"In much wisdom there is much grief . . ."

Conservative pundit Arthur C. Brooks has been discussing his book Gross National Happiness in a number of venues, including the NYT Freakonomics blog. Having criticized the progressive Robert H. Frank for using such data to support egalitarianism, I'll now question Brooks's subjectivism (which has led him in exactly the opposite direction as Frank on the inequality question).

Brooks is happy to report that his political allies are "winning the happiness game hands down." He gives several hypotheses for conservative joy; stronger religiosity, more time with family, a preference for "simplicity" over "complexity," and less likelihood to see oneself as a victim. Brooks occasionally concedes Mill's argument that it is "better to be Socrates dissatisfied than a pig satisfied." But he appears most amenable to the view that liberals are likely to be whiny, complaining, resentful people, while conservatives resolutely consider themselves in control of their fate and satisfied with their lives.

Brooks's research raises a number of interesting policy questions. First of all, what's his root concern--happiness or virtue? We might map the classic tension between freedom and virtue to the present case: is it good action or the subjective feeling (Brooks alleges) it creates the desideratum here? If the latter, why not just provide people with soma? If the former, it's a bit odd to introduce the "happiness evidence" as a reason for being, say, conservative, or good. Who's Brooks's audience? Exhausted hedonists just on the brink of giving up their Don Juan days to find more lasting pleasure at anti-tax rallies?

Brooks concedes that political extremists on both ends of the political spectrum are happier than moderates. Is their good feeling an indication of the truth of their beliefs, or their opioid quality?

I'm surprised reviewers haven't yet connected Brooks's work to Myrna Blyth's Spin Sisters: How the Women of the Media Sell Unhappiness--and Liberalism--to the Women of America. As one unsympathetic (but accurate) reviewer of that book puts it,

Blyth argues that the magazines turn women into victims because of the emphasis [they] put on stress, health, men, the environment. Victims, she says, are what liberals need to enact their policies. . . .

In attempting to explain his happiness data, Brooks similarly suggests that liberalism seduces losers with the siren song of victimhood. Never mind that the "economic freedom" his political allies promote often leads to situations like these:

[M]any corporations have cut costs by violating wage-and-hour laws. Managers at Wal-Mart, Pep Boys and Family Dollar . . . secretly erased hours from employees' time records because of fierce pressures to minimize costs. At many companies, managers strong-arm employees into working off the clock; hourly employees who clock out at, say, 5 p.m., are ordered to work an hour or two extra unpaid. . . ..

[M]any companies also squeeze workers by treating them with a shocking lack of dignity. A Wal-Mart cashier in Kansas City told me that managers were so stingy about bathroom breaks that some cashiers ended up soiling themselves. RadioShack had the gall to fire 400 workers at its Fort Worth headquarters by e-mail, the message saying, "Unfortunately your position is one that has been eliminated." Corporate executives told Myra Bronstein, a software engineer in Seattle, that as long as the company did well and she worked hard - she put in many 14-hour days - she would have a job. But one day the company suddenly fired Bronstein and 17 other engineers. . . .

The biggest squeeze has been on wages and benefits. During the economic expansion that began in November 2001, corporate profits soared, while productivity per worker rose more than 15 percent. Nonetheless, hourly wages for the typical worker have inched up by just 1 percent since then, after inflation, while median income for working-age households has fallen nearly $2,400 to $54,726 since 2000, according to the most recent Census Bureau report on poverty and income.

Perhaps some of these workers "win the happiness game" by, say, wearing Depends to work and just being satisfied they can get to the bathroom at lunch time. Perhaps they whistle through their 14-hour days while the sword of Damocles that is employment-at-will swings over their heads. If that blithe "pleasure wizardry" happens to correlate with conservative political beliefs, the relationship tells us very little about the latter's ultimately validity. As Carl Elliott would remind us, "On Prozac, Sisyphus might well push the boulder back up the mountain with more enthusiasm and more creativity."

PS: As for the title; here's Ecclesiastes.

Posted by Frank Pasquale at 11:18 PM | Comments (4) | TrackBack

Department of Self-Fulfilling Prophecies, Women in Science Edition

Recently Ben Barres, a professor of neurobiology, gave a fascinating talk at Harvard titled "Some Reflections on the Dearth of Women in Science." His talk was based on his Nature article "Does Gender Matter" (to achievement in the sciences). I found the talk an extraordinary confirmation of my earlier worries about self-fulfilling prophecies and bias in the blogosphere.

Barres was responding to Steven Pinker's book The Blank Slate: The Modern Denial of Human Nature, which, according to Barres, argues that men are innately "more aggressive and ambitious" and women innately "feel emotions more strongly" and "prefer to take care of children." Barres explored how Rosalyn Barnett and Carolyn Rivers' book Same Difference: How Gender Myths are Hurting our Relationships, Our Children, and Our Jobs extensively undermined such ideas, exploring the numerous "nurture" based rationales for differences Pinker saw as innate. Barres recited several studies evidencing "gender prejudice" that influences choices from the very earliest stages of child development. His slide show (available here) also raised serious questions about Pinker's neo-Darwinian agenda, tracing bias in it all the way back to Darwin's 1871 Descent of Man, which argued that "The chief distinction in the intellectual powers of the two sexes is shown by man's attaining to a higher eminence, in whatever he takes up, than can woman." (In 1985, Richard Lewontin responded that "biological determinists have never found any credible concrete basis for such differences.").

After punching various holes in Pinker's scientific program, Barres concluded that "When faculty tell their students that they are innately inferior based on race or gender they are crossing a line that should not be crossed –the line that divides responsible free speech from verbal violence." His comments bring to mind a struggle for the soul of academia--whether the university is defined by either a) a libertarian willingness to entertain *any* idea or b) a communitarian belief that academics are part of a larger process of social inquiry designed to improve the world. The former idea is a tempting for many, but when we try to recognize the range of research programs that are actually worthwhile to accomplish, we quickly see that such rules of recognition are themselves parasitic on situated concepts of what is important to us and what aspects of our tradition are most worth promoting. Barres points out that the mere act of setting an agenda of inquiry can itself not merely manifest, but also promote, the very biases the inquirer claims merely to be exploring.

