The Faculty Lounge

Judith Butler, Hip-Hop Style

For all who have attempted to read Judith Butler and found her writing a bit, ahem, obscure, writer Chelsea Clammer has a funny essay called "Li'l Butler" over at the Doctor T.J. Eckleburg Review.  She reads Butler side by side with lyrics from Lil' Wayne: "[H]ere I am, reading the grammatically challenging quality of Butler’s work while listening to Lil’ Wayne get all creative about power, sexism, and oppression, and by god—it happens. I read Butler, I hear Lil’ Wayne, and now the two of them are call-and-responsing to each other in my mind...." 

Clammer imagines the results in a faux "syllabus" for a class on "Feminist Theory and Misogynistic Rap Mash-up 101":

Week 1:

 On the subject of grief and broken relationships:

Judith Butler says, “Let’s face it. We’re undone by each other. And if we’re not, we’re missing something….One does not always stay intact.”

That sounds depressing. But Lil’ Wayne sure does know how to incorporate the notion and idea of grief into his life in a positive way, “Got the girl twisted...."

Week 2:

On the subject of longing:

Judith Butler says, “Love is not a state, a feeling, a disposition, but an exchange, uneven, fraught with history, with ghosts, with longings that are more or less legible to those who try to see one another with their own faulty vision.”

Ooookay. Now, Lil’ Wayne, I ask of thee, how do we acutually see each other, but more importantly how do we deal with our longings?

Lil’ Wayne jumps in with, “Had my heart broken by this woman named Tammy...."

Week 3:

On the subject of power and opressive hierarchies:

Judith Butler tells us that, “To operate within the matrix of power is not the same as to replicate uncritically relations of domination.”

Holla back, Lil’ Wayne. How do you think we can navigate power relations—such as the domination of the wealthy over the poor and how the “esteemed” white race is always acting like they own the place?

He says, “No matter who’s buyin’, I’m a celebration. Black and white diamonds, f*ck segregation.”

And to those impeccably brilliant explanations, I say, word.

The asterisks are mine, not Clammer's.  Lil' Wayne lyrics more robust (!) without the elipses.  Read Clammer's full piece here.

 

Ginger Rogers, Having It All, the Times and the Twitterati

Updated below

My Twitter feed is filled with outrage over a New York Times obituary. Science writer extraordinaire Ed Yong (whose excellent National Geographic blog happens to be called Not Exactly Rocket Science) started it off by tweeting:

Rocket scientist dies. NYT obit leads with her cooking skills, husband and kids. Oh just [f@!*] off.

That tweet has, as of this writing, earned 732 retweets (and an additional 140 favorites). In case Yong’s objection wasn’t clear from his tweet (or from the obit itself), here’s another version, from someone else responding to Yong:

Lesson to women scientists: even when you’re totally badass, you will be remembered for "following your husband from job to job"

Later, co-science writer extraordinaire Steve Silberman (who tipped Yong off to the obit in question) tweeted to Yong:

Notice we’re in the middle of a social science experiment? People enraged about [Yong’s tweet critiquing the obit]: male. People who got it: female.

In an effort to distinguish myself from my soon-to-be-90-year-old father-in-law, I try to spend as little time reading NYT obits as possible. So I hadn’t seen it. But after reading these and many, many similar tweets in my feed, I pointed my browser on over there, prepared to be outraged, too. 

But you know what? I’m not.

For the fairest test of your own reaction, I was going to advise reading the obit first. But as I was writing this, the Times edited the lede (without indicating that it did so), presumably in response to the Twitter backlash. I provide the new lede and the link to the obit below. But first, let's focus on what, until a short time ago, the obit used to say and why people are so worked up about it.

Spivack on Slayer Statutes

Carla Spivack of Oklahoma City University's law school has a new paper up on ssrn, "Killers Shouldn't Inherit from Their Victims . . . Or Should They?"  Here is the abstract:

The article offers a profound reassessment of so-called “Slayer Rules,” laws that, in all states, bar killers from inheriting from their victims. For the first time in the literature, this piece questions the underlying rationale for these rules by examining the context of family violence and mental illness in which these killing occur, and argues that, given that context, these rules are often neither legally nor morally justified.

My argument is as follows: at first glance, the idea behind Slayer Rules seems reasonable, indeed, morally obvious: a killer should not be able to profit from his or her crime. This truism, however, may not necessarily be true. Where murder and inheritance overlap, we often find family. When family members kill one another, the equities are often cloudy. The sociopathic child who kills a grandparent to hasten an inheritance is an anomaly. In reality, murders within families are usually a product of that family’s harmful, often violent, dynamics, from which, because of the failures of state and society, a family member sometimes can find no escape except murder. Most women who kill their husbands or partners do so to protect themselves or their children from violence. Most children who kill a parent act to stop severe and prolonged abuse by that parent; most of the other child killers are acutely mentally ill. Most mothers who kill children suffer from post-partum psychosis, a severe mental illness whose symptoms include visual and auditory hallucinations and delusions. Once the tragedy has occurred, the legal system often fails to address the defendant’s plight, offering inadequate representation, barring effective defenses at trial, and extorting guilty pleas that may not reflect actual guilt. Given this reality, it’s not clear that barring the defendant’s inheritance is just, fair, or even sound policy. 

Carla's article is part of the growth (or perhaps I should say rebirth) of serious work in trusts and estates that we've been seeing in the last half-dozen years or so.  I think this is happening for several reasons -- first, a lot of newer scholars have realized that the area is ripe for analysis along lines of gender (and to a lesser extent race and class) that have been so prominent in allied areas, like property.  Second, there is a realization that there is room for a lot of empirical and doctrinal work as well--especially doctrinal work; and third, this is an area that has increasing appeal for students, in part because there seem to be better job opportunities here than in many other areas (or maybe I should say less bad career opportunities).

