SLS Day 4. Day 4! I have been conferencing for 4 days (as I write this I am waiting for the final plenary to begin) and I feel fine. I have probably overdone the caffeine so far today so if anyone sees me with coffee take it off me. I slept quite well until 4.45am and then I was absolutely, totally and annoyingly awake. Ideas about my paper, yes more ideas but sadly not more coherent ideas, were swirling in my head and I thought I’d get up and do some work on it. I sat up and and felt decidedly creaky. I stood up and just stood for a while and then turned my head to look out of the window and realised I was essentially doing yoga. I kept going for a bit doing as much stretching as was possible in the space. Then I decided I should run. I didn’t really feel like it but I wanted to have a last little trot out before the Great North Run on Sunday. I didn’t go far but it was nice to be out in the early morning sunshine. By 7am I was showered dressed and tucking into scrambled eggs on toast while scribbling notes based on where my brain had got to with my paper.
Then I packed my bag, checked out and headed to the Legal Education Stream room. My two papers were first. My first paper was a paper on Excellence – it’s a version of the paper I talked about here. It has grown in complexity, breadth and depth and as a result is completely unwieldy. The comments and questions were really helpful but possibly added to the complexity. Tony Bradney however asked whether the question actually becomes if excellence is an intellectually useful concept to think about and try and ‘find’. I think maybe this is the question around which the paper can be structured
The second paper was really Caroline’s and she did a fabulous job, this was her first conference paper. We reported on a project about critical thinking in law schools. I won’t say too much on this now because we’re still gathering data but basically it seems law teachers agree it’s important, struggle to define it, can talk about the barriers to teaching critical thinking well and run out of ideas when pressed on how we do it better. If you are an undergraduate law teacher and fancy an hour or so chat about critical thinking, get in touch and we’ll set something up.
The final paper in that session was about Law Students, Lawyers, Wellbeing and Vulnerability by Graham Ferris. It addressed many of the issues I struggle with in the wellness debate. It tackled the victim blaming inherent in the resilience discourse (you can’t cope so it is your fault). Drawing on Martha Fineman Graham suggested that thinking about vulnerability as universal yet particular to each person and resilience as the other side of the same coin helps us avoid those conceptual traps the wellness discourse so often falls into. Good paper and a nice reminder that I have a pile of Martha Fineman literature to read.
The second session kicked off with Hélène Tyrrell and Josh Jowitt who gave an updated version of the paper which won the Stan Marsh best paper prize at the ALT conference this year. They are using cases in teaching in a way that puts them front and centre and encourages students to see them rather than the textbooks as the key reading. They are having great successes with their approach and it is great to see it being used beyond their summer school and in the Judicial Review section of their first year public law teaching. Some of my public law re-write for this coming term is based on some of the techniques and the thinking behind them. They also had the best concluding slide ever! Hélène and Josh were followed by Rachel Nir and Tina McKee who shared their research on attendance which tried to grapple with the why students don’t attend question. They have some really interesting data but I think probably need to link it more to the existing literature which might give some context to what they have found. There is lots in the literature about transition to HE which I think would help and this is my reminder to email them.
The final paper was, I think, about teaching ethics in New Zealand law schools. I was tired and I stopped listening. Sorry. I was really starting to get to overload and I was tempted to duck out but I was well and truly boxed in in the middle of a row. So I sat it out and then headed for lunch. I had to work quite hard to not freak out, it seemed noisy and busy. I sat in a relatively quiet corner next to Peter Alldridge, current (outgoing) president of the SLS who then asked me to draw the prize for a voucher and books from the completed publisher bingo cards. Great, potential spot light, just what I needed. Anyway, somehow I felt better after that. Then I went to talk to Emma Tyce at Routledge and she gave my some fliers for mine and Sanna Elfving’s book and we chatted about ideas for future work. It was lovely and it is really nice and reassuring to have a supportive publisher.
Finally I went to the panel on Brexit. A rather depressing way to end a conference I suppose but there we are. First we heard from Catherine Barnard on the future – it was pretty much doom and gloom but that’s because it is! I have been vaguely thinking about the Brexit transition period and how it will work but Catherine is right, the transition period is not as much of a problem as what happens after because it seems clear that a trade deal of any description will take longer than the transition period to negotiate. So what happens in between? Catherine notes that legally there is only a very weak base for transition in the first place and none for extending it. I have seen Barnier’s steps of doom before but having Catherine’s clear explanation of the reasoning behind suggesting the Canadian type relationship is the only viable option.