Consider, for instance, an academic department set up to explore Pinker's hypothesis that "Religion is a desperate measure that people resort to when the stakes are high and they have exhausted the usual techniques for the causation of success." Or the question of whether academics should study the propriety of torture in the service of national security. We may all want to pat ourselves on the back for being brave enough to consider such inquires. (In the same manner as, say, Pinker appears to be proud to consider dangerous ideas.) Yet as Raimond Gaita has argued, sometimes an "open mind" can also be a (morally) empty one. Gaita argues that "Society is in fact defined by what is undiscussable."

Posted by Frank Pasquale at 09:55 AM | Comments (11) | TrackBack

Encouraging Vanity and Misogyny

Just in time for Mother's Day, the book My Beautiful Mommy offers to explain for kids how "mom is getting a flatter tummy and a 'prettier' nose" via a trip to the plastic surgeon. Meanwhile, the new reality TV show Bulging Brides encourages participants to lose weight with the slogan "The perfect day is just pounds away." Ann Friedman of Feministing calls the show "size-shaming meets the bridal-industrial complex."

The mass media has dropped the ball in its coverage of both shows, generally focusing on the best "techniques" of accommodating women and their children to plastic surgery, or the spectacle and tastelessness of the bridal show. Some outlets have given feminist critics of plastic surgery a bit of time to put their case to the public, but by and large are drawn in by the slickness of each effort.

Media coverage of the children's book and the show reveal once again the bankruptcy of old concepts of "objectivity" in journalism. At this point, there are at least three "narratives" of plastic surgery that are coherent (on their own terms): 1) a libertarian narrative that values increasingly instant and cheaper gratification of desires (and safety only secondarily), 2) a moral narrative that questions the vanity at the heart of the plastic surgery boom, and 3) a feminist narrative that critically examines the types of economic and cultural pressures that make women particularly susceptible to the appeals of cosmetic surgeons. It's very hard to work all three narratives into a given story. Instead, we're treated to inarticulate exclamations of "how cute and fun" or "how repugnant"--one more symptom of MacIntyre's famed characterization of modern thought as a "moral Babel." This superficial "balance," unmoored from any larger understanding of what makes for a good (or at least unoppressed) human life, ends up promoting the very phenomena it claims merely to be covering.

Posted by Frank Pasquale at 02:07 PM | Comments (2) | TrackBack

One train may hide another

Readers interested in criminal procedure, or constitutional law, or law and sexuality, or just a good read with some fascinating historical details, might enjoy David Sklansky’s “One Train May Hide Another”: Katz, Stonewall, and the Secret Subtext of Criminal Procedure. Without rejecting the commonplace claim that the development of constitutional criminal procedure was a matter of racial justice, driven largely by the civil rights movement and efforts to end mistreatment of black defendants, Sklansky suggests that this area of law was also shaped by concerns about “the long, sordid history of the policing of sexuality”--and the policing of homosexuality in particular. Of particular interest, given Larry Craig’s arrest last year, is the discussion of spying in public toilet stalls. Apparently, this practice was a standard police tactic used to detect homosexual conduct and arrest those who engaged in it. Katz v. United States focuses on the public phone booth, but the “secret subtext” may have been a concern about privacy in the public toilet stall.

And, one train may hide another. For me, the appeal of this article is not just the substantive argument, but an introduction to Kenneth Koch’s poem from which Sklansky takes the title phrase. Koch was traveling in Kenya and saw a sign at a railroad crossing: “One train may hide another.” The line inspired him, and here's how his poem of that title begins:

In a poem, one line may hide another line,

As at a crossing, one train may hide another train.

That is, if you are waiting to cross

The tracks, wait to do it for one moment at

Least after the first train is gone. And so when you read

Wait until you have read the next line--

Then it is safe to go on reading.

In a family one sister may conceal another,

So, when you are courting, it's best to have them all in view

Otherwise in coming to find one you may love another.

The whole poem is here. And thanks to Melissa Murray, who recommended Sklansky’s article to me.

Posted by Alice Ristroph at 06:09 PM | Comments (1) | TrackBack

Division of Inappropriate Analogies: Surgery as Haircut

The NYT's Natasha Singer reports that breast augmentation has become "the country’s most popular cosmetic operation." Carol Ciancutti-Leyva (director of the documentary “Absolutely Safe”) warns women that they may be in for more than they bargained for:

Your implants may last less than 10 years or more than 10 years, but when you start having problems with them, your health insurance is unlikely to cover the M.R.I. tests or the reoperations. It can be a very expensive proposition, especially if you are young.

I wonder if company wellness programs will soon be asking women to reveal if they've had implants? But they shouldn't worry about "maintenance" in general, says a past president of the American Society for Aesthetic Plastic Surgery, offering one of the more bizarre analogies I've seen:

Women are used to having their hair or nails done on a regular basis to maintain their appearance. Ultimately, breast implants may also be a matter of maintenance.

More on what this maintenance can entail after the break.

[A] rupture is only one of the local complications that may engender additional surgery. Like cocoons that grow around larvae, scar tissue can form around implants; and sometimes that scar capsule hardens and squeezes the implant, causing pain and deforming breasts. And saline implants can cause visible, tactile rippling beneath the skin.

[E]xplantation surgery, in which a surgeon removes implants for good along with scar tissue, can be more complicated, particularly for older silicone models. “If the envelope has broken down and the silicone has leaked out, you are trying to get out all of that goo,” said Dr. Susan E. Kolb, a plastic surgeon in Atlanta who performs three to five explantation surgeries a week. To remove scar tissue, which can adhere to muscles and to the fibrous tissue covering the ribs, some doctors mistakenly remove too much muscle or breast tissue, which can cause chest deformities, she said.

Despite all the risks, "[d]octors nationwide performed about 329,000 breast augmentations in 2006, up from about 291,000 in 2005, according to a survey of doctors from the American Society of Plastic Surgeons."