I'm particularly intrigued by Carla's framing of this -- where the conventional wisdom is that slayers shouldn't be able to inherit from the people they kill, Carla reminds us that the statutes apply almost exclusively against family members.  (A slayer might be a non-family member beneficiary of a will, trust, or life insurance contract.  Or one might be a non-family member and joint tenant with the decedent.)  Because of the preponderance of family members among the slayers, Spivack suggests that blanket provisions against inheriting may work inappropriate hardship.  Carla raises some really serious questions about whether slayer statutes -- which I usually fully support -- are too broad.  And whether we should allow slayers to inherit from family member decedents.  I wonder how much this will matter, because I'd imagine that a lot of people who would inherit absent a slayer statute will still be liable up to the value of what they inherit in a wrongful death suit to the decedent's other heirs.  Though I suppose this could be handled by limiting wrongful death claims when a family member is slayer.  That would be controversal, to say the least.

Anyway, if you teach trusts and estates or family law you'll find the article worth reading.  I'm excited by how much new and interesting scholarship is being written in trusts and estates these days!

Blind spots

A great post over at The Situationist blog about a new book from Mahzarin Banaji and Anthony Greenwald called Blind Spot: The Hidden Biases of Good People which is an attempt to bring some of their work on the Implicit Associations Test (IAT) to a broader, general audience. This work is interesting and provocative and, as noted in the blog, often controversial. But I suspect the book will be very interesting to those legal academics who have either written about the IAT or issues of implicit bias or cognitive limitations generally, as well as to practitioners who may be coming up against this sort of evidence in court or who, conversely, would like to use it in court.

Update: TFL blogger Michelle Meyer adds this review of the book from the WSJ blog,  Book Review: Blind Spot. After looking at the review I think I'd have to say it goes beyond simply offering a caution about importing the insights (if any) of the IAT, but is fairly hostile to this research.  It offers several of what seem like valid criticisms and a few that don't seem so valid to me.

The observations about the linguistic limitations, the crudeness of some of the measures and cautions about the associations which the authors make, are examples of  some of the valid critiques, although they do not necessarily lead to the conclusion that this work does not help to some degree in trying to tease out the difference between lying and lying to ourselves - or, in the context of discrimination, between what we consciously tell ourselves and what what we may actually do, or what may be unconciously informing some of the decisions we make.  I think some of the critics may be asking that this research conclusively prove discrimination rather than that it show evidence which is suggestive of it or supports an inference in that direction.  Of course conclusive proof of most connections in the social sciences is unlikely to be forthcoming, moreover, that is not the test for admissibility for expert evidence in court. Observing that a particular approach does not answer every question you might have with respect to the problem it attempts to study does not mean the test is invalid any more than the fact that an MRI and a CAT scan offer different information means that either is invalid.  Finally,  terms like "disrimination" "bias," etc. are all themselves extremely loaded in that they might suggest more to some readers than the authors intend.

On the other hand, Daubert, the case that provides the framework for the admissibility of expert testimony,  does provide that expert testimony needs to meet some basic standards of reliability, etc.  that if all these criticisms are well-founded, would probably lead to exclusion. So, facts like the authors' own meta-analysis failing to account for the vast majority of the data is, if true, a significant omission from the book and one that it would be interesting to follow up on. Indeed, if you were planning to use such evidence in court it would be remiss of you not to follow up on it. 

I think other observations in the review are less valid. Take this one:  "But if a test gives results that are so far-fetched, it's time to start questioning the validity of the test."  First, "far-fetched" is an assessment that assumes the very thing that the authors are trying to discover, whether it is indeed "far-fetched" that someone might harbor unconsious racial stereotypes, no matter what their ethnic background. The comment assumes that racial heritage or background is some sort of invariable predictor of attitudes.  A casual glance around at the diversity of political opinions within various minority groups should dispell that idea. So the ethnicity of Malcolm Gladwell's parents, while surely not irrelevant to the question of his attitudes towards race, is probably not dispositive of them.

Second, that some data diverges from what you expect to find is not necessarily a reason to question the test. Sometimes it is. That is always one possibility. But it also is possible that it is a reason to question your assumptions about what is or is not "far-fetched."  There are a great many things which are true even though they are counter-intuitive, for instance that certainty is strongly correlated with accuracy.

Moreover, in this, as in so many areas of research that are highly politically charged, there are some hints that there may be ideological divsions presented as metholodgical ones driving some of the critiques.  There does seem to be a way in which normative disputes about the legitimacy of underlying assumptions sometimes morph into arguments that purport to be about rigor or metholodgy, with one side claiming that the other is not really rigorous, when they may be working from radically different foundational assumptions.  Whether this is going on here is a question that can only be resolved by further reading of the works on which the book is based and those critiques which the WSJ article references.  I do not know the answer to that question. Interested parties should definitely read it all and decide for themselves.

At the end of the day, this book is, as advertised, a presentation of the authors' research for a general audience, with all the limitations that go along with such attempts. That said, you need not endorse immediate adoption, by the courts or legislatures, of any of the implications of the authors' research here to conclude that it is interesting and worth further exploration. And, for better or worse, as the National Research Council's report from 2009 on forensic science illustrates, the validity of a practice has rarely been an insurmountable barrier to its acceptance in the courts.  So this research is likely to migrate there. (I think it may have done so already and look to more knowledgable readers to alert me to those cases.) Whether you want to use it or defend against it, may pay to give it a look. This book looks like one entryway to that exploration.

Women and Men in Competitive Environments

A friend yesterday forwarded me this story from Salon magazine which contains some interesting recent studies on the kinds of competitive situations in which women versus men tend to thrive.  It suggests that women are less competitive and choose to take risks which are more likely to pay off than men, while men often take greater risk if there's a chance of greater reward.  There are also suggestions about the optimal schooling environments for girls versus boys.  Food for thought ...

Distributing Scholarly Speaking and Publication Opportunities Through Blind and Other Processes

Over at CoOps, Dave Hoffman has graciously taken the time to respond to my query about why there’s been such a fuss over Scholastica’s diversity widget, given prevailing attitudes in legal academia and elsewhere in the academy that when selecting participants in conferences, workshops, colloquia, and the like — which I’ll call, for short, “speaking opportunities” and which may or may not also involve publication opportunities — it is somewhere between permissible and obligatory to consider diversity. Dave argues that symposia (I don’t know if he sees symposia as different than the other speaking opportunities I mention) and articles serve different purposes, and hence, selection criteria should be different in these two contexts. Go read his argument, then come back for my response — and a bit of a confession.

