The Rules of #MeToo

45 Pages Posted: 8 Apr 2019

Date Written: March 31, 2019

Abstract

Two revelations are central to the meaning of the #MeToo movement. First, sexual harassment and assault are ubiquitous. And second, traditional legal procedures have failed to redress these problems. In the absence of effective formal legal procedures, a set of ad hoc processes have emerged for managing claims of sexual harassment and assault against persons in high-level positions in business, media, and government. This Article sketches out the features of this informal process, in which journalists expose misconduct and employers, voters, audiences, consumers, or professional organizations are called upon to remove the accused from a position of power. Although this process exists largely in the shadow of the law, it has attracted criticisms in a legal register. President Trump tapped into a vein of popular backlash against the #MeToo movement in arguing that it is “a very scary time for young men in America” because “somebody could accuse you of something and you’re automatically guilty.” Yet this is not an apt characterization of #MeToo’s paradigm cases. In these cases, investigative journalists have carefully vetted allegations; the accused have had opportunities to comment and respond; further investigation occurred when necessary; and the consequences, if there were any at all, were proportional to the severity of the misconduct. This Article offers a partial defense of the #MeToo movement against the argument that it offends procedural justice. Rather than flouting due process values, #MeToo’s informal procedures have a number of advantages in addressing sexual misconduct while providing fair process when the accused person is a prominent figure.

Keywords: MeToo, Sexual Harassment

Suggested Citation

Clarke, Jessica, The Rules of #MeToo (March 31, 2019). University of Chicago Legal Forum, Vol. 2019, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3363875

Jessica Clarke (Contact Author)

Vanderbilt University Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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