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23 Kasım 2020 Pazartesi

Witt Reviews Holdren's "Injury Impoverished"

Witt Reviews Holdren's "Injury Impoverished"

John Fabian Witt, Yale Law School, has posted Radical Histories/Liberal Histories in Work Injury Law, a review forthcoming in the American Journal of Legal History of Nate Holdren’s Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era:

Nate Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. According to Holdren, work injuries were at their core a form of labor exploitation. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way 19th-century tort law actually worked. He calls for an impossibly demanding form of "justice as recognition" from the law. He misses the ways in which workers co-opted new forms of accident law and turned them to their own interests. And his single-minded focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work injuries.

--Dan Ernst

23 Eylül 2020 Çarşamba

Barzun on MacKinnon

Barzun on MacKinnon

Charles L. Barzun, University of Virginia School of Law, has posted Catharine MacKinnon and the Common Law:

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.

This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

--Dan Ernst

14 Ağustos 2020 Cuma

Weekend Roundup

Weekend Roundup

  • Over at Strict Scrutiny, Adam Cohen is interviewed about his book Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck.
  • The 13th annual Court History and Continuing Legal Education Symposium, “An Election Fraud Case for the Ages: U.S. v. Aczel,” will take place in a virtual session Friday, Nov. 20 from 4 to 5 p.m.  Journalist Sasha Issenberg will explore the story behind U.S. v. Aczel, a trial in federal court of the mayor, chief of police, and other prominent officials in Terre Haute, Indiana, for voter suppression in 1914.  More.
  • ICYMI: Martha Jones's search to find out if her grandmother voted (NYT), and Felice Batlan discovers that her great-grandmother lost her US citizenship under the Expatriation Act of 1907 (WaPo).  Garrett Epps on birthright citizenship and Kamala Harris (The Atlantic).
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.