Seith on Congressional Power to Effect Sex Equality

Further to the recent discussion of applied legal history, I see that Patricia Seith has posted "Congressional Power to Effect Sex Equality" on ssrn.  Cribbing now from her abstract:

From its passage by Congress in 1972 to its ratification failure in 1982, the Equal Rights Amendment (“ERA”) pivotally shaped sex equality discourse. While historians and legal scholars have examined and analyzed its demise, its failure has been deemed inconsequential for constitutional doctrine—conventional wisdom submits that a “de facto ERA” was achieved through judicial action. This Article argues that this dominant narrative has obscured the other half of the equation—the role of Congress in implementing the “de facto ERA.” Through original archival and legislative research, this Article offers a new account of congressional action aimed at entrenching the substantive guarantees of the sex equality principle. This Article introduces the Economic Equity Act to the sex equality narrative.

Originally conceived as enforcement legislation for the ERA, this Article shows how congressional lawmakers used the omnibus Economic Equity Act for over a decade to articulate and advance their substantive vision of equality for women. Lawmakers introduced successive versions of the Act from 1981 to 1996, passing over thirty enactments. This Article argues that through the provisions of the Economic Equity Act, the women’s movement, lawmakers, and their constituents staked claims to the emerging meaning of sex equality and the terms of women’s economic citizenship—a critical chapter that has been written out of the histories of sex equality.

This Article argues that this account rewrites our history of sex equality in three important ways. First, this Article contends that the Economic Equity Act constituted a decisive turning point in congressional activity—away from legislation effecting “equality in theory” through facial prohibitions on sex discrimination, to legislation aimed at achieving substantive equality or “equality in fact.” Second, this account redresses a fundamental gap in the sex equality literature by showing how lawmakers advanced the Economic Equity Act in an effort to revise New Deal-era federal law and policy premised on the norm of the male breadwinner and female homemaker. Finally, this Article reveals the Economic Equity Act as a foundational chapter for understanding the historical and contemporary role of Congress in effecting sex equality. At stake for lawmakers advancing the Economic Equity Act were the terms on which the benefits and privileges of economic citizenship under federal law would be conferred in the wake of the societal changes precipitated by the modern women’s movement.

The article is appearing shortly in the Harvard Journal of Gender and Law.  

Here's something that I find particularly exciting; the journal is holding a panel discussion around the article this Thursday in Cambridge, featuring Congresswoman Elizabeth Holtzman and Congresswoman Patricia Schroeder, as well as Alice Kessler-Harris of Columbia's history department, Stephen Ansolabehere of Harvard's government department, Serena Mayeri of the University of Pennsylvania Law School, Patricia Seith of Stanford Law School, and Suzanne Kahn of Columbia's history department.  This sounds like it'll be a fabulous discussion.  I'm very sorry that I can't make it to Camrbridge for the discussion, but I think it's great that the journal is bridging history, the academy, and contemporary politics in this way and I hope that more journals reach out beyond the printed page to hold these kinds of discussions.  The discussion is this Thursday 3:30 to 6:30 in Wasserstein, Room 2012.  More details are here.

Update: As of March 5, a link to video of the symposium is here.  This link may pull the video up directly.  I hope to have a few more comments on this after I've had a chance to watch it.

Affirmative Action (In)Consistency (Obligatory Post on L’Affaire Scholastica)

As some of you may have noticed, (at least some of) legal academia is abuzz about the fact that Scholastica, the ExpressO competitor, asks authors to provide optional information about their gender identity, race, sexual orientation, and any additional “hardship diversity,” such as socio-economic status or geographic region. In response to objections by some, Scholastica has given individual journals the option of requesting the information or not, and to date, only California Law Review and NYU Law Review have done so. As a result, when you submit through Scholastica, you will be asked to provide optional demographic information only if you submit to one of those two journals. Josh Blackman has the background, including screen shots of the prior and current “diversity widget” and responses from various law review editors (here, here, and here). You can find additional musings about all of this at CoOps (here, here, and here), Prawfs, ProfessorBainbridge, and the VC. (Update 2/16/13, 5:30 pm: Kaimipono Wenger has a thoughtful Defense of Law Review Affirmative Action over at CoOps.)

Although these musing reflect a range of views, the majority, it seems to me, objects — in some cases vehemently, with calls for a boycott — to the notion of journals deliberately selecting articles on any basis other than merit. My immediate interest in this is not about the appropriateness, per se, of what I’ll call, for simplicity’s sake, affirmative action (AA) in article selection. (For thoughts on that, see the links above.) Rather, I’ve been struck by the strength of objections to this apparent practice in light of equally strong beliefs in the appropriateness of AA when it comes to selecting conference participants, and the like. Here’s the question I posed on one of Dave Hoffman’s Scholastica threads over at CoOps:

I’m curious if you have a position on using gender, race, and the like to select invitees for symposia, conferences, and similar speaking engagements. Is doing so an equally bad idea, in your view, or are there differences between the two situations that suggest different answers? I ask because my first instinct, on hearing of (what it seems to me fair to call) affirmative action at the level of scholarship selection, was that this, like many other aspects of legal scholarship, is a clear anomaly within academia at large (quite apart from its merits or lack thereof as a practice). But then I considered the fairly common — and fairly strong — norm (if not necessarily consistent practice) elsewhere in academia of trying to ensure that one invites a suitably diverse panel of speakers. Indeed, in philosophy, entire boycotts are currently afoot in response to perceptions that conferences failed to include sufficient numbers of women. So I’m wondering whether you think these situations are on all fours, or whether there are significant relevant differences. (To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice.)

