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This Essay is a joint endeavor of two authors equal in dignity, aligned in purpose, and, at one point, radically separated in social position. We hope that it will accomplish many things: locate the work of jailhouse lawyers within abolitionist frameworks, enunciate the role of jailhouse lawyers as community paralegals, and advocate for recognition and valuation of jailhouse lawyers as key members of the American legal ecosystem. However, if all this Essay articulates is a well-communicated theory on the path from our currently deplorable system of incarceration towards justice, we fall short of our ultimate goal.

In A Theory of Stategraft, Bernadette Atuahene advances the concept of “stategraft” to describe situations in which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” This Essay delineates the ways in which criminal legal system fees and fines can be characterized as stategraft and explores the value of this concept for social movements. In many ways, the stategraft frame, with its focus on illegality, fits well with much of the litigation and advocacy against unconstitutional fees-and-fines practices that have occurred over the last decade. Exposing illegal practices such as the operation of debtors’ prisons laid the groundwork for a more fundamental critique of the use of the criminal legal system as a revenue generator for the state. The Essay cautions, however, against relying too heavily on illegality to describe what is wrong with fees-and-fines regimes in light of courts’ reluctance to impose robust legal protections against state practices that saddle those who encounter law enforcement with debt. Relying on an illegality critique may make it harder to attack entrenched practices that courts are inclined to bless as legal and obscure more fundamental dynamics of predation and regressive revenue redistribution. At this juncture, calling attention to these structural issues is likely to be more fruitful both as an organizing tactic and as a description of the harms posed by fees and fines.

Professor Bernadette Atuahene’s theoretical framework for “stategraft” denotes actions by which state agents transfer cash or property from the people to the state in violation of the law or basic human rights norms. Because illegality is central to stategraft, attention to it may push other forms of state predation—those that are legal or whose legality are uncertain—out of the realm of reform given the dearth of funding for legal advocacy and difficulties in marshalling lawmaker attention. This Essay suggests, however, that consideration of stategraft provides opportunities for advocates to push back against legal, or not yet illegal, predatory practices. It does so by looking to recent advocacy efforts related to two types of predatory behaviors outside the bounds of stategraft: the use of fines and fees, and civil forfeiture practices.

Professor Bernadette Atuahene’s article, A Theory of Stategraft, develops the new theoretical conception of “stategraft.” Professor Atuahene notes that when state agents have engaged in practices of transferring property from persons to the state in violation of the state’s own laws or basic human rights, it sits at the nexus of illegal behavior and revenue-generating activity for the government. Although there are countless instances of “stategraft,” one particularly salient example is when the state uses artificial intelligence to illegally extract resources from people. This Essay will apply stategraft to an algorithm implemented in Michigan that falsely accused recipients of unemployment benefits of fraud and illegally garnished their paychecks and intercepted their IRS tax refunds.

Civil forfeiture is a mechanism by which law enforcement can seize and keep property purportedly connected to a crime absent the arrest, formal charging, or even conviction of the property owner. Forfeiture laws also allow law enforcement to keep a portion, and sometimes all, of the seized property for agency use and, in some jurisdictions, even for the salaries and benefits of law enforcement personnel directly. In the past several decades, forfeiture laws have distorted law enforcement priorities by shifting the focus away from other activities and toward revenue generation. Civil forfeiture illustrates Professor Atuahene’s theory of stategraft: state agents transferring property from residents “to the state in violation of the state’s own laws or basic human rights,” often during times of budgetary austerity. But this Essay identifies important elements of forfeiture that do not comport with the theory. It suggests ways in which the conceptualization of stategraft may be expanded to encompass laws, regulations, and systems that legally, although arguably unjustly, allow or encourage state actors to exploit their fellow residents for the benefit of the bureaucrat’s budget. The Essay concludes with recommendations for reform of civil forfeiture laws and stategraft more generally.

In this Essay, we re-examine our 2022 book, Menstruation Matters: Challenging the Law’s Silence on Periods, through multiple related lenses, including the human rights, sustainability, and workplace issues emphasized by our three reviewers; the COVID-19 pandemic; and the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. All of these perspectives converge on the inherent dignity and autonomy interests in being able to manage one’s own body. Menstruation and related conditions like breastfeeding, pregnancy, and menopause should not be sources of shame or stigma. Nor should they be vectors of formal control by the government or de facto exclusion from school, work, or any aspect of public life. Yet the Supreme Court’s overturning of Roe v. Wade means that reproduction-associated bodily processes likely will be the focus of legal battles for years to come. As we continue to emphasize the many ways that menstruation matters in life and law, we strive for a legal future that recognizes the full humanity of all people and safeguards our equal rights.

In February 2023, Spain became the first European country to guarantee “menstrual leave” for workers, joining several countries, mostly in East Asia, that have long done so. It has also become increasingly common for companies to offer paid time off to menstruators as a discretionary benefit. Reports on these developments are almost always accompanied by criticism from self-identified feminists voicing concern that the policies will spur discrimination against women or reinforce stereotypes about menstruators as incapable workers. This echoes earlier arguments over maternity leave.