I've proposed taxing cosmetic surgery before, and some cities (like Beverly Hills) are starting to target taxation in this way. Beverly Hills merely argues that "the centers become a drain on resources relative to the taxes they pay" (as Rhonda Rundle puts it in her article on the topic in the Wall St. J.). But if these interventions also "constitute the kind of annuity medicine that will entail regular surgical tuneups," their externalities are larger than once thought. A 2007 article in the American Journal of Psychiatry on "Cosmetic Breast Augmentation and Suicide" suggests some even higher stakes:

Across six [epidemiological] studies, the suicide rate of women who received cosmetic breast implants is approximately twice the expected rate based on estimates of the general population. Although the first study of this issue suggested that the rate of suicide among women with breast implants was greater than that of women who underwent other forms of cosmetic surgery, the largest and most recent investigation in this area found no difference in the rate of suicide between these two groups of women. (Am J Psychiatry 2007; 164:1006-1013).

Given growing societal pressure to pursue such surgery, it might be easy to feel hopeless when "medical experts [have] said they could not determine exactly how long breast implants may last."

One last note: a 1992 note by Emily C. Aschinger (entitled "The Selling of the Perfect Breast: Silicone, Surgeons, and Strict Liability," 61 UMKC L. Rev. 399) anticipated the issue and proposed the following:

Plastic surgeons, through advertising, have created a demand for elective plasticsurgery. In the case of breast implants, the doctors who created the demand are now reluctant to deal with the problems these implants have caused. Many of these doctors refuse to remove implants from former patients who have experienced problems; however, these are patients upon whom they were all too willing to perform the initial unnecessary procedure.

Elective cosmetic surgery is less a medical practice that involves the health of the patient and more a marketed response to societal demands dictating that people must do anything it takes to live up to the ideal. [Old liability standards are] outdated[;] plastic surgeon should be held strictly liable from a products liability standpoint under [Restatement of Torts] section 402A for breast implants. . . . [I] explain how plastic surgeons have met the criteria for a seller of products and should be treated as such under section 402A.

As Ms. Aschlinger argued, "Someone must be held responsible for the many women who, as a result of defective breast implants, will be injured." And also those who will find even "non-defective" implants the cause of health problems.

Posted by Frank Pasquale at 09:19 AM | Comments (15) | TrackBack

Nussbaum on Extremism

Reports from Pakistan suggest that militant extremists were responsible for the tragic death of Benazir Bhutto. Anil Kalhan and Barbara Crossette provide insightful commentaries. I also found a great deal of insight on the situation in a lecture at Yale Law School by Martha Nussbaum. Though it was given three weeks ago, it sheds light on very recent events by describing the psychologically manipulative tactics extremists use to recruit impressionable young people to their cause. (The lecture video is here; it's also on iTunes University, Yale Law division).

Though Nussbaum focuses on the Hindu far right in India, her nuanced theory may be useful generally. Her lecture brings together themes from her recent book on religious violence in India (Clashes Within) and prior books on education (Cultivating Humanity) and the role of emotions in human life (Hiding from Humanity and Upheavals of Thought). Nussbaum seeks to understand why "right-wing Hindu extremists . . . condone and in some cases actively support violence against minorities, especially the Muslim minority." Her somewhat surprising answer focuses on the role of "humiliated masculinity" and European fascism in fueling a right-wing movement paradoxically premised both on avenging the wrongs done by invaders and imitating those invaders' violent impositions.

Nussbaum blames a joyless and technicized state educational apparatus for driving many boys to the types of schools that cultivate extremism. She notes global economic pressure on Indian schools to teach highly technical subjects, and says that the resulting marginalization of humanistic education is a recipe for docility. She worries that "specialists without spirit" are all-too-ready to ally with intolerant factions. Citing the work of Martin Luther King (and recalling for me this interview with Rick & Kay Warren), she stated that tolerance must be based less on a desiccated procedural rationalism than on substantive cultural traditions:

In a chapter that forms the core of the book, she examines the ideas and legacies of Mohandas Gandhi, Jawaharlal Nehru, and Rabindranath Tagore, founding fathers of India's democracy. Her admiration for Tagore and Gandhi is deep. However, she offers only qualified praise for Nehru, India's resolutely rationalist first prime minister. Nussbaum laments that Nehru neglected "the cultivation of liberal religion and the emotional bases of a respectful pluralistic society"—a failure that she thinks left the opportunity wide open for the BJP's "public culture of exclusion and hate."

According to Nussbaum, Nehru may have been good at building formal institutions, but it was Gandhi who gave a spiritual and philosophical basis to democracy in India by calling "all Indians to a higher vision of themselves, getting people to perceive the dignity of each human being." She approves of Gandhi's view that only individuals who are critically conscious of their own conflicts and passions can build a real democracy. In fact, much of Nussbaum's own rather unconventional view of democracy in this book derives from the Gandhian idea of Swaraj (self-rule), in which control of one's inner life and respect for other people create self-aware and engaged rather than passive citizens. The "thesis of this book," she writes in her preface, is "the Gandhian claim that the real struggle that democracy must wage is a struggle within the individual self, between the urge to dominate and defile the other and a willingness to live respectfully on terms of compassion and equality."

Those who criticized George Lakoff's work on the strong father/nurturant mother paradigm in politics may be tempted to dismiss Nussbaum's work as "What's the Matter with Gujarat?" This would be a mistake for many reasons. First, Nussbaum has a deep understanding of the kinds of activism, like that of Ela Bhatt, that are bringing together traditionally opposed forces. Moreover, Nussbaum's understanding of psychological dynamics of resentment and revenge here is extraordinarily deep, informed by psychology, literature, philosophy, and empirical data. She explores the narratives of "humiliated masculinity" pieced together by the modern Hindu right out of European fascist ideology and dubious historical sources, and explains how compelling this rhetoric became to the many dispossessed who supported the most extreme elements in the BJP.

