Emory Law Journal

Volume 67Issue 6

Vulnerability and the Intergenerational Transmission of Psychosocial Harm

Isabel Karpin | 67 Emory L.J. 1115 (2018)

In the field of science known as the developmental origins of health and disease (DOHaD), there is an emergent body of research examining the biological impact of the psychosocial dimension of harm resulting from sexual and physical abuse. A particular focus has been the way these assaults, when enacted against women, cause levels of stress that can have a biological impact on their future children. In the following Parts, I take a close look at scientific studies that reveal an intergenerational impact resulting from harms perpetrated on a woman prior to the conception and birth of her children, with a particular focus on the impact of stress. I consider the way law might play a role in mediating or mitigating those harms using a vulnerability and inevitable dependency approach derived from Martha Fineman’s body of work.

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Martha Fineman, More Transformative Than Ever

Michéle Alexandre | 67 Emory L.J. 1135 (2018)

The breadth and depth of Fineman’s work are such that it would be impossible to discuss all the layers of her ongoing legacy in this short Essay. For the sake of brevity, I confine my discussion to three points. Specifically, the foundations laid by Martha’s work reverberate culturally and globally in three ways: (1) valuation of invisible labor, (2) normalization of uncomfortable conversations, and (3) universalization and destigmatization of vulnerability. While I focus solely on these key contributions, I could go on forever about the breath and scope of Fineman’s influence and the impact of her mentorship. To trace Martha’s impact is to embark on an exhilarating scholarly, as well as personal, journey.

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Vulnerability as a Category of Historical Analysis: Initial Thoughts in Tribute to Martha Albertson Fineman

Deborah Dinner | 67 Emory L.J. 1149 (2018)

This Essay uses an illustrative example from my own scholarship to demonstrate the capacity for vulnerability theory to enrich legal history. It analyzes the legal construction and obfuscation of vulnerability in the U.S. “welfare regime”: the public as well as private arrangements that order social provisioning. As a short Essay meant to provoke rather than to answer questions, the piece is necessarily cursory in its treatment of historical causation, controversies, and patterns. First, I outline the relationship between gender and vulnerability in the liberal welfare regime, premised on concepts of feminine vulnerability and masculine independence. Second, I discuss the ways in which the neoliberal welfare regime assumes invulnerability: it valorizes sex neutrality, while reinforcing private responsibility for dependency. Third, I use vulnerability theory to help illuminate a historical path not taken: the transformation of the welfare regime according to the model of the universal, interdependent caregiver rather than the universal, autonomous breadwinner. Throughout this brief exposition, I endeavor to explain how Fineman’s theoretical insights inform my own methodology and analysis as a legal historian.

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Notes on The Neutered Mother, or Toward a Queer Socialist Matriarchy

Teemu Ruskola | 67 Emory L.J. 1165 (2018)

This tribute to Martha Fineman focuses on a key work that, to me, occupies one of the highest points in the intellectual arc of her career, namely her pathbreaking 1995 book, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies. Below, I read it from the perspective of queer theory. I first consider its unqualified demand for the abolition of marriage, and then turn to its commitment to refocusing family law on the figure of the Mother—a predecessor of the vulnerable subject, a theoretical construct that has come to dominate Fineman’s more recent work.

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Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects

Linda C. McClain | 67 Emory L.J. 1175 (2018)

This Essay reflects on Professor Fineman’s generative scholarship by revisiting my engagement with her work over the years. Such revisiting is, in a sense, an intellectual autobiography, since I trace the shifting areas of concern in my scholarship and the role of various formative influences upon it. Often those influences were in evident, but productive, tension, such as with feminism and liberalism. In this revisiting, I also observe some critical shifts in Fineman’s own scholarly projects, such as from dependency to vulnerability and from a gender lens to a skepticism about a focus on identities. Another formative influence I discuss in this Essay is Fineman’s enormously generative contribution to the development of scholarship by creating spaces for sharing and critiquing scholarship, through the FLT Project and, more recently, the Vulnerability and the Human Condition Initiative.

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Bioethics & Vulnerability: Recasting the Objects of Ethical Concern

Michael Thomson | 67 Emory L.J. 1207 (2018)

Mainstream bioethics has long been challenged for its focus on the technological developments of biomedicine and principles of individual ethics. It is argued that the focus on these particular objects, and the delisting of the social context within which the ethical is constructed and experienced, limits the extent to which bioethics provides a contesting counter-weight to modern biomedicine. In response, this Article promotes Martha Fineman’s vulnerability theory as a new framework for bioethical deliberation. Fineman’s foundational concern with the embodied and embedded experience of being human puts the social at the heart of analytical enquiry. Further, a focus on the institutional structures within which we are all embedded provides a framework for assessing state responsiveness to its embedded citizens. Recognizing that mainstream bioethics has historically resisted the incorporation of other frameworks, this Article argues that the current turn to the social in the life sciences provides an important new context within which we might successfully reimagine bioethics and its objects of ethical concern.

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First Impressions and Last Resorts: The Plenary Power Doctrine, the Convention Against Torture, and Credibility Determinations in Removal Proceedings

D. Bruce Janzen, Jr. | 67 Emory L.J. 1235 (2018)

The Convention Against Torture prohibits the exclusion or removal of any foreign national who is likely to be tortured upon returning to his homeland, without exception. In the United States, this absolute rule is the law of the land. Such universal applicability exists nowhere else in American immigration law, and for aliens convicted of serious crimes, its significance is difficult to overstate. But those seeking relief under the Convention are unlikely to receive it. At the center of this troubling state of affairs is the plenary power doctrine, the extra-constitutional foundation upon which American immigration law rests. For the political branches, the doctrine is a wellspring of extensive and unparalleled authority; for the courts, it is a short leash of subdued and toothless deference. After establishing that the extraordinary degree of deference usually required by the plenary power doctrine is unwarranted when protection is sought under the Convention Against Torture, this Comment proposes an alternative standard of review for cases where such relief has been denied as a result of adverse credibility determinations.

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Kicked While They’re Down: Deficiency Judgments and the Great Recession

Ariel Olson | 67 Emory L.J. 1273 (2018)

Although some scholars argue that prohibiting deficiency judgments will lead to increased strategic default by borrowers who still have the financial resources to make their monthly payments, several recent studies discount this hypothesis. The ability of lenders to predict and protect themselves from losses related to borrower default, as well as the increase in predatory lending practices leading unsuspecting borrowers to take out unsustainable loans, necessitate a legislative response. This Comment argues that states have a valid interest in protecting their citizens from financial ruin—and in encouraging recovery over punishment—and should enact legislation prohibiting deficiency judgments for residential borrowers.

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