Janet Halley

Royall Professor of Law

Hauser 424

617-496-0182

Assistant: Teresa Cyr / 617-496-2392

Biography

Janet Halley is the Royall Professor of Law at Harvard Law School. She has a Ph.D. in English Literature from UCLA and a J.D. from Yale Law School. She has taught at Tel Aviv Buckmann School of Law and in the Law Department of the American University in Cairo. She is the author of Split Decisions: How and Why to Take a Break from Feminism (Princeton 2006), and Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy (Duke 1999). With Wendy Brown, she coedited Left Legalism/Left Critique (Duke 2002), and with Andrew Parker she coedited After Sex? New Writing Since Queer Theory (Duke 2011). She is the editor of a collection of essays entitled Critical Directions in Comparative Family Law, 58 American Journal of Comparative Law, and the author of “What is Family Law?: A Genealogy,” published last year in the Yale Journal of Law and the Humanities. Her current book projects are The Family/Market Distinction: A Genealogy and Critique and Rape in Armed Conflict: Assessing the Feminist Vision and its Law. She is co-director of the Trafficking Roundtable and of the Up Against Family Law Exceptionalism Conference, an international collaboration dedicated to studying the role of the family and family law in colonization, decolonization and contemporary globalization. She was recently awarded the Career Achievement Award for Law and the Humanities by the Association for the Study of Law, Culture and the Humanities. She teaches Family Law, Gender and the Family in Transnational Legal Orders, Gender in Postcolonial Legal Orders, Trafficking and Labor Migration, and courses on the intersections of legal theory with social theory.

