The Faculty Lounge

West Coast Sexuality, Gender & the Law Conference seeks abstracts

First Annual West Coast Sexuality, Gender and the Law Conference

 

Loyola Law School, Los Angeles, California

March 22-23, 2024

 

Call for Papers

Abstract Submission Deadline: December 15, 2023

 

We are pleased to announce the first annual West Coast Sexuality, Gender and the Law Conference on March 22-23 in Los Angeles. Loyola Law School will serve as the conference host.

 

As political and legal attacks against LGBTQ people are once again on the rise, as are other legal and political efforts to  shape and reassert normative views of gender and the family, this Conference seeks to bring together scholars exploring issues of sexuality, gender, and the law. The goal of the Conference is to provide attendees with detailed, constructive feedback on their work in a supportive, collegial environment, and to build community among scholars working on these issues (especially those on the West Coast). Scholars at all levels of seniority are encouraged. We also encourage submissions at different stages of progress, from early drafts (incubators) to more developed forms (a work-in-progress session).

 

The Conference will consist of approximately 4-5 panels over the course of one and a half days. Participants will be expected to attend all panels and to read and be prepared to discuss all assigned papers.

 

There is no conference or registration fee. Participants will be responsible for the costs of their own flight, other transportation, and hotel arrangements (we are working on reserving a block of hotel rooms for the conference). Breakfast, lunch, and refreshments will be provided at the conference.

 

To preserve an intimate and supportive character, we can accommodate only 45 participants, Although we will try to fulfill all requests, if space is limited, some preference will be given to West Coast-based scholars.

 

To apply, please submit an abstract of no more than 500 words, as well as a CV, here by December 15, 2023. Submissions will be vetted by the organizing committee (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with the other papers in a collaborative dialogue. In addition, priority will be given to scholars based on the West Coast.

 

Participants will be notified of their selection by the beginning of January 2024. Drafts of papers will be due approximately two weeks prior to the Conference.

 

We look forward to your submissions and participation. Questions can be directed to the organizing committee members at [email protected].

 

Thank you!

 

Courtney Cahill, UC Irvine School of Law

Courtney Joslin, UC Davis School of Law

Yvonne (Yvette) Lindgren, UC College of Law San Francisco (visiting)

Kaipo Matsumura, Loyola Law School, Los Angeles

Brian Soucek, UC Davis School of Law

Bi+ Visibility Day and Marjorie Rowland

In honor of today being Celebrate Bisexuality Day (aka Bi+ Visibility Day or Bi Visibility Day), I thought I would post about bisexual rights pioneer Marjorie Rowland, who sued way back in 1975 when she was suspended and then faced nonrenewal of of her contract as a school guidance counselor because she had acknoweledged her bisexuality to a school secretary. Although she first had to appeal dismissal of her case to the Sixth Circuit, she ultimately won a jury verdict based on her equal protection and First Amendment claims, only to have it cursorily reversed by the Sixth Circuit. The Supreme Court denied review, over a powerful dissent by Justice Brennan, and Ms. Rowland, who had enrolled in and graduated from law school during the pendency of the case, was left to deal with the considerable fall-out from the case, including an apparently retaliatory charge of welfare fraud and an initial denial of her moral character application to the Arizona Bar. Ms. Rowland, however, persevered and ultimately had a successful family law and bankruptcy practice in Tucson for decades. 

My article about the case, forthcoming in Harvard Journal of Law and Gender, brings to light little-known facts gleaned from the trial transcript, explores the flaws in the Sixth Circuit opinion, and also argues that part of the reason that Ms. Rowland's case, Rowland v. Mad River Local School District, did not receive the attention it deserved in scholarship and case law was likely bisexual erasure. The article looks at areas where bisexual erasure continues to be prevalent, including the relatively scant coverage of bisexuality in Law & Sexuality textbooks, and briefly touches on how far we have come--and in some areas, how little progress has been made--since Ms. Rowland brought her case. Remarkably (or perhaps not at all remarkably, given the times we're in), a very similar case brought by a Kentucky choral teacher who was fired based on disclosing his bisexuality on his Instagram account is pending today.  

Happy Celebrate Bisexuality Day!