Although “Anon” responded that s/he viewed these as “analytically equal” (and equally inappropriate), one "AnonProf" argued at some length that the two practices could in fact be distinguished, with AA appropriate — indeed, “very important” — for symposia invites, but not for article selections. Dave, who has said that AA in article selection is a “terrible, terrible practice,” agreed. [Update 2/17/13, 11:05 pm: Dave has clarified his reasons for distinguishing article selection from symposia invites here.]

As I said there, “I’m actually not convinced that the two situations are much different — and I’m definitely not convinced that any difference between them is as large as “very important [to do]” in the context of selecting diverse speakers (in AnonProf’s words) and “a terrible, terrible practice” in the context of selecting diverse writers to publish (in Dave’s turn of phrase).” Since the Faculty Lounge seems to be the only law blog without a Scholastica diversity post, and since my fuller response to AnonProf’s argument would have further hijacked Dave’s thread, I thought I’d move this aspect of the conversation here.

Hobby Lobby and the Corporate "Soul"

That the old saying that a corporation has "no body to kick, no soul to damn" may have to be revised. While it still has no body to kick (or, for that matter, to send to jail -  BP pleads guilty to manslaughter), recent lawsuits filed on behalf of corporations challenge the ACA on the grounds that its mandatory coverage for contraception and some other post-intercourse medications intended to prevent pregnancy, violates the plaintiffs' rights to free exercise of their religion under the First Amendment and is in conflict with RFRA (The Religious Freedom Restoration Act, 42 U.S.C. sec. 2000bb et seq.)  So perhaps a corporation has a "soul" after all, or at least a religion it wants to exercise. Hobby Lobby is only one of several of these cases. Hobby Lobby complaint.

To quote the Hobby Lobby complaint, while neither Hobby Lobby nor Mardel (another plaintiff in the case) are religious orders, churches, or other exempt organizations but instead are "privately held, "for-profit" corporations organized under Oklahoma law, the owners aver they (the owners) are "Christian and, from the beginning, ...sought to run Hobby Lobby in harmnoy with God's laws and in a manner which brings glory to God." Complaint at para 18- 24.  (As a pleading aside, imagine how, if you are the defendant, you respond to this allegation: "admit"? "deny" "insufficient information"? And if you are the plaintiff, how do you prove that it is true? ). The ACA, the suit alleges, makes this impossible in that the company must pay for insurance coverage which includes medications and devices which, in their view, their religion forbids.

The Hobby Lobby case is actually one of many cases brought on behalf of many companies and individuals seeking to undermine the Health Care Act on religious grounds. The ones brought on behalf of corporations open up a new front - the free exercise clause - on what I have described in my book Brandishing the First Amendment, as an agressive use of the First Amendment to repel legislation aimed at regulating business. However, with this new free exercise claim, proponents may have  have exceeded the bounds of what the public thinks is reasonable when it comes to anthropomorphizing the corporate "person."

The issue is complicated further because these various lawsuits often have slightly different facts, some of which may make a difference. Hobby Lobby is a closely held private company and so the notion that there is some sort of greater identity between the owners and the company has, at least at first glance, some appeal. But then consider Martha Stewart: if suits like this are successful, how should publicly traded companies be treated? And what of the views of the shareholders? Should the corporation be able to claim it is exercising their religious beliefs as well? 

Another complication is that not all these suits raise precisely the same objection. Rejection of coverage for contraception is probably what gets the most press and which would be the most widespread public pushback since contraception generally is very popular. However, despite some claims in the press to the contrary, the Hobby Lobby suit does not raise an objection to what the plaintiffs call "non-abortion-causing contraception drugs and devices" (complaint at para. 57), but rather only to those drugs or devices which constitute (in their view, and this is contested by some in the medical community) "abortifacients." 

Other law suits, such as the one filed by Annex Medical, Inc. in the 8th Circuit, do  object to providing contraception coverage. And the ferocity of the objection is fairly intense because in the Annex case, Annex Medical has fewer than 50 employees, so it is  exempt from the mandate in any event. Yet, according to the plaintiff in that case, the owner's religion requires him to pay for medical coverage for his employees, and because there are no options which do not include coverage for contraception the exemption is not sufficient.  Annex Medical - Order issuing preliminary injunction. Positions like these suggest that the Administration's recent announcement that it would provide a further exemption Exemption will not satisfy many because it will not extend to fully for-profit businesses like Hobby Lobby.

The circuits are split on these suits, (the 10th Circuit denied Hobby Lobby's request for an injunction, a denial which was upheld by Justice Sotomayor acting in her capacity as the Circuit Justice for the 10th Circuit).  Hobby Lobby - Supreme Court Order Although their different facts may suffice to reconcile apparently contradictory results, these various claims seem destined to make their way to the Supreme Court.

Whatever one thinks about the sincerity of the objections raised in these law suits, one thing that is notable is that they seek to elevate the free exercise claim of the corporate entity over constitutional and statutory rights of employees, many, if not most of whom may not share their employers' interpretation of what their faith requires of them.

Indeed, it is clear that not even all those who identify themselves as a part of the same faith community as Hobby Lobby's founders agree that their faith precludes accepting the insurance mandate. For example,  one commenter quoted in the Christian Post noted: "I'm still not seeing a cause for alarm here. The majority of the U.S. thinks women's healthcare needs should be included in insurance plans […] I'm a Christian, and if I start a business then I expect I'll have to comply with all the government regulations that come with incorporation. I wouldn't expect special treatment for my personal religious beliefs. "  (emphasis added)  Christians Question Hobby Lobby's Defense, Biblical Stance Against Obamacare

"Others question why Hobby Lobby has chosen to address the contraceptive mandate but not other morally questionable issues within government, such as the funding of wars in Iraq and Afghanistan" Id. And some have raised the issue that "many of Hobby Lobby's products are made in China," a country with laws which violate many of the precepts the Hobby Lobby founders say they attempt to observe in the running of their business. Id.

There are several strands that are interesting here and they all probably deserve separate posts. One is the resistance to women's full exercise of constitutionally and statutory rights. Another is the framing of this issue as one that purports to put those of faith at odds with the government, (although that obscures that the First Amendment not only promises free exercise but also freedom from religion). But for me the most interesting aspect  is this attempt to raise the free exercise claim on behalf of the corporate entity.

