Mathilde Cohen
Mathilde Cohen is a French-American scholar who writes about law and society, with a specific interest in European and US laws. She has written about the ways in which judges deliberate in different jurisdictions, the role of language in multi-national courts, the lack of diversity among judges, and the enduring colonial features of the French judiciary, among other topics. Mathilde Cohen’s research also engage with the way in which the law addresses embodied practices such as eating, birthing, lactating, and childcare. In doing so, she employs mixed methods integrating theoretical and doctrinal perspectives with archival research and qualitative data collection.
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Papers by Mathilde Cohen
Legal scholarship is growing in the field of lactation law, but work that specifically focuses on milk expression and its legal implications beyond the workplace-from the regulation of breast pumps as medical devices to the question of whether public milk expression should be protected-is missing. This Article contributes to the literature by arguing that milk expression should be recognized as part of a reproductive justice-based right to breastfeed through a combination of civil rights, FDA law, insurance law, health law, tax law, and work law. Parents need paid parental leave, paid lactation breaks, and access to affordable, high-quality, and culturally competent healthcare and lactation counseling and technology. In addition, they should have the right to express milk in every space where they have the right to be present.
The paradox of transnational courts is that if by one measure they lack in judicial diversity, by another measure, they are designed based on the very principle of judicial diversity, unlike their domestic counterparts. In the international context, the idea of representation has always been assumed and valued, be it understood as descriptive or substantive representation. Some forms of identities, such as national origin, are not only desirable, but also thought to be essential to the courts’ mission, while other forms of identity, such as race, sex, gender identity and expression, class, or disability, may be ignored or challenged. The goal of this symposium is to investigate this tension by offering case studies examining different dimensions of diversity at a number of transnational courts.
English Abstract: Human milk is humans’ primary food. It is also the only food produced by humans specifically for other humans. Yet, while cow’s milk can be found on every corner, procuring human milk can be tricky business for those not lactating. Both in France and the United States, milk banks reserve their supply for premature or sick babies, leaving those seeking human milk for children who do not meet these clinical indications or for adult consumption with the only option of turning to informal markets. These markets typically rely on social media and online platforms to match women wishing to sell or donate their milk to potential buyers/recipients. They are theoretically illegal in France as human milk transactions outside of the milk bank channel are prohibited and wholly unregulated in the United States.
In light of the growing public interest in human milk and its contrasted legal regime on the two sides of the Atlantic, this Article explores the way in which human milk is and has been conceived historically, socially, and culturally. Is human milk a food? A medicine? A human tissue? A form of social, symbolic, or even literal communication? This investigation is all the more critical that the social construction of milk informs its legal regulation. Based on a comparison between France and the United States, the Article argues that while the law tends to downplay the food dimension of human milk, this is precisely the aspect reclaimed by those who engage in informal milk transactions.
The right to food is often considered interdependent with and essential to the realization of other human rights such as the right to life, the right to health or the right to work. Not only does food keep us alive, but adequate nourishment is a prerequisite to enjoy a fulfilling life. Eating is a defining element of cultural identity and self-expression, shaping one’s interactions with other humans, animals, and the environment Food may even be of intrinsic value, in and of itself a source of great pleasure and joy, regardless of its use as a means to realize other goods. Though it is often embedded in other rights such as the right to minimum entitlements, the right to food can be thought of as the most basic right and merits focus as an independent right.
After presenting the core meanings of the right to food and tracing its historical evolution, a comparative description of its role and meaning in South Africa, India, and the United States will be provided. Finally, the impact of constitutionalizing the right to food will be assessed.
In light of the growing demand for human milk and public health professionals’ calls for government oversight due to fears of pathogen contamination, this Article asks whether human milk should be regulated more tightly and, if so, what types of legal reforms would be most desirable. It concludes that human milk should not be treated as a disembodied product under a food, drug, and tissue law paradigm, but rather as the product of a relationship between breastfeeders and breastfed babies. It is this relationship that is in urgent need of legal protections so that more parents can breastfeed their children and make extra milk available for others. Though the risks of contamination are real, they can be, and are, mitigated by milk banks, as well as by peer-to-peer donors and recipients. But many children who need donor milk do not obtain it either because it is unavailable or too expensive. Legal reforms should therefore focus on increasing the supply via robust breastfeeding and donor milk support, which in turn will make human milk accessible to all those who need it regardless of their socioeconomic status. This approach entails shifting from a single-minded focus on health and safety to considering the conditions of people who produce and donate milk and the health insurance market that often fails to cover it.