University of Vienna Symposium on Polyamory in the Media and Personal Poly Identity

I had the honor of travelling to Vienna to comment on Stefan Ossmann’s Ph.D. project on polyamory at a symposium at the University of Vienna earlier this month.  My co-presenters were Christian Klesse of Manchester Metropolitan University and Elisabeth Sheff, formerly of Georgia State University.  Stefan, a Communications Ph.D. candidate, undertook an ambitious project in which he conducted content analyses of media articles on polyamory spanning from 2007 to 2017 and interviews of thirty-three people who are part of the polyamory community in Vienna. His work is being supervised by Franz Eder, a Professor of Social and Economic History.  Stefan’s dual approach of examining media articles and undertaking interviews enabled him to compare external perceptions of the polyamory community in the German-speaking world to the self-perception of members of the poly community in Vienna.

 

Copyright: CC BY-NC-ND 4.0: Stefan Ossmann / pictures taken: Vanessa Rosenmayer

Copyright: CC BY-NC-ND 4.0: Stefan Ossmann / pictures taken: Vanessa Rosenmayer

For the media analysis, he focused on one newspaper database of German language articles called WISO online datenbank.  He found 361 relevant articles and also determined that the number of relevant articles is steadily rising every year and that most of the articles were neutral in tone.  In terms of the interviews, Steffan Ossmann tried to interview as many members as possible of each poly relationship, or polycule, he encountered.  The interviews revealed some very interesting information.  For instance, the interviewees tended to want greater societal acceptance of their multiple relationships but, somewhat paradoxically, were reluctant to share the fact of their multiple relationships with family members (especially with parents), with friends other than close friends, and with co-workers.  Additionally, legal recognition appeared to be of only minor importance, though there was some interest in recognition of plural marriage and in recognition of multiple partners’ relationships to children.  Interestingly, several interviewees independently raised the desire to have a right to visit loved ones in the hospital when they were ill.  All in all, this is a fascinating project that will provide invaluable information about Vienna’s poly community, thus adding to the work others, such as Elisabeth Sheff and Hadar Aviram, have done on poly communities in the U.S. and that which Christian Klesse has done on poly communities in England.  Stefan also examined whether polyamory was perceived as a sexual orientation in the media or by poly individuals in Vienna, which dovetails with my previous scholarship on polyamory as a sexual orientation. I very much look forward to reading Stefan Ossmann's final product in book form.

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

More Adventures In Ethics: Did David Boies Cross Any Ethical Lines In His Work For Harvey Weinstein?

Another legal ethics issue in the headlines!  This one has everything—a rich and powerful sexual predator, secret agents, the New York Times and, most exhilarating of all, nuanced conflict of interest, confidentiality, and ethical supervision questions.  I am agog.

Some background.  At this point, we’ve all heard a great deal of horrific stuff about Harvey Weinstein, the prominent film producer to whom dozens of women have now ascribed countless acts of sexual harassment, sexual assault, and outright rape over decades.  Weinstein had a broad armamentarium he reportedly deployed to intimidate and silence his victims, from power and influence in the entertainment industry to teams of skilled and well-connected lawyers who would litigate or threaten legal action, and then document tightly drawn settlements buying peace and a whole lot of quiet.  Weinstein’s tactics worked:  Despite industry winks and whispers, the dam he built held back most of the accumulating waves of accusation for some thirty years, until the New York Times and The New Yorker broke the story last month, and years of pent-up bilge flooded out to drown Weinstein’s public image and career.

Now Ronan Farrow’s continuing investigative coverage in The New Yorker (Times story here) reports that another of Weinstein’s tools of coercion was high-powered private investigators.  These investigators were paid large sums to ascertain potential accusers’ intentions, catch them in infelicities or inconsistencies, and just plain dig up dirt that could be used to discredit them if they came forward.  Sometimes the investigators plied their trade by lying to their targets about who they were and what they were doing, and ingratiating themselves to reap or record unguarded emails or statements.  Kroll International and smaller organizations called Black Cube and PSOPS were agencies Weinstein and his lawyers used on more than one occasion.

