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UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)
Articles

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672

 

Comments

Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812

 

 

 

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Who’s Your Daddy?

Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.

The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.

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What It Means to Talk about Reproductive Justice

In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.

As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.

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Service with a (Surgically-Induced) Smile: Gender Norms at Work

I am so delighted to be guest blogging for Concurring Opinions this month and to be part of this exciting community.  This month, I will be blogging on various intersections of law, social norms, gender, sexuality, family, and work.  I have been researching some of these issues for my book project on Gender and Social Norms in Same-Sex and Different-Sex Marriage (contracted with NYU Press).  Although today’s topic is not part of this book research, it takes up many of the concerns that animate my work.

 

Recently, a plastic surgery procedure that has gained popularity among South Koreans has gained some major media attention in the U.S.  The procedure, technically called Valentine anguloplasty and sometimes colloquially called a “smile lipt,” is supposed to lift the outer corners of the lips into a smile, even when the putative smiler is not actually smiling.  According to a South Korean plastic surgery center promoting its smile procedure, people of Korean descent like myself have shorter mouths and lower mouth corners than “Westerners,” which means that I and others similarly situated supposedly have a greater tendency to look like we’re frowning.  “Perma-smile” to the rescue.

 

Considering the United States’ status as a world leader in the consumption of plastic surgery, one would think that Valentine anguloplasty would hold some appeal, even to the blessedly long-mouthed.  But based on the American media reaction, what’s been dubbed “joker lips surgery” is not likely to catch on any time soon.

 

Smile surgery has actually been around for decades and isn’t just a recent invention of South Korean plastic surgeons.  The response to this latest supposed craze, though, is what interests me more than the procedure itself.  No, not many of us want to look like this.  But while the origins of this photo are murky, the hypocrisy of the reaction to South Korean women wanting to look smiley is clear.

 

What strikes me is how narrow the chasm is between the perma-smile of Valentine anguloplasty and the social norms that compel those of us not in South Korea, particularly women, to smile – a lot.  Psychologists Marianne LaFrance, Elizabeth Paluck, and Marvin Hecht found that women smile more than men, particularly when women and men think that they are being observed.  This effect corresponds with numerous studies with which LaFrance, Paluck, and Hecht engage concerning social expectations for women to smile and penalties imposed on men for smiling too much. Others have written cleverly about the common form of street harassment consisting of ordering women to smile.

 

Women pay the price of not smiling (or of the much-memed “bitchy resting face”) on the street and in the workplace every day.  People like nice women.  And the smile is a proxy, although often a sloppy one, for that niceness.

 

For a woman to smile all the time, especially in the workplace, is — to borrow from Devon Carbado, Mitu Gulati, and Gowri Ramachandran – to perform “gender comfort,” easing the way for women’s presence.  What’s already a treacherous climb for women up to leadership positions in firms and corporations is made even more difficult by the added load of having to be smiley and perky all the while.  Sociologist Arlie Hochschild has identified the strains posed by such “emotional labor,” particularly for flight attendants expected to smile continuously to project concern, friendliness, and other emotions not necessarily felt all the time but considered necessary for the job.

 

We see the legal imperative and effect of the smiliness social norm historically and contemporaneously.  I recently watched the excellent PBS documentary Makers: Women Who Make America (2013), which reminded me of the 1950s expectation for those women living the post-war American Dream to be cheerful, smiley, and content.  Sixty years later, the norm persists.  Social expectations for women’s comportment often influence their willingness to negotiate, to ask for more, to complain.

 

In the context of the workplace, the Lilly Ledbetter Fair Pay Act, setting the statute of limitations for a pay discrimination case from each new paycheck affected by the discriminatory action, is an important step in remedying discrimination of which a plaintiff may be unaware.  But it also importantly accounts for the social dimension of that unawareness.  When one is socialized to be nice, it is difficult to suspect wrongdoing, even if it occurs over years.

