Talk:Critical legal studies

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Looks like someone doesn't like anti-sexual-harassment laws. Star of David.png Radioactive Misanthrope 21:20, 14 December 2009 (UTC)

The proscriptions against quid pro quo harassment are fine, but the hostile environment framework is laid on the basis that (1) there is something grossly wrong with sex, (2) people can be guilty of things without realizing it. Mjollnir.svgListenerXTalkerX 21:26, 14 December 2009 (UTC)
2) is certianly true - "ignorance of the law is no excuse..." ħumanUser talk:Human 21:30, 14 December 2009 (UTC)
There is a difference between not knowing something you did is against the law and not knowing that you actually did something. I was referring to the collective guilt ascribed to companies for having "systemic sexism." Mjollnir.svgListenerXTalkerX 21:36, 14 December 2009 (UTC)

Since this article rests almost entirely on the activities of one Catharine MacKinnon, it might make sense to tell us who she is, and why her opinions and writings matter so much. ħumanUser talk:Human 21:30, 14 December 2009 (UTC)

Also, why is Liebeck v. McDonald's Restaurants supposed to make us laugh? ħumanUser talk:Human 21:30, 14 December 2009 (UTC)

Catharine MacKinnon (radical feminist law professor) wrote the book, literally, on sexual harassment. Her efforts were CLS's most prominent ventures outside the ivory tower.
Liebeck is a blatant counterexample to the idea that large companies can ignore the grievances of average people. Mjollnir.svgListenerXTalkerX 21:36, 14 December 2009 (UTC)
Re C MacK, then please put it in the article. Ideally, make it clear that her ideas are being used to decide cases/make laws, if they are. Also, the point of mentioning Liebeck should be made in the article. ħumanUser talk:Human 22:14, 14 December 2009 (UTC)

[edit] delete/mission

It looks like a bunch of gobshite to me. One person's rant against an undefined law profesor. Move to essay or user space? Or improve like heck quickly? ħumanUser talk:Human 05:22, 16 December 2009 (UTC)

Improvement is welcome. As to your complaint, however, it reads like word salad. Mjollnir.svgListenerXTalkerX 05:25, 16 December 2009 (UTC)
You haven't even "improved" it based on issues raised above. Hence the deletion/rant claim. The article itself is incomplete word salad. Right now it's a one-person pile of crap. If you don't improve it so it makes sense and is clear (who the uck is the professor? Answer in article. Etc.) it will go bye-bye soon. To essay or userspace is fine, but right now this is a piss-poor article. ħumanUser talk:Human 05:33, 16 December 2009 (UTC)
Did you perhaps miss this edit, which was made in direct response to all the above named complaints? As to the "off-mission" complaint, I put that it falls under points 2 and 3 of the mission. Mjollnir.svgListenerXTalkerX 05:37, 16 December 2009 (UTC)
Mybe I did, yes. Crank ideas? To you, maybe. Authoritarianism? Again, to you, maybe. Need to make case in article. It may seem clear to you, but article is still a bit vacant. Removing one of the templates now... ħumanUser talk:Human 06:28, 16 December 2009 (UTC)
Attempts at re-writing the law to bring in entirely new prohibitions and strip out long-standing constitutional protections, without recourse to the constitutionally recognized channels, are facially authoritarian. Most Reds in the present day are also cranks; Prof. MacKinnon in particular because she seems to have spun most of her "observations" a priori out of her own head. [1] Mjollnir.svgListenerXTalkerX 06:51, 16 December 2009 (UTC)
Re-reading this a couple times makes me wonder if it should be moved to "Catharine MacKinnon", since after reading I still don't really know what is unique or on-mission about "critical legal studies", but I know a bunch about her and what she has worked to promote. Oh, I also don't see the connection to "Marxism" implied in the lead, except that you assert she is one. It also seems she does follow constitutional channels as far as the three examples given - she "wins" or "loses" in normal, legal courtrooms. Thoughts? ħumanUser talk:Human 22:25, 16 December 2009 (UTC)
Also I read the liberally-biased WP article on CLS and the name "Marx" does not occur even once. Oddly, it is in our lead as the basic definition of CLS' goals. ħumanUser talk:Human 22:37, 16 December 2009 (UTC)
You should try following a link or two on the Wikipedia page. Critical legal studies applies critical theory to law. Critical theory is a (slightly heterodox) Marxist discipline that aims to make a "quiet revolution" of sorts in society through the means of culture (i.e., counteract the forces of cultural hegemony).
I could make a more detailed criticism of the theory in the article, saying that it presupposes "inequalities" that were completely plucked out of the air, and laboring under this misapprehension aims to install some very real inequalities, but it is easier to prove the point by taking shots at certain disagreeable consequences of the theory. The examples involving Prof. MacKinnon are applications of the theory, and the only ones of such prominence.
The established channels for law are that it is the legislature's job to make new laws (i.e., the legislature has a monopoly on putting new restrictions on people's actions) and the courts' job to determine the constitutionality of those laws (i.e., the courts can remove restrictions deemed to be unconstitutional). All the right-wingers' talk of "judicial activism" is badly misdirected, in that it primarily addresses rulings that do what the courts are supposed to do — strike down unconstitutional laws — and ignores the actual "judicial-activist" rulings that effectively make new laws or "legislate from the bench." Mjollnir.svgListenerXTalkerX 23:48, 16 December 2009 (UTC)