Superstar litigator David Boies now finds himself sweating uncomfortably in a spotlight he shares with Weinstein, having been what law.com calls his “longtime legal adviser.”  Exactly what Boies and his firm have done over the years for Weinstein is not clear.  The contract by which the Boies Firm engaged Black Cube for Weinstein’s benefit earlier this year (available on The New Yorker website here) specifically states that it supersedes a 2014 written agreement between Black Cube and the Boies Firm, “acting on behalf of the [same] Client,” so it appears that the Boies Firm has engaged Black Cube for Weinstein’s benefit before.  Whether that prior engagement concerned other predations on Weinstein’s part is uncertain, but Boies reportedly donated $10,000 to Manhattan DA Cyrus Vance’s re-election campaign in 2015 shortly after Vance decided not to prosecute Weinstein on sexual assault charges then being asserted by an Italian model.  (Both Boies and Vance deny any connection between the two events.) 

More recently, as the turbid waters of accusation spread, Boies represented Weinstein in negotiations to keep his job and board seat at The Weinstein Company.  (The Board removed him.)   At the time (last month), Boies publicly described the scope of his engagement, asserting that he would not be representing Weinstein in any litigation against The Weinstein Company (which he also represented), or assisting celebrity trial lawyer Charles Harder (who represented Hulk Hogan in the invasion of privacy case that broke Gawker) in a $50 million libel case Weinstein was threatening against the New York Times for reporting the first wave of harassment and assault accusations.  (That case was never filed.)  Nor, he added, would he be involved in addressing “the subject matter of various news stories,” apparently referring to articles published after the Times’ ground-breaking story in early October.

In retrospect, that last qualification appears carefully formulated.  For as the Times is now reporting (here), in July of this year Boies’ firm had retained Black Cube on Weinstein’s behalf, hiring them for what the contract Boies signed stated were the “primary objectives” of providing “intelligence which will help the client’s efforts to completely stop the publication of a new negative article in a leading NY Newspaper” (which Farrow identifies as the Times) and obtaining content from a book that was to include “harmful, negative information on and about the client” (which Farrow identifies as being written by actress Rose McGowan, who has accused Weinstein of raping her).  Even more surprising, Boies and his firm were representing the Times in another, unrelated matter at the time.

Upon learning of the Boies Firm’s role, the Times quickly and summarily terminated them, issuing a strikingly strong statement accusing the firm of “secretly work[ing] to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters.”  The Times asserted that it “considered this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.”  It vowed to “pursue appropriate remedies.”  Ouch.

It’s not hard to see how the Times would consider secret machinations by the paper’s own outside counsel to “stop our reporting” on a front-page story “intolerable conduct” and a “grave betrayal of trust.”  But is it, as the Times also asserted, “a breach of the basic professional standards that all lawyers are required to observe”?  Of course, it doesn’t have to have been a violation of the Rules of Professional Conduct to be intolerably disloyal to the Times.  Certainly it was knuckleheaded client relations with a marquee client, the optics are hideous, and in all events the paper was free to jettison the Boies Firm whether or not it violated any formal Rule or legal standard.  But did it?

That turns out to be a harder question than you might think.  I’ll explain why after the jump. 

Does Denying Gay Man a Medical Expense Deduction for Costs of IVF Violate Equal Protection? 11th Cir. Says No

The Eleventh Circuit  ruled earlier this week in Morrissey v. U.S. that the amounts a gay man paid to father biological children by paying for an egg provider, IVF, and a gestational surrogate are not deductible as medical expenses under IRC Section 213.  This follows a similar result in reached by the First Circuit in Magdalin v. Commissioner, 96 T.C.M. (CCH) 491, 2008 WL 5535409 (2008), aff’d, 2009 WL 5557509 (1st Cir. 2009). In short, the reasoning in both Morrissey and Magdalin is that the medical expenses in question did not "affect" the "functioning" of the male taxpayer's body, as allegedly required by IRC Section 213.  The reasoning in the Magdalin case has been sharply criticized in careful work by Anthony Infanti (Pitt) (here, e.g.) and Katherine Pratt (Loyola Law School LA) (here, e.g.).  The Magdalin decision is also the subject of a (very convincing,  in my view) rewrite by Jennifer Bird-Pollan (Kentucky) with commentary by Katherine Pratt in Feminist Judgments: Rewritten Tax Opinions (forthcoming 2017, Cambridge University Press; table of contents and intro chapter available here).

