2010 Issue

Behind the Law of Marriage (I): From Status/Contract to the Marriage System

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By Janet Halley

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Is marriage status or contract?  The two legal forms stand in contemporary legal thought as ideal-typical opposites, the two poles of a gradient or spectrum along which marriage moves. Thus, at least five contemporary family law casebooks pose the question whether marriage is status or contract, and then supplant that question by others that render it some mix of both, typically through the question of the enforceability of an antenuptial contract.  Thus marriage is status, but with elements of contract.  Depending on how many elements of contract we add, marriage moves down the spectrum towards contract. But everyone tacitly agrees that it can never go all the way, because some aspects of marriage are ineradicably different from ordinary contracts. It is status plus some fragmentary elements of contract.

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The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987 – 2009

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By Itamar Mann and Omer Shatz

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This article traces the history of the regulation of torture in Israel, and shows how it foreshadowed the legal understanding of torture in the United States in the wake of “The War on Terror.”  Part I of the article demonstrates how the celebrated Israeli Supreme Court decision in Public Committee v. Israel, traditionally understood as a bold prohibition of torture, should instead be seen as institutionalizing and managing torture. Since Public Committee, the Israeli executive and the judiciary worked hand in glove to protect this regime, which we label necessity management. Part II of the article revisits the Landau Commission, convened to investigate torture in the Israeli security services, which ultimately legitimated physical interrogation techniques. We argue that the roots of necessity management, which developed after Public Committee, are already spelled out in the Landau Commission report. These rules emerge from the needs of preserving an undemocratic regime of military occupation. Public Committee, in which the Israeli Supreme Court seemingly struck down the Landau Commission’s conclusions, actually cleared the way for implementing these conclusions behind a veil of prosecutorial discretion. Part III articulates some of the theoretical assumptions underlying the regime of necessity management. We argue that this regime, which originated in the undemocratic political context of occupation, foreshadowed protections for torturers under the Bush and the Obama administrations.

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For Those Considering Law School

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By Dean Spade

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I get several emails every week from people who want to go to law school or are trying to figure out if they want to go to law school.  Most are queer or trans activists or people who want to somehow transform the world and end various harmful and horrible dynamics impacting people and communities they are a part of or care about.  Because I talk on the phone or in person to many of these people and end up saying a lot of the same things to them, I thought it might be useful to write them down.  In general, these conversations are focused on helping them get past the national narratives we have all been fed that tell us that legal cases are the most effective way to dismantle systems of oppression and change people’s lives.  If we compare that idea to what is really happening in the world and what social movements are strategizing about, we find a more complicated relationship between law and social movements that raises questions about whether, when and how becoming a lawyer could be a good way to participate in transformative change.

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