"You should try following a link or two on the Wikipedia page." So to understand this article, I not only have to do what I did (look up and read both her and its articles on WP), but I have to know which links at WP to follow to read more articles until I understand what you are saying?

"I could make a more detailed criticism of the theory in the article" that would be nice - I'm asking that it explain what it is more clearly, and present the critique more clearly. You are slowly writing here what should be in the article, but it's like pulling teeth getting it out of you.

Also, your opinion of what branches of government are constrained to do is oversimplistic. In the US, courts also interpret laws and apply them to particular circumstances. MacKinnon also has worked on issues in many other countries, where the government structures are different. Can you please try to do what offer above and make the article clearer as to what the roots of CLS are, what is "wrong" with CLS and why? Then perhaps your examples will make more sense. Thanks... ħumanUser talk:Human 02:53, 17 December 2009 (UTC)

Just because you cannot comprehend the article, does not mean that others cannot. TheoryOfPractice understood it enough to moderate its tone slightly, which was probably an improvement. I will add a bit more about critical theory, but other than that I think the "Theory" section is adequate.
I have no intention of editorializing excessively in the article about the demerits of the discipline (LTRD and all that), although I will add to the examples to establish the link with CLS principles more clearly.
I did not deny that the courts also interpret laws, but it is of little relevance to the question of expanding or contracting restrictions. However, explicitly re-"interpreting" existing laws blatantly beyond all intent — which involves violating the legal principle of stare decisis — effectively makes new laws. Mjollnir.svgListenerXTalkerX 04:09, 17 December 2009 (UTC)
I'm not stupid guy, LX. I can't even follow the theme of the article from beginning to end. Or couldn't the last few times I tried. For instance, last I checked, it didn't even define its topic. I hope you do add more to make it clearer what is being discussed. "expanding or contracting restrictions" has no real basis in various countries' laws, it's your pet way to define what government can and can't do. You may be correct in a pedantic way, of course, but real world law and government operations are far from pedantic. Your last sentence has nothing to do with the content of the article or the last set of facts it presented. I think you are making a mountain out of a molehill - the SCOTUS decisions giving corporations "human rights" were a far worse precedent in US law than trying to make it so bosses couldn't leer or come on to their employees. Your case is weak and pathetic, unless you can make it better. ħumanUser talk:Human 05:15, 17 December 2009 (UTC)
I did not say that the idea of expanding or contracting restrictions were official ideas in law. However, they are a proper way to look at the constitutional process, and here is why: (1) Everything that is not forbidden by law is permitted. (2) The legislature writes new laws. This can expand restrictions. (3) The courts interpret these laws, and once they have made an interpretation, they are supposed to stick to it (stare decisis). Once the interpretation is made, this has no effect on restrictions. (4) The courts determine if the laws contradict the Constitution, and can strike down laws that do not. Removing a law, according to point (1), only contracts restrictions. Compare: A court could not, by ruling, bring in a prohibition against gay marriage or gay sex, only declare that the legislature is constitutionally permitted to ban them.
My "last sentence" (the one starting with "However, explicitly...", I presume?) is relevant to the article; based on Prof. MacKinnon's work the Supreme Court reinterpreted the Civil Rights Act in just that manner with just that effect.
I am unfamiliar with the rulings giving corporations human rights, so I cannot comment on that. Mjollnir.svgListenerXTalkerX 05:42, 17 December 2009 (UTC)
I think Huamn is mixing up his terms--corporations don't have "human rights," they have the legal status of (artificial) persons before the law. Not quite the same thing. TheoryOfPractice (talk) 06:00, 17 December 2009 (UTC)
My terms may be flawed, but the reality is that corporations in the US now enjoy the protection of the Bill of Rights (etc.) which was written to protect human freedoms. Forgive me if that sounds a bit incestuous ;) ħumanUser talk:Human 06:55, 17 December 2009 (UTC)
Human--I'm being a little nit-picky about terminology only to be a pedantic asshole (one of my fields is the history of HR, so forgive me....)--the important thing, as you point out, is that US corporations enjoy rights as though they were "people," which sucks in a lot of ways...TheoryOfPractice (talk) 15:46, 17 December 2009 (UTC)

