Literatura académica sobre el tema "Confederate States of America. Court of Claims"

In recent years federal courts have faced a growing number of challenges to United States actions abroad. Citizens living abroad have brought claims alleging that their property was unlawfully taken or that their lives were threatened by United States governmental action. Aliens living in foreign countries have also invoked constitutional protections—Nicaraguans have alleged torture and assassination attributed to CIA activities in Central America; a Mexican alleged that his home in Mexico was searched by Drug Enforcement Agency officials without a search warrant; a Lebanese citizen claimed that he was unlawfully arrested and interrogated in international waters by U.S. agents; a Polish refugee tried for hijacking in a special United States court convened in Berlin sought the right to a jury trial. These cases test the extent to which the Constitution limits U.S. conduct abroad.

By juxtaposing religious, legal, and victims'accounts of political violence, this essay identifies and critiques assumptions about agency, the individual, and the state that derive from liberal theory and that underlie U.S. asylum law. In the United States, asylum is available to aliens whose gooernments fail to protect them from persecution on the basis of their race, religion, political opinion, nationality, or social group membership. Salvadoran and Guatemalan immigrants have challenged this definition of persecution with their two-decade-long struggle for asylum in the United States. During the 1980s, U.S. religious advocates and solidarity workers took legal action on behalf of what they characterized as victims of oppression in Central America. The asylum claims narrated by the beneficiaries of these legal efforts suggest that repessiwe pactices rendered entire populations politically suspect. To prevail in immigration court, however, victims had to prove that they were individually targeted because of being somehow “different” from the population at large. In other words, to obtain asylum, persecution victims had to explain how and why their actions had placed them at risk, even though persecution obscured the reasons that particular individuals were targeted and thus rendered all politically suspect.

This article examines the need to enforce criminal sanctions for environmental crimes being perpetrated daily, particularly by those who engage in mining and extractive ventures. In South Africa, more often than not, the sanctions for environmental crimes are usually premised on civil suits or administrative actions against the perpetrators. However, these sanctions have not been effective in dissuading perpetrators from environmental harm and degradation because they have the financial means to settle any claims or fines imposed by the courts or the administrative tribunals. It is against the backdrop of this culture of deliberate impunity that this article accentuates the need to strengthen sanctions against perpetrators by imposing criminal sanctions in order to serve as deterrent. A precedent was set by the court in the case of Blue Platinum Ventures (Pty) Limited and Maponya, where the court emphatically invoked and applied criminal sanction against the defendant and was held criminally liable for degrading the environment. The case is a landmark, as it sets a new precedent, where the perpetrator was criminally sanctioned. Countries like United States of America and Australia have been successful in criminal sanctioning of environmental crimes; many mining and extractives companies’ executives and managers have been criminally sanctioned and sent to jail. This article looks at the jurisprudence from these jurisdictions and draws useful lessons that could be used to strengthen prosecution and conviction of perpetrators in South Africa.

South Africans with albinism are among the most marginalised and vulnerable citizens yet very little attention is paid to protecting them from human rights violations. There have been several calls by people with albinism in South Africa to be classified as disabled. The question of whether albinism is classified as a disability or not is a controversial legal one, which does not always have a straightforward answer. A literature search indicates that in South Africa no comprehensive and analytical study has been carried out on the subject of albinism and disability, whereas this has already been addressed in court cases in the United States of America. This paper anticipates addressing this gap within a legal perspective. The objective of such an analysis is to understand the construction of disability under the Employment Equity Act in order to shed light on whether people with albinism qualify for the protection, which is afforded to people with disabilities in the work place. Foreign case law and international human rights law could shed new light on this longstanding grey area or stimulate the development of novel legal analytical strategies. This paper reviews the nature of disability claims in the workplace on grounds of albinism in the United States context, including factors contributing to disability claims; assessing the degree of impairment and the guidelines in assessing albinism related disability. Prior to this discussion, the paper explores the current working definition of disability in South Africa, which stems from the IMATU case, which relied significantly on a foreign precedent; the Sutton v United Airlines case as there was no indigenous precedent in South Africa to fall back on. It will be argued that the Sutton v United Airlines decision, referred to in the IMATU case is based on an insufficiently inclusive definition of disability. Specific cases that relied on the Sutton v United Airlines decision as a persuasive authority in determining whether albinism is a disability or not, will also be examined. While the United States of America has struck down the decision in the Sutton v United Airlines and amended its legislation to include a broader and less restrictive definition of disability, which includes present as well as past conditions and a subjective component of perceived disability, the South African definition of disability still remains narrow and less inclusive. The United States of America's amended legislation does not contain an exhaustive definition of disability; rather, an equality-based framework was chosen which considers changing biomedical, social and technological developments. This new definition highlights the fact that the emphasis must be on whether discrimination occurred rather than adherence to a strict definition of disability. Such a framework of disability includes a socio-political aspect, which places emphasis on human dignity, respect and the right to equality. Against this background, the comparative analysis raises specific issues that deserve attention, in particular that the unique disadvantages and negative stereotyping suffered by people with albinism should be recognised as unlawful conduct against people with disabilities as defined by legislation. Put differently, the discussion calls for a broader approach to viewing disability, which includes both a social and a human rights perspective. In taking the position that albinism related discrimination is socially constructed, the article also explores the mandate of the Convention on the Rights of Persons with Disabilities in as far as it relates to the social construction of disability. The paper argues that the Convention on the Rights of Persons with Disabilities affords a direction for an analysis of the discrimination faced by persons with albinism.

AbstractFree Exercise of Religion is a protected constitutional right under the democratic constitutions of both the biggest democracy in the world ie India and the most powerful democracy in the world ie United States of America. Despite textual similarities in the free-exercise clauses of Constitutions of both of these democracies, there is a big difference in the standards of review whereby free exercise claims are judicially reviewed by their re­spective Supreme Courts. Whereas the US Supreme Court does not give much weight to the sincerity of the religious belief and employs the ‘religion-neutral’ test, the Supreme Court of India gives due weight to the sincerity of the religious belief and employs a ‘reli­gion-central’ test known in Indian free-exercise jurisprudence as the Doctrine of Essential Practices. However, a closer examination of judicial opinions on the point discloses that sincerity of religious belief is not entirely unimportant in US free-exercise jurisprudence but still is not given the kind of importance that it is given in India - a nation that is and has historically been religiously diverse.This paper closely examines the free-exercise jurisprudence as developed by the respec­tive Supreme Courts and argues that in view of the changing religious diversity in the United States perhaps time has come to re-examine the reluctance of the American courts to give its due weightage to the sincerity of religious belief while judicially reviewing free-exercise claims. Relying on several judicial opinions of the US Supreme Court and its sub­ordinate courts in the US and by demonstrating their factual and doctrinal equivalents in the Supreme Court of India, this paper argues that free-exercise clauses of both the US and Indian Constitutions protect not just the right to believe in whichever religion an indi­vidual chooses but also acts in pursuit of religion. The belief-act distinction - an idea at the core of much of US free-exercise jurisprudence is not what is truly protected by the free-exercise clause. What is protected indeed are the acts done in pursuance of religious belief. A line has to be drawn between the acts that are sincerely done in pursuance of religion and those that are not. This line has to be drawn by the Courts on a case to case basis. And that is where US free-exercise jurisprudence would be well assisted in examining Indian free-exercise jurisprudence on the point.

