Archive for the ‘Feminism and Gender’ Category
Problematic Gender Quotas at Harvard Law
posted by Kaimipono D. Wenger
I saw this post from a few weeks back, and I agree with Professor Bainbridge that there appears to be a highly problematic quota at play in Harvard hiring. But I think we might disagree on the details. Here’s the Bainbridge post in its entirety:
Gender quotas at Harvard Law
The Harvard Crimson is currently running “a three-part series on gender disparity issues at [Harvard] Law School.” Part I reports that there are 17 tenured or tenure-track women out of 92 total on the Harvard Law School faculty. It goes on to report: Read the rest of this post »
May 30, 2013 at 3:18 pm
Posted in: Feminism and Gender
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Tumblr, Porn, and Internet Intermediaries
posted by William McGeveran
In the hubbub surrounding this week’s acquisition of the blogging platform Tumblr by born-again internet hub Yahoo!, I thought one of the most interesting observations concerned the regulation of pornography. It led, by a winding path, to a topic near and dear to the Concurring Opinions gang: Section 230 of the Communications Decency Act, which generally immunizes online intermediaries from liability for the contents of user-generated content. (Just a few examples of many ConOp discussions of Section 230: this old post by Dan Solove and a January 2013 series of posts by Danielle Citron on Section 230 and revenge porn here, here, and here.)
Apparently Tumblr has a very large amount of NSFW material compared to other sites with user-generated content. By one estimate, over 11% of the site’s 200,000 most popular blogs are “adult.” By my math that’s well over 20,000 of the site’s power users.
Predictably, much of the ensuing discussion focused on the implications of all that smut for business and branding. But Peter Kafka explains on All Things D that the structure of Tumblr prevents advertisements for family-friendly brands from showing up next to pornographic content. His reassuring tone almost let you hear the “whew” from Yahoo! investors (as if harm to brands is the only relevant consideration about porn — which, for many tech journalists and entrepreneurs, it is).
There is another potential porn problem besides bad PR, and it is legal. Lux Alptraum, writing in Fast Company, addressed it. (The author is, according to her bio, “a writer, sex educator, and CEO of Fleshbot, the web’s foremost blog about sexuality and adult entertainment.”) She somewhat conflates two different issues — understandably, since they are related — but that’s part of what I think is interesting. A lot of that user-posted porn is violating copyright law, or regulations meant to protect minors from exploitation, or both. To what extent might Tumblr be on the hook for those violations?
May 24, 2013 at 12:46 pm
Posted in: Cyberlaw, Feminism and Gender, Innovation, Intellectual Property, Media Law, Privacy, Web 2.0
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Franks on “How to Feel Like a Woman, or Why Punishment Is a Drag”
posted by Danielle Citron
Professor Mary Anne Franks and fantastic guest blogger makes an important contribution with her latest work “How to Feel Like a Woman, or Why Punishment Is A Drag” (forthcoming UCLA Law Review). Professor Franks focuses on the sexual abuse of men in prison to help us better understand sexual and domestic abuse more generally. As Franks writes:
If a man in prison claims he was made “to feel like a woman,” this is commonly understood to mean that was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison, but sexual abuse generally. These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. This Article argues that feminization is punitive for both men and women: it is as unnatural and as wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced drag, this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and to form our social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting – where sexual abuse is overwhelmingly experienced by women and committed by men – are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions, but forces law and society to consider sexual abuse in a productively counter-intuitive way.
Also, as my co-blogger Kaimi notes in our Asides, there is a write up of Prof. Franks in Ocean Drive that captures the force of her intelligence and personal strength.
May 15, 2013 at 9:13 am
Posted in: Criminal Law, Feminism and Gender
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Silicon Valley Feminism: “You Need to Change, Not Us”
posted by Frank Pasquale
The media attention to Sheryl Sandberg’s Lean In has been extraordinary. Two reviews should not be missed. First, from Kate Losse, a former Facebook insider (employee #51) who felt exploited by the company:
[Why does Lean In focus] on the problem it does: women’s presumed resistance to their careers rather than companies’ resistance to equal pay[?] Why not focus on renovating the pay structure so that women aren’t denied raises[?] . . . The faster my career accelerated at Facebook, the more my financial returns diminished, until my workload was being elevated but not my salary or equity. Leaning in, then, starts to look like it can benefit companies more than it benefits workers. . . Women in tech are much more likely to be hired in support functions where they are paid a bare minimum, given tiny equity grants compared to engineers and executives, and given raises on the order of fifty cents an hour rather than thousands of dollars. . . . [W]hat if women, even in a company like Facebook, are still paying a gender penalty that nothing but conscious, structural transformation can cure?