 

Despite advances like this, social science accounts of workplace dynamics, particularly in the context of negotiation continue to give pause.  While women suffer opportunity- and pay-wise from failures to negotiate, they also suffer when they do negotiate.  Hannah Riley Bowles, Linda Babcock, and Lei Lai demonstrate in their research that women are judged more harshly than men for initiating negotiations for higher compensation, with perceptions of “niceness” and “demandingness” explaining resistance to female negotiators.  In recognition of the threat posed by women seeking higher pay, one approach is Sheryl Sandberg’s in Lean In, advising women negotiating pay to smile frequently.

 

This is all terribly depressing when I think of legal and social change.  We teach young women to be assertive, but they will likely be judged for being “agentic women.”  When we think about women in the workplace, perhaps then it makes sense that some would try to create through facial alteration what many “Westerners” are able to achieve more easily without going under the knife and paying $2000 – a permanent smile and all that comes with it.  :)

 

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Injured Kids, Injured Parents and Tort Law

When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.

Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.

I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.

In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.

I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.

 

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Special Kids, Special Parents

First, many thanks to my exceptional and delightful colleague, Danny Citron, for inviting me to blog on Concurring Opinions. My blogging goal is to get you to focus on how law and policy could attend to the needs of family caregivers of special needs children. “Four in ten adults in the U.S. are caring for an adult or child with significant health issues,” according to a new Pew Research Center study. One would think that this large and growing population of family caregivers would command some attention. If they refused to do the job, after all, millions of frail elderly people, permanently-disabled veterans, and chronically-ill and disabled children could be left with nobody to meet their physical, emotional or medical needs. Social welfare organizations and institutions would be overrun, and social provision expenditures would skyrocket.

Refusing to do the job is not an option for many family caregivers, of course, for thousands of reasons, including love, duty and generosity of spirit. But many pay a price in terms of physical health, social isolation, and economic security. In my work about families raising children with special needs, I argue that we need to find ways to spread the costs so that they do not continue to fall almost exclusively on family members who step up.

Here are three examples of law and policy being blind (or at least astigmatic) to the impact of care-giving on these parents. First, when a child’s parents divorce or separate, family law entitles the parent who lives with the child to child support and, in some unusual situations, alimony. Child support is calculated on the basis of the child’s needs, and alimony is determined based on what the payee needs. Both assume that, ordinarily, both of the child’s parents will be economically productive. Where the parent’s special care-giving responsibilities interfere with that parent earning a living, however, child support and alimony are not usually adjusted–there’s no “chalimony.” Second, the public benefits system picks up very little of slack for parents when special care-giving responsibilities interfere with the parent’s earning capacity. Worse yet, since the mid-1990s, states became subject to increasingly stringent requirements in federal law about tying public benefits to the efforts of recipients to get and hold employment. A different route is not unimaginable: in 2009, a stipend was enacted for family caregivers of veterans left permanently disabled during their service in recent wars. Nothing similar, however, exists for parents. Third, if a child’s special needs affect his or her ability to benefit from school, federal law has guaranteed since the mid-1970s that the child will nonetheless be provided with a “free and appropriate public education.” The statute is not blind to the child’s caregivers; in fact, it gives parents specific rights in terms of participating in planning the child’s educational program. What it does not do, however, is make sure that parents can exercise their rights in ways that make sense if their lives are over-stressed because they are caring for special needs children.

As my work continues, I’m looking for additional examples of law and policy that attend to the needs of family caregivers for special needs children, and to those that don’t. If you can suggest a new avenue of research, please let me know.

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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

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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

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The Parenting Debate

Although I am somewhat hesitant to add another voice to an already loud debate about the work-family conflict that has arisen again in the last month or so, I am finding it difficult to stay quiet.  As the working mother of a 3 ½ year old and a 3 month old, this is the legal and policy issue that affects me most these days.

When Anne-Marie Slaughter wrote her piece in the Atlantic, arguing that women in top government and business positions are leaving because of the difficulty of combining work and family, she predictably drew loud praise and equally loud critique (including an interesting post by Sherilyn Ifill, linked to from Concurring Opinions).  But then, Marissa Mayer, Yahoo’s newly appointed CEO, added her voice to the debate (perhaps unwittingly) when she told Fortune that she was pregnant and that her maternity leave would be “a few weeks long, and I’ll work throughout it.”  That comment brought a new onslaught of responses including criticism that she was doing a disservice to all working women whose employers would now expect them to “work throughout” their maternity leaves.