Nussbaum's praise of MacKinnon's combination of theory and practice might readily be applied to her own work:

Feminism needs theory, argues MacKinnon, because theory shows the world in a new way, using method to make it "accessible to understanding and change." Theory is not an enemy but a necessary ally of the "reality of women's lives," because that reality is frequently invisible until theory brings its salient features into prominence.

Unlike some types of theory, feminist theory, she argues, is bottom-up: It starts from the silenced reality of women's lives. Its "development as theory is impelled by the realities of women's situation." Its goal is to make that situation more visible, more comprehensible--not as a mere ideological construct but as what was, and is, happening. "As it turned out, once rescued from flagrant invisibility, women's realities could often be documented in other ways, and nearly anyone proved able to understand them with a little sympathetic application.... What we said was credible because it was real."

Nussbaum's theory helps us understand how the silencing of Bhutto, far from being one isolated act of violence, reflected larger political and economic forces. Can we understand the assassination of Benazir Bhutto as a form of violence against woman? Of course in the most obvious sense it is violence against a woman. But there is also evidence that extremism generally is rooted in certain narratives of masculinity that we ignore at our peril.

Posted by Frank Pasquale at 04:05 PM | Comments (7) | TrackBack

Disparate Impact in the Blogosphere

Danielle Citron gave a compelling presentation at the recent Yale Symposium on Reputation in Cyberspace exploring how group dynamics can deter women from participating online. The Yale Pocket Part has done a symposium on online harassment. Citron moved the discussion forward by analyzing social psychological dynamics in online life and describing how much more likely women are to be threatened by the worst type of comments:

Threats, lies, and the disclosure of private facts discourage women from blogging in their own names. Women lose opportunities to establish online identities that would enhance their careers and attract clients. Destructive online groups prevent the Web from becoming an inclusive environment. Disappointingly, this phenomenon throws us back to the nineteenth century, when women wrote under gender-neutral pseudonyms to avoid discrimination.

Web 2.0 technologies provide all of the accelerants of mob behavior but very few of its inhibitors. . . . Individuals who feel anonymous do and say things online that they would never seriously entertain doing and saying offline because they sense that their conduct will have no consequences. A site operator’s decision to keep up damaging posts encourages destructive group behavior. Online mobs also have little reason to fear that their victims will retaliate against them.

The AutoAdmit lawsuit is a first step toward addressing the last concern. Making internet intermediaries more responsible may be another.

Given that the Yale conference had been criticized for failing to adequately include women's voices, Citron's presentation was especially important. While cyberspace may be liberating for many, the same prejudices that permeate real life can infect the online world. And as more of our life gets conducted online, combating these prejudices is going to need to become not merely a legal, but a cultural project. That issue has a long history, and has sparked many valuable discussions. Citron has already done very important work on making computer systems more accountable, and I look forward to reading her contributions in this area.

Posted by Frank Pasquale at 06:31 PM | Comments (7) | TrackBack

Administering Family Values

Following some excellent reporting on the failures of the CPSC, the NYT gives a big picture forecast of rapid rulemaking in the remainder of the Bush administration:

Hoping to lock in policies backed by a pro-business administration . . . [b]usinesses are lobbying the Bush administration to roll back rules that let employees take time off for family needs and medical problems.

***

The National Association of Manufacturers [NAM] said the law had been widely abused and had caused “a staggering loss of work hours” as employees took unscheduled, intermittent time off for health conditions that could not be verified. The use of such leave time tends to rise sharply before holiday weekends, on the day after Super Bowl Sunday and on the first day of the local hunting season, employers said.

The NAM should watch out--they might provoke a hunter-FMLA alliance as durable as the hunter-environmentalist one. They could also generate more lawsuits in the future by putting complex limits on FMLA leave.

But I'm sure NAM has its eye on not just legal but cultural change. Perhaps the endgame is to force more and more workers to be like this one, quoted in Jill Andresky Fraser's White Collar Sweatshop (p. 23):

[A worker from Intel said] "If you make the choice to have a home life, you will be ranked and rated at the bottom. I was willing to work the endless hours, come in on weekends, travel to the ends of the earth. I had no hobbies, no outside interests. If I wasn't involved in the company, I wasn't anything."

It will be interesting to see how advocates of "heroic conservatism" respond to this push to limit the FMLA. In a perceptive editorial, former George W. Bush speechwriter Michael Gerson makes the following observation on the future of the Republican party:

The two intellectually vital movements within the Republican Party today are libertarianism and Roman Catholic social thought . . . . The difference between these visions is considerable. Various forms of libertarianism and anti-government conservatism share a belief that justice is defined by the imposition of impartial rules -- free markets and the rule of law. . . . But Catholic social thought takes a large step beyond that view [by asserting] that the justice of society is measured by its treatment of the helpless and poor.

And also by its treatment of those who care for dependents.

Posted by Frank Pasquale at 12:03 PM | Comments (0) | TrackBack

Advising Female Graduates

Hello to everyone and thanks to Dan for inviting me to post this month.

I wanted to begin by noting an article that appeared in today’s New York Times. In it, Lisa Belkin surveys the flood of research on how women in the workplace are viewed differently than men. Belkin’s article cites many studies, all of which will sound familiar—probably because if you haven’t heard of the study she is discussing, you’ve heard of one that had similar results. These studies all boil down to the same conclusion: women are perceived to lack whatever qualities are most valued in the workplace, at least when compared to men who are behaving the same way as their female counterparts.

As Belkin explains, women are advised:

Don’t get angry. But do take charge. Be nice. But not too nice. Speak up. But don’t seem like you talk too much.

She continues:

These are academic and professional studies, not whimsical online polls, and each time I read one I feel deflated. What are women supposed to do with this information? Transform overnight? And if so, into what? How are we supposed to be assertive, but not, at the same time?

Belkin’s article has made me consider what I say to graduating female law students. My gender-specific advice always involves the thorny issue of balancing a legal career and children. I don’t say anything about the situation that all female graduates will find themselves in: that is, being a woman in a legal workplace.

I’m wondering what advice others give on this topic, or what valuable counsel others have received. If you have anything useful, please pass it along.