If we take the Hobby Lobby pleading at face value then it would seem that what its owners are attempting to do is to create some sort of hybrid for-profit religious corporation that doesn't exist under current law, at least not as they would like it to exist. And the Greens (Hobby Lobby's founders) would seem to be trying to engage in what might be called "selective piercing" or the corporate veil:  that is, they wish to pierce it for purposes of their religious beliefs, beliefs which they would like to exercise by denying even those employees of other faiths a benefit the law would otherwise provide, but presumably they would like the corporate shield to remain intact for other purposes, like protection against individual liability.

I wonder if those pursuing these lawsuits have thought fully through the possibilities that might arise if they are successful with these suits. If they succeed, why should such companies not also receive special tax treatment? (I think there is a movement afoot with the social benefit corporation model to do something like a hybrid). And if they do not receive special tax treatment, perhaps, no organization should if all organizations have potentially equal capacity to exist as moral, not just business entities. These may be questions for tax scholars and theologians, but it looks like a bumpy road ahead.

"Endangered Gender" Symposium

Two of Regent University Law School's journals are sponsoring a one-day symposium starting the evening of Friday, February 15 and continuing until noon Saturday: Endangered Gender: A Discussion on Sex-Selective Abortion.

All the panelists should prove insightful but I'm personally looking forward to hearing from Prakash Tyagi, who has the distinction of coming the greatest distance to be part of the symposium. Prakash is the executive director of GRAVIS, an Indian NGO working with the marginalized rural population of the Indian state of Rajasthan, where sex-selective abortion is a significant problem. I came to know Prakash while I was teaching at the National Law University in Jodhpur, Rajasthan as a Fulbright Scholar. I am delighted that he will be able to attend this symposium and look forward to hearing his comments about the "on the ground" situation in his part of India.

The conference is free to all registrants and there are plenty of top-notch accommodations neaby. Let me know if you'd like to come and I'll steer you in the right direction.

Where are the Women? Not at Florida State in March Talking About the History of the Income Tax

Florida State College of Law announced here its upcoming symposium "One-Hundred Years of the Federal Income Tax," March 1-2, 2013.  There are fourteen "featured presenters and commentators." Only one is female:

• Steven Bank, Professor and Vice Dean, UCLA School of Law
• Joseph Bankman, Ralph M. Parsons Professor of Law and Business, Stanford Law School
• Joseph M. Dodge, Stearns Weaver Miller Weissler Alhadeff & Sitterson Professor, Florida State University College of Law
• Brian Galle, Associate Professor, Boston College Law School
• David Gamage, Assistant Professor, University of California, Berkeley School of Law
• James R. Hines, Jr., L. Hart Wright Collegiate Professor of Law and Richard A. Musgrave Collegiate Professor of Economics, University of Michigan
• Steve R. Johnson, University Professor, Florida State University College of Law
• Douglas A. Kahn, Paul G. Kauper Professor of Law, University of Michigan Law School
• Jeffrey H. Kahn, Larson Professor, Florida State University College of Law
• Leandra Lederman, William W. Oliver Professor of Tax Law, Indiana University Maurer School of Law
• Gregg D. Polsky, Willie Person Mangum Professor of Law, University of North Carolina School of Law
• Chris William Sanchirico, Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School
• Daniel N. Shaviro, Wayne Perry Professor of Taxation, New York University School of Law
• Lawrence A. Zelenak, Pamela B. Gann Professor of Law, Duke Law School

In the 21st century, this kind of gender imbalance is eye-catching. 

Civil Partnerships vs Marriage: Why Not Both?

Erez Aloni (2011-2013 Center for Reproductive Rights-Columbia Law School Fellow) published in today's HuffPo (here) an op-ed entitled "The Future of Our Relationships."  He writes about anticipated Scottish legislation would permit same-sex marriage in that country.  Scotland currenly permits civil partnerships for same-sex couples (and only same-sex couples).  Here's an excerpt from the piece:  

With Scotland's recent decision to legalize same-sex marriage, it may possibly remove the option of civil partnership, as Norway, Vermont, and Connecticut did. However, Scotland could decide to mimic France, which offers its citizens a menu of options for the legal recognition of relationships. No longer are the choices limited to marriage or informal cohabitation -- all or nothing. Rather, couples can choose to marry, or, instead, to register their partnerships with the state and gain the benefit of state and third-party recognition of their union while avoiding some of the obligations and loaded symbolic baggage that come with marriage.

Think about it this way: civil union -- or state registration -- could be the perfect solution for people in a trial cohabitation period, for the elderly who prefer to avoid a new marriage, and for those who want to eschew matrimony for whatever reason. What is more, the state could set up civil partnerships (as Belgium has, for instance) benefiting other dyadic relationships -- friends, relatives, or caregivers. Under this system, you could design your legal commitment to suit your relationship ties while avoiding awkward societal, familial, and legal hassles.

Aloni makes two important points.  First, there's no reason that civil partnership must be organized around sexual choices. (In other words, "civil partnership" could be available to two elderly sisters who live together and share all expenses, for example.) Second, from a legislative perspective, a jurisdiction could offer intended partners a choice between civil unions and marriage.  In other words, each couple could make a decision about the level of legal benefits and burdens they wish to import as "default terms" of their relationship.

Aloni develops these arguments more fully in Registering Relationships (download available here), forthcoming in the Tulane Law Review.  I think it is a very good piece.

Are Board Quotas Coming to Europe?

From today’s FT: EU pushes 40% quota for women on boards:

Europe’s listed companies will be forced to reserve at least 40 per cent of their non-executive director board seats for women by 2020 or face fines and other sanctions under a proposal being drafted by the European Commission.

The legislation, a copy of which was obtained by the Financial Times, is aimed at what EU officials believe is a severe gender imbalance across the bloc’s 27 member states. EU data shows that in January, women represented only 13.7 per cent of board positions in large listed companies.