Confederate batteries opened up on Fort Sumter in April of 1861, inaugurating the bloodiest conflict in American history. President Abraham Lincoln’s war effort, nursing wounds from defeats at Fredericksburg in 1862 and Chancellorsville in 1863, sorely needed more men and supplies. Propaganda campaigns and conscription efforts filled gaps in the depleted ranks of Lincoln’s army, helping it swell into the largest mobilization of troops in the world. Reliable supplies were, however, harder to come by; while Union soldiers fell to Confederate bullets and bayonets on the battlefield, army commissaries and quartermasters fell victims to fraud. A lack of meaningful government oversight had created an environment rife with profiteering. During the first years of the war, the government unwittingly purchased 1,000 horses so sick with every known equine disease that they were entirely useless; in another instance, the government paid a contractor for 411 horses of which only 76 were found fit for service (with the remainder being either blind, undersized, ringboned, or dead upon arrival). The government also bought artillery shells filled with sawdust rather than gunpowder, flimsy shoes that lasted for only twenty days, “rotten” blankets, “worthless” overcoats, and “muskets not [even] worth shooting.” To stop these abuses, Congress appointed a special committee, called the Select Committee on Government Contracts, to investigate the extent of the fraudulent contracting; the committee solicited testimony from military personnel, experts, and others that highlighted the disturbing magnitude of the problem. In response, the Union government promulgated the False Claims Act (“FCA”) in March of 1863. Following the conclusion of the war, and the rapid decline of government contracting needs, the FCA was left to gather dust in a forgotten corner of federal law until the late twentieth century. In the 1980s, the FCA surged back to prominence to address abuses in the defense contracting industry and, once again, it became the government’s weapon of choice to combat fraud.Since its Civil War origins, the FCA has undergone substantial changes. Congress, in recognition of the FCA’s increasing importance with the growth of the modern regulatory state, expanded the purview of the FCA in both 1986 and 2009, much to the chagrin of government contractors. The 2009 amendment, in particular, was a clear demonstration of congressional intent to expand the scope of the FCA by overriding federal judicial precedent that attempted to limit it. Congress’s goal in amending the FCA, thus, was not just to “enact a broad remedial statute” but rather to “preserve the traditional boundaries of fraud,” as well.The FCA operates as a powerful tool to combat fraud that, otherwise left unchecked, might imperil the federal government’s finances. The FCA allows either the Attorney General or a qui tam whistleblower (known in the FCA context as a relator) to bring an action on behalf of the United States against persons or entities committing certain types of fraud against the government. The FCA, codified at 31 U.S.C. § 3729, holds that any individual who “knowingly” presents or knowingly conspires to “present[], or cause[] to be presented, a false or fraudulent claim for payment or approval” or “makes, uses, or causes to be made or used, a false record or statement material to a false . . . claim” is liable under the FCA, which imposes damages up to $11,000 per violation in addition to treble the amount of the government’s damages. This can result in cases where the damages could total a staggering $2 billion. The FCA, as a tool of fraud deterrence and of compliance enforcement, has had the most significant effect on the healthcare industry. By way of illustration, between 1986 and 2009, two-thirds of the $22 billion recovered by the federal government ($14.3 billion) came from recoveries in the healthcare industry. Since 2009, however, differing interpretations of the Fraud Enforcement and Recovery Act (“FERA”), the passage of the Patient Protection and Affordable Care Act (“ACA”), and the Supreme Court’s unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar have all expanded the scope of the FCA, leading new industries to find themselves increasingly in the crosshairs of expanded procedural theories of liability.At an operative level, the FCA posits that both “factually false” and “legally false” claims are actionable; “factually false” claims include goods or services either incorrectly described or not provided at all, and “legally false” claims are false based on statements, promises, or other certifications of compliance. While various circuits have held that the FCA reaches factually false conduct, legal falsity (with the Supreme Court’s recent endorsement) could gain traction as an equally important theory for prosecuting fraud. This expanded theory of liability may continue to evolve as the industries that the FCA regulates continue to evolve, as well. One such industry falling under this broad purview is higher education.This Note will address whether or not educational institutions in the for-profit sector should be held liable under the FCA for entering into a Program Participant Agreement (“PPA”) with the government, in good faith, only to thereafter commit fraud. This Note contends that the modern higher education environment provides an appropriate context in which courts may permissibly disregard any distinction between conditions of participation and conditions of payment for purposes of imposing FCA liability. It further posits that the Supreme Court’s Escobar decision, though an important landmark toward a broader enforcement tool, did not go far enough to deter fraud in higher education. Part I will describe the background of the FCA, the rationale for the development of the “legally false” theory of liability, and the differences between the express and implied types of certification. It will also discuss judicial interpretation of legal falsity, with emphasis on the Supreme Court’s decision in Escobar. Part II will address conditions of participation and conditions of payment and why the difference may remain significant in the fraud context. Part III will explain the structure of for-profit educational institutions, their role as government contractors, and the nature of the circuit split regarding the receipt of Higher Education Act (“HEA”) Title IV funds and FCA liability. Part IV will discuss policy implications of this “implied certification of post-formation performance” theory and why the educational setting is the appropriate venue in which to hold government contractors liable for fraud on an expansive sub-theory of implied false certification.

Like the chorus in Shakespeare’s Henry the Fifth, those who proceed on behalf of society at large should have both the first and last word. They should possess the capacity to undertake this act of representation, whether in or out of court, with forcefulness and finality. Indeed, a genuine representative should not have to run the risk of others thereafter embarking upon the matter anew and standing in for whomever she is representing, as well as casting aside her effort as irrelevant, insufficient, or illegitimate. Therefore, a societal settlement, particularly when negotiated by the authorities, may have not only contractual but also procedural (or preclusive) implications, which (partly independently of intent) shield the contractors from litigation as well as liability. To that end, it may or may not, depending on the jurisdiction, require the judiciary’s endorsement in order to constitute the functional equivalent of a judgment. U.S. and civil-law principles of preclusion bar a subsequent suit insofar as it involves the same real party in interest (namely, the whole citizenry) and assertion (or cause and object) as its amicably averted antecedent counterpart. Judges and lawmakers in the United States, as well as Latin America, have invariably conceded these actions an erga omnes effect; in other words, against anyone with standing who might try to reignite the controversy. Settlers in these cases normally neither compromise on the underlying entitlements nor contract on the rights of someone else. In fact, they may and should vindicate these entitlements fully and facilitate the collective conciliation of claims based on collectivity’s own rights. The government, for its part, enjoys plenty of legitimacy to play this role and to settle on, as well as prosecute, these entitlements. In these disputes, the settling or suing actor steps into the shoes of the broader community. The latter, as the interested claimant, may not subsequently take another bite at the apple through a different spokesperson. Otherwise, it would unfairly and inefficiently burden, respectively, its opponents and the adjudicating tribunals in its quest for a windfall. Consequently, the trans-individual settlements and suits at stake should strengthen, rather than weaken, from a punctilious adherence to the requirements of res judicata. They should thereby further legitimate themselves and perhaps even solidify the political and social support from which they benefit.