Posted by Sarah Waldeck at 08:43 PM | Comments (2) | TrackBack

Eugenics Problems, Left and Right

Michael Gerson has an interesting editorial in the Washington Post on the Eugenics Temptation--of the left. He quotes the following statement of James Watson on embryo selection:

"If you could find the gene which determines sexuality and a woman decides she doesn't want a homosexual child, well, let her." In the same interview, [Watson] said, "We already accept that most couples don't want a Down child. You would have to be crazy to say you wanted one, because that child has no future."

Gerson then quotes Yuval Levin on a tension within liberalism that I've noted on this blog--between egalitarianism and libertarianism:

Science looks at human beings in their animal aspects. As animals, we are not always equal. It is precisely in the ways we are not simply animals that we are equal. So science, left to itself, poses a serious challenge to egalitarianism. The left . . . .finds itself increasingly disarmed against this challenge, as it grows increasingly uncomfortable with the necessarily transcendent basis of human equality. Part of the case for egalitarianism relies on the assertion of something beyond our animal nature crudely understood, and of a standard science alone will not provide. Defending equality requires tools the left used to possess but seems to have less and less of.

Gerson, whom David Frum "ranks among the most brilliant and most influential presidential speechwriters in decades," has put his finger on what is probably the most dangerous tension in "left" ideology today. Positional arms races for designer babies dovetail with an ethos that says that choice in reproductive matters must be absolute. As I stated five years ago in an article, egalitarian principles should check this tide.

However, Gerson ought to also admit the "right"'s partial responsibility for driving the appeal of such arms races. Libertarianism is as much an aspect of the Republican as the Democratic party, and its tendency to reject all arguments for regulation is probably a stronger political force than the left's alleged rejection of a "necessarily transcendent basis of human equality." The "left" itself is diverse, and one need only read the work of Michael Perry, or basic documents in Catholic social thought, to see a robust program of social solidarity wedded to an ideal of equality grounded in natural law.

Finally, let's consider why in America a family with a Down's syndrome child (or one with any disability) might think it "has no future." Why do we leave so much of children's health care up to the chance that their parents will be able to afford insurance? Why do we as a society cling to the ideal of permitting families to go bankrupt while providing health care for their children? Gerson states:

Progressives, at their best, have a special concern for the different, the struggling and the weak. When it comes to eugenics, they face not only a tension but a choice -- and they should choose human equality over the pursuit of human perfection.

Progressives might respond that conservatives, at their best, realize that our ideals can only survive when they are embedded in a culture that supports them. Gerson may be hard-pressed to defend the transcendent value of every individual life while promoting a neo-Nietzschean economic policy that routs ever more money to ubermenschen at the top of the income scale while cutting Medicaid funding. When it comes to economic policy, he faces not only a tension but a choice -- and he should choose human equality over the anti-tax, anti-spending dogma that has denied so many Americans basic economic security.

Posted by Frank Pasquale at 09:59 AM | Comments (1) | TrackBack

Roberson for the Social Networking Generation?

The New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of "loser" pen pal that cell phone subscribers could finally "dump." The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I'm most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan "flour of the family." Although the New York Court of Appeals rejected the young woman's claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article "The Right to Privacy" was adopted in a variety of related contexts, but this dimension of privacy -- the appropriation of likeness for commercial purposes -- has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that's a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one - the hurt feelings stemming from the unwanted exposure of one's likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it's no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce - we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.

Posted by Neil Richards at 12:39 PM | Comments (1) | TrackBack

Joan Williams, Law Professor Making a Difference

There's a must-read NYT Mag. piece on Joan Williams, who has done amazing work to restore "work/life balance" to lawyers and employees generally. As the piece notes, "in the United States today, working parents receive supports and benefits that in much of the developed world would be considered scandalously ungenerous." Williams's book Unbending Gender has advanced lawsuits combating "workplace discrimination because of family care-giving obligations:"

Williams argued that the growing tension between work and family was not simply a product of economic necessity. It stemmed, rather, from a marketplace structured around an increasingly outdated masculine norm: the “ideal worker” who can work full time for an entire career while enjoying “immunity from family work.” At a time when both adults in most families had come to participate in the labor force, Williams argued that this standard was unrealistic, especially for women, who remained the primary caregivers in most households.

Williams's focus has also helped extend antidiscrimination law beyond "so-called 'glass ceiling' cases involving women barred from the top rungs of a handful of elite professions," to plaintiffs who "have ranged across the occupational spectrum, from physicians to police officers to grocery clerks." It's good to see that a law prof can help spur the EEOC to take the problems of working parents seriously, even as some in DC are unwilling to offer the most basic supports provided by our OECD peers.

Posted by Frank Pasquale at 10:35 PM | Comments (3) | TrackBack

Sex, Laws, and Videotape (Genarlow WIlson Edition)

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year's Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence "a grave miscarriage of justice," but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge's proper role in such circumstances. But I am going to focus on an information law angle -- specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?

The events of the party were videotaped, and as ABC News Primetime reported last year, that tape became the core of the prosecution's evidence:

District Attorney David McDade said the videotape was critical to his case. "There is no doubt that without the videotape we would have to be relying on the statements of these young people, and that would have been a more difficult prosecution," he said.

But, as my friend Jessica Silbey has argued persuasively in a series of articles, videotaped evidence is not some sort of unvarnished and incontrovertible truth-telling mechanism; its meaning is in the eye of the beholder. And the jurors here beheld it this video quite differently from the way prosecutors intended. According to ABC, they voted to acquit Wilson of raping the 17-year-old very rapidly:

"I mean it wasn't even an hour [of deliberation on the rape charge]," said jury forewoman Marie Manigault. "We immediately saw the tape for what it was. We went back and saw it again and saw what actually happened and everybody immediately said not guilty."

So, the videotape became central to both the legal decisionmaking and the media reporting (ABC, for instance, portentously described "a portion of a tape obtained by 'Primetime'"), especially as the case has become a growing political and racial controversy. Not surprisingly, a lot of people have asked to see it, according to an Associated Press story:

[District Attorney] McDade said his office gave copies of the tape to some 35 parties that requested it, including The Associated Press, which received the tape late last month after making an open records request. Seven state lawmakers, several members of the public and numerous members of the media also received the tape.

