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Thursday, January 13, 2011

"This is writing ... that restores one’s faith in the legal academy; this is what legal scholarship can be."

The quote in the title of this post comes from this remarkable review by Robin West at Jotwell of an article by my OSU colleague Marc Spindelman.   The article being reviewed is Marc's forthcoming piece in the Columbia Journal of Gender and Law entitled "Sexuality’s Law."  Here are excerpts from the start and end pf Robin's review:

Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.

Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them?   The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected.  Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently.   Why?   Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex?...

Spindelman takes on hundreds of cultural sources and a library of legal scholarship in mounting his argument.  The arguments are also, quite simply, brave: he has bucked the ascendant trend in legal cultural studies and queer theory both that has tilted drastically and, quite possibly catastrophically, toward the praise, valorization, and protection of empowered sex of all forms, together with a contemptuous denial of the injuries and harms that sex has carried for its victims, including girls, women, gay men, and boys, and plenty of straight men and boys as well.   He does so, furthermore, with writing that is as impassioned and literary and beautiful as some of the texts he’s attacking, but in Spindelman’s writing, the argument, the passion, the turns of phrase, the thousands of footnotes, are put toward the ends of truth, of community of purpose, autonomy, and a celebration of individual dignity, all values, he argues, threatened by sexuality’s ideology.  This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.

That's quite a review, especially for someone like me who has come to be (too?) cynical about what traditional legal scholarship has become and can now be.  For that reason (and because I have long been a big fan of my colleague Marc's work), I highly recommend both Robin's review and the work she is reviewing .

Posted by Douglas A. Berman on January 13, 2011 at 04:03 PM in Legal Theory | Permalink


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Why, I wonder, does West need her faith in the legal academy restored?

Posted by: Dave H. | Jan 16, 2011 7:57:36 PM

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