The University of Chicago Law School Faculty Blog

Student Blogger - Is Feminism A Live Issue?

Last week Judge Posner and Professors Nussbaum and Case faced off in a much-anticipated debate entitled "Posner Answers the Feminists" (moderated by Professor Stone). The talk (which you can listen to here) was inspired by articles written by Nussbaum and Case for a Symposium published by the University of Chicago Law Review commemorating Posner’s 25 years on the bench.  Both professors wrote on the topic of Posner’s sexual harassment jurisprudence. See here for Case’s article and here for Nussbaum’s.

But what began as a discussion about specific sexual harassment opinions seemed to transform into a debate over the state of feminism in the United States. Posner questioned whether feminism is still a "live issue" in the United States given his view that women are outperforming men at all educational levels and forging ahead in all professions, including in the military. In Posner’s words, women are now dropping bombs on people "just like the boys." "If that isn’t equality," he joked, "I don’t know what is."

Student Blogger - Chicago’s Best Ideas: Martha Nussbaum and Judge Diane Wood, "Constitutions and Capabilities: A Dialogue about Political Philosophy and the Judge’s Role"

Update: Audio of this talk is now available, and video of the talk is embedded after the jump.

A perception exists that little communication occurs between the ivory tower of legal academia and the trenches of legal practice. The Chicago's Best Ideas talk on Monday, February 2 tried to bridge this gap by "making philosophy confront reality," according to Professor Martha Nussbaum, the first speaker. Nussbaum started building the bridge on the philosophical side, extending her remarks into the legal implementation of her philosophy, and Judge Diane Wood of the Seventh Circuit started on the legal side, extending into the hopes for applying a coherent philosophy to decisionmaking.

Arnold Wolf, 1924-2008

On Tuesday, December 23, one of Hyde Park’s towering figures, Arnold Jacob Wolf, Rabbi Emeritus of temple K. A. M. Isaiah Israel, died, apparently of a heart attack, at the age of eighty-four. Arnold, however, was only one year into his adulthood, since (raised at a time when Reform Jews did not approve of the bar mitzvah) he had just celebrated his own coming-of-age, his bar mitzvah, at the age of eighty-three.And this was emblematic of Arnold’s later years. “Life begins at seventy,” he used to say, and indeed he seemed to become more joyful, more free of stress and inner tension, as the years went by.

It’s difficult to capture Arnold in words, because the reality was so much larger, so much funnier, so much more improbable, than any fiction could be, even one written by a writer far more gifted than I.Still, to try to put him before people who didn’t know him, and to remind those who did know him of what they loved and lost in him, seems like something that has to be tried.

If you saw Arnold for the first time, you might think you were looking at one of those trolls of middle-European fairy tales, a short, round, white-bearded Rumplestilkstin whose gruff, almost snarling voice seemed suited to a character of that cantankerous sort. But whereas Rumplestiltskin, consumed by dislike and envy, had, I imagine, dull guarded eyes, Arnold’s sparkled, and you could see in them such variegated colors of love, for all the people, young and old, whom he reproved, chastised, and even mocked. (“Religion is a serious business,” he would say, “but this congregation is a joke.”) Rabbi Eugene Borowitz, his contemporary, said at the funeral that Arnold was first and foremost a lover – and then he added, “To love Jews is no small accomplishment.”You saw that accomplishment in the eyes first, because it consisted above all in a willingness to see the other person as the person was, and, at the same time, in a willingness to be seen, faults and all. There was no critique of Arnold that he did not make first and most trenchantly himself.

Martha Nussbaum: "A Cloud Over India's Muslims"

(This post was published as an op-ed article in yesterday's Los Angeles Times. You can also read William Kristol's critique of the piece in the New York Times.)

If, as now seems likely, last week's terrible events in Mumbai were the work of Islamic terrorists, that's more bad news for India's minority Muslim population. Never mind that the perpetrators were probably funded from outside India, in connection with the ongoing conflict over Kashmir. The attacks will feed a powerful stereotype of the violent and untrustworthy Muslim, bent on religious conquest, who can never be a good democratic citizen. Such stereotypes already shadow the lives of Indian Muslims, who make up 13.5% of the population.