McDade claims he had no choice under the state's "very clear" open records law, and a letter from the Prosecuting Attorneys' Council of Georgia supports his interpretation. But now U.S. Attorney David Nahmias has intervened with a statement of his own, saying that the tape constitutes child pornography and may not be distributed or even possessed -- and advising everyone with a copy of the tape to return or destroy it.

"These laws are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others, potentially for years to come, particularly if the images are placed on the Internet or otherwise broadly enter the public domain," Nahmias said.

Here's what's fascinating to me. The antagonists on both sides cite seemingly inflexible legal regimes. The child pornography law is said to leave no space for even the clearest public interest, such as letting the media examine the evidence in a case that has become a gigantic political and social hot button. The open records law is said to allow no leeway to suppress a sex tape that probably qualifies as contraband child pornography and definitely constitutes a grave privacy violation for the teenagers depicted. This lack of ambiguity in both regimes (and, by the way, in the statutory rape law too) is not a bug but a feature. These laws were designed to prevent evasion through exceptions. Now we are stuck with a pair of unpalatable alternatives.

The optimal solution might well be to allow access to the tape with strict limits on redistribution (perhaps requiring that it be viewed in the courthouse rather than distributing copies) or perhaps blurring the faces of all the persons involved. But most likely neither of these possible solutions satisfies either of the inflexible legal structures. The only way I see of avoiding the problem is for the U.S. Attorney to exercise prosecutorial discretion and allow this sort of limited access. But I'm not sure how likely that is to occur.

[Cross-posted at Info/Law.]

Posted by William McGeveran at 12:05 PM | Comments (6) | TrackBack

Vanity Taxes vs. Worthless Competitions

New Jersey adopted a "vanity tax" in 2004, levied on “any medical procedure performed on [an] individual which is directed at improving [his/her] appearance and which does not meaningfully promote the proper function of the body or prevent or treat illness or disease.” In a critique of the tax, Michael Duel argues that it is sexist and such surgery is frequently nondiscretionary:

Women can either feel inferior, enjoy a lower quality of life, and be rejected by mainstream society, or else suffer the pain and toil of cosmetic surgery to achieve the exact same ideals society uses to reject them.

Cosmetic surgeons have also railed against the tax, unctuously declaiming that it "discriminates against women" because they buy about 86% of the procedures.

NOW President Kim Gandy has a nice response to that canard:

In general, I'm opposed to most things that impact women disproportionately, but disproportionate use isn't a good measure if a tax is unfair or not. I can't imagine someone arguing against having a luxury tax on yachts because more of them are bought by men.

State Senator Karen Keiser is uppping the redistributive ante in Washington state, with a plan to earmark vanity tax revenue for health insurance for poor children. As one tax policy analyst claims, "In this anti-tax climate, these user-based, selective tax proposals are more palatable than broader ones."

Duel also attacks the vanity tax as a matter of tax policy, but I have a feeling he misses its point. . .

On the basis of Deborah Sullivan's 2000 study, he claims

Higher levels of attractiveness correlate to increased life satisfaction, less stress, perceived competency, and a positive balance of everyday life. Therefore, "the more attractive a person is, the more competent and in control of their lives they feel, affirming the attractiveness stereotype." . . . [G]ood-looking workers generally earn 5% to 10% more in income and hold more prestigious positions.

Duel thus argues that vanity taxes discourage the appearance-challenged from laying claim to these very real human goods. He claims that improved appearance both a) gives individuals a “competitive edge” in various contexts and b) makes them subjectively more satisfied with their lives. I believe neither of these goals outweigh the advantages of a tax, and the vanity tax may even promote the latter.

In the competitive context, Duel assumes that, if more people become more attractive, all will share in the advantages once enjoyed only by the appearance-favored. He appears to misunderstand the basic concept of “advantage.” It is concerned with the distribution of extant goods, not the production of more goods. Assume, for instance, that three associates at a law firm are bald (A, B, and C), and one has a full head of hair (D). Only one can make partner, and all have equal performance records and client contacts. D eventually gets the job on the basis of his presumed higher level of attractiveness to clients.

Now assume that C gets surgical hair implants, to “level the playing field” between him and D. It is far from likely that the firm will suddenly decide to make two partnerships available rather than one. The same logic applies to less dramatic allocations of earning power or professional advance. The role of enhanced appearance has been modeled by economist Robert Frank, who sees it as a classic example of a positional good--one whose value, far from being inherent, directly derives from its comparison with others. The appearance game is zero-sum; some move up only by pushing others down by comparison.

Of course, positional competitions can develop among many different axes; associates may also compete by billing more hours, developing their legal skills, or wooing clients. Note, though, that each of these strategies for success objectively increases the efficiency of the firm and increases the likelihood of expansion of the ultimate “prize,” be it higher pay, more partnerships, or more complex work.

What about the subjective dimensions of Duel's claim? Well, clearly some people are vain and put a lot of emphasis on looking better. But perhaps the very relativity of attractiveness makes the effort to tax appearance-enhancement the ultimate in efficiency. Consider Ng's work on diamond goods--these are goods that are valued, not necessarily for their intrinsic beauty or worth (a ring of cubic zirconium would have a gleam as sweet as a diamond's), as for their ability to show off one's wealth. People have a set "diamond budget," and it doesn't really matter if 10% or 90% of that goes to the government or DeBeers.

By the same token, standards of appearance often map to the types of clothing and skin tone that the wealthy can afford. As one commenter on a brilliant post at the Situationist notes,

Supposedly, in medieval Europe, light skin was considered beautiful, and only the rich aristocrats, who didn’t work in the fields like the poor peasants, had skin that wasn’t tanned. In more recent times, when poor people began to work in indoor factories and couldn’t afford to spend much time outdoors in the sun, tanned skin became seen as beautiful. . . . . This suggests a hypothesis: In a given society, the standard of beauty will be associated with whatever physical attributes distinguish between rich and poor. In other words, traits associated with low social status will be considered ugly and traits associated with high social status will be considered beautiful.