March 31, 2013 at 11:23 am
Posted in: Feminism and Gender, Technology, Uncategorized
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More Thoughts on the Dangerous Fragility of Men
posted by Mary Anne Franks
First, I want to thank my hosts here at Concurring Opinions for asking me to stay on for another month. One of the things this extended invitation allows me to do is to respond at some length to issues raised in the comments on my last post, “The Dangerous Fragility of Men.” In that post, I highlighted a troubling phenomenon: men with privilege and power characterizing their insecurities and lack of self-control as vulnerability, and using that alleged vulnerability as an excuse or justification for murder, rape, and discrimination (and I would add, though I didn’t discuss it in the post, harassment and intimidation). To demonstrate this phenomenon, I offered a sample of quotations from recent, high-profile cases including Oscar Pistorius‘ shooting of his girlfriend and the gang rape of an 11-year-old girl in Texas. The post suggested that our society should make a greater effort both to marginalize this cowardice and become more attentive to actual vulnerability. In this post, I’d like to elaborate on these ideas and address some of the objections raised in the responses to my post.
I first want to spend a bit more time on the question of perceived v. actual vulnerability. I noted in my original post that one of the perplexing aspects of this form of male vulnerability is that it seems to increase, rather than decrease, with power or privilege. Frequently, the men using weakness as an excuse or justification (or others offering such explanations on their behalf) for harm are people who are objectively less vulnerable than most. They include famous athletes, soldiers, and wealthy businessmen. I think it is worth spelling this out more explicitly: there is a tendency on the part of privileged individuals to overstate their vulnerability. This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination. Feeling vulnerable is not the same thing as being vulnerable, and even actual vulnerability might need to yield before (or at least take into consideration) the greater vulnerability of other people.
We are all vulnerable in certain ways. Figuring out the what and why of our vulnerabilities is an important part of psychological awareness and well-being. What is of most interest to me here, however, is determining the conditions under which it is permissible for us to impose our vulnerabilities on other people, especially when that imposition takes the form of violence or discrimination. In determining those conditions, I would suggest we should ask ourselves at least three questions. One, we should question whether our vulnerability is objectively reasonable. Vulnerability that results from personal insecurity or prejudice is not vulnerability that we may rightfully impose on others. It is our own responsibility to correct vulnerabilities of our own creation. Second, we should question the magnitude of our vulnerability, especially when put in perspective with the vulnerabilities of others. Third, even if our vulnerability is both reasonable and of serious magnitude, we should question whether we are imposing it on appropriate parties in a just and proportional way. Read the rest of this post »
March 4, 2013 at 12:27 pm
Posted in: Civil Rights, Criminal Law, Family Law, Feminism and Gender, Law and Inequality
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The Dangerous Fragility of Men
posted by Mary Anne Franks
“I have also been a victim of violence and of burglaries before… I felt a sense of terror rushing over me … I was too scared to switch a light on.” Oscar Pistorius relating his state of mind before shooting his girlfriend Reeva Steenkamp four times through a bathroom door.
She “knew exactly how to press his buttons and make him angry.” Jovan Belcher complaining to his mistress about his girlfriend, Kassandra Perkins, before shooting Perkins nine times in front of their baby daughter.
“Like the spider and the fly. Wasn’t she saying, ‘Come into my parlor, said the spider to the fly?” Defense attorney Steve Taylor describing the 11-year old girl gang-raped by more than a dozen men in Cleveland, Texas.
“And it’s – all he sees are heavily tinted windows, which are up and the back windows which are down, and the car has at least four black men in it…” Defense attorney Robin Lemonidis explaining why her client, Michael Dunn, shot into a vehicle of unarmed teenagers eight times, killing 17-year-old Jordan Davis.