The Morrissey Court takes the matter further in addressing the taxpayer's equal protection argument, acknowledging that  Supreme Court recognizes a constitutional right to reproduction in some situations, but that this case presents the question of "whether a man has a fundamental right to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate," to which the Eleventh Circuit says the answer is decidedly "no." The Eleventh Circuit dismissed without substantial analysis Mr. Morrissey's claim that he was discriminated against on the basis of his sexual orientation. The court reasoned that Mr. Morrissey could not show that other similarly-situated individuals received favorable treatment under the statute; and that the government did not discriminate against him based on a "constitutionally protected basis" (meaning his sexuality).  I suspect (no pun intended) that it is this part of the Morrissey decision that will attract considerable attention from scholars who will seek to show how the facially-neutral statute discriminates against those who choose not to reproduce through traditional coitus or in the context of a male-female relationship.

Tax cases are exciting stuff!

 

 

Lambda Finalist Reading in Los Angeles

Earlier this week, I had the honor of participating in a Lambda Literary Award finalist reading in Los Angeles.  The Lambdas (or more colloquially, “The Lammys”) are considered the preeminent book awards for LGBT writers, and it was exciting to be there, among eight other finalists.  Most were from the L.A. area but there was one fellow writer from the Pacific Northwest—Stephanie Adams-Santos of Portland.  Two of the authors—CB Lee and Jeff Garvin—are finalists for the LGBTQ Children’s/Young Adult category.  Lee read from her nominated young adult fantasy novel, Not Your Sidekick, which is about a high school girl who is frustrated as a result of not having inherited her parents’ super powers. Garvin read from his young adult novel, Symptoms of Being Human, which describes the angst of a young trans protagonist who struggles with the demands of conformity imposed by his or her (readers are left deliberately in the dark as to the protagonist’s gender) politician father.

Poets also made a strong showing at the reading.  Jos Charles, a finalist in trans poetry, read beautiful work about their relationship to their parents, and Stephanie Adams-Santos, a finalist in lesbian poetry, read very interesting and moving work about mental illness. I read from my poetry book, The Body’s Alphabet, which is a finalist in bisexual nonfiction, and Kate Partridge and Alyse Knorr read gorgeous poems about moose, bears, and the Alaska landscape from the anthology, Building Fires in the Snow: A Collection of Alaska LGBTQ Short Fiction and Poetry, a finalist in the LGBTQ Anthology category.

Finally, Elizabeth Hall, also a finalist in bisexual nonfiction, read from her book, I Have Devoted My Life to the Clitoris, which is a fascinating combination of history and memoir, and J. Aaron Sanders, author of an historical mystery about Walt Whitman, read a poignant essay comparing Walt Whitman’s grief about losing men to war to his own grief at being geographically separated from his children after divorce.

Beyond listening to everyone’s incredible work and feeling like I was part of something much bigger then myself, I was also excited to see that there were at least three bi-identified authors reading.  Although bisexuals comprise the largest segment of the LGBT community by most counts, we are often invisible in LGBT spaces. This time, however, we were out in force.  CB Lee had even died her hair in bi colors--purple and blue!  It was also great to read in an official space--the West Hollywood City Council Chambers.  That felt very legitimizing after all my years as an outsider writer.

I’m looking forward to attending the Lambda Literary Awards ceremony as well as the Bisexual Book Awards ceremony in New York City next month. I'm grateful to Lambda Literary Awards, the Bisexual Book Awards, my publisher Headmistress Press, and to everyone else that made this possible.

Revising Internal Revenue Code Terms Relating to Marriage

In the post-Windsor, post-Obergefell world, the Internal Revenue Code needs to be revised to take same-sex marriage into account.  The ABA Section of Taxation has submitted to the IRS comments on proposed regulations defining terms related to marital status in the Internal Revenue Code. The principal drafter of the comments was Anthony Infanti (Pitt), chair of the Teaching Taxation Committee of the ABA Section of Taxation. Substantive contributions came from Pat Cain (Santa Clara), David Herzig (Valparaiso), Ted Seto (Loyola Law School, Los Angeles), and others (with some minor comments from me). Tony Infanti's leadership was absolutely key.

One important aspect of the comments is the recommendation that the IRS recognize domestic partnerships, civil unions and similar relationships for federal tax purposes.  The Comments explain that "recognizing these alternative relationship statuses for federal tax purposes would better fulfill the Service’s professed purposes in issuing the Proposed Regulations, would result in fairer treatment of similarly situated taxpayers, would render tax considerations neutral in choosing between the different relationship statuses, and would better accord with the reality that several states already treat these relationships as marriages for purposes of their laws."