Therefore, by making the plastic surgery or Botox more expensive, we may well make it all the more desirable for those that get it.

Well, if that bit of trickonomics isn't enough to sway you, consider this characterization from Daniel Harris: "The idealized face of the model has always concealed an unspoken ulitmatum. Glowering accusingly at the reader, the alabaster mask intimidates her into buying products that cosmetic companies offer as a form of facial blackmail. . . ." Far from maximizing choice, the ready availability of cosmetic procedures just directs it toward trivial outlets.

Photo Credit: Mart & Gree, Flickr.

Posted by Frank Pasquale at 01:39 PM | Comments (3) | TrackBack

The Mommy Wars and Breast Milk

Last month, we saw the revival of the “Mommy Wars” once again. Triggered by the publication of Leslie Bennetts’ book, The Feminine Mistake, major newspapers, magazines, and blogs debated Bennetts’ premise that mothers who leave the workplace to raise children, even temporarily, risk significant economic losses in the future. As commentators debated the pros and cons of women’s life choices, and the effects on their children, there was little discussion of an issue that may have a much greater impact on children—outsourcing of breast milk. Yes, you read it right the first time. Although women have always breastfed other women’s children, as Time magazine recently reported, only now is there a clear for-profit market in human breast milk in the United States.

Studies have shown that breast-fed babies enjoy numerous health benefits which infant formula simply cannot replicate. Clearly, breast milk is best but the question is “whose breast milk?” An infant might benefit most from his own mother’s milk, but there is evidence that another woman’s breast milk is preferable to infant formula. Some mothers are physically unable to provide their children with their own breast milk, while others choose not to because, according to Time, they have “high powered careers.” If the market for human breast milk continues to grow, this latter group (although small) might find itself in the center of the Mommy Wars.

Women who purchase human breast milk are generally wealthier than the women they employ to nurse their children. Although at a salary of $1,000 per week, wet nurses earn more than most nannies, and demand for their services is increasing, some people are uncomfortable with the class and racial implications of this line of work. Let’s not forget that during slavery, Black women often nursed their masters’ children.

However, as Professor Waldeck argued in her prescient article, Encouraging a Market in Human Milk, society has an interest in ensuring that as many children as possible receive human milk. While some women already donate breast milk (for free) to milk banks across the country, Professor Waldeck argues that the prospect of financial compensation is likely to motivate more women to donate, thereby providing greater numbers of children with the health benefits of breast milk.

What does all of this have to do with law? We first have to ask whether states should regulate a market in human breast milk, or more specifically, who can be a wet nurse? Which employment laws would apply? How much trust are we willing to place in the agencies that match wet nurses and families in the same way that they place nannies, chauffeurs, and personal chefs in private homes? Do the reasons why a woman hires a wet nurse matter? In the surrogacy context, commentators have suggested that women who are able to carry a child to term should not be allowed to contract with a surrogate for convenience. Should women have to similarly show that they cannot breast-feed before they are allowed to hire a wet nurse?

I don’t have any answers, only questions. I must admit that I am particularly uncomfortable with the potential exploitation of poor women who have few options. Then I think of the African-American woman Time interviewed who wet nursed ten infants over a seven year period to put her own two children through college. She stated that her job is "fulfilling" so I am hesitant to question her choices. Just as important, if the law prohibits women from selling their breast milk or wet nursing services, will the government help them find jobs that will enable them to provide their families with an adequate standard of living? Somehow, I doubt it.

Posted by Solangel Maldonado at 11:28 PM | Comments (4) | TrackBack

Why So Few Black Ballerinas?

There was an interesting article in yesterday’s NY Times discussing the absence of Black ballerinas in prominent ballet companies in the U.S. The reasons are many and complex, including economic (ballet is expensive), the pool of qualified dancers is very small, and access to ballet training is quite limited in the U.S. But I was struck by the suggestion that ballet companies are reluctant to hire even exceptionally gifted Black ballerinas because they are afraid to challenge their subscriber base and their expectation of “a ballet company, the way you thought ballet was.” Other Black ballerinas suggested that stereotyping of Black women was a major obstacle to their success because “Black women are perceived as being forceful, which doesn’t square with the ethereal image of a ballerina.”

I must confess that my exposure to ballet is quite limited. Thus, I found it hard to believe that dance companies would pass up the opportunity to recruit talented dancers because they feared their audience reaction. Then I remembered a column which appeared in the NY Times Magazine last December. A reader asked "The Ethicist” columnist whether she was racist because her enjoyment of “The Nutcracker” ballet had been “severely marred by the appearance of a black snowflake and then, even worse, a black Snow King.” According to this anonymous reader, “the aesthetic incongruity was inconceivable. The entire ballet was spoiled.” I am not sure what to make of this reader’s question, but it does suggest that ballet companies’ concerns about their audience’s ability to welcome Black dancers are not completely unfounded. Any thoughts?

Posted by Solangel Maldonado at 10:48 AM | Comments (5) | TrackBack

Partial Birth Abortion and Scientific Uncertainty

Although my area of research is primarily environmental law, I also explore how lawmakers deal with scientific uncertainty. And so the recent decision in the consolidated partial-birth abortion cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382) really interests me.

In these cases, Justice Kennedy states that "when medical uncertainty persists . . . The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." Accordingly, the Court deferred to Congressional findings in 2003 that partial-birth abortion is never medically necessary. While this is definitely a blow for advocates of abortion rights, I can't say (without further deeper reflection) that I automatically disagree with this approach, in which the majority deferred to Congressional findings, albeit not "uncritically." This approach, after all, affects many areas in which Congress has made decisions to regulate in the face of scientific uncertainty, including environmental and health regulation. For example, how much can the presence of scientific uncertainty allow Congress to authorize agencies to protect the environment under the Commerce Clause?