[edit] Sex ex x

On the value/disvalue of critical legal studies, I'll plead ignorance. But on the issue of "hostile environments", I'll give you this: I agree that there's nothing wrong with (consensual) sex. I disagree with the idea that the solution to puritanism is overexposure, and expecting everyone to be okay with that (edit: hence the consensual part - sex isn't just physical). No, sex is not sacred, but there really are some things that should not be present in the work place.

A case I remember (vaguely): some guy put up a Hustler (or something like that) calendar in a prominent part of the workplace. A woman who worked there requested that it be removed. The guy who put it up refused, and it of course lead to the usual "What, you don't like that? What are you, some kind of frigid bitch?" talk. First of all, I would be uncomfortable if someone put up a porno calendar in the office/workplace/what-have-you, and I'm a pretty voracious collector of porno. I have no interest in knowing the kinks of my co-workers. Nobody, man or woman, should have that forced on them.

The whole point of pornography is to sexualise a person to the point that that's all they are: a sexualisation (and I'm not talking about erotica here, I'm talking about porn). One gets off on that. Okay, cool. Men do it, women do it. It's not real. But it is a private thing, at least when it's that visceral. What does it say about a guy who puts that up and refuses to take it down, even if he doesn't start calling the sexuality of his accusers into question? He's basically putting up a sign saying "I like titties; women are for titties". I mean, what message exactly is one trying to send, if not that? And how is that anything but hostile? You can plead ignorance, but, come on, you'd have to be pretty fuckin' stupid.

And if he does start putting pressure on the woman who asks him to take it down? And what if all the other men gang up with him and ostracize this woman for her opinion? "Nothing wrong with that, you're just a prude," is the polite defence, I suppose. Well fuck that, if I'm a prude or a slut is none of anyone elses business, and it shouldn't be a factor in the workplace. That's peer pressure. That is a hostile environment. The golden rule is "don't be a dick". Putting porn up at the office, and ganging up on the woman who doesn't like it, is being a dick.

Now, that case was just something I pulled from memory, and I did extrapolate a touch from there. But while I don't think you would advocate putting porno mag clippings up around the cubicle, you can see why I'd be a bit wary when someone puts hostile environment in scare quotes. I get it. There are definitely people who exploit this. There are men who have done absolutely nothing, and they get railroaded on trumped up accusations, or simple misunderstandings. There IS a grey area, and my illustration above is rather clear cut (at least to me). But greyness is true of most legal conflicts. What do you suggest is the alternative here, if not legal recourse? If the company/business refuses to deal with, or all out ignores the guy who's pulling this? I don't mean to sound hostile with that, I'm seriously curious how you'd have someone deal with the above situation.

Whether or not companies should pay out a bazillion dollars is another issue entirely. But there is such a thing as a hostile work environment. It's much more frequent than we'd like to believe in our enlightened society. --IN SOVIET CANUCKISTAN, BEAVER DAMS YOU!!!YossarianThe Man from the USSR 01:00, 17 December 2009 (UTC)

