Regulating Intimacy (ebook)

Argumento de Regulating Intimacy (ebook)

"Cohen challenges each reader to defend his or her own normative account of liberty and equality. . . . By proposing a role for reflexive law outside the realm of technocracy, Cohen offers the possibility that our collective efforts to solve our practical problems can aid in articulating the rights that define the kinds of persons we are."--Michael C. Dorf, Columbia Law Review

"Although Jean L. Cohen focuses on sexual relations, reproductive rights, and sexual discrimination, her reflexive paradigm of law applies to any sort of legal regulations. . . . [F]or those scholars interested in a theoretically grounded approach to understanding the Court's decision in Lawrence v. Texas, as well as any type of legal regulation . . . Cohen's book is worth the effort."--Daniel Mangis, Rhetoric and Public Affairs

"Cohen's work brings new substance and new clarity to claims for the proceduralization (or reflexivity) of law. Cohen denies the independence of political-moral orientations from idealizations of the legal form and the background models of individual, society, and state that motivate such idealizations. She shows convincingly how the legal-formal idealizations native to a debate between classical and welfare liberalism inevitably mistranslate and miscarry the distinctive aims of a constructivist, deontological liberalism that differs crucially from them both."--Frank Michelman, Harvard University

"I have read Regulating Intimacy with much pleasure and profit. Professor Cohen illuminates the conceptual and policy issues that arise when we try to encourage intimate associations that are both free and responsible. This is a welcome contribution to the integration of moral and social theory. It deals extensively with contemporary legal doctrine, and helps us make sense of new thinking about law and society."--Philip Selznick, author of The Communitarian Persuasion

"Cohen has written an enormously impressive contribution to legal and political scholarship sure to be of interest to a broad audience of scholars, policy makers, and activists. Creatively borrowing from recent debates within European legal theory about the prospects of a 'reflexive paradigm' of regulation, she demonstrates persuasively why traditional views of the proper legal treatment of the domain of intimacy need to be reformulated. Those interested in a host of ongoing legal debates about privacy and sexuality will find answers to many of their questions here. Cohen has authored a genuinely pathbreaking work which should influence policy and judicial decisionmaking."--William E. Scheuerman, University of Minnesota

"This is a bold, exciting, novel defense of privacy law. Cohen's learned approach to arguing that privacy is neither arbitrary nor archaic engages a surprisingly wide range of important contemporary thinkers. Her selection of case studies is timely and of great interest--giving the book immediate practical value. It will attract many readers and critics."--Anita Allen, University of Pennsylvania0Acknowledgments ix
Introduction 1
Overview 5
CHAPTER ONE: Constitutional Privacy in the Domain of Intimacy: The Battle over Reproductive Rights 22
The Feminist Egalitarian Critique of Privacy Analysis 28
The Communitarian Critique 42
Privacy as Decisional Autonomy: The Isolated, Disembedded Self? 44
Privacy and Identity 49
A Constructivist Justification of the New Privacy Rights 52
The Scope of Privacy: Bringing the Body Back In 57
Excursus: On Property, Privacy, and Legal Paradigms 64
Conclusion 74
CHAPTER TWO: Is There a Duty of Privacy? Law, Sexual Orientation, and the Dilemmas of Difference 77
The Neo-Republican Revival of Privacy Discourse 78
The "New Military Policy": Privacy Protection for Gays and Lesbians? 84
The Right to Privacy and the "Epistemology of the Closet" 86
The Construction of a Stigmatized Identity: Bowers v. Hardwick 94
The Personhood Justification: Normative Paradoxes 97
The Libertarian Solution: Morally Indifferent Sex and the Harm Principle 101
Conclusion 116
CHAPTER THREE: Sexual Harassment Law: Equality vs. Expressive Freedom and Personal Privacy? 125
The Development of Sexual Harassment Law 127
The Hegemonic Feminist Sex-Desire/Subordination Model 129
Liberal Objections 132
Liberal Feminist Alternatives: Redefining the Harm 134
Postmodern Feminist Reframings: Criticizing Legal Normalization 136
Postmodern Feminist Reframings, Part 2: Redescribing the Role of Law 139
Legal Paradigms: An Explanation and a Way Out? 142
Conclusion 149
CHAPTER FOUR: The Debate over the Reflexive Paradigm 151
The Systems-Theoretical Model of Reflexive Law 153
The Action-Theoretical Approach: A Procedural Paradigm 157
A Proposed Synthesis: The Sociological Reflexivity Model 164
Responsive Law 169
Dangers of Reflexive/Procedural/Responsive Law: Arbitrariness and/or Normalization 172
Reconceptualizing the Reflexive Paradigm: A Synthetic, Pluralist Approach 175
CHAPTER FIVE: Status or Contract? Beyond the Dichotomy 180
The Traditional Status Regime Regulating Intimacy 182
Privatization of Family Law 184
The Communitarian Critique of Private Ordering: Toward a New Status Order 187
The Limits of Status 196
Conclusion 197
Notes 205
Cases Cited 261
Bibliography 263
Index 279