Aya Gruber

Neofeminism

Aya Gruber — Tue, 16 Aug 2011 22:30:47 PDT

There is a new feminist movement afoot―one that is firmly committed to women’s empowerment and yet self-reflective and critical. Many of today’s feminist legal scholars are seeking innovative ways to better the legal, social, and economic status of women while simultaneously questioning some of the more troubling moves of second-wave feminism, such as the tendency to essentialize the woman’s experience, the turn to authoritarian state policies, and the characterization of women as pure objects or agents. Distinct from post-feminists, these “neofeminists” prioritize women’s issues, but do so in a way that evidences a strong commitment to distributive justice and a recognition that subordination exists on multiple axes. In defining neofeminism, this article examines how the troubling nature of certain second-wave feminist principles engendered new schools of feminist thought. It then illustrates this process in the domestic violence reform context. The article concludes that recognizing a new and vibrant progressive feminism can counter the claim that feminism is dead, the belief that feminism has been devastated by postmodern critique, and the appropriation of the feminist label by conservative women’s groups.

An Unintended Casualty of the War on Terror

Aya Gruber — Tue, 09 Mar 2010 17:13:40 PST

As the dust of the Bush administration’s war on terror settles, casualties are starting to appear on the legal battlefield. The United States’ human rights reputation and the Supreme Court’s international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration because in fact it handed down several opinions setting limitations on the administration’s treatment of terror detainees. While these cases, notably Hamdan v. Rumsfeld, set forth domestic law limitations, their conspicuous effort to avoid giving the Geneva Conventions the force of law served to confirm world opinion that the Supreme Court is “out of step.” This Essay demonstrates how the Court’s avoidance of the treaty status issue in Hamdan not only contributed to the perception of American legal exceptionalism but also paved the way for the single most anti-international opinion in Supreme Court history, Medellín v. Texas. In Medellín, the Supreme Court adopted a legal stance that creates near impassable barriers to the domestic enforcement of treaties. Nonetheless, as President Obama ruminates on maintaining military tribunals and courts brace for another round of terrorism cases, the Supreme Court may yet have a chance to narrow the reach of Medellín, confirm the enforceability of the Geneva Conventions, and restore its international influence.

A Distributive Theory of Criminal Law

Aya Gruber — Mon, 22 Feb 2010 17:43:41 PST

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment―retributivism and utilitarianism. The multitude of moral claims about punishment can thus be reduced to two propositions: (1) Punishment should be imposed because defendants deserve it; and/or (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare. This paper demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide and makes sense of current victim-centered reforms. Understanding much of modern criminal law as distribution highlights an interesting political contradiction. For the past few decades, one, if not the most, dominant political message emphasizes rigorous individualism and holds that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another. But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims. Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.

Rape, Feminism, and the War on Crime

Aya Gruber — Thu, 19 Feb 2009 16:05:16 PST

Over the past several years, feminism has been increasingly associated with crime control and the incarceration of men. In apparent lock step with the movement of the American penal system, feminists have advocated a host of reforms to strengthen state power to punish gender-based crimes. In the rape context, this effort has produced mixed results. Sexual assault laws that adopt prevailing views of criminality and victimhood, such as predator laws, enjoy great popularity. However, reforms that target the difficulties of date rape prosecutions and seek to counter gender norms, such as rape shield and affirmative consent laws, are controversial, sporadically-implemented, and empirically unsuccessful. After decades of using criminal law as the primary vehicle to address sexualized violence, the time is ripe for feminists to reassess continued involvement in rape reform. This Article cautions feminists to weigh carefully any purported benefits of reform against the considerable philosophical and practical costs of criminalization strategies before making further investments of time, resources, and intellect in rape reform. In advancing this caution, the Article systematically catalogues the existing intra-feminist critiques of rape reform and discusses reasons why these critiques have proven relatively ineffective at reversing the punitive course of reform. The Article then crafts a separate philosophical critique of pro-prosecution approaches by exposing the tension between the basic tenets of feminism and those animating the modern American penal state. Finally, it discusses why purported cultural and utilitarian benefits from rape reform cannot outweigh the destructive effect criminalization efforts have on feminist discourse and the feminist message. The Article concludes that feminists should begin the complicated process of disentangling feminism’s important stance against sexual coercion from a criminal justice system currently reflective of hierarchy and unable to produce social justice.