Janet Halley turned herself over the past few years into one of the most avid critics of campus rape feminist activists on university campuses. Activists pushed for the reformulation of university investigative rules to shift burden of proof from the accuser to the accused. Halley argued that such rules were procedurally unsound, bad for the boys, bad for sex, and charged that the feminist activists’ agenda was influenced by “radical feminism.” Halley’s arguments on campus rape were consistent with her long-held “queer theory” with its anti-feminist deregulatory drive. In this article I argue that Halley’s “Queer Theory”, which she developed by critiquing Catherine Mackinnon’s work with a view to giving the “sex positivist” strand in legal academia the dignity of “fancy” theory, in effect stands Mackinnon on her head. It is Mackinnon flipped. By flipping Mackinnon theoretically, Halley’s “Queer Theory” turns into an idealist proposition that postulates that it is feminism that invented sexual injury and that duped women into turning what were innocuous facts into causes for protest and outrage. If women thought of the world differently, Halley suggested, sexual assault would go away!
Flipping Mackinnon’s equality approach when it comes to legal rules, takes Halley to the right of “consent” where Mackinnon had gone to its “left”. By mirroring Mackinnon’s dismissiveness with “consent” except from the right, Halley’s theorizing echoes a sexual libertarian agenda without/before feminism. It defends male sexual entitlement avant liberal feminism.
Ideologically, such theoretic formulations along with the bundle of rules they advocate are designed to keep pressure on ruling liberal feminism from departing in its understanding of sex from the “pathology” model whereby all men are good except for those who are “pathologically” violent (classical liberalism) in the direction of understanding sexual entitlement as part of the social construction of maleness. By clamoring from the right of liberal feminism, mainstream liberal feminism is kept in check.
I also argue that Halley brings into crisis the careful formulation of gender/sex of her comrade-in-arms, Duncan Kennedy, who had dubbed himself in the nineties as a pro-sex feminist ally by splitting the difference between radical and liberal feminism in response to the rising influence of radical feminism within the forces of the academic left. We need more rules in the books to stop “male sexual abuse” and to enforce extant ones more seriously, Kennedy had argued meeting Mackinnon half way. In 2000, Halley accused Kennedy of “sucking up” to radical feminism, charging in response that women could very well be “subordinating” men sexually by denying them sex.
Kennedy signed the two petitions Halley circulated at HLS protesting the campus feminist activists showing the limit of the “more” of regulation that he is willing to tolerate. Apparently, the pro sex Kennedy rattled swords with the feminist Kennedy and the former won. In this case, the alliance with Halley seems to have dragged Kennedy from the left of liberal feminism to its right.
In order to explain the various elements of Halley’s theorizing on sex/gender and show their underlying pre feminist “classical liberal” orientation, I situate it comparatively with the theories on sex/gender prominent within the ranks of the non-liberal academic left. I end the article with offering my critique of Halley’s theoretic excursions and propose that Halley is guilty of five different kinds of “misrecognition”: historical-advocating a “sex positive” agenda in radically sex positivist times; sociological- reading women’s sexual injury through the eyes of an “uninjurable” promiscuous gay man advocating a radical sexual ideology; theoretical-oscillating between an antagonism to the very idea of sexual injury and proposing a neutral proceduralist approach to identifying it; political-targeting radical feminism with her critique while smashing liberal feminism on the way and ideological-attempting to ally her sexual libertarianism with the left when the ideological universe it travels is “classical liberalism” which the left has defined itself as its most pronounced critic.
Scholarly Commons Citation
Abu-Odeh, Lama, "Janet Halley and the Art of Status Quo Maintenance" (2018). Georgetown Law Faculty Publications and Other Works. 2034.