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Articles 1 - 5 of 5
Full-Text Articles in Law and Society
Beyond Equality And Discrimination, Martha Albertson Fineman
Beyond Equality And Discrimination, Martha Albertson Fineman
Faculty Articles
The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the …
Vulnerability And Social Justice, Martha Albertson Fineman
Vulnerability And Social Justice, Martha Albertson Fineman
Faculty Articles
This Article briefly considers the origins of the term social justice and its evolution beside our understandings of human rights and liberalism, which are two other significant justice categories. After this reflection on the contemporary meaning of social justice, I suggest that vulnerability theory, which seeks to replace the rational man of liberal legal thought with the vulnerable subject, should be used to define the contours of the term. Recognition of fundamental, universal, and perpetual human vulnerability reveals the fallacies inherent in the ideals of autonomy, independence, and individual responsibility that have supplanted an appreciation of the social. I suggest …
Vulnerability And Inevitable Inequality, Martha Albertson Fineman
Vulnerability And Inevitable Inequality, Martha Albertson Fineman
Faculty Articles
The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence and self-sufficiency. This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in …
The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine
The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine
Faculty Articles
This Article proceeds as follows. It begins in Part I by presenting the structural and case-based factors that scholars have identified as relevant to prosecutorial decision-making in the United States. Part II considers the existing social science research documenting the relationship between intimacy and criminal Justice treatment. Part III explains the empirical study of California prosecutors on which this Article's data and conclusions are based. After introducing California's statutory rape prosecution program in Part IV, the Article describes in Part V how the program's underlying rationale led to the development and deployment of prosecutorial assessments of intimacy and exploitation in …
The Social Foundations Of Law, Martha Albertson Fineman
The Social Foundations Of Law, Martha Albertson Fineman
Faculty Articles
There are several important questions to ask both our politicians and ourselves as we seek to refine and further define an otherwise abstract commitment to substantive equality with which to replace our current formal version. As with many concepts of historic magnitude, some of the most significant questions to pose about equality have to do with how we should respond to evolutions in understanding and changes in aspiration for the term: ls a mere commitment to formal equality sufficient for a humane and modem state? How should the state respond to the fact that our society is increasingly one in …