The mobile telephone, or cellular telephone as it is called in North America, is the fastest-growing consumer product of the past decade. [1] Despite its popularity, metaphors of risk, contamination, and illness frequently run through stories about cellphone use. These representations are based mostly on a lingering but unproven link between brain cancer and cellphone use. Despite numerous scientific studies, none have definitively ruled out the risk and none have found conclusive evidence of harm. The claim that cellphone use is potentially dangerous or downright carcinogenic is supported instead by plenty of anecdotal evidence, rumour, urban myth, and "junk science." What is interesting to me is that these different representations of cellphone use as a practice that poses relative, absolute and no risk can coexist and persist, despite obvious contradictions. I suggest that Donna Haraway's concept of breached boundaries and Ulrich Beck's notion of "risk society" can be employed superficially to make sense of how we negotiate these different representations. In order to begin a discussion about why cellphone use in North America continues to be represented as a potentially risky practice, it is necessary to mention one story that is frequently credited as being the starting point for the narrative of fear and anxiety informing these representations. In spite of its germinal status, the story is but the latest embodiment of the narrative. It begins in August 1988 in Florida when David Reynard gave his wife Susan the gift of a cellphone. Seven months later, a medical scan revealed a tumour in Susan's brain. She claimed that as a result of being bombarded by radiation from the cellphone, the damaged cells either caused her tumour or accelerated the growth of an existing tumour. In April 1992, Susan launched a lawsuit against the phone's manufacturer, the company that provided the cellular service, and the retail store that sold the phone. A month after filing the lawsuit, Susan died of brain cancer. In January 1993, David Reynard was interviewed on the highly-rated CNN show Larry King Live. The interview sent shockwaves through the telecommunications industry. Stock prices of the major cellphone companies fell and some subscribers cancelled their contracts and returned their phones. Spokespeople for the industry countered David's accusations with claims that electromagnetic energy is as harmless as the oxygen we breathe. In fact, they said, it is already all around us in natural and artificial forms, including in emissions from the earth and sun. A spokesperson for Motorola, a major cellphone manufacturer, predicted that Susan's lawsuit would fail because "thousands" of studies had been conducted, which proved that radiation emitted by cellphones was not dangerous to users. In fact, no such studies existed. The lie was revealed when journalists and Susan's lawyer asked to see the studies. Almost as if to make up for the lie, the Cellular Telecommunications Industry Association,[2] a lobby group for North American cellular service providers, created the Wireless Research Center. Not surprisingly, the Center produced findings during its six-year mandate that were mostly favourable to the industry. In 1995, Susan's lawsuit was dismissed by a judge who said no reliable scientific evidence had been presented to link cellphone use to cancer. Expert witnesses for the defence had argued that the evidence presented on her behalf was merely wild speculation, "junk science," and a perversion of science masquerading as real science. Over a dozen similar lawsuits have been filed in the U.S. and the U.K. since. Few of them have surpassed Susan's lawsuit in notoriety and none have earned a favourable ruling. While it is still both mocked and venerated in the popular media and is the focus of derision in the telecom industry press and in medical science journals, the question central to the case (but does it cause cancer?) is still unresolved and so are the contradictions now associated with it. Did Susan's own body generate her tumour or was it generated by cellphone radiation? Where is the line between junk science and real science? Is artificial radiation from a cellphone as harmless as natural radiation from the earth or sun? These questions are indicative of some of the boundary breakdowns that Haraway claims are causing disorder and contradiction in late twentieth-century Western culture, namely between human and machine, between the physical and non-physical, and between natural and artificial. According to Beck, the degeneration of these boundaries are also indicative of a risk society characterised by environmental degradation. Because this degeneration is both perceived and potential, it hardly matters anymore what is rational or irrational, legitimate science or junk science. Both factual and fictional texts contribute to our knowledge of risks surrounding cellphone use as a biohazard that is a threat to individual bodies and to the social body. A series of events occurring throughout the 90s in North America added to the ambiguity and mystery surrounding cellphone use. Numerous rumours circulated about the practice sparking explosions at petrol stations and causing interference with car brakes, airbags, and electric wheelchairs. In addition, Health Canada and the U.S . Food and Drug Administration issued several bulletins to alert the public that cellphone use could cause heart pacemakers, hospital monitoring equipment, and aeroplane navigational instruments to malfunction. Susan's lawsuit ended when the court imposed closure, but the narrative embodied by the lawsuit continued in these rumours and warnings. The lawsuit was an event with a clear beginning and end. The narrative of fear and anxiety about contamination that could lead to illness, disease, and death preceded the lawsuit and was already embodied in other stories, particularly ones surrounding cancer and AIDS. When Susan launched her lawsuit, in some media reports, the cellphone was called the "new cancer villain" and the potential link between cancer and cellphone use was deemed the "yuppies version of AIDS." The comparison of cellphone use to cancer and AIDS functions both as a cultural and biological metaphor. It links the practice explicitly with disease and implicitly with death, and it also recalls the narrative of fear and anxiety surrounding cancer and AIDS, two potentially fatal diseases which preceded the introduction of cellphones. Seventeen years have passed since the cellphone became widely available in North America. Currently, almost nine million Canadians, or one in three people, own a cellphone. In the United States, there are 108 million users. Subscriptions there are increasing at the rate of approximately 46,000 each day or about one new owner every two seconds. The recent flood of private talk in public places in North America is being represented in popular media as a contamination of the social body, a morally repugnant practice, and a menace to civil society. A moral panic has arisen over cellphone use because it allows conversations to be audible and the user to be visible where before they were inaudible and the user was invisible by virtue of being hidden away in homes, offices, and phone booths. In public places the voice of the cellphone user extends the self and claims more space, which in turn impinges on the personal space of others. It is like a stranger's unwelcome touch. Proof that the moral panic has reached a new level in Canada may be evident in a request from the federal government last March for public opinion on whether devices known as silencers or jammers should be licensed for use so that businesses and institutions can disable cellphones within a particular radius when necessary. As a result of the popular use of the term "cellphone" in North America, a neat conflation of meaning is occurring between cellphone use as a potential threat to biological cells in the human body and the practice as a perceived threat to the physical spatial cells of personal spaces that comprise the social body. Stories about cellphone use as hazard articulate a narrative of fear and anxiety we share that cannot simply be dismissed as absurd. How people respond to cellphone use and the health questions and moral panic surrounding it cannot be decided by medical or legal experts alone. Consequently, in a risk society characterised by a peculiar synthesis of "empirical knowledge" and "indefinite uncertainty," the question "does it cause cancer?" becomes irrelevant. According to Beck, it may be more useful to ask "how do we want to live?" Endnotes [1] "Cellphone" (a contraction of cellular and telephone) is the popular term for "mobile telephone" in North America. "Mobile phone" usually refers to car phones with an antennae mounted on the roof or window of the car. [2] The Cellular Telecommunications Industry Association was recently renamed the Cellular Telecommunications & Internet Association. References Adams, Barbara, Ulrich Beck, and Joost van Loon, eds. The Risk Society and Beyond: Critical Issues for Social Theory. London: Sage Publications, 2000. Carlo, George, and Martin Schram. Cell Phones: Invisible Hazards in the Wireless Age. New York: Carroll & Graf Publishers, 2001. Erni, John. Unstable Frontiers: Technomedicine and the Cultural Politics of "Curing" AIDS. Minneapolis: University of Minnesota Press, 1994. Haraway, Donna. Simians, Cyborgs and Women: The Reinvention of Nature. New York: Routledge, 1991. Industry Canada. "Notice No. DGTP-002-01 Silencers (Devices Capable of Interfering with or Blocking Mobile Telephone Communications)." Gazette Notices Pertaining to Broadcasting, Radiocommunications and Telecommunications (Mar. 9, 2001). Lakoff, Georg, and Mark Johnson. Metaphors We Live By. Chicago: Chicago University Press, 1980. Milloy, Stephen J. "Cellphone Hysteric." National Post (June 23, 2000): C19. Nelson, Nancy J. "Recent Studies Show Cell Phone Use is Not Associated with Increased Cancer Risk." Journal of the National Cancer Institute 93.3 (Feb. 7, 2001): 170-172. Park, Robert L. "Cellular Telephones and Cancer: How Should Science Respond?" Journal of the National Cancer Institute 93.3 (Feb. 7, 2001): 166-167. Stacey, Jackie. Teratologies: A Cultural Study of Cancer. London & New York: Routledge, 1997.