“Hurricanes. Tornadoes. Riots. Terrorists. Gangs. Lone criminals… These are perils we are sure to face — not just maybe. It’s not paranoia to buy a gun. It’s survival.” Wayne LaPierre, Executive Vice President of the National Rifle Association, objecting to the Obama Administration’s consideration of gun regulation.
“It’s a fear of the unknown… I’ve never seen a woman get killed or wounded. In my mind they may resemble my wife and I don’t know how I would react. It’s one thing to see a man injured or killed but a woman, now that’s a different story,” Staff Sergeant Alex Reyes, voicing his objection to lifting the formal ban on women in combat.
According to traditional gender stereotypes, men are supposedly stronger, braver, and less emotional than women. However unfair or inaccurate, this belief, along with the association of vulnerability, anxiety, and fear with women, has persisted throughout most of Western history. Once one scratches the surface of this myth, however, it becomes apparent that stereotypical “masculinity” (and “hyper-masculinity” even more so) is in fact defined by fragility. This fragility, moreover, is of a truly perplexing nature: it actually increases, rather than decreases, with power and privilege. Why did a world-renowned athlete who lives in a “fortified mansion surrounded by barbed wire” not even stop to turn on a light before shooting his girlfriend four times (if one takes seriously Pistorius’ claim that the shooting was an accident)? Because he was so intensely afraid of being victimized by burglars. Why did a popular NFL linebacker shoot the mother of their infant daughter nine times at close range? Because she did things that made him angry and scared, like staying out late at a concert. Why did more than a dozen men take turns raping an 11-year-old girl, one of them recording the rapes on his cellphone? Because they were so overwhelmed by her seductive clothes and makeup that they couldn’t control themselves. Why did a middle-aged white man with a gun in his glove compartment shoot eight times into a vehicle with four teenagers in it? Because he was so scared of the teenagers’ loud music and attitude that he imagined they must be pointing a gun at him. Why do American citizens – even those who live in gated, high-security enclaves complete with security guards, alarm systems, and identification checkpoints – need an infinite number of virtually unregulated, high-capacity weapons? Because hurricanes and terrorists threaten their very survival. Why should qualified women be denied the opportunity to be recognized and promoted for combat activity? Because some male soldiers – supposedly well-trained, experienced male soldiers – might become paralyzed by the sight of a woman in distress.
This is not the “New Age sensitive male” mocked by comedians and pundits. These men don’t ask questions or cry when they feel vulnerable: they kill, rape, and discriminate. And society largely allows, even encourages, them to do so. Instead of demanding that these men take responsibility for their own weaknesses, our society accommodates and excuses them. This is the flip side of blaming the victim: excusing (or justifying) the perpetrator. The time and energy spent criticizing a girlfriend’s supposed greediness, or an 11 year-old girl’s supposedly provocative clothing, or teenagers’ supposedly loud music could be spent challenging and marginalizing the inability of certain men to control themselves.
To acknowledge and reflect on one’s vulnerability is a good thing; to hold the world in thrall to it is not. Feeling vulnerable is often different from actually being vulnerable, and even actual vulnerabilities should not be used as a license for malicious or reckless behavior. With the supposed vulnerability of famous athletes, soldiers, and gun owners everywhere on display, perhaps we can also appreciate the vulnerability of those far more at risk.
February 28, 2013 at 3:50 pm
Posted in: Criminal Law, Current Events, Feminism and Gender, Uncategorized
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Does Blind Review See Race?*
posted by Kaimipono D. Wenger
In a comment to my earlier post suggesting that law review editors should seek out work from underrepresented demographic groups, my co-blogger Dave Hoffman asked an excellent question: Would blind review remedy these concerns? It seems to me that the answer here is complicated. Blind review would probably be an improvement on balance, but could still suffer from — err, blind spots. Here are a few reasons why.
The paradigmatic case for the merits of blind review comes from a well-known study of musician hiring, published about a decade ago by Claudia Goldin and Cecilia Rouse in the American Economic Review. Goldin and Rouse gathered data on symphony auditions, and found that blind auditions — that is, ones which concealed the gender of the auditioning musician — resulted in a significantly higher proportion of women musicians auditioning successfully. As Rouse commented,
“This country’s top symphony orchestras have long been alleged to discriminate against women, and others, in hiring. Our research suggests both that there has been differential treatment of women and that blind auditions go a long way towards resolving the problem.”