Areas of Interest

Janet E. Halley, Trading the Megaphone For the Gavel in Title IX Enforcement, 128 Harv. L. Rev. F. 103 (2015).
Categories:
Disciplinary Perspectives & Law
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
,
Education Law
Type: Article
After Sex? On Writing Since Queer Theory (Janet E. Halley & Andrew Parker eds., Duke Univ. Press 2011).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
LGBTQ Rights Law
,
Legal Theory & Philosophy
Type: Book
Abstract
Prominent participants in the development of queer theory explore the field in relation to their own intellectual itineraries, reflecting on its accomplishments, limitations, and critical potential.
Janet E. Halley, What is Family Law?: Genealogy Part II, 23 Yale J.L. & Human. 189 (2011).
Categories:
Family Law
,
Legal Profession
Sub-Categories:
Domestic Relations
,
Legal History
Type: Article
Abstract
This Article offers a genealogy of domestic relations law (later renamed family law). It comes in two Parts. Part I is an account of how it emerged as a distinct field in American law in the latter half of the nineteenth century. This Part, Part II, is an account of its successive transformations over the course of the twentieth century. I argue that domestic relations/family law did not always exist; rather, it was invented, and the ideological implications of that act of creation remain embedded in the field today. The central idea which, I argue, recurrently characterizes the field is that the family and its law are the opposites of the market and its law. Born in the middle of the nineteenth century as the notorious status/contract distinction, it has shown amazing powers of resilience, surviving three highly intentional and collectively organized attacks and gathering to itself new ideological and practical implications as the presuppositions about law that permeate legal consciousness have changed and changed again over time.
Janet E. Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton Univ. Press 2006).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
Type: Book
Abstract
Is it time to take a break from feminism? In this pathbreaking book, Janet Halley reassesses the place of feminism in the law and politics of sexuality.
Janet E. Halley, The Move to Affirmative Consent, 42 Signs 257 (2016).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
Type: Article
Abstract
In “The Move to Affirmative Consent,” I argue that, though affirmative consent has great appeal because of its respect for norms about good sex that we all share, as a rule intended to be enforced in actual punitive processes, whether on campus or in the criminal justice system, it will be vastly overinclusive, deeply repressive, and socially conservative in its enforcement of traditional gender roles. I show how affirmative consent reforms represent a partial victory (and thus also a partial defeat) for dominance feminists ultimately seeking to criminalize subjectively unwanted sexual behavior without respect to the intent or knowledge of the accused; the relationship history of the parties; the racial, cultural, or other social distance between the parties; and the character of the complainant’s memory of the events. I further demonstrate how existing affirmative consent rules will allow decision makers to hold people responsible for serious misconduct based on one or more of three states of mind that have been consistently muddled in the debates so far: the accuser’s subjective consent (described as “positive” if it is rests on her positive desire and as “constrained” if she consents to sexual conduct to avoid something she disfavors) and as “performative” if it rests on an indication of consent through physical or verbal signs. Each of these rules includes some conduct that, almost all feminists agree, deserves sanction and should be deterred, but they are all overinclusive in ways that many feminists would reject. One such way, I demonstrate, is an affirmation of female passivity and male activity in sex—a legal affirmation of, and incentive to reawaken, the gender roles of the gilded age. This current contribution asks feminists to consider carefully how affirmative consent will operate in practice, in the real world, before offering it their support.
Janet E. Halley, After Gender: Tools for Progressives in a Shift from Sexual Domination to the Economic Family, 31 Pace L. Rev. 887 (2011).
Categories:
Disciplinary Perspectives & Law
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
,
Domestic Relations
Type: Article
Janet E. Halley, Le Genre Critique: Comment (Ne Pas) Genrer Le Droit?, 2011 Jurisprudence: Revue Critique 109 (2011).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Feminist Legal Theory
,
Critical Legal Studies
Type: Article
Janet E. Halley, Split Decisions: How and Why to Take a Break from Feminism, in Feminist Jurisprudence: Cases and Materials (Cynthia Grant Bowman, Laura A. Rosenbury, Deborah Tuerkheimer & Kimberly A. Yuracko eds., 4th ed. 2011).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
Type: Book
Abstract
Is it time to take a break from feminism? In this pathbreaking book, Janet Halley reassesses the place of feminism in the law and politics of sexuality. She argues that sexuality involves deeply contested and clashing realities and interests, and that feminism helps us understand only some of them. To see crucial dimensions of sexuality that feminism does not reveal--the interests of gays and lesbians to be sure, but also those of men, and of constituencies and values beyond the realm of sex and gender--we might need to take a break from feminism. Halley also invites feminism to abandon its uncritical relationship to its own power. Feminists are, in many areas of social and political life, partners in governance. To govern responsibly, even on behalf of women, Halley urges, feminists should try taking a break from their own presuppositions. Halley offers a genealogy of various feminisms and of gay, queer, and trans theories as they split from each other in the United States during the 1980s and 1990s. All these incommensurate theories, she argues, enrich thinking on the left not despite their break from each other but because of it. She concludes by examining legal cases to show how taking a break from feminism can change your very perceptions of what's at stake in a decision and liberate you to decide it anew.