You can read the Comments here.

Planned Parenthood Defunding as Unconstitutional Bill of Attainder?

David Cohen (Drexel) had an interesting op-ed in the Philadelphia Inquirer on Sunday arguing that the current legislative efforts (at both the federal and state levels) would, if successful, result in unconstitutional bills of attainder. 

From David's piece, which is available here ...

"A bill of attainder is a law that inflicts punishment upon a particular individual without a judicial trial.     In other words, a bill of attainder is, as the Supreme Court has termed it, a 'trial by legislature' rather     than by court.

"The Constitution prohibits both Congress and state legislatures from enacting bills of attainder for two     important reasons that go to the heart of our democracy. One, laws that target individuals threaten civil     liberties because legislatures do not afford individuals the protections of a trial. Two, bills of attainder     conflict with basic notions of separation of powers. . . .

"Though no one is talking about it, this most recent dust-up over federal funding for Planned Parenthood   is very clearly an example of an unconstitutional bill of attainder: Congress is singling out Planned     Parenthood and punishing the organization for allegedly improper and illegal actions.

"More specifically, a bill of attainder has to meet three legal requirements: The law has to 'determine guilt and inflict punishment,' it must act 'upon an identifiable individual,' and it must do so 'without provision of the protections of a judicial trial.' All these requirements are met here."

While I am not a Constitutional Law expert, David makes a pretty compelling argument.  Thoughts?

The Sticky Slope from Obergefell to Polygamy

Polygamy emerged as a recurring topic in the avalanche of commentary unleashed almost the moment that the Supreme Court extended marriage equality to same-sex couples in Obergefell v. Hodges.  Since the topic is bound to come up in law school discussions in classes as well as faculty workshops, it’s worthwhile to pause and ask why.  Articles in Slate, Politico, the New York Times and Religious Dispatches rushed to debate whether polygamy will be the next frontier in marriage equality.   The deluge is partly explained by the perennial popularity of polygamy as a topic – from TV shows Big Love and Sister Wives to immense press coverage when a state decides to enforce anti-polygamy laws – and the freedom of pro-gay commentators to say what they really think once the Supreme Court finally ruled.  But why just polygamy?  Why not child marriage and incest, two other outré expressions of intimacy that commanded quite a bit of the Court’s attention in oral arguments.    

One answer is that the slope is more slippery in the direction of polygamy than it is in child marriage and incest.  The path from Obergefell toward marriage equality for polygamists might be short and clear, while the route to abolishing age-of-consent and incest statutes could be more like a forested hillside full of social and legal impediments to marrying your sister or a 6^th grader.  That’s probably true, but there path from Obergefell to polygamy is probably a lot more circuitous than many people think.  

 

A Bisexual Plaintiff’s Employment Discrimination Victory in Flood v. Bank of America

In a little noticed decision issued a couple of months ago, the First Circuit reinstated a bisexual plaintiff’s employment discrimination claims under the Maine Human Rights Act, reversing the district court’s dismissal on summary judgment.  The decision is remarkable because, as I and Dr. Karen Yescavage discuss in our recent law review article, despite the fact that bisexuals experience significant levels of discrimination, they rarely sue.  Even more concerning is the fact that, when they do sue, they almost never succeed.  Indeed, the only employment discrimination case Dr. Yescavage and I found in which a bisexual plaintiff had ultimately succeeded on the merits was decided by a British court.  To be sure, the First Circuit decision in Flood v. Bank of America Corp., 780 F.3d 1 (1st Cir. 2015), is not a final victory for Shelly Flood.  Instead, it only means that she may present her evidence to a jury, but, given the dearth of case law involving bisexual plaintiffs, it is highly significant.    

The evidence supporting Shelly Flood’s termination and harassment claims (both rooted in allegations of sexual orientation discrimination) appears fairly strong.  Ms. Flood presented evidence to the effect that one of her supervisors (who was also her assigned mentor) began to treat her drastically differently upon learning that Ms. Flood was having a romantic relationship with a woman and that this supervisor enlisted other bank administrators to engage in similar treatment.  The negative treatment Ms. Flood describes includes suddenly receiving poor performance evaluations, being subjected to retroactive changes in evaluations, and receiving “cold stares . . . and disparaging comments about [her] eating habits, dress, and hair style.”  780 F.3d at 13.  According to Ms. Flood, this negative treatment eventually reached such an egregious level that she could no longer bring herself to go into work. 