What can account for this level of bureaucratization? Along institutional design, I single out as explanatory factors the specific constraints imparted by international adjudication which generate various asymmetries between the judges and the staff. The chapter hypothesizes that the rise of a European court bureaucracy may paradoxically foster elements of non-bureaucratic culture. Judges and staffers are not separated by an invisible (and impassable) wall. Both the CJEU and ECtHR hire domestic judges to work as staffers. At the same time, a growing number of judges are recruited from among the rank of their court’s staff or other European bureaucracies. This growing professional endogamy could make judges captives to their staff, but I suggest instead that it facilitates exchanges across the judge-staff divide, leading to more opportunities for intra-court deliberations.
I argue that while both the European Court of Human Rights and French lawmakers depict reason-giving as an individual human right belonging to criminal defendants, in practice, reason-giving functions as an accountability device primarily designed to solve systemic issues within the criminal justice system. More specifically, as the French case illustrates, the European interest in reason-giving can be tied to hopes for tighter control over trial judges. The chapter concludes that it is hard, if not impossible, to disentangle two facets of reason-giving, namely, reason-giving as a way to achieve fairness to defendants and reason-giving as a way to provide checks on legal actors who might otherwise enjoy unfettered discretion.
This article studies a special type of deportation hearings and its status in French administrative courts. Until a 2006 legislative reform, this proceeding was the only one in French administrative litigation giving rise to hearings where all the parties were present, including: the claimants, their counsel, and the representatives of the immigration agency. Each party could set out its case and cross-examine the other party. The paper analyzes the way in which administrative judges deal with this irruption of orality in their work, traditionally dominated by a written procedure, and the meaning they give to the hearing in (re)defining their profession. The “APRF” hear- ings are paradoxical. While judges often look down upon them, considering them as a “dirty job,” the proceedings increasingly constitute a quality control device used to monitor judicial performance.
Résumé: Cet article propose une étude des audiences d’arrêtés préfectoraux de reconduite à la frontière (généralement appelées « audiences d’APRF ») et de leur statut au sein du tribunal administratif. Le contentieux des APRF était, jusqu’à sa réforme en 2006, l’un des seuls contentieux administratifs donnant lieu à des audiences où les différentes parties sont présentes (requérants et leur conseil, d’un côté; représentants de la préfecture, de l’autre) et peuvent exposer leur point de vue tout en contredisant la partie adverse. Il s’agit ici d’analyser la façon dont les magistrats font face à cette irruption de l’oralité dans leur travail traditionnellement dominé par une procédure écrite, et le sens qu’ils accordent à cette audience dans la (re)définition de leur profession. Les audiences d’APRF présentent un para- doxe : si elles sont dévalorisées et souvent considérées comme un « sale boulot » sans grand intérêt juridique, elles constituent pourtant un outil de « contrôle de qualité » privilégié du travail des magistrats.
The Article distinguishes two types of high court deliberations, which I call the “ex ante” and the “ex post” models. In the first model, prevalent in the French and European courts, judges draft and deliberate the court’s merits opinion before the case is orally argued and scheduled for the conference meeting. In other words, cases are decided before being decided. The second model is typical of Anglo-American supreme courts, in particular the United States Supreme Court; in this model, justices do most of the deliberative work after the case has been orally argued and a vote on the merits has taken place at the conference. In other words, cases are decided after being decided.
Despite different judicial cultures, one common theme is that in both ex ante and ex post courts, judges tend to decide cases through a succession of multiple small group interactions involving non-judicial personnel rather than a single prolonged face-to-face deliberation. The upshot of the Article is the formulation of a dual-influence hypothesis: a court’s style of judicial opinions may form deliberations as much as deliberations shape opinions.
Drawing on empirical research carried out in a French administrative court, this Article argues that, in practice, reason-giving often falls either short of democracy or beyond democracy. Reasons fall short of democracy in the first case because they are transformed from a device designed to protect citizens from arbitrariness into a professional norm intended to protect the judges themselves and perhaps further their career goals. In the second case, reasons go beyond democracy because judges' ambitions are much greater than to merely provide petitioners with a ground for understanding and criticizing the decision: they aim at positively, and paternalistically in some instances, guiding people's conduct. The discussion proceeds by drawing attention to social aspects that are often neglected in theoretical discussions on reason-giving.