The Goldin-Rouse study shows that blind review can be a useful tool in combating bias. Would a similar review system work in the law review context?
Well, maybe. Read the rest of this post »
February 18, 2013 at 7:11 pm
Tags: blind review, gender, law reviews, Race, unconscious bias
Posted in: Feminism and Gender, Law School (Law Reviews), Law School (Scholarship), Race
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In Defense of Law Review Affirmative Action
posted by Kaimipono D. Wenger
As you may have seen, the new Scholastica submission service allows law reviews to collect demographic information from authors. A flurry of blog posts has recently cropped up in response (including some in this space); as far as I can tell, they range from negative to negative to kinda-maybe-negative to negative to still negative. The most positive post I’ve seen comes from Michelle Meyer at the Faculty Lounge, who discusses whether Scholastica’s norms are like symposium selection norms, and in the process implies that Scholastica’s model might be okay. Michael Mannheimer at Prawfs also makes a sort of lukewarm defense that editors were probably doing this anyway.
But is it really the case that law review affirmative action would be a bad thing? Read the rest of this post »
February 16, 2013 at 2:07 pm
Tags: gender, law reviews, Race, scholastica, unconscious bias
Posted in: Feminism and Gender, Law School (Law Reviews), Law School (Scholarship), Race
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Justice Ruth Bader Ginsburg headlines Thomas Jefferson Law School Women and Law Conference
posted by Kaimipono D. Wenger
Last Friday, Justice Ruth Bader Ginsburg spoke at the 13th Annual Women and Law Conference at Thomas Jefferson Law School. A packed house listened as panelists discussed a variety of issues relating to women in the judiciary, and the highlight of the day was an extended and candid Q&A with Justice Ginsburg herself. Read the rest of this post »
February 14, 2013 at 7:57 pm
Posted in: Conferences, Courts, Feminism and Gender
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Blaming the Victim: Been There Before
posted by Danielle Citron
Let me build on Professor Franks’s incisive post on the blaming-the-victim response in the revenge porn context. As Franks rightly notes, a recurring response to women’s suffering is to blame the victims. As I discussed here, cyber harassment victims are often told that they provoked the abuse by blogging in their own names, sending pictures to boyfriends, or writing about sex. The public said the same about domestic violence and sexual harassment. Society minimized the culpability of the abusers and maximized the responsibility of victims to justify those practices. Law certainly was not necessary to address them. Then, as now, the public refused help to blameworthy women.
Before the 1970s, society tolerated abuse of so-called “recalcitrant” wives. The public’s attitude was that the battering was justified by the wife’s provocations. The notion was that if the woman had been a neater housekeeper, a more submissive helpmate, or a more compliant sexual partner, “her nose would not have been broken, her eye would still be uncut, [and] bruises would never have marked her thighs.” Judges and caseworkers asked battered wives to accept responsibility for provoking violence, rather than assessing their abusers’ conduct. The solution was to “fix” battered women. Social workers advised them to clean their homes and have dinner ready for their husbands when they arrived home from work. Consider a judge’s response to a man’s beating of his wife. While before the judge, the man said he hit his wife because of her unkempt hair, unsatisfactory cooking, and nagging because he refused to take her out. He told the judge: “Look at her. I wouldn’t take her to a dog fight.” The judge agreed. He determined that “straightening out the situation” required the wife to improve her appearance. Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence From Colonial Times to the Present (Urbana IL: University of Illinois Press, 2004), 136. Psychiatrists supplied a medical diagnosis for the experience of battered wives. In esteemed medical journals, researchers claimed that wives suffered from “feminine masochism” that drove them to goad their husbands into beating them because they derived sexual and psychic pleasure from abuse. In other words, women enjoyed the humiliation. Police officers refused to arrest batterers because their wives brought on the abuse. In the mid-1970s, police training guides tended to portray battered women as nagging or domineering and instructed officers that removal of the abusive husband would be unreasonable if that were the case. The public also ignored domestic abuse because women failed to leave their abusers. Judge Richard D. Huttner, the administrative judge of New York City Family Court, recalled a colleague’s reaction to domestic violence victims: “Why don’t they just get up and leave? They have been taking these beatings all these years and now they want me to intercede. All they have to do is get out of the house. What do they want from me?”