The advent of the #MeToo movement and the scale of participation in 85 countries (Gill and Orgad; see Google Trends) has greatly expanded debate about the revival of feminism (Winch Littler and Keeler) and the contribution of digital media to a “reconfiguration” of feminism (Jouet). Insofar as these campaigns are concerned with sexual harassment and related forms of sexual abuse, the longer history of sexual harassment in which this practice was named by women’s movement activists in the 1970s has gone largely unremarked except in the broad sense of the recharging or “techno-echo[es]” (Jouet) of earlier “waves” of feminism. However, #MeToo and its companion movement #TimesUp, and its fighting fund timesupnow.org, stemmed directly from the allegations in 2017 against the media mogul Harvey Weinstein by Hollywood professionals and celebrities. The naming of prominent, powerful men as harassers and the celebrity sphere of activism have become features of #MeToo that warrant comparison with the naming of sexual harassment in the earlier era of feminism.While the practices it named were not new, the term “sexual harassment” was new, and it became a defining issue in second wave feminism that was conceptualised within the continuum of sexual violence. I outline this history, and how it transformed the private, individual experiences of many women into a shared public consciousness about sexual coercion in the workplace, and some of the debate that this generated within the women’s movement at the time. It offers scope to compare the threshold politics of naming names in the 21st century, and its celebrity vanguard which has led to some ambivalence about the lasting impact. For Kathy Davis (in Zarkov and Davis), for instance, it is atypical of the collective goals of second wave feminism.In comparing the two eras, Anita Hill’s claims against Clarence Thomas in the early 1990s is a bridging incident. It dates from closer to the time in which sexual harassment was named, and Hill’s testimony is now recognised as a prototype of the kinds of claims made against powerful men in the #MeToo era. Lauren Berlant’s account of “Diva Citizenship”, formulated in response to Hill’s testimony to the US Senate, now seems prescient of the unfolding spectacle of feminist subjectivities in the digital public sphere and speaks directly to the relation between individual and collective action in making lasting change. The possibility of change, however, descends from the intervention of the women’s movement in naming sexual harassment.The Name Is AllI found my boss in a room ... . He was alone ... . He greeted me ... touched my hair and ... said ... “Come, Ruth, sit down here.” He motioned to his knee. I felt my face flush. I backed away towards the door ... . Then he rose ... and ... put his hand into his pocket, took out a roll of bills, counted off three dollars, and brought it over to me at the door. “Tell your father,” he said, “to find you a new shop for tomorrow morning.” (Cohen 129)Sexual coercion in the workplace, such as referred to in this workplace novel published in 1918, was spoken about among women in subcultures and gossip long before it was named as sexual harassment. But it had no place in public discourse. Women’s knowledge of sexual harassment coalesced in an act of naming that is reputed to have occurred in a consciousness raising group in New York at the height of the second wave women’s movement. Lin Farley lays claim to it in her book, Sexual Shakedown, first published in 1978, in describing the coinage of the term from a workshop on women and work in 1974 at Cornell University. The group of participants was made up, she says, of near equal numbers of black and white women with “economic backgrounds ranging from very affluent to poor” (11). She describes how, “when we had finished, there was an unmistakable pattern to our employment ... . Each one of us had already quit or been fired from a job at least once because we had been made too uncomfortable by the behaviour of men” (11–12). She claims to have later devised the term “sexual harassment” in collaboration with others from this group (12).The naming of sexual harassment has been described as a kind of “discovery” (Leeds TUCRIC 1) and possibly “the only concept of sexual violence to be labelled by women themselves” (Hearn et al. 20). Not everyone agrees that Farley’s group first coined the term (see Herbert 1989) and there is some evidence that it was in use from the early 1970s. Catherine Mackinnon accredits its first use to the Working Women United Institute in New York in connection with the case of Carmita Wood in 1975 (25). Yet Farley’s account gained authority and is cited in several other contemporary radical feminist works (for instance, see Storrie and Dykstra 26; Wise and Stanley 48), and Sexual Shakedown can now be listed among the iconic feminist manifestoes of the second wave era.The key insight of Farley’s book was that sexual coercion in the workplace was more than aberrant behaviour by individual men but was systemic and organised. She suggests how the phrase sexual harassment “is the first verbal description of women’s feelings about this behaviour and it unstintingly conveys a negative perception of male aggression in the workplace” (32). Others followed in seeing it as organised expression of male power that functions “to keep women out of non-traditional occupations and to reinforce their secondary status in the workplace” (Pringle 93), a wisdom that is now widely accepted but seemed radical at the time.A theoretical literature on sexual harassment grew rapidly from the 1970s in which the definition of sexual harassment was a key element. In Sexual Shakedown, Farley defines it with specific connection to the workplace and a woman’s “function as worker” (33). Some definitions attempted to cover a range of practices that “might threaten a woman’s job security or create a stressful or intimidating working environment” ranging from touching to rape (Sedley and Benn 6). In the wider radical feminist discussion, sexual harassment was located within the “continuum of sexual violence”, a paradigm that highlighted the links between “every day abuses” and “less common experiences labelled as crimes” (Kelly 59). Accordingly, it was seen as a diminished category of rape, termed “little rape” (Bularzik 26), or a means whereby women are “reminded” of the “ever present threat of rape” (Rubinstein 165).The upsurge of research and writing served to document the prevalence and history of sexual harassment. Radical feminist accounts situated the origins in the long-standing patriarchal assumption that economic responsibility for women is ultimately held by men, and how “women forced to earn their own living in the past were believed to be defenceless and possibly immoral” (Rubinstein 166). Various accounts highlighted the intersecting effects of racism and sexism in the experience of black women, and women of colour, in a way that would be now termed intersectional. Jo Dixon discussed black women’s “least advantaged position in the economy coupled with the legacy of slavery” (164), while, in Australia, Linda Rubinstein describes the “sexual exploitation of aboriginal women employed as domestic servants on outback stations” which was “as common as the better documented abuse of slaves in the American South” (166).In The Sexual Harassment of Working Women, Catherine Mackinnon provided a pioneering legal argument that sexual harassment was a form of sex discrimination. She defined two types: the quid pro quo, when “sexual compliance is exchanged, or proposed to be exchanged, for an employment opportunity” (32); and sexual harassment as a “persistent condition of work” that “simply makes the work environment unbearable” (40). Thus the feminist histories of sexual harassment became detailed and strategic. The naming of sexual harassment was a moment of relinquishing women’s experience to the gaze of feminism and the bureaucratic gaze of the state, and, in the legal interventions that followed, it ceased to be exclusively a feminist issue.In Australia, a period of bureaucratisation and state intervention commenced in the late 1970s that corresponded with similar legislative responses abroad. The federal Sex Discrimination Act was amended in 1984 to include a definition of sexual harassment, and State and Territory jurisdictions also framed legislation pertaining to sexual harassment (see Law Council of Australia). The regimes of redress were linked with Equal Opportunity and Affirmative Action frameworks and were of a civil order. Under the law, there was potential for employers to be found vicariously liable for sexual harassment.In the women’s movement, legislative strategies were deemed reformist. Radical and socialist feminists perceived the de-gendering effects of these policies in the workplace that risked collusion with the state. Some argued that naming and defining sexual harassment denies that women constantly deal with a range of harassment anywhere, not only in the workplace (Wise and Stanley 10); while others argued that reformist approaches effectively legitimate