Several EU countries (e.g. France, Italy, Spain, and the Netherlands, according to the article) have already adopted national gender quotas.  Other countries, such as Britain and Sweden, have strongly resisted the notion of gender quotas for boards. 

If passed, the legislation will mean significant change for the boardrooms of many European countries.  Above are figures from Catalyst on the percentage of board seats held by women in various EU countries as of 2012, with Norway, Sweden, and Finland (not surprisingly) far in the lead.  For most of Europe, however, a 40% target is a substantial increase over current numbers.

I haven’t blogged much about board diversity lately, not because I’ve become uninterested, but because I’ve been working on a book on the topic.  And like academic authors everywhere (maybe all authors everywhere?) we’re a bit behind, though not too much.  Anyway, as I start to get my head above water I hope to be back with more posts soon on the topic.

Ann Scales

I am very saddened to hear that beloved University of Denver Professor Ann Scales suffered an accident and was taken off life support last Friday, according to this article (thanks to Bridget Crawford for the pointer).  On Monday evening the University of Denver held a candlelight vigil for her at 8 pm.  I wish that I could have attended.

I have been a fan of Ann since my first year of law school when she spoke on a Myra Bradwell Day panel -- I only dimly recall the talk (we're pushing twenty-five years on the memory) but it's stuck in my mind as one of the most refreshing moments in first year, along with the fabulous courses in constitutional law, taught by (now Judge) Gerry Lynch, and property, taught by Eben Moglen.   Ann spoke about her work on feminist jurisprudence and about making law practice (and scholarship) relevant to issues we believe in.  (As I've been sitting here reading her scholarship, I see that she published a paper based on the Columbia talk, "Surviving Legal De-Education: An Outsider's Guide," in the Vermont Law Review in 1990.  It's a wonderful read.) Her Legal Feminism: Activism, Lawyering, and Legal Theory is a wonderfully accessible volume.  Ann told me that she wrote it so that federal judges could understand feminist legal thought and why it matters.  In that she succeeded magnificently, as with everything she did.  I have it on the coffeetable at home; I leave it there so visitors will think I'm sophisticated and cool.

The year I moved to Chapel Hill, Ann was visiting with us and I had the chance to get to know her substantially better -- as a remarkably perceptive reader and a fabulous teacher and an all-around fabulously energetic person.  I always treasure meeting people in the academy who can read someone else's scholarship, take the work on the author's terms, and make offer a critique to make it substantially better.  Those are Ann's talents exactly.  And I also got to hear a little bit of Ann's family -- she's from Oklahoma,  a place I have deep fondness for, and grew up in North Carolina.  Her father was president of Oklahoma Baptist University and then, for nearly two decades (1967-83) of Wake Forest.  Ann's descended, as I recall, from Alfred Moore  Scales, who was governor of North Carolina after the Civil War.  Just so happens when I was up in Reidsville -- to take a picture of the place where the Confederate statue had been (on Scales Street) -- I passed his mansion and so was thinking about her and how I needed to email her a couple weeks back.

Ann, her family and many friends, the University of Denver, and the entire feminist legal community are in my thoughts.  Once I've had the chance to digest this sad news, I want to talk more about what Ann has meant to me and to the community of activist scholars.

Update as of June 24:  I am sad to report that Ann passed away this morning.  When I have my thoughts together I want to talk some more about Ann as a mentor and scholar.

I had forgotten, if I ever knew, that Ann made a cameo appearance or two in Scott Turow's One Law. She was what she calls "a disruptive influence" in the book.  Ann commented about this and her very different idea about legal education from Turow's at the end of Surviving Legal De-Education.  She asked readers to "Consider this description of [Turow's] first-year classmates: 'We are men and women drawn to the study of rules, people with a native taste for order.'"  Ann's response to this -- and her conclusion to the article -- was:

Scott was right about some of us, but I believe that his version of law school is becoming obsolete.  The day is comming soon when some right-minded successor to Scott Turow can write about her first-year classmates: We are women and men drawn to the living of life, people with a native taste for survival, for diversity, and for freedom.

Ann was a very good predictor of how law and law students were changing.  And to the extent that we're now able to spend more time in law school working on other issues -- like freedom -- I think it is because of the leadership Ann and people like her.

Update as of June 26:  Ann was so much more than her publications that I don't want to focus all my attention on them, but I do think you might enjoy this essay,  "Disappearing Medusa: The Fate of Feminist Legal Theory," which appeared in the Harvard Women's Law Journal in 2004.

Update as of June 30: Here is the Albuquerque Journal's obituary and here is the University of Denver's announcement, which Bridget Crawford posted at FLP.

The Sterilization Mindset, Circa 1976

One of the things I've been talking about of late is the mindset of people from the 1920s and 1930s about sterilization.  They justified it in two ways.  First, on the basis of the cost to society of the children of those who would be sterilized.  The good to society outweighed the harm to the individual.  Holmes' statement in Buck v. Bell is the best known of the many utilitarian statements made by courts supporting sterilization.

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

Though Holmes' statement is the best-known, there were others.  This was a more extreme version of the sentiments the Virginia Supreme Court expressed in Buck v. Bell in 1925, which observed that Carrie Buck's welfare and that of Virginia were both promoted by sterilization.  Similarly, in Smith v. Command, a 1925 Michigan decision that upheld the state's sterilization statute, Justice McDonald emphasized the costs to the community: "That they [the people to be sterilized] are a serious menace to society no one will question."  "Under the existing circumstances it was not only its undoubted right, but it was its duty, to enact some legisaltion that would protect the people and preserve the reace from the known effects of the procreation of children by the feeble-minded, the idiots, and the embeciles."  "It is an historic fact that every forward step in the progres of the race is marked by an interference with individual liberties."

Second, on the supposed value to the people to be sterilized.  The supposed advantage was that the sterilized individuals could return to the community and not have to care for children. I'm guessing we're all skeptical of such justifications.