The “blame the victim” sentiment pervaded the response to sexual harassment. The traditional view was that women belonged in the private sphere, the home. Women entered the public sphere, the workplace, at their own risk. Society insisted that women invited their supervisors’ sexual advances by dressing provocatively and flirting. Employers said that female employees were “responsible for at least some of what happened.” In the 1970s, a broadcasting executive justified sexual harassment in his workplace: “You know, some women dress so that people look at their breasts.” Courts legitimated this view by permitting employers to argue that women invited employer’s sexual advances. Society refused to take sexual harassment seriously because female employees had the chance, but refused, to change supervisors or jobs. Female employees were told that they bore responsibility for their predicament because they stayed and risked more harassment. Their failure to leave was proof that supervisors’ sexual advances were not unwelcome. In a Redbook story about Congressman who hired female staffers because they agreed to provide sex to them, reporter Sally Quinn criticized the women as failing to stand up for them selves. She described the women as “choosing to compromise [their] bodies.” Sally Quinn, “The Myth of the Sexy Congressmen,” Redbook, October 1976: 96.
February 1, 2013 at 11:55 am
Posted in: Cyber Civil Rights, Feminism and Gender
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Volume 60, Issue 2 (December 2012)
posted by UCLA Law Review
Volume 60, Issue 2 (December 2012)
Articles
| The Battle Over Taxing Offshore Accounts | Itai Grinberg | 304 |
| The Structural Exceptionalism of Bankruptcy Administration | Rafael I. Pardo & Kathryn A. Watts | 384 |
| Patients’ Racial Preferences and the Medical Culture of Accommodation | Kimani Paul-Emile | 462 |
Comments
| “Not Susceptible to the Logic of Turner”: Johnson v. California and the Future of Gender Equal Protection Claims From Prisons | Grace DiLaura | 506 |
December 28, 2012 at 11:54 pm
Posted in: Bankruptcy, Constitutional Law, Feminism and Gender, Health Law, International & Comparative Law, Law Rev (UCLA), Tax
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Why Did Egg Freezing Wait So Long?
posted by Gaia Bernstein
Thank you to the permanent bloggers of Concurring Opinions for having me back. It is great to be here.
Egg freezing has become the new hot trend in the infertility industry. Although infertility practitioners first used egg freezing in the mid 1980s, it was only recently that success rates have significantly risen making this an attractive option for women. A woman can now freeze her eggs at any age and use it a few years later or much later with the sperm of her then chosen partner or a donor to have a baby through IVF. Using egg freezing technology, a woman can today have a baby at a time that best suits her career and family situation.
There is no doubt that egg freezing as a viable option is a huge revolution for women’s autonomy. But the big question is why only now? Why has egg freezing become a really viable option only during the first decade of the Twenty-First Century. We have known how to freeze sperm since the 1950s. And, embryo freezing was first tried out around the same time as egg freezing, during the mid-1980s. Yet, unlike egg freezing, embryo freezing became common practice soon thereafter. So why did we have to wait so long for effective egg freezing technology?
The answer usually given to this question is that it was just too complicated technologically and took a long time to develop. But were technological complications the only cause for delay? Is it really much harder to freeze and thaw eggs for later IVF use than to freeze and thaw embryos for later use? We tend to be taken by the illusion that science is value neutral — that scientific progress is not affected by choices directed by social values. But even if technological diffiuclties played a role in the delay, could egg freezing technology have been held back because resources were invested elsewhere? Unlike other forms of reproductive technology that promote the reproductive interests of both men and women, egg freezing promotes mainly the autonomy interests of women. Egg freezing’s impact on women autonomy can be compared only to the revolutionary effect of the birth control pill. At the same time, the infertility industry is comprised overwhelmingly by male practitioners. And while some have no doubt worked relentlessly to promote egg freezing technology, it may be time to stop assuming that technological complications held back this important women emancipating technology. It may be time to begin asking whether the advancement of egg freezing was placed on the back burner for years because of the type of interests it promotes?