A skeptical conclusion is suggested: one can rarely guarantee that any predetermined value will be achieved by the giving of reasons. The degree to which individuals are empowered by the reasons given to them is dependent on the way in which decision-givers envision their reason-giving activity, and this representation is itself conditioned by the social setting of the court.
Legal scholarship is growing in the field of lactation law, but work that specifically focuses on milk expression and its legal implications beyond the workplace-from the regulation of breast pumps as medical devices to the question of whether public milk expression should be protected-is missing. This Article contributes to the literature by arguing that milk expression should be recognized as part of a reproductive justice-based right to breastfeed through a combination of civil rights, FDA law, insurance law, health law, tax law, and work law. Parents need paid parental leave, paid lactation breaks, and access to affordable, high-quality, and culturally competent healthcare and lactation counseling and technology. In addition, they should have the right to express milk in every space where they have the right to be present.
The paradox of transnational courts is that if by one measure they lack in judicial diversity, by another measure, they are designed based on the very principle of judicial diversity, unlike their domestic counterparts. In the international context, the idea of representation has always been assumed and valued, be it understood as descriptive or substantive representation. Some forms of identities, such as national origin, are not only desirable, but also thought to be essential to the courts’ mission, while other forms of identity, such as race, sex, gender identity and expression, class, or disability, may be ignored or challenged. The goal of this symposium is to investigate this tension by offering case studies examining different dimensions of diversity at a number of transnational courts.
English Abstract: Human milk is humans’ primary food. It is also the only food produced by humans specifically for other humans. Yet, while cow’s milk can be found on every corner, procuring human milk can be tricky business for those not lactating. Both in France and the United States, milk banks reserve their supply for premature or sick babies, leaving those seeking human milk for children who do not meet these clinical indications or for adult consumption with the only option of turning to informal markets. These markets typically rely on social media and online platforms to match women wishing to sell or donate their milk to potential buyers/recipients. They are theoretically illegal in France as human milk transactions outside of the milk bank channel are prohibited and wholly unregulated in the United States.
In light of the growing public interest in human milk and its contrasted legal regime on the two sides of the Atlantic, this Article explores the way in which human milk is and has been conceived historically, socially, and culturally. Is human milk a food? A medicine? A human tissue? A form of social, symbolic, or even literal communication? This investigation is all the more critical that the social construction of milk informs its legal regulation. Based on a comparison between France and the United States, the Article argues that while the law tends to downplay the food dimension of human milk, this is precisely the aspect reclaimed by those who engage in informal milk transactions.
The right to food is often considered interdependent with and essential to the realization of other human rights such as the right to life, the right to health or the right to work. Not only does food keep us alive, but adequate nourishment is a prerequisite to enjoy a fulfilling life. Eating is a defining element of cultural identity and self-expression, shaping one’s interactions with other humans, animals, and the environment Food may even be of intrinsic value, in and of itself a source of great pleasure and joy, regardless of its use as a means to realize other goods. Though it is often embedded in other rights such as the right to minimum entitlements, the right to food can be thought of as the most basic right and merits focus as an independent right.
After presenting the core meanings of the right to food and tracing its historical evolution, a comparative description of its role and meaning in South Africa, India, and the United States will be provided. Finally, the impact of constitutionalizing the right to food will be assessed.
In light of the growing demand for human milk and public health professionals’ calls for government oversight due to fears of pathogen contamination, this Article asks whether human milk should be regulated more tightly and, if so, what types of legal reforms would be most desirable. It concludes that human milk should not be treated as a disembodied product under a food, drug, and tissue law paradigm, but rather as the product of a relationship between breastfeeders and breastfed babies. It is this relationship that is in urgent need of legal protections so that more parents can breastfeed their children and make extra milk available for others. Though the risks of contamination are real, they can be, and are, mitigated by milk banks, as well as by peer-to-peer donors and recipients. But many children who need donor milk do not obtain it either because it is unavailable or too expensive. Legal reforms should therefore focus on increasing the supply via robust breastfeeding and donor milk support, which in turn will make human milk accessible to all those who need it regardless of their socioeconomic status. This approach entails shifting from a single-minded focus on health and safety to considering the conditions of people who produce and donate milk and the health insurance market that often fails to cover it.