Most decidedly seconded. I’m sorry, ListenerX—I’m sure there are “hostile environment” harassment claims that are unwarranted, but the idea that these cases are, QED, unreasonable puritanical feminazi contrivances is (pardon me for saying so) complete bullshit. If somebody’s being ostracized and demeaned in their workplace because of their gender, and their employer refuses to act, they deserve legal recourse. Period. Christian scientist (talk) 01:34, 17 December 2009 (UTC)
Yossarian, I suggest that you knock off attempts to impose your view of sexuality and smut (which sounds a lot like Andrea Dworkin's) on companies and their workers. I do not particularly appreciate people plastering smut all over the place (and I know several people who do that), but that is not my business.
It is regrettable if someone's co-workers should become hostile to them, but whyever should the law butt in solely on account of such hostility appearing to be on account of something sexual (I stress appearing, because that is one of the major problems with the hostile environment law — these situations are highly subjective), unless the State is holding to a particular view of sexuality and imposing it?
As to my solution for the problem: It is the same one, and the only one, currently employed to deal with hostility at work when there are no politically fashionable factors involved. If you are experiencing hostility from co-workers and the company will not deal with it, you can quit your job.
Christian scientist, laying aside the merits of the law's intent and/or practice for a second, there is also the way these laws were made: written by a woman who was never elected to any legislative office and brought in by judges with no constitutional authority to legislate. I do not blame the judges, who acted within the letter of the law, but instead the lawyers who violated its spirit.
Also, I did not say "feminazi;" I said "communist." Slight difference. Mjollnir.svgListenerXTalkerX 04:46, 17 December 2009 (UTC)
If you are experiencing hostility from co-workers and the company will not deal with it, you can quit your job. —ListenerX
But shouldn't you be able to feel safe in your own workplace? Star of David.png Radioactive Misanthrope 04:51, 17 December 2009 (UTC)
Paranoid people do not feel safe at all. In the U.S. at present, a very puritanical attitude is taken toward sex, which can make such a paranoid person seem "reasonable." Radical feminists are known to boost the "cause" of people whose paranoia centers around sex. Mjollnir.svgListenerXTalkerX 04:57, 17 December 2009 (UTC)
Now you're just being an asshole. If you deny sexual harassment in the workplace is a real issue, you're a fucking nutcase. ħumanUser talk:Human 05:19, 17 December 2009 (UTC)
As I said above, I have no problem with laws against quid pro quo harassment, since they are much more objective. I also recognize that having a hostile environment at work can be a problem, but the way these laws deal with it and the way they were brought in are both unacceptable. Mjollnir.svgListenerXTalkerX 05:23, 17 December 2009 (UTC)
Thanks for not taking my profanity personally. I appreciate that, I was just pissed off, and I'm glad you didn't let that derail the conversation. ħumanUser talk:Human 06:46, 17 December 2009 (UTC)
Dammit, don't be going all rational on me like that! That's just poor form, sir. I got the impression that you didn't think that hostile work places were a real problem. Apologies for misunderstanding, at least on my part. Anyway: Andrea and I are pretty much not on speaking terms, if we ever were. I really have no problem with porn. Sexualising someone isn't necessarily a bad thing; it'd be pretty hard to have sex without that factor. Whacking off to porn is not the cause of society's problems, as many would have us think. I could write you an essay defending pornography, so let's leave Dworkin out of it, alright? Nor do I want to impose my opinion of "smut". I don't even think there really is such a thing as smut, in the negative sense of the word (unless it involves an unconsenting party, but that's pretty much my rule of thumb regarding "good" and "bad" sex). eDiT: What I'm saying is, porn isn't a bad thing, but rather that there's a time and a place, and it's not as clear cut as saying the guy didn't mean to offend someone with his tentacle rape manga pinups. Subjectivity is the whole problem. Porn means one thing to you and me, and another to someone else, and we can't dismiss the other opinion out of hand because it's "puritanical". edit 2, electric--: Actually, intent is the problem, and intent is subjective.
I agree with you that the state should not have a position on the morality of sex. A countrymen of mine said it best: "The government has no business in the bedrooms of the nation." But the bedrooms (semen crusted office chairs, if you will) of the nation and a place of work are two very different things. And this may be where we disagree: whether such a distinction exists. It would be wonderful if sexuality could be something more open in society, and I think one day it will. One day people will be able to put up porn in the office, and no one will care, and it won't be an issue. In a thousand years. Perhaps two. And it may make me sound like a PC policeman, but I really do think the feelings of others count, and that it contributes to running an efficient workplace, or even society. There should be a better protection for women than "you're free to quit, biyotch." You may have a point, that the laws and processes in place (at least in the States) are flawed, but I don't think the inherent idea is wrong. There has to be something in place to even the playing field, and to deal with these issues fairly. Women have come a long way in the past hundred years, but sexism isn't going to go away without some sort of concerted effort. It's all well and good to say that if someone is objectionable, society will eventually boycott them, but that's on awfully optimistic view, in my opinion. I guess this just comes down to a difference of opinion on collective rights and individual rights. --IN SOVIET CANUCKISTAN, BEAVER DAMS YOU!!!YossarianThe Man from the USSR 06:02, 17 December 2009 (UTC)
I do not enjoy porn that shows people who don't look happy. However, even the ones I don't like do not show "scars" or "bruises". Sadly, I do see pron that looks like junkies earning a fix. That make me sad, and of course, makes my erection a flaccid version of its former self (sorry!) So I click on to better porn. People enjoying posing nekkid. ħumanUser talk:Human 07:51, 17 December 2009 (UTC)