The First Circuit held that the district court had wrongly dismissed the discharge claim because it erroneously interpreted the claim as one of constructive discharge (rather than actual discharge) and that it had wrongly dismissed the harassment claim based on its mistaken conclusion that the harassment was not severe or pervasive.  In response to the Bank’s argument that Ms. Flood’s claim failed as a matter of law because she was “not exposed to explicitly homophobic statements or derogatory remarks,” the First Circuit noted that many employers now “know better than to spew explicitly . . . homophobic remarks . . .” and that “the absence of such blatant vitriol does not doom a claim of discrimination.”  Id. at 10-11.

All in all, the First Circuit’s analysis is well-reasoned and the result, especially with respect to the harassment claim, may seem unsurprising.  But, as a precedent for bisexual plaintiffs bringing sexual orientation employment discrimination claims under state laws (which tend to be similar in structure to federal law), this case is huge news.  To be sure, the case involved a fairly straightforward type of discrimination—homophobia.  As Dr. Yescavage and I discuss, bisexuals appear to be subject to two primary forms of discrimination:  homophobia and biphobia, the latter of which involves fear and discomfort specifically related to bisexuality.  Biphobia may be particularly hard for courts to understand, as the limited case law suggests.  See, e.g., Apilado v. North Am. Gay Ameteur Athletic Alliance, 2011 WL 5563206, at *1–3 (W.D. Wash. Nov. 10, 2011).  However, the significance of Flood should not be underestimated.  For now, it stands as the strongest precedent available for bisexual victims of employment discrimination in the United States.

Same-sex Marriage, Polygamy, and the Constitution

In a column online at the New York Times, Adam Liptak discusses the different ways in which the Supreme Court might rule in favor of same-sex marriage—a narrow decision requiring states to recognize same-sex marriages performed in other states, a broad decision recognizing a right to same-sex marriage on the grounds that same-sex marriage bans discriminate on the basis of sexual orientation and deny same-sex couples a fundamental right, or a middle of the road decision.

To what extent might the justices be influenced by their concerns about the implications of a right to same-sex marriage for a right to polygamous marriage? If traditional ideas about marriage are not sufficient to justify a ban on same-sex marriage, are they sufficient to justify a ban on polygamous marriage, especially since polygamy bans arose out of anti-Mormon animus?

Meet the Professors

Deana Pollard Sacks, the Roberson King professor of law at Texas Southern University, has developed a talk show, Meet the Professors.  The show combines talk of recent social issues with legal doctrine and social science research.  The first episode, "Sexy Media, Sexy Kids, Sad Kids," is available now.  I think you'll enjoy it.

Flesh List Is Me

Yes, I know that sounds very weird. 

I spent Friday afternoon recording a podcast with Christian Turner and Joe Miller for Oral Argument and had tons of fun.  Christian and Joe are great at this and almost managed to make me sound interesting and knowledgeable.  You know that old saying about a voice made for blogging . . . yea, well, here I am being me.  But the substance is good, I think. 

Here is the pod cast description: 

EPISODE 17: FLESH LIST (GUEST KIM KRAWIEC)

Psst, do you want to buy a kidney? How about a human egg, or a baby? We talk about taboo markets and tragic choice with Kim Krawiec. Topics range from egg “donation” to kidney transplants, altruism, reference transactions, military service, sex, and more. How do we allocate scarce goods when enough of us just don’t believe the goods should be traded like loaves of bread? Program note: We failed to ask Kim whether Joe is monstrous on account of his views on speed trap norms. Our apologies to the listeners and to Kim.

I’ve embedded the audio below, but if you’re interested in the episode (or prior episodes, which I blogged about earlier) it’s worth heading over to Oral Argument to look at the show links that Christian and Joe have put together.  One of the great things that Joe and Christian do with each episode is to create a set of show links that point the reader/listener to works and people that are referenced during the podcast. For example, the show links for Flesh List contain links not only to a few of my articles, but to works by Viviana Zelizer, Peggy Radin, Richard Posner, Guido Calabresi, and others, all of which we discuss during the hour-long show. 