Daniel Wincott then spoke about devolution which I also very much enjoyed but realised I don’t know enough about and then Sionaidh Douglas-Scott took a look back to show how the Brexit issues are actually issues that have mostly come up before. I enjoyed that paper and once again thought that doing some historical work would be really nice. I always meant to do something joint with my colleague Fran and we often said we’d do it sometime but for her ‘sometime’ didn’t come so maybe I just need to get on with it.
So that’s me done and now on the train home editing and doing the links on a painfully slow wifi connection. It has been a good conference, a really good conference. I was pleased to see so much interest in the Legal Education Stream and on the whole really good quality papers presented in every session I attended. I will leave you with a slide from Fiona Cownie’s presentation on Day 3 and the clear sense that we have moved beyond the sentiment expressed within it:
I’ve been meaning to do this shameless self promotion post since our book was published but somehow never got round to it. But now we are waving the summer off and are hitting the new academic year hard it seems sort of ok to do this. I’m not really keen on the ‘yay look at me’ stuff so this post is really about the book and the process of writing it. If you happen to want to persuade your library to buy a copy or two that would of course be awesome too! You can find it on the Publisher’s website here.
So the book. Well it’s basically an examination of the Court of Justice of the European Union and its work on a couple of substantive law areas and it is written from a feminist perspective. In writing the book we were interested in understanding the role gender plays in the CJEU’s work. The first half sets out our approach and the background – composition of the Court, how it works etc and the second half looks at gender equality case law, equality case law more generally and citizenship case law. If you do read it, we’d love to hear your thoughts on it.
I am really proud of this book – not necessarily because of the content and the writing, I can already see plenty of ways it could all be improved – but because it was such a genuine collaboration and joint effort which proved that collegiality is alive and well and because we were able to work with one of our undergraduate students and use sections of her dissertation as part of our research. It was such a privilege to work with Dr Sanna Elfving who I had appointed and who is an absolute star and with Sophie Mayat, a fabulous former student particularly because I missed supervising most of her dissertation while off sick with depression and anxiety just before I left Bradford. It was amazing to see the hard work she put in and the genuinely high quality research, thinking and writing that she produced.
I learned a lot during the writing of that book. First, it always takes longer than you think it will, a lot longer. Second, I need to work with people who have much more patience than I have a right to ask for. I will at some point in the process fuck up and/or fall off the wagon and I need to trust my co-authors to stick with me, call me out, catch my mistakes and point me back in the right direction. That means they need to have incredible patience and they need to be able to cope with me being a bit of a control freak (ok a lot). Sanna deserves a medal. Third, working with someone who works very differently from me is great. The writing process was really interesting. It seems I map out, Sanna inserted tons of information, I edited, Sanna sorted the references. I had the big picture in my head, she took care of the detail. We are good at different things and that means we can focus on the things we like and are good at but all of it still gets done.
I think the key thing I learned was that a book needs to be really strictly mapped out. We had way too much material and trying to work out how to do it all justice caused some of our issues about structure and the overall argument. Once we decided we would just have to leave some of it out, it actually came together well. We have a couple of ideas for some of the stuff that didn’t make it into the book and definitely have more to say on the subject.
Writing a book is a long slog and I thought that it might be like a PhD or running a marathon – you have to forget the pain before you can even begin to think about doing anything like it again – but actually I’d like to write another one, it was overall a really enjoyable experience. Sure, it had its moments but it was also fun. I have a couple of ideas but lots of research work to do before I can begin to really put pen to paper (probably actual pen to actual paper) but watch this space.
Today I gave a short presentation on weight discrimination in EU Law at the 6th Weight Stigma Conference held at Leeds Beckett University. Some times talking to mostly non-lawyers about law is fabulous, sometimes it’s not and today I found the room really hard to read. It was part of a long session following lunch so maybe people were experiencing their afternoon slump (I was) or maybe it had something to do with the presentation before mine. It was on UK (let’s ignore the fact that there’s no such thing as UK law really) anti-discrimination law based on weight. It was how I would imagine I would have been taught employment law if I had chosen to study it. It was so doctrinal/black letter in its approach that even I was bored and I get excited about anti-discrimination law! It was all definitions and them (the fat people who might want to claim) and us (the presumably not fat lawyers). It was mildly patronising – fat people should not fear discrimination and the law does protect in some circumstances. I’m not sure many who are fat would agree with that. But anyway, the atmosphere in the room was odd when I went up to give my presentation.