Janet E. Halley, What is Family Law?: A Genealogy Part I, 23 Yale J.L. & Human. 1 (2011).
Categories:
Family Law
,
Legal Profession
Sub-Categories:
Domestic Relations
,
Legal History
Type: Article
Abstract
What is the place of the family in legal scholarship and teaching, and in deep, implicit ideas about how our legal order is arranged? How did it get to be that way? Published in two separate Parts, this Article tells a story of American family law: how the law of Domestic Relations emerged as a distinct legal topic in late-nineteenth-century legal treatises, and what ideological conditions facilitated its renaming and reconstruction as Family Law in the Family Courts and casebooks of the twentieth century. Almost without exception, throughout this account Domestic Relations/Family Law are what they are by virtue of their categorical distinction from the law of contract and, more broadly, the law of the market. This distinction did not always seem natural: this Article tells how it was invented. The resulting market/family distinction remains a latent but structural element of the legal curriculum and the legal order more generally today. This Article calls that distinction into question and suggests that family law should be restructured to connect it for the first time to domains of law more readily understood to relate directly to the market: economically significant productivity, social security provision, and the fair or unfair distribution of economic resources. My story comes in three time periods, corresponding with Duncan Kennedy's three globalizations of legal thought. The first is the classical era, roughly the last half of the nineteenth century. The second is the era of "the social" - characterized by the sociological jurisprudes' and legal realists' attack on the classical legal order and restructuring of legal taxonomy-spanning roughly the first half of the twentieth century. And the last is the era of conflicting considerations, roughly the last half of the twentieth century.
Janet E. Halley & Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, 58 Am. J. Comp. L. 753 (2010).
Categories:
Family Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Janet E. Halley, Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict, 9 Melbourne J. Int'l L. 78 (2008).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Laws of Armed Conflict
,
International Humanitarian Law
Type: Article
Abstract
The specific criminalisation of sexual violence in war has made immense strides in recent years, as feminists engaged with the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the Rome Statute processes have proposed — and often won — a wide range of new legal rules and prosecutorial practices. This essay briefly describes some of these feminist achievements, in particular the reframing of rape and other sexual violations as a freestanding basis for charging serious humanitarian crimes and as the sole predicate act in particular prosecutions; and the demotion of a consent-based defence to charges of rape. The essay then turns to an anonymously published account of one woman’s experiences during the fall of Berlin to the Soviet Army in 1945, published in English as A Woman in Berlin: A Diary. By analysing the Diary’s ideologically saturated reception in Germany and by analysing the text itself, the essay proposes that rape in war is not merely either ignored and condoned or prosecuted and punished, but intrinsically problematically related to our evaluations of the badness of rape and the badness of war. The essay derives from its reading of A Woman in Berlin a war–rape antinomy: the literary achievement of the Diary, the author argues, is that it keeps the badness of war and the badness of rape in mutual suspension; and the pathos of its typical reception is that this antinomy collapses in ways that ratify some of the most problematic ideological investments linking rape to war. The essay concludes by deriving from this literary-critical excursion some hard policy questions for law-makers deciding how to criminalise rape and other sexual violence in International Humanitarian Law and International Criminal Law: what are the costs of ignoring the ideological discourses that surround rape? What are the downsides of ratifying the idea that rape in war is a fate worse than death? Could the special condemnation of rape weaponise it? How should criminal law handle the problematic of consent under coercive circumstances when those circumstances are armed conflict? And how might the new feminist-inspired rules entrench nationalist differentiation and antagonism? It concludes that the intrinsic dilemma-like structure of our answers to these questions cannot be transcended, and that international policy-makers should temper triumphalist excitement about the new feminist-inspired rules in order to take these problematics on board.
Janet E. Halley, Prabha Kotiswaran, Hila Shamir & Chantal Thomas, From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J.L. & Gender 335 (2006).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Feminist Legal Theory
,
International Humanitarian Law
Type: Article
Abstract
This Article is the result of an intense series of text and telephone exchanges among the four of us, taking place from December 2005 to April 2006. Each of us has her own project which forms the basis of her contribution to this conversation. Janet Halley is working on new rules governing wartime sexual violence in international humanitarian law, specifically the place of rape and sexual slavery in the decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Chantal Thomas has published widely on the law of trade;1 one of her papers examines the feminist debate over the 2001 U.N. Trafficking Protocol.2 Hila Shamir and Prabha Kotiswaran have studied emergent national regimes addressing the connection between local prostitution markets and international “sex trafficking” in Holland, Sweden, and Israel (Shamir) and in India (Kotiswaran). Shamir compares legal regimes for governing sex trafficking and the related prostitution industry within national borders; Kotiswaran studies the highly local negotiations between stakeholders in the sex industry in India through ªeld work in Tirupati and Kolkata. Shamir and Koti-swaran take special note of the striking but very different impact of the 2001 Protocol and the United States’ Victims of Trafficking and Violence Protection Act (the VTVPA)3 in Israel and India.