I think that a junior scholar, or really anyone wanting to jump into a new set of ideas, could listen to these podcasts, follow some of the links, and get a good introduction to some of the important works and debates in the field.  I’ll be back with more to say later about some of the ideas we discuss in the podcast, but for now I leave you with Flesh List for your Sunday entertainment. 

OralArgument17-FleshList

 

More on L'Affaire Adler and "Risky Teaching"

An update to my previous update: The Boulder Daily Camera reports that on Wednesday, CU-Boulder administrators met with faculty in a 70-minute, closed-door meeting to discuss L’Affaire Adler and its broader ramifications for academic freedom, and then spoke to reporters afterwards. At the presser, the arts and sciences dean said—for the first time—that the “main concern” with Adler’s course was that “maybe there are cell phone videos being taken or other kinds of videos that would put students in a position where we didn't have consent on these issues.” He explained that “[w]ith any course involving something unusual, like photographing students, we ask for consent forms to be signed. For example, when we photograph someone in a theater rehearsal, they have to sign consent forms for this.” If so, the administration’s decision to send its Office of Discrimination and Harassment to sit in on Adler’s lecture (the Office found the skit to be a “risk” to the university) and the administration’s subsequent statements about the skit possibly constituting a hostile learning environment seem a bit odd, as does its decision to cancel the course for the spring.

Still, this explanation, if we credit it, partly explains why the skit would be of more concern today (and perhaps in recent years) than it was 20 years ago when Adler began teaching the course. The problem (today, at least) is not so much the “post-Penn State” world as the post-iPhone/Instagram world.

As if to prove the administration’s concerns about the dangers that modern technology poses for privacy, someone in the closed-door meeting leaked an audio of it to the Daily Camera, in which associate sociology professor Leslie Irvine called for the provost to resign for falsely “insinuat[ing] that professor Adler is under investigation for sexual harassment” in his Monday email.

During the same not-so-closed-door meeting, administrators told faculty that, “What we know based on our discussion with sociology is that there have been concerns expressed over the years, and unfortunately these concerns have not been dealt with in an effective manner.” The provost said he had (in the Daily Camera’s words) “concrete evidence of complaints from more than one student,” but would not say how many complaints when pushed by faculty.

Yet, despite this allegation of ineffective handling of student complaints about the course by the sociology department, the dean acknowledged that, the previous day, the administration had “reversed course” on its decision to preclude Adler from teaching the course this spring and had instead decided to leave that decision in the hands of…the sociology department. In order to “abide by the rules of self-governance and allow the sociology department to handle the issue internally,” the administration now says that the course can proceed if Adler agrees to a review of her course “by a group of her peers in sociology or perhaps by her sociology colleagues joined by other faculty colleagues from CU-Boulder.” The sociology department apparently voted to review the course if Adler requests it.

The Daily Camera reports that Adler hasn't yet decided whether to sign her retirement contract (due, she says, by Jan. 6) or allow the sociology department to review her course.

IRB Mission Creep on Steroids (UPDATED)

Update: Inside Higher Ed now reports that UC-Boulder has backed down from its suggestion that controversial teaching be prospectively approved by the university's IRB. On Monday, Provost Russell L. Moore sent the following email to faculty (emphasis mine):

Many of you are raising concerns about comments by our campus spokesperson Mark Miller published today in Inside Higher Ed.... I want to make it clear to you that this was a question raised by CU Arts & Sciences Dean Steve Leigh – whether or not the use of student TAs as actors in a skit presented in a class should be accorded a review by the IRB. I want to make clear that this was not a declaration of a policy, or an expansion of IRB’s role. Inherent in Dean Leigh’s question from the beginning was whether or not some consent form, comparable to what might be required by IRB, would be appropriate. Our campus policies reveal that this is not an area in which IRB would become involved, as it only deals with human subjects used in the research process, not material used for teaching.

In a second email IHE describes as having been sent by the provost to "campus," he explained (again, emphasis mine):

A number of you have raised concerns about academic freedom and how it may connect to this situation. Academic freedom protects faculty who teach controversial and uncomfortable/ unpopular subjects. However, academic freedom does not allow faculty members to violate the university’s sexual harassment policy by creating a hostile environment for their teaching assistants, or for their students attending the class. . . . In this case, university administrators heard from a number of concerned students about Professor Adler’s 'prostitution' skit, the way it was presented, and the environment it created for both students in the class and for teaching assistants. Student assistants made it clear to administrators that they felt there would be negative consequences for anyone who refused to participate in the skit. None of them wished to be publicly identified.