But what really interests me is how long a tail these justifications have -- right up to the middle of the 1970s in one case.  In re Moore, a 1976 decision in the North Carolina Supreme Court, quoted Buck v. Bell for the proposition that the state has an interest in preventing births of children who will be charges on the state.  There was no heightened scrutiny for impositions on reproductive rights.  It's a shocking opinion, really -- much better suited to the era of the 1920s then the era of modern equal protection.  Mind you, this is three years after Roe -- which was also cited, not for the proposition that individuals have fundamental rights to control reproductive decisions, but for the proposition that the state may regulate those decisions.  (In re Moore at 102 ("The right to procreate is not absolute but is vulnerable to a certain degree of state regulation.  Roe v. Wade, supra; Buck v. Bell.")).  That's astonishing that Roe v. Wade and Buck v. Bell were cited together.

The illustration is the hospital building at the what was then known as the "State Colony for Epileptics and Feebleminded," where Carrie Buck was sterilized in the wake of Buck v. Bell.

North Carolina Sterilization Victims Compensation: Draft Act

Thanks to a pointer from Daniel Goldberg, here is the current version of the North Carolina bill to provide compensation for sterilization victims.

A key part of the bill is that each "qualified recipient" shall receive $50,000.  A "qualified recipient" is: "An individual who was asexualized or sterilized under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937, and who was living on March 1, 2010."  So anyone -- without distinction regarding the circumstances -- who was sterilized by order of the Eugenics Board and surived until March 2010 is entitled to compensation.

The trusts and estates professor in me is particularly interested in this part of the bill, which excludes compensation as available assets for determination of eligibility for government assistance programs:

§ 143B‑426.56.  Compensation excluded as income, resources, or assets.

(a)        Any payment made under this section is not subject to income tax as provided in G.S. 105‑134.6(b)(23), nor to be considered income or assets for purposes of determining the eligibility for, or the amount of, any benefits or assistance under any State or local program financed in whole or in part with State funds.

(b)        Pursuant to G.S. 108A‑26.1, the Department of Health and Human Services shall do the following:

(1)        Provide income, resource, and asset disregard to an applicant for or recipient of public assistance who receives compensation under this Part. The amount of the income, resource, and asset disregard shall be equal to the total compensation paid to the individual from the Eugenics Sterilization Compensation Fund.

(2)        Provide resource protection by reducing any subsequent recovery by the State under G.S. 108A‑70.5 from a deceased recipient's estate for payment of Medicaid‑paid services by the amount of resource disregard given under subdivision (1) of this subsection.

(3)        Adopt rules to implement the provisions of subdivisions (1) and (2) of this subsection.

Ladies of Liberty: DiFranco & DeMent

Ani DiFranco and Iris DeMent each have lyrics that expand far beyond the relatively narrow scope that politics plays in the life of a human being. They also have some inspirational and poignant songs that add to our political discourse.  Ani and Iris provide an opportunity to talk cyberlaw, ponder the move to a national popular vote and share some of their music.

“My country ‘tis of thee, To take shots at each other on primetime tv” – Ani, “‘Tis of Thee”

With election season in full swing, the flood of negative and misleading political ads (from all sides and SuperPACs) will soon drowned the airwaves . . . at least in swing states like Florida. 

When I teach Cyberlaw, I include Porter v. Bowen, a Ninth Circuit case holding that vote-swapping is protected by the First Amendment and not a violation of criminal or electoral codes.  Citizens formed a website whereby voters in safe states could swap their votes with voters in swing states. The purpose was to have the 2000 Green Party candidate, Ralph Nader, receive five percent of the national vote so that the Green Party would qualify for federal funds in future elections, without hurting Gore’s chances of winning the Electoral College. 

For example, a voter in Ohio that wanted to vote for Nader would vote for Gore, while swapping her vote with voter in say, Alabama (a safe state for Bush) or Massachusetts (a safe state for Gore), who would vote for Nader.  Shortly after this website began, at least one other website was created that allowed voters to swap votes for any third-party candidates with either Bush or Gore, thus expanding vote-swapping beyond Nader-Gore swaps.

I teach this case in Cyberlaw because, in addition to discussing how technological changes raise new legal questions, it also allows for a discussion on whether the Electoral College is something that remains desirable in our self-governing society.  After all, if there was no Electoral College, there would be no need to engage in vote-swapping.  While it’s hard not to forget that Gore won the national popular vote in 2000, it’s also worth noting that Obama’s “landslide” victory in 2008 was not so large when considering the national popular vote margin.  Obama won 67.8 % of the Electoral College (365 to 173), but only 53% of the national popular vote.  Does technology provide a reason to shift to a national popular vote?

Perhaps technological developments make a national popular vote system more practical than in the late eighteenth century. Whether one is in Wyoming or Washington D.C., real-time information is available through broadband, cable and radio. Is it not better for candidates to have an incentive to campaign in all fifty states by making every citizen's vote count in the final tally?  Is it likely that voters on the losing end in a safe state might be more motivated to actually vote if they know it’s not in vain? 

As I’m sure some here know, there is an organized movement for instituting a national popular vote.  The plan involves a legislative pact among states to provide all the electoral votes of a state to the national popular vote winner.  By December 2010, the District of Columbia and five states (Illinois, Hawaii, Maryland, New Jersey and Washington) have enacted legislation to implement the plan.  Together, they make-up one quarter of the electoral votes needed to deliver an Electoral College victory. The plan will only be implemented once enough states have enacted legislation to win the Electoral College.  The Brennan Center for Justice is listed among the endorsers of this national popular vote plan.

Here’s Ani performing a version of her 1999 song, ‘Tis of Thee, at Ralph Nader’s October 2000 Madison Square Garden campaign event.  In the March 2012 issue of Relix magazine, Ani shared some of her thoughts on Obama’s performance thus far. While she may be critical of the lack of tangible changes, she makes an important, if obvious, point about how a self-governing society functions:  “If he really felt, in this arena of dragons and monsters, that he had the force of the people behind him, he’d more empowered to act in the way that we want him to act.  But we as people kicked back and said, ‘OK, fix it.’”  

Turning to Iris DeMent, her 1996 song, Wasteland of the Free is one of my favorites.  Sadly, its message has only grown more descriptive of our society as the years roll on.