(undent)Actually, saying a concerted effort will wipe out sexism is a pretty overly optimistic thing to say, too, but a man can dream. --Purple George!YossieSpring in Fialta 06:18, 17 December 2009 (UTC)

I do not subscribe to the whole "people have a right not to be offended" thing, even if restricted to certain grounds; freedom of speech is useless if you do not have carte blanche to offend people with it.
I also do not subscribe to the idea that smut "sexualizes" or "objectifies" people "to the point that that's all they are;" it is just pictures of people without their clothes on, perhaps in strange poses. If this somehow "reduces" people, you could say the same thing about any photographic advertisement.
"...we can't dismiss the other opinion out of hand because it's "puritanical"." Watch me. Watch the Wiki.
"One day people will be able to put up porn in the office, and no one will care, and it won't be an issue. In a thousand years." Ah, the old "after the revolution" defense.
As to making a better work environment for women, I think the market can do most of the work: a company that has a reputation of providing a good work environment (something that companies have a right to do even without sexual harassment laws) can get the benefit of the best of the female work-force. But whatever the market is capable of, it is quite difficult to make a highly abstract problem of this sort go away by passing laws against it. Mjollnir.svgListenerXTalkerX 06:28, 17 December 2009 (UTC)
I am curious as to where you got "the ends justify the means" (where your external link led to) from "in a thousand years, maybe". Yossarian was merely drawing a hypothesis from an observation, saying "eventually, so and so". ("Eventually" by the way, is the same argument your making in favor of letting "the market" handle it—e.g. eventually the free market will get around to fixing it.) Star of David.png Radioactive Misanthrope 06:45, 17 December 2009 (UTC)
I was knocking communists who claim that certain measures are "temporary" until the Fabulous Communist Utopia is brought in, but the measures turn out to be permanent. Mjollnir.svgListenerXTalkerX 06:52, 17 December 2009 (UTC)
That argument, by the way, really gets on my tits. "Rather than using every tool at our disposal to try and improve people's lives, we decided to sit around and let nature take its course. I mean, eventually it'll get around to fixing itself. I'm sure your grandchildren will thank us for our genius. (You're generation's still screwed, though.)" Star of David.png Radioactive Misanthrope 06:45, 17 December 2009 (UTC)
A lot of people have thought it a bad idea not to cast all other concerns to the wind in pursuit of a certain goal. They have tended to be immoderate fools who promise heaven and deliver hell. Mjollnir.svgListenerXTalkerX 06:49, 17 December 2009 (UTC)
Are we "casting all other concerns to the wind"? That we don't know all the potential consequences of a specific government action is an argument for caution, not an argument for throwing our hands up in the air and waiting for the problem fix itself. Star of David.png Radioactive Misanthrope 07:08, 17 December 2009 (UTC)
Oh, and I find the argument that "bad things might happen if we do something, so let's do nothing", to be pretty lacking when when weighed against "bad things are happening, so we ought to do something". Star of David.png Radioactive Misanthrope 07:08, 17 December 2009 (UTC)
Reds are very single-minded that way. With the anti-smut ordinance its proponents were thumbing their nose at free speech and State neutrality. With the sexual harassment law the disregarded concerns were freedom of association, the freedom for companies to agree with workers and unions on whatever workplace policy they saw to be the best, etc. In both instances, democratic process was given short shrift.
As far as Marxist policy is concerned, the argument is more, "Bad things will happen if we listen to them, as they always have." On the other hand liberal laws have actually made accomplishments in this area. Mjollnir.svgListenerXTalkerX 07:20, 17 December 2009 (UTC)
Who are these "reds" you are so angry at? Also, have you ever studied Marxist analysis (there's a huge difference between "Marxist policy" and "Marxist analysis"), or do you just hate communists (like Jesus)? PS, there's a red under your bed! ħumanUser talk:Human 07:44, 17 December 2009 (UTC)
Way to ruin my Red-Under-His-Bed gag, Human! Now he won't be surprised. Listener, pretend you're surprised when Marx jumps out at you! And don't steal his beard. --sloqɯʎs puɐ suƃısuɐɪɹɐssoʎ 07:58, 17 December 2009 (UTC)
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