New Work by Deborah Brake
Professor Deborah Brake has posted a new paper on SSRN, Title IX as Pragmatic Feminism, forthcoming in 55 Cleveland State Law Review 513 (2008). From the abstract for the paper:
This paper uses Title IX as a vehicle for exploring the potential benefits of pragmatism for feminist legal theory. Title IX is unusual in anti-discrimination law for its eclectic approach to theory, drawing from liberal feminism, substantive equality, antisubordination and different voice models of equality at various points in the law’s approach to gender equality in sports. This paper argues that Title IX, as a pragmatic approach to theory, provides a promising example of how feminist legal theory can draw from pragmatism to navigate the double-bind and the backlash. Following an introduction in Part I, Part II of this Article examines legal pragmatism and its relationship to feminist legal theory, arguing that both schools of thought have the potential to enrich one another. Part III provides an account of the multiple forms of gender oppression in sports, following pragmatism’s insight that any sound theoretical approach to a problem must be grounded in the particularities of the context surrounding that problem. Part III argues that given the slipperiness of subordination and its shifting practices and ideologies, we should not expect a unitary, consistent theory of discrimination to address it. Finally, Part IV examines the plural approach to theory reflected in Title IX, arguing that Title IX’s eclectic approach to theory explains why this law has been unusually successful in navigating the double-bind and shaping cultural norms to fend off a backlash. The Article concludes that, though far from perfect, Title IX provides a promising example of how pragmatic approaches can shape successful feminist legal strategies.
Professor Deborah Brake’s article, Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives that Obscure Gender Bias, was published at 16 Columbia Journal of Gender & Law 679 (2007). It reviews the social psychology literature on perceiving bias and argues that, contrary to prevailing beliefs in the popular culture that women and people of color are too quick to claim discrimination, the under-perception of bias is closer to the norm. The article shows how the narratives of discrimination law itself reinforce the social-pyschological forces that contribute to the difficulties people face perceiving discrimination. Professor Deborah Brake coauthored a recent column for Findlaw (with Joanna Grossman) on the Supreme Court’s decision to grant certiorari in Crawford v. Metropolitan Government of Nashville and Davidson County, a case involving the question of whether Title VII’s anti-retaliation provision protects an employee who provides information supporting a coworker’s charge of sexual harassment in an employer-initiated investigation. A link to the column: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1169582