What can account for this level of bureaucratization? Along institutional design, I single out as explanatory factors the specific constraints imparted by international adjudication which generate various asymmetries between the judges and the staff. The chapter hypothesizes that the rise of a European court bureaucracy may paradoxically foster elements of non-bureaucratic culture. Judges and staffers are not separated by an invisible (and impassable) wall. Both the CJEU and ECtHR hire domestic judges to work as staffers. At the same time, a growing number of judges are recruited from among the rank of their court’s staff or other European bureaucracies. This growing professional endogamy could make judges captives to their staff, but I suggest instead that it facilitates exchanges across the judge-staff divide, leading to more opportunities for intra-court deliberations.
I argue that while both the European Court of Human Rights and French lawmakers depict reason-giving as an individual human right belonging to criminal defendants, in practice, reason-giving functions as an accountability device primarily designed to solve systemic issues within the criminal justice system. More specifically, as the French case illustrates, the European interest in reason-giving can be tied to hopes for tighter control over trial judges. The chapter concludes that it is hard, if not impossible, to disentangle two facets of reason-giving, namely, reason-giving as a way to achieve fairness to defendants and reason-giving as a way to provide checks on legal actors who might otherwise enjoy unfettered discretion.
This article studies a special type of deportation hearings and its status in French administrative courts. Until a 2006 legislative reform, this proceeding was the only one in French administrative litigation giving rise to hearings where all the parties were present, including: the claimants, their counsel, and the representatives of the immigration agency. Each party could set out its case and cross-examine the other party. The paper analyzes the way in which administrative judges deal with this irruption of orality in their work, traditionally dominated by a written procedure, and the meaning they give to the hearing in (re)defining their profession. The “APRF” hear- ings are paradoxical. While judges often look down upon them, considering them as a “dirty job,” the proceedings increasingly constitute a quality control device used to monitor judicial performance.
Résumé: Cet article propose une étude des audiences d’arrêtés préfectoraux de reconduite à la frontière (généralement appelées « audiences d’APRF ») et de leur statut au sein du tribunal administratif. Le contentieux des APRF était, jusqu’à sa réforme en 2006, l’un des seuls contentieux administratifs donnant lieu à des audiences où les différentes parties sont présentes (requérants et leur conseil, d’un côté; représentants de la préfecture, de l’autre) et peuvent exposer leur point de vue tout en contredisant la partie adverse. Il s’agit ici d’analyser la façon dont les magistrats font face à cette irruption de l’oralité dans leur travail traditionnellement dominé par une procédure écrite, et le sens qu’ils accordent à cette audience dans la (re)définition de leur profession. Les audiences d’APRF présentent un para- doxe : si elles sont dévalorisées et souvent considérées comme un « sale boulot » sans grand intérêt juridique, elles constituent pourtant un outil de « contrôle de qualité » privilégié du travail des magistrats.
The Article distinguishes two types of high court deliberations, which I call the “ex ante” and the “ex post” models. In the first model, prevalent in the French and European courts, judges draft and deliberate the court’s merits opinion before the case is orally argued and scheduled for the conference meeting. In other words, cases are decided before being decided. The second model is typical of Anglo-American supreme courts, in particular the United States Supreme Court; in this model, justices do most of the deliberative work after the case has been orally argued and a vote on the merits has taken place at the conference. In other words, cases are decided after being decided.
Despite different judicial cultures, one common theme is that in both ex ante and ex post courts, judges tend to decide cases through a succession of multiple small group interactions involving non-judicial personnel rather than a single prolonged face-to-face deliberation. The upshot of the Article is the formulation of a dual-influence hypothesis: a court’s style of judicial opinions may form deliberations as much as deliberations shape opinions.
Drawing on empirical research carried out in a French administrative court, this Article argues that, in practice, reason-giving often falls either short of democracy or beyond democracy. Reasons fall short of democracy in the first case because they are transformed from a device designed to protect citizens from arbitrariness into a professional norm intended to protect the judges themselves and perhaps further their career goals. In the second case, reasons go beyond democracy because judges' ambitions are much greater than to merely provide petitioners with a ground for understanding and criticizing the decision: they aim at positively, and paternalistically in some instances, guiding people's conduct. The discussion proceeds by drawing attention to social aspects that are often neglected in theoretical discussions on reason-giving.
A skeptical conclusion is suggested: one can rarely guarantee that any predetermined value will be achieved by the giving of reasons. The degree to which individuals are empowered by the reasons given to them is dependent on the way in which decision-givers envision their reason-giving activity, and this representation is itself conditioned by the social setting of the court.