Imagining New Legalities: Privacy and Its Possibilities in the 21st Century (The Amherst Series in Law, Jurisprudence, and Social Thought) - Hardcover

Hardcover

ISBN 10: 0804777047 ISBN 13: 9780804777049

Verlag: Stanford University Press, 2012

Inhaltsangabe

Imagining New Legalities reminds us that examining the right to privacy and the public/private distinction is an important way of mapping the forms and limits of power that can legitimately be exercised by collective bodies over individuals and by governments over their citizens. This book does not seek to provide a comprehensive overview of threats to privacy and rejoinders to them. Instead it considers several different conceptions of privacy and provides examples of legal inventiveness in confronting some contemporary challenges to the public/private distinction.

It provides a context for that consideration by surveying the meanings of privacy in three domains--the first, involving intimacy and intimate relations; the second, implicating criminal procedure, in particular, the 4th amendment; and the third, addressing control of information in the digital age. The first two provide examples of what are taken to be classic breaches of the public/private distinction, namely instances when government intrudes in an area claimed to be private. The third has to do with voluntary circulation of information and the question of who gets to control what happens to and with that information.

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Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Lawrence Douglas is James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College. Martha Merrill Umphrey is Professor of Law, Jurisprudence, and Social Thought at Amherst College.

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Imagining New Legalities

Privacy and Its Possibilities in the 21st Century

Stanford University Press

Copyright © 2012 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-7704-9

Contents

CONTRIBUTORS............................................................................................................................................................xiIntroduction: Change and Continuity—Privacy and Its Prospects in the 21st Century AUSTIN SARAT, LAWRENCE DOUGLAS, AND MARTHA MERRILL UMPHREY.....................1Disenchanting the Public/Private Distinction KATHRYN ABRAMS............................................................................................................25The Law of Play ARIELA R. DUBLER.......................................................................................................................................62Coming to the Community ROBIN FELDMAN..................................................................................................................................84Configuring the Networked Citizen JULIE E. COHEN.......................................................................................................................129Adversarial Legalism and the Emergence of a New European Legality: A Comparative Perspective ANTHONY SEBOK AND LARS TRÄGÅRDH.................................154INDEX...................................................................................................................................................................199

Chapter One

Disenchanting the Public/Private Distinction

KATHRYN ABRAMS

For women the measure of the intimacy has been the measure of the oppression. This is why feminism has had to explode the private. Catharine MacKinnon

The legal couching ... of Bowers v. Hardwick as an issue ... a Constitutional right to privacy, and the liberal focus in the aftermath of that decision on the image of the bedroom invaded by policemen ... as though political empowerment were a matter of getting the cops back on the street where they belong and sexuality back into the impermeable space where it belongs are among other things extensions of, and testimony to the power of, the image of the closet. Eve Kosofsky Sedgwick

We affirm that the natural family is the ideal, optimal, true family system. ... We affirm the marital union to be the authentic sexual bond, the only one open to the natural and responsible creation of new life.... We believe wholeheartedly in women's rights. Above all, we believe in rights that recognize women's unique gifts of pregnancy, birthing, and breastfeeding. The goal of androgyny, the effort to eliminate real difference between women and men, does every bit as much violence to human nature and human rights as the old efforts by the communists to create "Soviet Man" and by the Nazis to create "Aryan Man." The Natural Family: A Manifesto

The "natural family" has enjoyed an unlikely resurgence in the early years of the twenty-first century. In contexts from abortion to same-sex marriage, proponents of the nuclear, marital, gender-bifurcated family have asserted the ontological and moral priority of a family configuration that has not been the sociological norm for decades, if indeed it ever was. These advocates, moreover, have taken the offensive, claiming to be embattled by forces or developments that may not appear, to many observers, to target them at all. The protesters who gather on street corners waving signs reading "SAVE OUR FAMILY" see the threat as emanating from same-sex marriage, or from the confluence of familial coercion, medical misinformation, and legal doctrine that lead otherwise nurturant women to take the lives of their unborn children.

In one sense, these activists are not wrong about the sources of threat. Traditional notions of the family, and the domestic private that has been its site and refuge, have come under fire from gay, lesbian, and queer activists and from feminist advocacy. But the specific rights claimed by gay couples or pregnant women have not, in and of themselves, created the vulnerability that proponents of the "natural family" perceive. Gender and sexuality activists have produced concrete social and legal changes, to be sure. But their more unsettling contribution is to have begun the process of disenchanting the public/private distinction—that is, to have disrupted or deconstructed its status as an intact, coherent "system of ethical meaning (one that includes supernatural powers) that we have 'merely' to discover."

In Part I, I explain how gender and sexuality advocacy has produced this effect. I focus primarily on the private, where this deconstruction has encompassed a denial of its natural or divine provenance, a pluralization of its ostensibly uniform configuration, and disruption of its sentimentalized characterization. But I note that this activism has also complicated the distinction and separation of the public from the private. The effects of this advocacy in disenchanting, though not fully transforming, the domestic private help to explain the urgency and the rhetoric of the recent response, which I explore in Part II. The efforts at "re-enchantment" reflected in the "natural family" movement are unlikely to succeed, except perhaps among a modest subgroup that never assimilated the changes described in Part I. But these efforts challenge us to think more clearly and explicitly about what it could mean to structure cultural life, and legal rules, around a more disenchanted notion of the public/private distinction. I frame this task in Part III.

Gender, Sexuality, and the Enchanted Private

Interrogating the Conventional Account

It is a commonplace that equality struggles over gender and sexuality have challenged the public/private distinction, both in law and in broader cultural understandings. Feminists, gay/lesbian, and queer theorists and activists have contested the permeability of the boundary, as well as long-standing assumptions about those who traverse it. Women—buttressed by Ruth Bader Ginsburg's challenges to the stereotypes of the "separate spheres"—have moved increasingly from the domestic private into the public sphere of market and political activity, resisting restriction to the roles of wife and mother. They have demanded that the state intervene in the domain of the family to address marital rape and spousal abuse. Gays and lesbians have moved into the public by a different trajectory: challenging their sequestration—by shame and by law-within the stigmatized private of the "closet," and confronting assumptions about the naturalness of heterosexuality. These conventional views, however, miss some of the most important effects that sexuality and gender advocacy have produced on the public/private distinction. They miss the challenge activists have posed to the enchantment of the distinction: to specific assumptions that have fueled the separation of the spheres, and the sentimentalization of gender bifurcation and heterosexual privilege.

The "private," as I explore it in this essay, has referenced a particular physical space: the home, specifically, of the heterosexual, reproductive family. The romance or "enchantment" of this site has revolved around several features that were understood to be central to its functioning. First, the private has been conceived as the site of certain predictable, salutary activities of intimacy: the care and rearing of children, (heterosexual) sexual intimacy, and the physical and emotional nurturance...

Details zur Ausgabe

• Verlag: Stanford University Press
• Erscheinungsdatum: 2012
• Sprache: Englisch
• ISBN 10: 0804777047
• ISBN 13: 9780804777049
• Einband: Gebundene Ausgabe
• Anzahl der Seiten: 224
• Herausgeber: Sarat Austin, Douglas Lawrence, Umphrey Martha Merrill
• Kontakt zum Hersteller: Mare Nostrum Group B.V.; gpsr@mare-nostrum.co.uk; ; Doelen 72; Breda; 4831 GR; Niederlande