Book Notes

This Essay reviews and places into theoretical contexts Bridget Crawford and Emily Waldman’s invaluable book Menstruation Matters. Although the authors themselves do not explicitly label the theoretical approach that undergirds their work, much of Menstruation Matters: Challenging the Law’s Silence on Periods falls within the liberal feminist legal tradition typical of post-civil rights second-wave feminism. Their work also embodies aspects of critical feminist approaches to law. Crawford & Waldman expose the discriminatory effects of facially neutral laws, the limits of formal equality, and the pitfalls of essentializing or making universal claims about categories of individuals—including women and menstruators. In addition to exploring the theoretical lenses employed by the authors, this Essay suggests that other critical perspectives, including critical and global critical race feminism, might further elucidate the nature of the menstrual injustices the authors expose. This Essay posits that Menstruation Matters convincingly illustrates that feminist legal theory—comprising a whole variety of perspectives and approaches—is as relevant as ever.

Crawford & Waldman emphasize that menstrual equity is necessary to facilitate menstruators’ full participation in public life. The Essay suggests that this instrumental conception of menstrual equity may insufficiently recognize the inherent dignity of menstruators, irrespective of whether and how that equity enables their societal contributions. It suggests instead that menstrual equity is necessary and justified, not principally for any instrumental purpose, but simply because it affords menstruators the dignity to which they are entitled as full and equal members of society.

All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education

We live in a nation where equality and integration have proven, and continue to prove, evasive. In 2005, despite the Supreme Court’s 1954 pronouncement in Brown v. Board of Education (Brown I), our public schools remain largely segregated, and there are few signs of improvement. Admittedly, African Americans are on the whole better off today than they were in 1954, but one only need observe any sector of society to realize that we have yet to reach Brown‘s full potential. Indeed, some commentators have labeled Brown‘s promise of equality through the desegregation of our public schools a “discredited goal.” Alas, Brown’s promise has become Brown‘s demise.

Pay Without Performance: The Unfulfilled Promise of Executive Compensation

When conversation turns to business, a topic guaranteed to provoke heated discussion is the extraordinary compensation that top American corporate executives enjoy. Periodically, as some new pinnacle is reached, the public reacts with a fresh wave of indignation. A well-known example is the story of Michael Ovitz. Hired as president of the Walt Disney Company by his friend, CEO Michael Eisner, Ovitz left the company after just fourteen months, having failed abysmally at his job by most reckonings. Upon his departure, however, Ovitz collected a “golden handshake” of not only his annual base salary of $1 million for the remainder of his five-year contract, but additional earnings from stock options and a generous severance package, totaling approximately $140 million. Outraged shareholders brought a derivative suit, and seven years after Ovitz’s departure, the case is still wending its way through the courts-and through the headlines.

Go Directly to Jail: The Criminalization of Almost Everything

The government possesses a variety of tools to control the populace. Obvious examples include the criminal justice system, administrative regulation, and taxation. Because these tools involve varying degrees of coercion, the federal government’s choice of tools in addressing a particular problem has considerable impact on citizens, both financially and in terms of individual rights.

Judges in Contemporary Democracy: An International Conversation

The inherent premise underlying Judges in Contemporary Democracy: An International Conversation may be stated simply: When judges talk, people listen. The attention is entirely deserved; the power of the judge in modern constitutional democracies, particularly those with provisions for judicial review, is extensive. Concordantly, the authority of the constitutional judge long has been in tension with democratic structure, where the will of the people, expressed through legislative act, otherwise would be considered supreme. What power does the judge have to determine the contours of constitutional imperatives, especially if judicial interpretation represents a divergence from popular sentiment and legislative decree? How can she purport to have an exclusive interpretative license on what otherwise might be thought of as common province, i.e., the securing terms of a shared constitution? The questions of legitimacy surrounding the countermajoritarian potential of judges exercising (or merely asserting) the power of judicial review have become particularly pressing following the contemporary incorporation of forms of judicial review throughout Western European countries in the latter half of the past century. No longer a vestige of American exceptionalism, judicial review-and the accordant power of the judge-has become an integral feature of the modern democratic state.

East Central Florida sits atop the Floridan Aquifer, an underground water source covering 100,000 square miles and spanning Alabama, South Carolina, Georgia, and Florida (Berardo, pp. 64-65). As the population soars in this region, demand for water will likely increase dramatically, and average water consumption may reach 926 million gallons per day by the year 2020, a sixty percent increase from 1995 levels (Berardo, pp. 64-65). Increasing withdrawals have led to unsustainable levels of use and threaten environmental degradations—saltwater intrusion, reduced spring flows, drying lakes and wetlands—and political conflict (Berardo, p. 65). The principal governmental body in charge of water consumption has designated the area a Priority Water Resource Caution Area, but it is unable to unilaterally solve this impending problem for several reasons. First, the potential causes and impacts of unsustainable use extend beyond its jurisdiction. Second, the diverse array of stakeholders will be reluctant to accept a top-down, dictated solution concerning the sensitive issue of water resources. Third, scientists do not completely understand the potential impacts on the aquifer, and changing scientific understanding may alter potential solutions. How can this natural resource problem be addressed, when the solutions—and even the problems—are poorly understood, and no single administrative body is competent to develop and implement solutions?

There seems to be a public perception that the members of the current, often divided, Supreme Court vote for partisan rather than principled reasons. As recent confirmation hearings have become more heated and polarized, this belief has only crystallized. In Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer challenges this perception through a thoughtful discussion of the constitutional commitments that inform his decisions. This book does not provide a comprehensive theory of constitutional and statutory interpretation; rather, Active Liberty is important because in it, Justice Breyer gives the American public insight into the constitutional themes and values that he draws on when deciding cases. In particular, Justice Breyer focuses on one constitutional value that he believes has been underappreciated: a commitment to democratic participation and self-government which he calls “active liberty.” Although Justice Breyer recognizes that other constitutional values are important, he believes that active liberty should play a more prominent role in constitutional adjudication.