Finally, in preparing this post, I stumbled across an organization called, Ladies of Liberty Alliance. The self-described mission of this organization is to “address the shortage of female leaders in the fight for liberty.”  One has to think the organization’s founders have a sense of humor and musical acumen based on their clever acronym (LOLA) and domain name, www.iamlola.org. The “Chairman” (LOLA’s word), Angela Keaton, holds a J.D. from the University of Florida.  While I have not explored the specifics of LOLA’s agenda, it certainly seems like a group of engaged citizens that will not leave any president alone in the arena of dragons and monsters.

p.s. The only endorsements in this post are for the respective music of Ani DiFranco & Iris DeMent.

Testamentary Freedom and Gender Discrimination

As I've been working on testamentary devises in the Shenandoah Valley before the Civil War I've been thinking a great deal about the differences in how male testators treat their wives and daughters from how they treat their sons.  The key difference Doug Thie and I have been focused on is fathers who leave property in trust to their daughters and outright to their sons (and often how they make their sons trustees of the property left in trust to their daughters).  I've been interpreting this in a somewhat positive fashion -- as in they are leaving property in trust so that their son-in-laws can't get their mitts on the property.  

There's also a piece of this that I hope Dana Remus and I will be talking about in a paper down the road on how the pre-War trusts that restricted the beneficiaries' (most frequently daughters') rights to alienate their interests led the way to spendthrift trusts.  The cartoon version of the story of the spendthrift trust is that it emerged in the northeast as a way of protecting spendthrift children from losing their inheritance.  We're now thinking this may be been more a way of protecting women's property from their husbands (and there were some substantial restrictions on the wives' rights over the trust property, so that their husbands could not coerce them into giving up their property.)  These trusts pre-dated in many cases the married women's property acts of the 1840s and 1850s -- and also provided often more protection than those acts did.  And can I add that I think this trend emerged first in the south -- which is a theme Stephen Davis and I hypothesized in our forray into probate in an affluent county in Alabama before the War.  (Richard Chused has told some of this story already in his important work on the Married Women's Property Acts.)  The trusts smack of -- literally -- paternalism, of course.  I think there's also an important story to tell here about the gendered nature of the origins of the spendthrift trust.

Anyway, I see an important new paper, "Property and Belongingness: Rethinking Gender-Biased Disinheritance," by Shelly Kreiczer-Levy of the Academic Center of Law and Business Meital Pinto of Carmel Academic Center - Law School and the University of Toronto.  It explores the darker side of gender-discrimination in contemporary devises to children.  Beyond their exploration of the problem, I'm most interested in their proposed solution: to refuse to give effect to gender-biased devises.  I know we're now officially in pretty radical land, but sometimes I wonder if there should be forced shares for children as well as spouses.  Whatever one thinks about this, I think you'll enjoy the paper if you're a T&E teacher.  It illustrates some of the exciting work that's being done in T&E these days.

The image is a picture I took last summer of the James River outside of Lexington, Virginia.

The Administrative Law of Sterilization

Continuing on a series of posts on the North Carolina sterilization victims compensation movement, I want to talk  some about the administrative law of sterilization -- particularly the process by which people were selected for sterilization and how the approval process worked.  This is a topic on which there is less information than I'd like, because -- completely understandably -- the patient records are not generally available.  Johanna Schoen provides important information on this in her book Choice & Coercion: Birth Contrl, Sterilization and Abortion in Public Health and Welfare.  

What we do have, in addition to the statute, are two administrative manuals that told state officials how to proceed with sterilization petitions before the Eugenics Board, which was the body that had to give approval for publicly-funded sterilization.  The 1948 Administrative Manual is here, courtesy of the fabulous North Carolina State Library.  It's the first one that the state produced.  It has a brief history of the North Carolina movement for sterilization -- and points out in particular that North Carolina was influenced by California's experience.  The Manual cites the 1935 pamphlet, Eugenical Sterilization in North Carolina, which relies on Gosney's and Popenoe's study of 6000 sterilizations in California.

Following the North Carolina statute, the 1948 manual details who may be sterilized -- the "feebleminded, epileptic, and mentally diseased" -- and the circumstances in which this may happen: "when it is believed that such an operation would be for the best interests of the individual concerned, or for the public good, or when it is believed a child or children might be born who would have a tendency to serious mental or nervous disease or deficiency."

Then the manual gives specific instructions regarding who has the responsibility and power to file sterilization petitions --  the executive head of a penal or charitable organization or the county superintendent of public welfare and it gives instructions regarding the forms to use depending on whether the person to be sterilized is institutionalized or resident in the community.  Form 1 was for institutionalized individuals; form 2 was for people resident in the community.  The instructions for filing out those forms note that "the social information presented by the petitioner should contain all of the circumstances surrounding the person's life insofar as they have a bearing upon ... A.  The likelihood of the person to procreate a child or children who would have a tendency to serious physical, mental, or nervous disease or deficiency, and B. The reasons why it is considered to be for the public good that the individual have the operation."  I guess it's telling that the instructions do not call for specific evidence of why this is in the best interest of the individual, even though the sterilization statute says that is one reason supporting sterilization.

Consent?

The Latest on the North Carolina Sterilization Victims Compensation Movement

Here is an editorial from yesterday's Winston Salem Journal on the movement for compensation for victims of North Carolina's sterilization movement and here is an editorial from John Hood, the head of the John Locke Foundation.  Next month promises to be very important in the legislature; I'm looking forward to the discussion.  Previous posts here at the faculty lounge on this topic include:

Two Eugenics Memorials

The Presumption of Constitutionality and Sterilization Legislation

Gauging Attitudes from Law Reviews: The Case of Sterilization

Designing Compensation for Sterilization Victims, part I

Designing Compensation for Sterilization Victims, part II

North Carolina Sterilization Victims Compensation

Update as of June 5:  here are my other posts:

The Administrative Forms for Sterilization

North Carolina Sterilization Victims Compensation: Draft Act

The Sterilization Mindset, Circa 1976