other forms of sex discrimination not covered by legislation (Game and Pringle 290). However, in feminism and in the policy realm, the debate concerned sexual harassment in the general workplace. In contrast to #MeToo, it was not led by celebrity voices, nor galvanised by incidents in the sphere of entertainment, nor, by and large, among figures of public office, except for a couple of notable exceptions, including Anita Hill.The “Spectacle of Subjectivity” in the “Scene of Public Life”Through the early 1990s as an MA candidate at the University of Queensland, I studied media coverage of sexual harassment cases, clipping newspapers and noting electronic media reports on a daily basis. These mainly concerned incidents in government sector workplaces or small commercial enterprises. While the public prominence of the parties involved was not generally a factor in reportage, occasionally, prominent individuals were affected, such as the harassment of the athlete Michelle Baumgartner at the Commonwealth Games in 1990 which received extensive coverage but the offenders were never publicly named or disciplined. Two other incidents stand out: the Ormond College case at the University of Melbourne, about which much has been written; and Anita Hill’s claims against Clarence Thomas during his nomination to the US Supreme Court in 1991.The spectacle of Hill’s testimony to the US Senate is now an archetype of claims against powerful men, although, at the time, her credibility was attacked and her dignified presentation was criticised as “too composed. Too cool. Too censorious” (Legge 31). Hill was also seen to counterpose the struggles of race and gender, and Thomas himself famously described it as “a hi-tech lynching of an uppity black” (qtd in Stephens 1). By “hi-tech”, Thomas alluded to the occasion of the first-ever live national broadcast of the United States Senate hearings in which Hill’s claims were aired directly to the national public, and re-broadcast internationally in news coverage. Thus, it was not only the claims but the scale and medium of delivery to a global audience that set it apart from other sexual harassment stories.Recent events have since prompted revisiting of the inequity of Hill’s treatment at the Senate hearings. But well before this, in an epic and polemical study of American public culture, Berlant reflected at length on the heroism of Hill’s “witnessing” as paradigmatic of citizenship in post-Reaganite America’s “shrinking” public sphere. It forms part of her much wider thesis regarding the “intimate public sphere” and the form of citizenship “produced by personal acts and values” (5) in the absence of a context that “makes ordinary citizens feel they have a common public culture, or influence on a state” (3), and in which the fundamental inequality of minority cultures is assumed. For Berlant, Hill’s testimony becomes the model of “Diva Citizenship”; the “strange intimacy” in which the Citizen Diva, “the subordinated person”, believes in the capacity of the privileged ones “to learn and to change” and “trust[s] ... their innocence of ... their obliviousness” of the system that has supported her subjugation (222–223). While Berlant’s thesis pertains to profound social inequalities, there is no mistaking the comparison to the digital feminist in the #MeToo era in the call to identify with her suffering and courage.Of Hill’s testimony, Berlant describes how: “a member of a stigmatised population testifies reluctantly to a hostile public the muted and anxious history of her imperiled citizenship” (222). It is an “act of heroic pedagogy” (223) which occurs when “a person stages a dramatic coup in a public sphere in which she does not have privilege” (223). In such settings, “acts of language can feel like explosives” and put “the dominant story into suspended animation” (223). The Diva Citizen cannot “change the world” but “challenges her audience” to identify with her “suffering” and the “courage she has had to produce” in “calling on people to change the practices of citizenship into which they currently consent” (223). But Berlant cautions that the strongest of Divas cannot alone achieve change because “remaking the scene of public life into a spectacle of subjectivity” can lead to “a confusion of ... memorable rhetorical performance with sustained social change itself” (223). Instead, she argues that the Diva’s act is a call; the political obligation for the action of change lies with the collective, the greater body politic.The EchoIf Acts of Diva Citizenship abound in the #MeToo movement, relations between the individual and the collective are in question in a number of ways. This suggests a basis of comparison between past and present feminisms which have come full circle in the renewed recognition of sexual harassment in the continuum of sexual violence. Compared with the past, the voices of #MeToo are arguably empowered by a genuine, if gradual, change in the symbolic status of women, and a corresponding destabilization of the images of male power since the second wave era of feminism. The one who names an abuser on Twitter symbolises a power of individual courage, backed by a responding collective voice of supporters. Yet there are concerns about who can “speak out” without access to social media or with the constraint that “the sanctions would be too great” (Zarkov and Davis). Conversely, the “spreadability” — as Jenkins, Ford and Green term the travelling properties of digital media — and the apparent relative ease of online activism might belie the challenge and courage of those who make the claims and those who respond.The collective voice is also allied with other grassroots movements like SlutWalk (Jouet), the women’s marches in the US against the Trump presidency, and the several national campaigns — in India and Egypt, for instance (Zarkov and Davis) — that contest sexual violence and gender inequality. The “sheer numbers” of participation in #MeToo testify to “the collectivity of it all” and the diversity of the movement (Gill and Orgad). If the #MeToo hashtag gained traction with the “experiences of white heterosexual women in the US”, it “quickly expanded” due to “broad and inclusive appeal” with stories of queer women and men and people of colour well beyond the Global North. Even so, Tarana Burke, who founded the #MeToo hashtag in 2006 in her campaign of social justice for working class women and girls of colour, and endorsed its adoption by Hollywood, highlights the many “untold stories”.More strikingly, #MeToo participants name the names of the alleged harassers. The naming of names, famous names, is threshold-crossing and as much the public-startling power of the disclosures as the allegations and stimulates newsworthiness in conventional media. The resonance is amplified in the context of the American crisis over the Trump presidency in the sense that the powerful men called out become echoes or avatars of Trump’s monstrous manhood and the urgency of denouncing it. In the case of Harvey Weinstein, the name is all. A figure of immense power who symbolised an industry, naming Weinstein blew away the defensive old Hollywood myths of “casting couches” and promised, perhaps idealistically, the possibility for changing a culture and an industrial system.The Hollywood setting for activism is the most striking comparison with second wave feminism. A sense of contradiction emerges in this new “visibility” of sexual harassment in a culture that remains predominantly “voyeuristic” and “sexist” (Karkov and Davis), and not least in the realm of Hollywood where the sexualisation of women workers has long been a notorious open secret. A barrage of Hollywood feminism has accompanied #MeToo and #TimesUp in the campaign for diversity at the Oscars, and the stream of film remakes of formerly all-male narrative films that star all-female casts (Ghostbusters; Oceans 11; Dirty, Rotten Scoundrels). Cynically, this trend to make popular cinema a public sphere for gender equality in the film industry seems more glorifying than subversive of Hollywood masculinities. Uneasily, it does not overcome those lingering questions about why these conditions were uncontested openly for so long, and why it took so long for someone to go public, as Rose McGowan did, with claims about Harvey Weinstein.However, a reading of She Said, by Jodie Kantor and Megan Tuohey, the journalists who broke the Weinstein story in the New York Times — following their three year efforts to produce a legally water-tight report — makes clear that it was not for want of stories, but firm evidence and, more importantly, on-the-record testimony. If not for their (and others’) fastidious journalism and trust-building and the Citizen Divas prepared to disclose their experiences publicly, Weinstein might not be convicted today. Yet without the naming of the problem of sexual harassment in the women’s movement all those years ago, none of this may have come to pass. Lin Farley can now be found on YouTube retelling the story (see “New Mexico in Focus”).It places the debate about digital activism and Hollywood feminism in some perspective and, like the work of journalists, it is testament to the symbiosis of individual and collective effort in the action of change. The tweeting activism of #MeToo supplements the plenum of knowledge and action about sexual harassment across time: the workplace novels, the consciousness raising, the legislation and the poster campaigns. In different ways, in both eras, this literature demonstrates that names matter in calling for change on sexual harassment. But, if #MeToo is to become the last long take on sexual harassment, then, as Berlant advocates, the responsibility lies with the body politic who must act collectively for change in ways that will last well beyond the courage of the Citizen Divas who so bravely call it on.ReferencesBerlant, Lauren. The Queen of America Goes to Washington City: Essays on Sex and Citizenship. 