December 7, 2012 at 10:26 am
Tags: egg freezing, infertility, IVF, oocyte cryopreservation, reproductive technology, women autonomy
Posted in: Family Law, Feminism and Gender, Health Law, Technology
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The Contraception Mandate Part II
posted by Caroline Mala Corbin
In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.
The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.
Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.
Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.
Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.
November 2, 2012 at 11:05 am
Tags: contraception, contraception mandate, health care, religious liberty, RFRA, women
Posted in: Constitutional Law, Feminism and Gender, First Amendment, Health Law, Religion
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The Contraception Mandate Part I
posted by Caroline Mala Corbin
The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.
It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.
While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.
What about the Religious Freedom Restoration Act? Stay tuned.
October 29, 2012 at 1:52 pm
Tags: ACA, contraception, contraception mandate, equality, free exercise, health care, religious liberty, women
Posted in: Civil Rights, Constitutional Law, Employment Law, Feminism and Gender, First Amendment, Health Law, Religion
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The Normative Jurisprudence of Creepshots
posted by Mary Anne Franks
My reaction to Robin West’s extraordinary scholarship always includes some mixture of distress and excitement: distress over the failures of law and humanity she describes with such devastating clarity, and excitement about the potential applications of her insights. In this post, I want to discuss how Robin’s critique of both liberal legalism and what she calls “neo-critical” legal theory in Normative Jurisprudence – particularly the former’s fetishization of individual rights and the latter’s decidedly uncritical celebration of consent – usefully illuminates the recent controversy over the outing of Michael Brutsch, aka “Violentacrez,” the man behind some of the most controversial forums on the popular social news website, reddit.com. One of these, the “/r/creepshot” forum (or “subreddit”), which encouraged users to submit surreptitious photographs of women and girls for sexual commentary, garnered national attention when it was discovered that a Georgia schoolteacher was posting pictures of his underage students. Brutsch’s outing (or “doxxing“) sparked outrage from many in the reddit community, and has led to an intriguing online and offline debate over Internet norms and practices. The defense of Brutsch and the forums he helped create – mostly sexual forums targeting women and girls – has been dominated by a highly selective conception of the right to privacy, the insistence on an unintelligibly broad conception of “consent,” and a frankly bewildering conception of the right to free speech. Attempts to criticize or curtail these forms of online abuse have also been primarily framed in terms of “rights,” to uncertain effect. Robin’s critiques of rights fetishism and the ideology of consent offer valuable insights into this developing debate.
I will attempt to briefly summarize (and no doubt oversimplify, though I hope not misrepresent) the points Robin makes that I think are most useful to this conversation. Liberal legalism’s focus on rights rests on a seductive fantasy of individual autonomy: it “prioritizes the liberty and autonomy of the independent individual, shrouds such a person in rights, grants him extraordinary powers within a wide ranging sphere of action, and in essence valorizes his freedom from the ties and bonds of community. It relegates, in turn, the interests, concerns, and cares of those of us who are not quite so autonomous or independent … those of us for whom our humanity is a function of our ties to others rather than our independence from them … to the realm of policy and political whim rather than the heightened airy domain of right, reason, and constitutional protection” (41). The critical legal studies movement attempted to correct some of this rights fetishism by pointing out that “rights” are not only radically indeterminate (i.e. rights can be interpreted and granted in conflicting ways), but that they are also legitimating (that is, bestowing the status of “right” on narrowly drawn freedoms can obscure the injustice and inequality that fall outside of them, thus insulating them from critique).
Robin persuasively demonstrates that neo-critical legal theorists held on to the indeterminacy thesis while jettisoning the critique of legitimation. Concerns about legitimation are concerns about suffering, and neo-crits are largely uninterested in, if not contemptuous of, suffering. Their primary concern is power and pleasure, which is accordingly supported by what Robin calls “the ideology of consent.” To the neo-crits, consent has the power to fully shield any act from either legal or moral critique. Robin addresses the way the ideology of consent plays out in the context of sex by looking to the work of Janet Halley. According to Robin, Halley espouses a view of sex that takes “[c]onsent to sex … as full justification for a collective blindness to both societal and individual pressures to engage in unwanted sex, so long as the sex is short of rape”(142). Sex is presumptively pleasurable, and as such presumptively immune from critique. As Robin describes Halley’s position, “sex is almost always innocent, and when consensual, there can be no ‘legitimate’ basis for criticism. Consensual sex is just too good to be circumscribed, or bound, by claims of its unwelcomeness or unwantedness. The claims that consensual sex is in fact unwelcome or unwanted are likely false in any event. The harms sustained, even if the claims are true, are trivial” (146). (I came to similar conclusions regarding Halley’s work in my review of her book, Split Decisions: How and Why to Take a Break from Feminism).
