Category: Feminism and Gender

20

Problematic Gender Quotas at Harvard Law

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 More

3

Tumblr, Porn, and Internet Intermediaries

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?

Read More

2

Franks on “How to Feel Like a Woman, or Why Punishment Is a Drag”

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.

Silicon Valley Feminism: “You Need to Change, Not Us”

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?

Read More

18

More Thoughts on the Dangerous Fragility of Men

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 More

39

The Dangerous Fragility of Men

“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.

5

Does Blind Review See Race?*

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 More

43

In Defense of Law Review Affirmative Action

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 More

0

Justice Ruth Bader Ginsburg headlines Thomas Jefferson Law School Women and Law Conference

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 More

2

Blaming the Victim: Been There Before

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.