But it's important to consider Indian terrorism in a broader context.

Terrorism in India is by no means peculiar to Muslims. A string of recent incidents has been linked to Islamic groups, most of these with foreign ties and pertaining to Kashmir. However, the most bloody recent example of terrorism in India was the slaughter of as many as 2,000 Muslim civilians by Hindu right-wing mobs in the state of Gujarat over several months in 2002.

Martha Nussbaum on Women in the Campaign and the Court

(This piece was originally published in the Philadelphia Inquirer on November 24. It is reposted here at the request of Professor Nussbaum, who welcomes discussion on the subject in this forum.)

Thomas Jefferson liked women - up to a point. They were fine as wives, daughters or mistresses, but they had better not try to enter the political realm.

"Were our state a pure democracy," he wrote to a friend in 1816, "there would yet be excluded from their deliberations . . . women, who, to prevent depravation of morals and ambiguity of issue, should not mix promiscuously in the public meetings of men."

Such "ideas" die hard. When I was elected as the first woman in Harvard's Society of Fellows in 1972, a prestigious classical scholar wrote to me that he didn't know what to call a female fellow. Perhaps the ancient Greek language could solve the problem, he suggested. Since hetairos is Greek for fellow, they could just call me hetaira.

As he and I knew well, however, hetaira was also the Greek word for high-class prostitute.

Such "jokes" reinforced the old Jeffersonian stereotype: Women are frivolous, distracting beings, all about sexuality, so they'd better not go near those important public gatherings.

The Theoretical Basis of Animal Entitlements: A Response to Christine Korsgaard

We are all enormously grateful to Christine Korsgaard for her characteristically lucid and insightful lecture on the basis of animal entitlements.  Her paper will be appearing in the Handbook on Ethics and Animals, ed. T. Beauchamp, Oxford University Press, alongside a paper of mine in which I sympathize with many of her major conclusions and with her critique of Utilitarianism, but then reflect on subtle differences between her Kantian position and my own neo-Aristotelian position.  I post here three sections of that forthcoming paper (whose title is "Animal Thinking and Animal Rights").  I hope this exchange will give readers a richer sense of the theoretical options in this area and also of the important distinction (important to both Korsgaard and me) between an ethical view and a political view:

Equality and Liberty: a Reply to Richard McAdams

Richard McAdams's forceful reply requires me to clarify my view about the relationship between non-establishment and liberty.   First of all, I do not hold that equality is the only value protected by the Religion Clauses.  Throughout my book I emphasize that liberty must be understood to be a separate value.  We could satisfy equality by a regime in which nobody had very much liberty, and that would be a very bad regime.  Consider, as an analogue, the treatment of sexual orientation under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  According to Justice O'Connor, in her concurring opinion in Lawrence v. Texas, sodomy laws should be struck down because they offend against equality (in the sense that the Texas law was limited to same-sex acts).  The majority opinion, authored by Justice Kennedy, argues (following the analysis proposed by Lawrence Tribe), that liberty is the key value, and that the Due Process Clause is its home: we do not want a regime in which all have equal sexual liberty but nobody has very much of it.  (Justice O'Connor did not actually reject that idea, since her point was that equality grounds sufficed to throw out the sodomy law in question, and that this narrower ground would not require the Court to overrule Bowers v. Hardwick: so she may not ultimately have disagreed with Justice Kennedy's analysis, she just thought it was too much too soon.)

Perfectionist Liberalism and Political Liberalism: A Response to Joseph Raz

Joseph Raz's views are the finest example, in the philosophical literature, of what we might call comprehensive liberalism, a type of liberal political doctrine that spells out comprehensively what the key values in human life are, advocating political principles and institutions that are built upon these values.  (John Stuart Mill probably held a similar view, but he does not spell it out with nearly Raz's explicitness and detail.)  For Raz, the key personal and political value is autonomy, a power of self-direction and self-government.  To this, in his paper for our workshop, he links the acceptance of moral pluralism: one ought to believe, he says, that there are many incompatible ways of living, all of which are good and valuable.  Religious and secular toleration, he argues, should be based on an acceptance of the ideal of autonomy and the truth of moral pluralism.