The key, though, is how this "not uncritical" examination plays out in the future, and how "uncertainty" is defined. How much medical disagreement is necessarily to overcome a Congressional finding? If the bar is too high--which it could be, given how one could argue that all of science is "uncertain" and "unstable" to some extent--then Congress is free to entirely ignore scientific determinations. Yet if the bar is too low, then Congress would be unable to act in the face of predicted, yet "uncertain" risks.

What I would have liked to have seen, therefore, is a more thorough delineation of the nature of uncertainty and degrees of uncertainty, setting out ways for courts to inquire into its legal existence, which of course could be distinct from its epistemological existence. (This, by the way, seemed incomplete in the global-warming case of Massachusetts v. EPA as well.) Instead, it's treated as almost an on-off thing, rather than recognizing degrees (and kinds) of uncertainty.

I would also like to have seen some recognition that scientific findings and legal findings are often intermingled. As many scholars observe, much of the science at issue in legal decisions involve "trans-scientific determinations"--determinations that involve both scientific and policy components. Because of this, a judicial determination could go either way depending on whether you look at a given determination as scientific, or legal (despite the presence of both elements). On one hand, you've got courts deferring to Congress when it "act[s] in areas fraught with medical and scientific uncertainties," but you've also got the canon that courts apply (somewhat inconsistently) to construe statutes to avoid constitutional risks--which also involve areas of uncertainty, albeit legal uncertainty. And so without delineating how you "tell" what counts as science (for legal purposes) or law (for legal purposes), you end up with a situation where the rule of deference that one applies (or doesn't apply) will depend heavily on a standardless characterization of the nature of a determination.

Anyway, I'm still thinking this through! So I'd really appreciate further thoughts and suggestions!

Posted by Steph Tai at 01:10 PM | Comments (14) | TrackBack

Woman Town?

Salon.com has an interesting blurb on "Woman Town," an experimental town inside the Shuangqiao district in the Chongqing municipality of China dedicated to being a place where women make the decisions. It's an interesting concept, though I'm not entirely sure what the point of it is. Is it to respond to what's seen as a predominantly patriarchal culture? Is it meant more as an amusement for tourists? Time will tell, but it'll be fascinating to see whether or not any different local legal approaches develop as a result of an institutionalized "female dominated" structure. Keep your eyes peeled, Carol Gilligan!

Posted by Steph Tai at 03:49 PM | Comments (1) | TrackBack

Virtual Women

Yesterday, the Virtual Women conference was held at Thomas Jefferson School of Law. It was the seventh annual Women and the Law conference for TJSL, and it was a good one. The keynote speaker was Rochelle Dreyfuss (NYU); panelists included Ann Bartow (South Carolina), the proprieter of Feminist Law Profs blog, Boatema Boateng (U.C.S.D.), Dan Burk (Minnesota), Carys Craig (Osgoode Hall at York University, Toronto), former Co-Op guest Christine Haight Farley (American), Michele Goodwin (DePaul), K.J. Greene (Thomas Jefferson), Eileen Kane (Penn State), Mary LaFrance (UNLV), Doris Estelle Long (John Marshall), Malla Pollack (American Justice), Cheryl Preston (BYU), and Rebecca Tushnet (Georgetown), as well as a panel of practicing attorneys. Kudos to conference organizers Julie Cromer and Sandy Rierson for putting together a great group.

With that line-up, it's no surprise that the conference is already being blogged. On her blog, Rebecca Tushnet has posted summaries and reactions for the first two panels. If you haven't already done so, you should take a look at Rebecca's posts on the conference: Panel 1, Panel 2 (part 1), Panel 2 (part 2), Panel 3, and the Keynote.

Posted by Kaimipono D. Wenger at 04:56 PM | Comments (0) | TrackBack

Should the state put gender under erasure?

I was delighted to see this story about Chanda Musalman, a Nepalesse person who asked that the census not record his/her gender. The census workers, wanting to put something down, decided that "both" would be more suitable than "none".

This would be a very interesting move if adopted here in the US. Legal and social classifications, of course, run along a two-way street. A fair portion of equal protection theory and doctrine can be thought of as a response to this fact: Once we realize that laws both reflect and contribute to social classifications that carry different status benefits, the game is on. Part of the fun of watching traditionalist legal actors is watching both how insistent they are that their classifying reflects some natural reality and how nervous they are that legal classifications might work against their preferred social order.

Are there a more sophisticated argument against multi-coding? None come to mind. I'm curious what others think. Political feasibility aside, would you support such a change in our census? How would you classify yourself? Do you know anyone who you think would prefer to cross-classify?

Posted by Donald Braman at 11:44 AM | Comments (12) | TrackBack

Cheerleaders for girls and for geeks

The N.Y. Times has an interesting article by Winnie Hu on movements to have cheerleaders cheer equally for boys and girls teams. The legal theory is that girls' sports, deprived of cheerleaders, are receiving less support from their schools than boys' sports receive. The unsurprising reality in many cases is that the equal cheering makes no one happy -- including the players on the girls' teams that receive the cheers.

Will the next move be equal cheering for the coed academic teams? I did receive a varsity letter in high school -- for my participation on the math team. Our team coach was able to convince the administration that we needed to be treated equally with the sports teams. You will not be surprised to hear that I put the big orange "M" in the bottom of the dresser instead of sewing it onto a jacket.

I can just imagine what math team might have been like if we had cheerleaders: "Calculate the area, hooray, hooray; pi-r-squared, that's the way." That would have been enough to get me to quit the math team, although thinking with all of the cheering going on might have created some additional challenge. Plus, I suppose that I might have gotten to know some of the cheerleaders on the bus rides to competitions. This could have made a great '80s movie.

On the merits of the curernt dispute, my own view is that having (almost exclusively) girls cheering the boys does not send the right messages about our idealized views of sex roles. But it probably doesn't make things much worse either, and the new interpretation seems like a stretch of Title IX. My preferred solution would be to turn cheerleading into a sport in its own right, if there remains enough demand for it, with squads competing against each other while not disturbing other athletic contests. Some will say that to cheer, you need something to cheer. But I saw "Bring It On," so I know better.

Posted by Michael Abramowicz at 07:24 AM | Comments (10) | TrackBack