Janet E. Halley, Gender, Sexuality and Power - Is Feminist Theory Enough? 12 Colum. J. Gender & L. 601 (2003).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
,
Domestic Relations
,
Reproduction
Type: Article
Abstract
In this dialogue, four authors critically examine how to describe feminism and what it can and cannot do, particularly with regard to sexuality. The authors use the Texas Supreme Court case Twyman v. Twyman, involving divorce, sadomasochistic sex, and a claim of emotional distress, as a focal point to explore how feminism deals with gender, sexuality, and power, and whether it does so sufficiently. The roundtable discussion revolves around Janet Halley's radical suggestion that not only is feminism not enough, but that we should "Take a Break" from it in order to see the issues feminism does not address as well as the effects of a feminist perspective.
Left Legalism/Left Critique (Wendy Brown & Janet E. Halley eds., Duke Univ. Press 2002).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
Type: Book
Abstract
"In recent decades, left political projects in the United States have taken a strong legalistic turn. From affirmative action to protection against sexual harassment, from indigenous peoples’ rights to gay marriage, the struggle to eliminate subordination or exclusion and to achieve substantive equality has been waged through courts and legislation. At the same time, critiques of legalism have generally come to be regarded by liberal and left reformers as politically irrelevant at best, politically disunifying and disorienting at worst. This conjunction of a turn toward left legalism with a turn away from critique has hardened an intellectually defensive, brittle, and unreflective left sensibility at a moment when precisely the opposite is needed. Certainly, the left can engage strategically with the law, but if it does not also track the effects of this engagement—effects that often exceed or even redound against its explicit aims—it will unwittingly foster political institutions and doctrines strikingly at odds with its own values. Brown and Halley have assembled essays from diverse contributors—law professors, philosophers, political theorists, and literary critics—united chiefly by their willingness to think critically from the left about left legal projects. The essays themselves vary by topic, by theoretical approach, and by conclusion. While some contributors attempt to rework particular left legal projects, others insist upon abandoning or replacing those projects. Still others leave open the question of what is to be done as they devote their critical attention to understanding what we are doing. Above all, Left Legalism/Left Critique is a rare contemporary argument and model for the intellectually exhilarating and politically enriching dimensions of left critique—dimensions that persist even, and perhaps especially, when critique is unsure of the intellectual and political possibilities it may produce."
Janet E. Halley, In Memoriam: David Charny, 114 Harv. L. Rev. 2232 (2001).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Janet E. Halley, 'Like Race' Arguments, in What's Left of Theory? New Work on the Politics of Literary Theory 40 (Judith Butler, John Guillory & Kendall Thomas, eds. 2000).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Race & Ethnicity
,
Gender & Sexuality
,
Critical Legal Studies
Type: Book
Janet E. Halley, Don't: A Reader's Guide to the Military Anti-Gay Policy (Duke Univ. Press 1999).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Discrimination
,
Military & Veterans Law
Type: Book
Abstract
In Don’t Janet E. Halley explains how the military's new anti-gay policy is fundamentally misdescribed by its common nickname, “Don't Ask/Don't Tell.” This ubiquitous phrase, she points out, implies that it discharges servicemembers not for who they are, but for what they do. It insinuates that, as long as military personnel keep quiet about their homosexual orientation and desist from “homosexual conduct,” no one will try to pry them out of their closets and all will be well.
Seeking the Woman in Late Medieval and Renaissance Writings: Essays in Feminist Contextual Criticism (Sheila Fisher & Janet E. Halley, eds. 1989).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Feminist Legal Theory
,
Law & Humanities
Type: Book
Janet E. Halley, Textual Intercourse: Anne Donne, John Donne, and the Sexual Poetics of Textual Exchange, in Seeking the Woman in Late Medieval and Renaissance Writings: Essays in Feminist Contextual Criticism 187 (Sheila Fisher & Janet E.Halley, eds. 1989).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Feminist Legal Theory
,
Law & Humanities
Type: Book
Janet E. Halley, Female Autonomy in Milton's Sexual Poetics, in Milton and the Idea of Woman (Julia M. Walker, ed. 1988).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Feminist Legal Theory
,
Law & Humanities
Type: Book
Janet E. Halley, Heresy, Orthodoxy, and the Politics of Religious Discourse: The Case of the English Family of Love, 15 Representations 98 (1986).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
,
Law & Humanities
Type: Article
Janet E. Halley, Identity and Censored Language: The Case of the Familists, in Persons in Groups: Social Behavior as Identity Formation in Medieval and Renaissance Europe (Richard C. Trexler, ed. 1985).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
Type: Book
Janet E. Halley, Sir Thomas Browne's The Garden of Cyrus and the Real Character, 15 English Literary Renaissance 100 (1985).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
Type: Article
Janet E. Halley, Versions of the Self and the Politics of Privacy in Silex Scintillans, 7 George Herbert J. 51 (1983).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
Type: Article

Current Courses

Course Catalog View

Hauser 424

617-496-0182

Assistant: Teresa Cyr / 617-496-2392