I introduced myself as a feminist EU Lawyer and sometimes more, sometimes less overweight marathon runner. There were some laughs. Phew. More laughs when I mentioned my drawer full of race t-shirts which don’t fit and which might just cover half a boob. Then down to the serious stuff – law is not going to solve that sort of discrimination. So very briefly my argument was:
There is no prohibition on weight discrimination in EU Law. Directive 2000/78 covers discrimination on a number of protected characteristics in the employment context. Disability is one of those protected characteristics. To gain protection (or more accurately redress) from the law, weight discrimination has to be brought within definitions of disability discrimination. English Law is firmly rooted in the medical model of disability – the problem is the impairment – whereas EU law offers some glimpse of hope because it includes the social model as outlined in the United Nations Convention on the Rights of Persons with Disability – the problem is social barriers. That glimmer of hope may have been extinguished with the CJEU’s decision in Kaltoft though which, in an obesity case, reaffirms the social model and then reverts back to a medical model in the key part of the decision. So in short – law is complex and tricky in this area.
I also think theoretically linking weight discrimination with disability discrimination is problematic. Of course some people with very high or very low weight can bring themselves within the definition of disability but many cannot. So lets think about my experience (in the absence of detailed research on this as yet, I am drawing on what I know from my experience!). Even if law applied (it doesn’t) it wouldn’t solve my problem of short half marathon and marathon cut off times and utterly ridiculous race shirt sizing (I have an XXL t-shirt which I literally cannot get over my shoulders). So the cut off time would indirectly discriminate against heavier runners – we are more likely to be slow, the lack of t-shirts that fit more than one boob is direct discrimination but there is no protected characteristic – I’m nowhere near the definition of disability in this context – not even on a fairly expansive definition of the social model. Maybe using the example of running is flippant, I’m not sure. I just know that exercise and sport are the things that have caused me personally the most anxiety in relation to my own weight. It’s where I know I experience discrimination and bias all the time.
So I don’t think the legal framework as it stands is helpful. I am also not sure that adding weight as a protective characteristic is all that helpful. Let’s start with the symbolic power of law – let’s not underestimate that. It is certainly important because it’s a clear statement that certain types of behaviours and actions are wrong. That can be really important for individuals. Law can be useful to help educate and raise awareness. Yes, I agree with all of that BUT let’s be really careful here. Law always always always has unintended consequences and often they can be incredibly harmful – we need to think about whether adding weight as a characteristic would cause a backlash, would it drive discrimination ‘underground’, make it less blatant and obvious and thus harder to tackle in other ways?
How would we define weight discrimination? How do we define weight? Can discrimination here be based on too low, too high or too average? How would this work in practice? Where would we draw the lines? What measure would we use – surely not BMI? Does it depend on context? I don’t know where to start with this! Every possible way I can think of can potentially have totally absurd consequences.
Law also has some inherent problems. It relies on discrimination happening. Law cannot prevent discrimination and we know from other protected grounds that the possibility of being taken to court is not, in practice, deterring people from discriminating at any significant rate. Law reduces us all to single characteristics. We can be fat, thin, white, black, female, male, gay, straight…. we cannot be a combination of those in law. It can’t actually cope with people. Law does not understand intersectionality and weight discrimination rarely, if ever, exists in isolation. And law cannot tackle stigma. Equal marriage hasn’t stopped homophobia – anti weight discrimination law won’t stop weight stigma or bias – we need other solutions.
There are practical problems with law too – bringing a case is horrendous. I could not, in good conscience, advise anyone to take a discrimination claim to court. It’s financially and emotionally draining – as in completely – until you have nothing left. It’s a significant undertaking and our legal system favours those with money and social capital, if you don’t have both along with an unlimited reserve of resilience, just don’t do it! Oh and of course, don’t even think about trying if you do not have absolute concrete proof. And that is going to be harder and harder to get. If weight becomes a protected characteristics then discrimination may become more subtle, less obvious, more like the discrimination based on race, gender or sexual orientation some of us have clearly experienced but would never be able to prove. We’d just know, everyone would just know but the law demands proof – even of the blatantly obvious.
So I think what I am saying is that law is part of the theoretical and symbolic answer but not really part of the practical solution.
In my presentation I used the language used in much of the literature I read – non-ideal weight. This caused a noticeable reaction in the presentation before mine where it was also used. I actually meant to start with explaining why/how I was using it but I got caught up in my race t-shirt story and forgot. I get how the language is problematic and I meant to say that legal literature appears to use it as a shorthand way to cover very low and very high weight and that it does not denote a value judgment. So just to be absolutely clear – I was using it as a sort of legal category or shorthand with no assigning of value intended at all. I guess though that the legal literature might want to re-think that language use and I will be for my written paper.
Anyway, watch this space – full paper coming in due course….