and their application to these facts. John concludes that they do support his argument that Palestine has been a state since the 1920's, but also questions their efficacy in the context of belligerent occupation and whether they “are applied with any rigor in the actual practice of the international community.”


Tribute

Deborah Jones Merritt

Deborah Jones Merritt, Tribute to Retired Chief Justice Ruth V. McGregor, 42 ARIZ. ST. L. J. 375 (2010).

In this contribution to a law review issue honoring Arizona Chief Justice Ruth McGregor upon her retirement from the bench, Debby recounts her experience with the future Justice McGregor when they shared the role of first clerks to a female United States Supreme Court Justice. Debby recounts how Justice McGregor (who took the unusual step at that time of leaving a thriving law firm practice to serve as a law clerk) was initially mistaken for Justice O’Connor while walking with her co-clerks around the Court prior to Justice O’Connor’s confirmation, because even in 1981 “[t]here simply were not many other women over thirty wearing suits inside the Court.” The tribute continues with a description of some of future Justice McGregor’s important contributions during her clerkship year.