1997. Durham: Duke UP, 2002.Bularzik, Mary. “Sexual Harassment at the Workplace: Historical Notes.” Radical America 12.4 (1978): 25-43.Cohen, Rose. Out of the Shadow. NY: Doran, 1918.Dixon, Jo. “Feminist Reforms of Sexual Coercion Laws.” Sexual Coercion: A Sourcebook on Its Nature, Causes and Prevention. Eds. Elizabeth Grauerholz and Mary A. Karlewski. Massachusetts: Lexington, 1991. 161-171.Farley, Lin. Sexual Shakedown: The Sexual Harassment of Women in the Working World. London: Melbourne House, 1978.Game, Ann, and Rosemary Pringle. “Beyond Gender at Work: Secretaries.” Australian Women: New Feminist Perspectives. Melbourne: Oxford UP, 1986. 273–91.Gill, Rosalind, and Shani Orgad. “The Shifting Terrain of Sex and Power: From the ‘Sexualisation of Culture’ to #MeToo.” Sexualities 21.8 (2018): 1313–1324. <https://doi-org.elibrary.jcu.edu.au/10.1177/1363460718794647>.Google Trends. “Me Too Rising: A Visualisation of the Movement from Google Trends.” 2017–2020. <https://metoorising.withgoogle.com>.Hearn, Jeff, Deborah Shepherd, Peter Sherrif, and Gibson Burrell. The Sexuality of Organization. London: Sage, 1989.Herbert, Carrie. Talking of Silence: The Sexual Harassment of Schoolgirls. London: Falmer, 1989.Jenkins, Henry, Sam Ford, and Joshua Green. Spreadable Media: Creating Value and Meaning in a Networked Culture. New York: New York UP, 2013.Jouet, Josiane. “Digital Feminism: Questioning the Renewal of Activism.” Journal of Research in Gender Studies 8.1 (2018). 1 Jan. 2018. <http://dx.doi.org.elibrary.jcu.edu.au/10.22381/JRGS8120187>.Kantor, Jodi, and Megan Twohey. She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement. London: Bloomsbury, 2019.Kelly, Liz. “The Continuum of Sexual Violence.” Women, Violence, and Social Control. Eds. Jalna Hanmer and Mary Maynard. London: MacMillan, 1989. 46–60.Legge, Kate. “The Harassment of America.” Weekend Australian 19–20 Oct. 1991: 31.Mackinnon, Catherine. The Sexual Harassment of Working Women. New Haven: Yale UP, 1979.New Mexico in Focus, a Production of NMPBS. 26 Jan. 2018. <https://www.youtube.com/watch?v=LlO5PiwZk8U>.Pringle, Rosemary. Secretaries Talk. Sydney: Allen and Unwin, 1988.Rubinstein, Linda. “Dominance Eroticized: Sexual Harassment of Working Women.” Worth Her Salt. Eds. Margaret Bevege, Margaret James, and Carmel Shute. Sydney: Hale and Iremonger, 1982. 163–74.Sedley, Ann, and Melissa Benn. Sexual Harassment at Work. London: NCCL Rights for Women Unit, 1986.Stephens, Peter. “America’s Sick and Awful Farce.” Sydney Morning Herald 14 Oct. 1991: 1.Storrie, Kathleen, and Pearl Dykstra. “Bibliography on Sexual Harassment.” Resources for Feminist Research/Documentation 10.4 (1981–1982): 25–32.Wise, Sue, and Liz Stanley. Georgie Porgie: Sexual Harassment in Every Day Life. London: Pandora, 1987.Winch, Alison, Jo Littler, and Jessalyn Keller. “Why ‘Intergenerational Feminist Media Studies’?” Feminist Media Studies 16.4 (2016): 557–572. <https://doi.org/10.1080/14680777.2016.1193285>.Zarkov, Dubravka, and Kathy Davis. “Ambiguities and Dilemmas around #MeToo: #ForHowLong and #WhereTo?” European Journal of Women's Studies 25.1 (2018): 3–9. <https://doi.org/10.1177/1350506817749436>.

Pat Buchanan’s infamous speech to the 1992 Republican convention (Buchanan), has often been understood as a defining moment in the US culture wars (Hartman). The speech’s central claim that “there is a religious war going on in our country for the soul of America” oriented around the idea that the US was a nation divided between two opposing values systems. On one side were Democrat defenders of “abortion on demand” and “homosexual rights” and on the other those who, like then Republican presidential candidate George Bush, stood by the “Judeo-Christian values and beliefs upon which this nation was built.”Buchanan’s speech helped popularise the idea that the US was riven by fundamental cultural divides, an idea that became a media staple but was hotly contested by scholars.The year before Buchanan’s speech, James Davison Hunter’s Culture Wars: The Struggle to Define America advanced a “culture wars thesis” based in claims of a growing “political and social hostility rooted in different systems of moral understanding” (Hunter 42). Hunter cited increasing polarisation in debates on “abortion, child care, funding for the arts, affirmative action and quotas, gay rights, values in public education, or multiculturalism” (Hunter 42) and claimed that the defining religious divides in the US were no longer between religions but within them. In the intense scholarly debate that followed its publication, as Irene Taviss Thomson has summarised, little empirical evidence emerged of any real divide.Yet this lack of empirical evidence does not mean that talk of culture wars can be easily dismissed. The culture wars, as I have argued elsewhere (Davis), were and are a media product designed to sharpen social divides for electoral gain. No doubt because of the usefulness of this product, culture wars discourse remains a persistent feature of public debate across the west. The symbolic discourse that positions the culture wars and its supposedly intractable differences as real, I argue, deserves consideration in its own right.In what follows, I analyse the use of culture wars discourse in two defining documents. The first, Pat Buchanan’s 1992 “culture wars” speech, reputedly put the culture wars front and centre of US politics. The second, Allum Bokhari and Milo Yiannopoulos’s 2016 article in Breitbart News, “An Establishment Conservative’s Guide to the Alt-Right” (Bokhari and Yiannopoulos), sought to define its moment by affirming the arrival of a new political movement, the “alt-right”, as a force in US politics. With its homage to Buchanan and written in the belief that “politics is downstream from culture” the article sought to position the alt-right as an inheritor of Buchanan’s legacy and to mark a new defining moment in an ongoing culture war.This self-referential framing, I argue, belies deep differences between Buchanan’s rhetoric and that of Bokhari and Yiannopoulos. Buchanan’s defence of American values, while spectacularly adversarial, is at base democratic, whereas, despite its culturalist posturing, one project of “An Establishment Conservative’s Guide to the Alt-Right” is to reinstate biological notions of race and gender difference in the political agenda.Culture Wars ThenBuchanan’s speech came after decades of sniping. The emergence of the “counterculture” of the 1960s helped create a basis for the idea that US politics was defined by an irreducible clash of values (Thomson). Buchanan played a direct role in fostering such divides. As he famously wrote in a 1971 memo to then President Richard Nixon in which he suggested exploiting racial divides, if we “cut … the country in half, my view is that we would have far the larger half.” But the language of Buchanan’s 1992 speech, while incendiary, is nevertheless democratic in its emphasis on delineating rival political platforms. Much culture wars discourse focuses on the embodied politics of gender, sexuality and race. A principal target of Buchanan’s speech was abortion, which since the Roe versus Wade judgement of 1973 that legalised part-term abortion in the US has been a defining culture wars issue. At the “top” of Democrat candidate Bill Clinton’s agenda, Buchanan claimed, is “unrestricted abortion on demand.” Buchanan singled out Hillary Clinton for special attack:friends, this is radical feminism. The agenda Clinton & Clinton would impose on America–abortion on demand … homosexual rights, discrimination against religious schools, women in combat … is not the kind of change America wants.Buchanan then pledges to support George Bush, who had beaten him for the Republican nomination, and Bush’s stance “against the amoral idea that gay and lesbian couples should have the same standing in law as married men and women.” He also supports Bush on “right-to-life, and for voluntary prayer in the public schools.” Buchanan’s language here references essentialist ideas of morality and contrasts them against the supposed immorality of his opponents but is ultimately predicated in the democratic languages of law-making and rights and the adversarial language of electoral politics. Through these contrasts the speech builds to its famous centrepiece:my