The major alternative to Mill's and Raz's comprehensive liberalism, in the philosophical literature, is the view called "political liberalism."  This view was developed first by Charles Larmore in The Morals of Modernity, but in greatest detail by John Rawls in his great book Political Liberalism.  I too hold a view of this type: my books Women and Human Development and Frontiers of Justice articulate my own political views (quite different from those of Rawls and Larmore) in the form of a species of political liberalism.  So it seems worth exploring the reasons that led the three of us to prefer political liberalism to a view of Raz's type.

Equality and Establishment: Reply to McAdams

Richard McAdams has written a wonderful post that challenges me to clarify and further elaborate my theory of the Establishment Clause, as elaborated in my recent book Liberty of Conscience.   

Two prefatory remarks.  First, I do not think that the various policies flowing from the Establishment Clause are merely instrumental to equal respect.  I believe that they are concrete expressions of the idea of equal respect.  Equal respect as a political value has little force unless and until it is cashed out in the form of concrete constitutional principles, and the interpretation of those principles.  But these principles embody equal respect, in much the way that an expression of love embodies (and is not just a means to) love.

Second, I think that most recent Establishment Clause doctrine is on the right track (at least until we get to the disturbing issue of standing, where I believe the Seventh Circuit was entirely correct and the Supreme Court dangerously in error in Hein, an issue I take up in my 2006 Supreme Court Foreword in the 2007 Harvard Law Review).  At one point, with cases such as Grand Rapids and Aguilar, I believe that the Court went too far in the direction of understanding separation to be a value in itself; along with later cases such as Agostini (which overrruled Aguilar), I criticize those few earlier cases, arguing that the "entanglement" prong of the Lemon test is potentially quite misleading if taken in isolation from other more fundamental values (as Justice O'Connor consistently asserted).  Separation, I argue, is not a fundamental value in itself: it must be made sense of in terms of more fundamental values such as liberty and equality.  Nobody wants total separation of church and state: we all believe that a burning church should get the aid of the fire department, that the public water system should serve churches as well as secular buildings, and so forth.  Why? Because we see that it would be utterly unfair to deny churches basic public services that everyone else gets.  How much separation do we want, and of what sort, and where: these are the questions we need to ask.  My book argues that we can only answer them with recourse to the more fundamental values. 

Student Blogger - Martha Nussbaum: Liberty of Conscience

At the first official meeting of the Law and Philosophy Workshop, held on Monday, Martha Nussbaum presented selections from her recent book, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality.

The first part of the reading provided an introduction to Nussbaum’s thesis that equal respect is the best way to think about religious liberty. She opens with two important Supreme Court religion cases, one construing the Free Exercise Clause and the other construing the Establishment Clause. In Sherbert v. Verner, the Court held that it was impermissible to deny unemployment benefits to a woman who could not find suitable work due to the fact that her religion’s day of rest was Saturday, not Sunday. In County of  Allegheny of v. ACLU, the Court distinguished two holiday displays inside and outside of a courthouse. The outdoor display, an oversized menorah near a decorated Christmas tree, was framed as a “salute to liberty.” The indoor display was a traditional nativity scene including an angel carrying a sign: “Gloria in Excelsis Deo.” The Court held that the second display was an unconstitutional establishment of religion, but the first was not. In both of these cases, Nussbaum sees an animating principle of equality. A large component of the injustice involved in forcing Mrs. Sherbert to choose between her job and her religion is the fact that this is a choice that other religious people did not have to make because the local employers’ policies already accommodated them. The Court saw the denial of unemployment benefits as a tax or fine on Mrs. Sherbert’s free exercise of religion and would not allow it. In Allegheny, the Court was concerned with whether the displays endorsed a particular religion. The problem with endorsement, or establishment, of religion is that it sets up a hierarchy. It is an announcement that those who are not members of the endorsed religion are less than full citizens of the community that endorses it. It says, “This is what we believe. If you do not believe this then you must not be one of us.”