Whether this is a male/female issue or merely a parenting issue that cuts across gender, what is clear from the numerous opinions out there is that one size does not fit all.  In fact, if I am any example, one approach might not even work throughout one person’s working/parenting life. As a first time mom and associate at a law firm, I took a 6½ month leave, made possible by a hefty pay check and 12 weeks of paid leave.  Now that it’s my second time around and I am transitioning to academia, I chose to work from home through the first few months after my son was born and (mostly) don’t regret it.

The notion of privileging women or parents by building in options for them is not new and is, in fact, the dominant approach in many European countries and in Israel (which I have written about in the past).  But it has not been the American way.  Might we be changing?  In my prior article, I wrote about the emergence of the Israeli approach as a function of the society’s overall collectivist culture and a national interest in promoting reproduction and the parent-child bond.  I am wondering whether there is a chance that Americans could recognize this too.

Of course, that would not be the end of the debate.  What would the privileging of women or parents mean for equality?  If women (by law) gain options that men don’t have, do they come out equal, better, or worse?  For example, if we mandate paid maternity leave as some countries do, will employers stop hiring fertile age women out of fear that they will exercise this option and be less productive than men?  What if the option is non-gendered and open to all parents?  Will men exercise the option or continue to feel pressure to return to work immediately after a child is born?  Will women?  While the answers to these questions remain unclear, one thing is obvious—this is not a problem that parents can solve on their own.  Beyond the debate in the media, it is high time for a serious debate in government about remedies (beyond the Family Medical Leave Act) for working parents who are having trouble being good at both jobs.

 

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Context is Everything

I am thrilled to be guest-blogging for Concurring Opinions for the month of August.  For my first post, I thought I would draw your attention to an interesting case out of the Seventh Circuit last month.  In Passananti v. Cook County, the court considered a hostile work environment sexual harassment claim brought by an investigator for the Cook County Sheriff’s Department.  The primary issue on appeal was whether the “frequent and hostile use of the word ‘bitch’ [was] a gender-based epithet that contributed to a sexually hostile work environment.”  In other words, is “bitch” always sexist?

Putting aside the use of the word in dog-training circles, you might be wondering how this word could possibly not be sexist? It turns out that the Seventh Circuit, in a prior case, actually concluded that the use of the word was not based on sex but rather on personal animosity that “arose out of an earlier failed relationship between the plaintiff and the harasser.”

But in Passananti, the Seventh Circuit reversed the lower court, finding that the mere use of the term in this case, without other gendered words, is sufficient for a finding of sexual harassment.  And the court, quite reasonably, pointed out that “when gender-specific language is used in the workplace . . . context is key.”  A laudable approach until you look one step further at the specific context that the court looked to for help here:  “The jury heard testimony that Sullivan used the word “bitch” regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti’s employment.”  Not exactly convincing. We are supposed to understand that the term is gendered because he didn’t use it in jest and was threatening her employment?

Most of us would agree that the supervisor’s use of the word “bitch” in this case was gender-derogatory for one simple reason:  he is a man, using a gendered word, against a woman, and there is no other explanation for its use.  Can the term have different meanings in other contexts?  Absolutely.  When women use it amongst themselves, for one, the term can be endearing or playful.  But it is rarely benign when spoken by a man and directed at a woman.  But nowhere in the court’s lengthy discussion of context does this simple truth appear.  Why is the court so hesitant to name this reality – that linguistic meaning is the product of multiple contextual factors, including, importantly, the identity of the speaker?

I’ll save additional discussion and some possible answers for a later post.  Suffice it to say, I am thinking a lot about this question right now and have just posted a draft of my article on the topic on SSRN. I’ll discuss the article in a later post but for now here’s the link to The N-Word at Work: Contextualizing Language in the Workplace.