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Academic: Legal Theory Blog
Rosenblum on Loving and Gender Inequality Remedies
By Lawrence Solum
Darren Rosenblum (Pace Law School) has posted Loving Gender Balance: Reframing Identity-Based Inequality Remedies (Fordham Law Review) on SSRN. Here is the abstract:
The egalitarian voice of the United States Supreme Court resonates forty years after it abolished anti-miscegenation laws in Loving v. Virginia. While Loving's vigor influences contemporary debates on sex-related marriage restrictions, its impact extends to the hopes and tensions that undergird and unite equality movements. Half a world away, Norway's Corporate Board Quota (CBQ), enacted in 2004 but just now taking effect, sets a forty percent floor for both sexes on publicly-traded companies' boards of directors.
This essay explores the consistencies and tensions among inequality remedies. Present-day attempts to remedy inequality, such as the CBQ, reflect the purchase Loving still carries. Loving's logic is profoundly topical in balancing universality with particularity and sameness with difference. Should colorblind or race-conscious remedies predominate in equality jurisprudence? Is the goal equality or multiraciality? Are just or effective solutions exclusive to one side of the blind/conscious debate?
This essay explores contemporary iterations of this debate in the context of gender equality. Shifting frames of identity and nationality create new lenses for observing well-trod debates over race and gender inequality. Given the centrality of globalized interactions in our economic and personal lives, it is only appropriate that we utilize these tools in legal debates as well. Yet, comparisons among remedies for race and gender inequality necessarily confront pivotal challenges, and such scholarship demands rigorous method.
Loving's legacy gains richness and revived analytic purchase through a set of border crossings. Nationality and identity each serve as a frame to place atop the core theoretical dilemma of blindness and consciousness in equality remedies. These dialectics of gender and race redistributive remedies traverse identity and nationality lines. Scholars intending to understand race or gender remedies, not to mention U.S., French or Norwegian remedies, would benefit from the breadth offered by such crossings. The purpose of this essay is to sample and begin to imagine the depth one may acquire through such transnational and trans-identity enterprises. Shifting frames of identity and nationality inspires a reconsideration of the ambivalent relationship between group inequality remedies and identity of any form.
First, this essay illustrates how Loving's logic remains foundational to identitarian equality debates. Part II describes and compares three gender-related remedies: Norway's CBQ, the United States' Title IX of 1972, and France's Parity Law of 2000. Each of these laws operates on an assumption of gender-consciousness rather than gender-blindness, but the CBQ's explicit goal of gender balance distinguishes it from the other remedies. Part III explores how critical race evaluations of minority access to corporate power reveal the pervasive implementation flaws in race-conscious remedies. These defects arise in "softer" remedies such as affirmative action as well as in "harder" remedies such as quotas. Critical constructions of identity and power, despite varying along cultural lines, provide a unifying logic for understanding these developments. Finally, this essay asks what inequality remedies might look like without reference to particular group identity. Janet Halley, in encouraging a "break" from feminism, looks beyond identity politics. Given the proliferation of intersections, posing such questions acquires additional urgency. Loving's legacy going forward demands incorporating richer understandings of human interaction, pushing and blurring the frontiers of both universalist and difference-conscious remedies.
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