friends, this election is about much more than who gets what. It is about who we are. It is about what we believe. It is about what we stand for as Americans. There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself.Buchanan, here, sharpens and maps the contrasts he has been working with onto differences in identity. Politics, here, is not about the distribution of resources but is about identity, values and a commensurate difference in belief systems. On one side are righteous Americans, on the other a culture of immorality that threatens the proper religious basis of the nation. Notably, the speech makes no direct mention of race. It instead uses code. Evoking the LA riots that took place earlier that year, Buchanan sides with the troopers who broke up the riots.they walked up a dark street, where the mob had looted and burned every building but one, a convalescent home for the aged. The mob was heading in, to ransack and loot the apartments of the terrified old men and women. When the troopers arrived, M-16s at the ready, the mob threatened and cursed, but the mob retreated. It had met the one thing that could stop it: force, rooted in justice, backed by courage … and as they took back the streets of LA, block by block, so we must take back our cities, and take back our culture, and take back our country. God bless you, and God bless America.Unsaid here is that the “mob” were black and reacting against the injustice of the beating of a black man, Rodney King, by police. The implication is that to “take back our culture … take back our country” is to vanquish the restive black enemy within. By using code Buchanan is able to avoid possible charges of racism, positioning the rioters not as racially different but as culturally different; their deficit is not genetic but patriotic.Culture Wars NowSince the 1990s culture wars discourse has become entrenched as a media staple. Supposedly intractable values divides between “conservatives” and “liberals” play out incessantly across a conservative media sphere that spans outlets (Fox News), platforms (Breitbart News), broadcasters (Rush Limbaugh), and commentators such as Ann Coulter, in debate over issues ranging from gun control, LGBTQI rights, American history and sex education and prayer in schools. This discourse, crystalised in divisive terms such as “cultural Marxist,” “social justice warrior” and “snowflake”, is increasingly generated by online bulletin boards such as the 4chan/pol/(politically incorrect) and /b/-Random boards, which function as a crucible for trolling and meme-making (Phillips) that routinely targets minorities, women and especially feminists. As Angela Nagle has said (24), Gamergate, the 2014 episode in which female game reviewers and designers critical of sexism in the gaming industry were targeted with organised trolling, played a pivotal role in “uniting different online groups and spreading the tactics of chan culture to the broad online right.” Other conduits for extremist discourse to the mainstream include sites such as the white supremacist Daily Stormer, alt-right sites, and “men’s rights” sites such as Return of Kings. The self-described aim of this discourse, as the white nationalist Jared Swift has said, has been to move the “Overton window” of what constitutes acceptable public discourse far to the right (in Daniels).The emergence of this diverse conservative media sphere provided opportunities for new celebrities willing to parse older forms of culture wars discourse with new forms of online extremism and to announce themselves as ringmasters of whatever circus might result. One such person is Milo Yiannopoulos. Quick to read the opportunities in Gamergate, he announced himself a sudden convert to the gaming cause (which he had previously dismissed) and helped turn the controversy into a rallying point for a nascent alt-right (Yiannopoulos). In 2014 Yiannopoulos was recruited by Breitbart News as a senior editor. Breitbart’s founder, Andrew Breitbart, is perhaps most famous for his dictum that “politics is downstream from culture”, an apt motto for a culture war.In 2016 Yiannopoulos, working with Bokhari, another Breitbart staffer, published, “An Establishment Conservative’s Guide to the Alt-Right”, which, written with Andrew Breitbart’s dictum in mind, sought to announce the radicalism of a new antiestablishment conservative political force and yet to make it palatable for a mainstream audience. The article claims the “paleoconservative movement that rallied around the presidential campaigns of Pat Buchanan” as one of the origins of the alt-right. Donald Trump is praised as “perhaps the first truly cultural candidate for President since Buchanan.” The rest, they argue, is little more than harmless online mischief. The alt-right, they claim, is a fun-loving “movement born out of the youthful, subversive, underground edges of the internet,” made up of people who are “dangerously bright.” Similarly, the “manosphere” of “men’s rights” sites, infamous for misogyny, are praised as “one of the alt-right’s most distinctive constituencies” and positioned as harmless alongside an endorsement of masculinist author Jack Donovan’s “wistful” laments for “the loss of manliness that accompanies modern, globalized societies.” Mass trolling and the harassment of opponents by “the alt-right’s meme team” is characterised as “undeniably hysterical” and justifiable in pursuit of lulz.The sexism and racism found on bulletin boards such as 4 chan, for Bokhari and Yiannopoulos, is no less harmless. Young people, they claim, are drawn to the alt right not because of ideology but because “it seems fresh, daring and funny” contrasted against the “authoritarian instincts of the progressive left. With no personal memories or experience of racism, they “have trouble believing it’s actually real … they don’t believe that the memes they post on/pol/ are actually racist. In fact, they know they’re not—they do it because it gets a reaction.”For all these efforts to style the alt-right as mere carnivalesque paleoconservatism, though, there is a fundamental difference between Buchanan’s speech and “An Establishment Conservative’s guide to the Alt-Right.” Certainly, Bokhari and Yiannopoulos hit the same culture wars touchstones as Buchanan: race, sexuality and gender issues. But whereas Buchanan’s speech instances the “new racism” (Ansell) in its use of code to avoid charges of biological racism, Yiannopoulos and Bokhari are more direct. The article presents as an exemplary instance of how to fight a culture war but epitomises a new turn in the culture wars from culture to biologism. The alt-right is positioned as unashamedly Eurocentric and having little to do with racism. Yiannopoulos and Bokhari also seek to distance the alt-right from the “Stormfront set” and “1488ers” (“1488” is code for neo-Nazi). Yet even as they do so, they embrace “human biodiversity” ideology (biological racism), ethnic separatism and the building of walls to keep different racial groups apart. “An Establishment Conservative’s guide to the alt-right” was written in secret consultation with leading white supremacist figures (Bernstein) and namechecks the openly white supremacist Richard Spencer who is given credit for helping found “the media empire of the modern-day alternative right.”Spencer has argued that “Race is something between a breed and an actual species” and a process of “peaceful ethnic cleansing” should take place by which non-white Americans leave (Nagle 59). He is an admirer of the Italian ‘superfascist’ and notorious racist Julius Evola, who Yiannopoulos and Bokhari also namecheck. They also excuse race hate sites such as VDARE and American Renaissance as home to “an eclectic mix of renegades who objected to the established political consensus in some form or another.” It is mere happenstance, according to Yiannopoulos and Bokhari, that the “natural conservatives” drawn to the alt-right are “mostly white, mostly male middle-American radicals, who are unapologetically embracing a new identity politics that prioritises the interests of their own demographic.” Yet as they also say,while eschewing bigotry on a personal level, the movement is frightened by the prospect of demographic displacement represented by immigration. Border walls are a much safer option. The alt-right’s intellectuals would also argue that culture is inseparable from race. The alt-right believe that some degree of separation between peoples is necessary for a culture to be preserved.“Demographic displacement” here is code for “white genocide” a meme assiduously promoted over many years by the US white supremacist Bob Whitaker, now deceased, who believed that immigration, interracial marriage, and multiculturalism dilute white influence and will drive the white population to extinction (Daniels). The idea that “culture is inseparable from race” and that “some degree of separation between peoples is necessary for a culture to be preserved” echo white supremacist calls for a white “ethno-state.”