Now to apply these insights to the Michael Brutsch/creepshot controversy. The moderators of the creepshot subreddit provide this helpful definition of “creepshot” on the “subreddit details” page:
October 23, 2012 at 8:52 pm
Posted in: Anonymity, Current Events, Cyber Civil Rights, Cyberlaw, Feminism and Gender, Privacy, Symposium (Normative Jurisprudence)
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An Accommodation Too Far
posted by Caroline Mala Corbin
The United States Conference of Catholic Bishops (USCCB) has been leading the charge against the contraception mandate, but its opposition to the mandate does not represent the USCCB’s first entanglement with contraception lawsuits. ACLU of Massachusetts v. Sebelius involved an Establishment Clause challenge to a grant given to the USCCB pursuant to the Trafficking Victims Protection Act. The grant was to provide services to victims of sex trafficking, who are often forced into prostitution and forced to endure rape or other sexual abuse. In accepting the grant, the USCCB made very clear that its religious beliefs prevented them from providing contraception or abortion to their clients, or referring them to others who would. (More specifically, the USCCB stated it would bar its subcontractors from providing or referring these services.) Even though access to contraception and abortion are crucial for women and girls who have been sexually trafficked, the U.S. Department of Health and Human Services (HHS) nonetheless awarded the USCCB over $15 million dollars. The ACLU sued, alleging Establishment Clause violations. USCCB responded by claiming that HHS was merely accommodating its sincere religious beliefs. The ACLU won.
Sometimes the line between constitutional accommodation of religious belief and unconstitutional advancement of religion can be hard to draw. Sometimes, however, it is not. HHS should never have awarded the grant. It is true that religious groups may now compete on an equal basis with secular groups for government grants and contracts. But they should also be rejected on an equal basis if they cannot fulfill basic grant requirements. The point of the grant, after all, is to help the intended beneficiaries. Any group, secular or religious, that cannot provide the requisite services, which in this case includes contraception and abortion, is simply not qualified. To accommodate the USCCB at the expense of trafficked sex victims goes too far. At this point, “accommodation devolve[s] into an unlawful fostering of religion.”
October 20, 2012 at 2:25 pm
Tags: contraception, establishment, funding, religious liberty, sex trafficking
Posted in: Civil Rights, Constitutional Law, Feminism and Gender, First Amendment, Religion
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Expanding Bob Jones University v. United States
posted by Caroline Mala Corbin
In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.
Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?
October 15, 2012 at 4:00 pm
Tags: Bob Jones, discrimination, free exercise, Race, sex, taxes
Posted in: Civil Rights, Constitutional Law, Education, Feminism and Gender, First Amendment, Law and Inequality, Race, Religion
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Stanford Law Review Online: The Violence Against Women Act and Double Jeopardy in Higher Education
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:
The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.
He concludes:
Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.
Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.
October 10, 2012 at 10:30 am
Tags: Constitutional Law, Criminal Law, Criminal Procedure, Education, feminism
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Education, Feminism and Gender, Law Rev (Stanford)
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Is IP for People or Corporations?
posted by Madhavi Sunder
Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.
Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).
September 14, 2012 at 1:15 am
Posted in: Civil Rights, Constitutional Law, Culture, Cyber Civil Rights, Education, Feminism and Gender, First Amendment, Jurisprudence, Law and Humanities, Law and Inequality, Media Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0
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Intellectual Property Theory: An Homage and Reply
posted by Madhavi Sunder
I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.
What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.
The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.
September 12, 2012 at 9:37 pm
Posted in: Civil Rights, Feminism and Gender, Health Law, Intellectual Property, Jurisprudence, Property Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0
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