In their groundbreaking book, Menstruation Matters, Bridget Crawford and Emily Waldman expose myriad ways in which workplaces can be inhospitable to menstruators, and they offer an extremely helpful introduction to the debate over menstrual leave. This Essay builds on their analysis to take a deeper dive into the issue. It argues that there are alternatives to leave that could address many of these problems without triggering the same concerns of backlash. These include effective enforcement of existing laws and regulations relating to restroom access, break time, and workplace accommodations for various health needs. Additionally, employers can provide free menstrual products in workplace restrooms to allows workers to handle periods with dignity—even when they start unexpectedly—and help destigmatize menstruation.  

Even if these practices become routine, some menstruators might need to miss work when experiencing severe menstrual symptoms. The Essay suggests that rather than seeking menstrual-specific leave, advocates might join forces with the burgeoning campaign to guarantee adequate paid sick days for all workers. Menstruation is not an illness, but most such laws are written broadly enough to meet menstruators’ needs. This universal approach, designed to support a broader swath of workers, would probably be easier to pass politically, and it would be far less likely to result in workplace discrimination against menstruators.

It is possible to menstruate for forty-six years without ever considering menstrual politics as a compelling intersectional sphere that embraces gender, race, class, health, and environmental concerns. It is not possible, however, to read Menstruation Matters: Challenging the Law’s Silence on Periods and fail to grasp the scope of the policy problems and opportunities that menstruation presents.

This Review presents one lawyer-activist-reader’s perspective on three distinct themes in the book: menstruation and education, the health and environmental aspects of menstruation, and menstrual politics as a site of intense semantic contestation. This grab sample of Menstruation Matters reflects my own areas of experience and expertise. It also demonstrates the book authors’ impressive range as they explore well beyond their core disciplines of tax and constitutional law to present a lucid and comprehensive picture of the diverse issues that periods implicate.

I share with the authors a hope that the ever-growing movement for menstrual equity provides proof of concept for an expansive vision of human dignity and flourishing that benefits all of its constituent movements.

This Essay reviews and places into theoretical contexts Bridget Crawford and Emily Waldman’s invaluable book Menstruation Matters. Although the authors themselves do not explicitly label the theoretical approach that undergirds their work, much of Menstruation Matters: Challenging the Law’s Silence on Periods falls within the liberal feminist legal tradition typical of post-civil rights second-wave feminism. Their work also embodies aspects of critical feminist approaches to law. Crawford & Waldman expose the discriminatory effects of facially neutral laws, the limits of formal equality, and the pitfalls of essentializing or making universal claims about categories of individuals—including women and menstruators. In addition to exploring the theoretical lenses employed by the authors, this Essay suggests that other critical perspectives, including critical and global critical race feminism, might further elucidate the nature of the menstrual injustices the authors expose. This Essay posits that Menstruation Matters convincingly illustrates that feminist legal theory—comprising a whole variety of perspectives and approaches—is as relevant as ever.

Crawford & Waldman emphasize that menstrual equity is necessary to facilitate menstruators’ full participation in public life. The Essay suggests that this instrumental conception of menstrual equity may insufficiently recognize the inherent dignity of menstruators, irrespective of whether and how that equity enables their societal contributions. It suggests instead that menstrual equity is necessary and justified, not principally for any instrumental purpose, but simply because it affords menstruators the dignity to which they are entitled as full and equal members of society.

President Donald Trump issued an executive order in September of 2020 seeking to exclude diversity and inclusion training from federal contracts if those trainings contained so-called “divisive concepts” like stereotyping and scapegoating based on race and sex. In the wake of the executive order, attacks on Critical Race Theory (CRT) skyrocketed.  However, many of these discussions have mischaracterized CRT. In this Essay, one of the participants of the original CRT workshop held in Madison, Wisconsin in the summer of 1989 provides a historical account of what CRT is and what it sought to accomplish. 

More than anything, those early CRT meetings were driven by a concern about the racial disparities in the existing socioeconomic conditions of society, despite the legal victories of the civil rights era of the 1960s. This concern was heightened by the Supreme Court. The Court’s Equal Protection jurisprudence had frozen the racial disparities in place because it increasingly adopted an approach for resolving racial discrimination along the dictates of colorblindness. Thus, not only were we critiquing racial jurisprudence based on colorblindness, but also arguing that the Equal Protection Clause jurisprudence should recognize a distinction between policies and programs directed towards attenuating racial disparities and those aimed at strengthening them. Such an approach played on the dual applications of race consciousness. The racial consciousness of slavery and segregation and articulated by the Supreme Court in Brown v. Board of Education was based on the belief that there was something wrong with Black people. We embraced a different form of race consciousness—one that was consciously aware that the racial disparities of our time were not the result of deficiencies in Black people, but the continuing manifestations of our history of racial oppression and subordination. As a result, American society and American jurisprudence needed a race consciousness dedicated to dismantling the policies, programs, and institutional practices that were recreating racial disparities.