“An Establishment Conservative’s Guide to the Alt-Right” also namechecks so-called “neoreactionaries” such as Nick Land and Curtis Yarvin, who according to Yiannopoulos and Bokhari regard egalitarianism as an affront to “every piece of research on hereditary intelligence” and see liberalism, democracy and egalitarianism as having “no better a historical track record than monarchy.” Land and Yarvin, according to Yiannopoulos and Bokhari, offer a welcome vision of the conservative future:asking people to see each other as human beings rather than members of a demographic in-group, meanwhile, ignored every piece of research on tribal psychology … these were the first shoots of a new conservative ideology—one that many were waiting for.Culture Wars FuturesAs the culture wars have turned biological so they have become entrenched ever more firmly in mainstream politics. The “new conservative ideology” Yiannopoulos and Bokhari mention reeks of much older forms of conservative ideology currently being taken up in the US and elsewhere, based in naturalised gender hierarchies and racialised difference. This return to the past is fast becoming institutionalised. One of the stakes in the bitter 2018 dispute over the appointment of Brett Kavanaugh to the US Supreme Court was the prospect that Kavanaugh’s vote will create a conservative majority in the court that will enable the revisiting of a talismanic moment in the culture wars by overturning the Roe versus Wade judgement. Alt-right calls for a white ethno-state find an analogue in political attacks on asylum seekers, the reinforcement of racialised differential citizenship regimes around the globe, the building of walls to keep out criminalised Others, and anti-Islamic immigration measures. The mainstreaming of hate can be seen in the willingness of Donald Trump as a presidential candidate and as president to retweet the white supremacist tweets of @WhiteGenocideTM, his hesitation to repudiate a campaign endorsement by Ku Klux Klan leader David Duke, his retweeting of bogus black crime statistics, his accusations that illegal Mexican immigrants are criminals, drug dealers and rapists, and his anti-Islamic immigration stance. It can be seen, too, in the recent electoral successes of white nationalist parties across Europe.For all their embrace of Eurocentrism and “the preservation of western culture” the alt-right revisiting of issues of race and gender in terms that seek to reinstate biological hierarchy undermines the Enlightenment ethics of equality and universalism that underpin western human rights conventions and democratic processes. The “Overton window” of acceptable public debate has moved far to the right and long taboo forms of race and gender-based hate have returned to the public agenda. Buchanan’s 1992 Republican convention speech, by contrast, for all its incendiary rhetoric, toxic homophobia, sneering anti-feminism, and coded racism, somehow manages to look like a relic from a kinder, gentler age.ReferencesAnsell, Amy Elizabeth. New Right, New Racism: Race and Reaction in the United States and Britain. Palgrave Macmillan, 1997.Bernstein, Joseph. “Here’s How Breitbart and Milo Smuggled Nazi and White Nationalist Ideas into the Mainstream.” BuzzFeed News, 10 May 2017. 4 Dec. 2018 <https://www.buzzfeednews.com/article/josephbernstein/heres-how-breitbart-and-milo-smuggled-white-nationalism>.Bokhari, Allum, and Milo Yiannopoulos. “An Establishment Conservative’s Guide to the Alt-Right.” Breitbart, 29 Mar. 2016. 4 Dec. 2018 <http://www.breitbart.com/tech/2016/03/29/an-establishment-conservatives-guide-to-the-alt-right/>.Buchanan, Pat. “1992 Republican National Convention Speech.” Patrick J. Buchanan - Official Website, 17 Aug. 1992. 4 Dec. 2018 <http://buchanan.org/blog/1992-republican-national-convention-speech-148>.Daniels, Jessie. “Twitter and White Supremacy, A Love Story.” Dame Magazine, 19 Oct. 2017. 4 Dec. 2018 <https://www.damemagazine.com/2017/10/19/twitter-and-white-supremacy-love-story/>.Davis, Mark. “Neoliberalism, the Culture Wars and Public Policy.” Australian Public Policy: Progressive Ideas in the Neoliberal Ascendency. Eds. Chris Miller and Lionel Orchard. Policy Press, 2014. 27–42.Hartman, Andrew. A War for the Soul of America: A History of the Culture Wars. University of Chicago Press, 2015.Hunter, James Davison. Culture Wars: The Struggle to Control the Family, Art, Education, Law, and Politics in America. Basic Books, 1991.Nagle, Angela. Kill All Normies: Online Culture Wars from 4chan and Tumblr to Trump and the Alt-Right. Zero Books, 2017.Phillips, Whitney. This Is Why We Can’t Have Nice Things: Mapping the Relationship between Online Trolling and Mainstream Culture. MIT Press, 2015.Thomson, Irene Taviss. Culture Wars and Enduring American Dilemmas. University of Michigan Press, 2010.Yiannopoulos, Milo. “Feminist Bullies Tearing the Video Game Industry Apart.” Breitbart, 1 Sep. 2014. 4 Dec. 2018 <http://www.breitbart.com/london/2014/09/01/lying-greedy-promiscuous-feminist-bullies-are-tearing-the-video-game-industry-apart/>.

Almost evenly divided in numbers and talent at the start of the crisis, in 1782 the revolutionary bar and the loyal bar faced vastly different futures. The revolutionary lawyers had stepped into the role of constitution drafters and lawgivers. Their lives, fortunes, and honor were enhanced by their part in the Revolution. Having a “vested interest in making sure the new nation succeeded” they fashioned an American republican law, a concept of public engagement, adorned with categories of fundamental liberties and rights that had great capacity for expansion. Though originally confined to a narrow band of the citizenry, time, sacrifice, and a growing sense of inclusiveness would, eventually, expand a male, white, entrenched, and propertied governing class to include women, people of color, working people, and newcomers. A second achievement was a little more self-serving. The revolutionary lawyers’ participation in the new confederated and state governments set a pattern, a precedent if you will, of a public role for lawyers outside of the courts. When a new generation of lawyers passed the bar and began practicing,...

Chapter 4 describes the principle of nonwaiver in Latin America focusing on Argentina, Brazil, Chile, and Uruguay. It posits that employers and workers cannot waive labor rights, given by law, through contract. It shows how the principle is expressly stated in some positive law, in court opinions, and in legal scholarship. It also details how the principle is typically applied in controversies over contract terms and claim settlements. The chapter also shows that the principle surfaces in Latin American cases related to contract modification and novation, even when such contracts contain terms that meet or exceed minimum labor standards. Second, the chapter finds a nonwaiver principle in the United States, mostly in its protection of free labor under the Thirteenth Amendment and in the positive labor law and jurisprudence. However, the chapter also focuses on the particular problem of so-called “procedural” waivers sanctioned by the U.S. Supreme Court’s coerced readings of the Federal Arbitration Act (FAA). The U.S. Supreme Court permits employers to require employees to sign agreements to arbitrate legal claims, even if those legal claims are class or collective in scope. Evidence clearly shows that such “procedural waivers” undermine substantial labor rights. Because the U.S. Supreme Court has already ruled on the issue, we argue that such waivers need to either be legally banned or regulated by Congress, under its Thirteenth Amendment authority, so as to not undo workers’ rights in the United States and force workers to agree to terms they likely oppose. In fact, we argue that regulated arbitration might actually help to create legitimate labor courts in the United States, which that country still lacks.

This chapter discusses two final supranational mixed civil law and common law jurisdictions, which are comparable in size, population, and GDP to the United States of America, to India, to the former British Empire, and to Brazil. These jurisdictions had two common law members prior to Brexit becoming a reality in 2020: the United Kingdom and Ireland. These two supranational jurisdictions are, of course, the European Union (EU) and the Council of Europe. The origins and growth of the power of judicial review in the EU is a very complicated tale of federalism umpiring giving rise to judicial power. The European Court of Justice (ECJ) successfully asserted its power between 1963 and 1989 to hear individual rights claims, as it enlisted the member courts of the EU over that period of time in the project of enforcing EU law as being supreme over the later-in-time law of the EU nation-states. The ECJ persuaded the national courts of the EU’s member states that (1) EU law had a direct effect in the member nations, and (2) that EU law was supreme over the post-1958 laws enacted by the EU member nations. The chapter then explains the origins and growth in power of the Council of Europe’s European Court of Human Rights (ECHR). This enterprise began for rights from wrongs reasons and has grown in power for supranational umpiring reasons.