Yes, of course academic freedom does not protect "sexual harassment" — any more than it protects pedagogy that lacks any "legitimate educational basis" (which was the earlier version of the administration's concerns about the lecture) or the behavior for which Sandusky was convicted. (I offer no comment here on whether Adler's class exercise, details of which are somewhat sketchy, rises to the level of a hostile work/learning environment.) The issue is how to regulate the risk of a hostile learning environment: ex post, through investigations and, as appropriate, subsequent proceedings that bear at least the hallmarks of an adversarial process and due process — or ex ante, by a group that tends to speculate about (rather than rely on data to assess) possible future harms and benefits, that has stronger incentives to avoid Type II than Type I errors, that operate with virtually no transparency and no representation for the teacher during the decision-making process or for the students at all, and from whose unfavorable decision neither teacher nor students has any possibility of appeal? I'm glad that UC-Boulder appears to have rejected prospective group review of "risky" teaching.

 

On the other hand, if UC-Boulder is truly worried about sexual harrassment, then the administration's explanation for what it really finds appealing about the IRB process as applied to the teaching context is bizarre. UC-Boulder wants to regulate the risk of hostile learning environments by requiring (edgy? all?) teachers to obtain the voluntary, informed consent of students? The same students it suggests would experience "negative consequences" if they "refused to participate in the skit"? The signing of a consent form would certainly complicate a student-plaintiff's burden of showing "unwelcomeness" in a subsequent hostile environment lawsuit, but it's hardly guaranteed to defeat the suit. Successful plaintiffs may first give, then rescind, consent, and in any case, the consent must be voluntary, not the product of "coerced submission."

 

We've heard from the provost, the dean of arts and sciences, and the university spokesperson. Maybe it's time to hear from university counsel.

 

Original post below the fold.

(Taboo) Science, Policy & the Importance of Good Science Communication: Redux

In late May, I wrote the following:

Yesterday, the Social Science Genetic Association Consortium, an international consortium that pools and conducts social science research on existing genome-wide association study (GWAS) data, and on whose Advisory Board I sit, published (online ahead of print) the results of its first study in Science. That paper — "GWAS of 126,559 Individuals Identifies Genetic Variants Associated with Educational Attainment" — like much human genetics research, has the potential to be misinterpreted in the lay, policy, and even science worlds. That's why, in addition to taking care to accurately describe the results in the paper itself, including announcing the small effect sizes of the replicated SNPs in the abstract, being willing to talk to the media (many scientists are not), and engaging in increasingly important "post-publication peer review" conversations on Twitter (yes, really) and elsewhere — we put together this FAQ of what the study does — and, just as important, does not — show. So far, our efforts have been rewarded with responsible journalism that helps keep the study's limits in the foreground.

I had no role in the GWAS itself; that credit goes to SSGAC’s extraordinarily meticulous scientists. I did, however, have a strong hand in the FAQs. And so I am really pleased that in a new editorial, the editors of Nature (not for nothing, Science’s main competitor) highlighted our FAQ as an example of best practices in behavioral genetics research and science communication. They write:

For clarity, scientists would do well to follow the example of the Social Science Genetic Association Consortium. In June, this group published a paper on genetic variants associated with educational attainment (C. A. Rietveld et al. Science 340, 1467–1471; 2013). Accompanying this was a nine-page Frequently Asked Questions document that, in plain, easy-to-understand language, addressed such questions as why the researchers did the study, what they found and what the implications of the work are — and are not (see go.nature.com/7mov2j). The document spelled out that the consortium had not found ‘the gene’ for educational attainment, that each genetic marker found has only a very small effect on length of schooling, and that any policy response based on that single study would be premature.

Scientists cannot be held responsible every time someone misinterprets their work. But simple steps such as these could help to prevent and address some of the potential distortions of behavioural genetics — and could help to ensure that society continues to support the work.

For more on taboo science—including IQ, race, violence, and sexuality—see Erika Check Hayden’s accompanying article, which discusses our Science GWAS in the IQ category and (elsewhere in the article) quotes Duke lawprof (and new Conspirator!) Nita Farahany. Now if we could only get popularizers of science to understand that their lay audience will rarely know that they are "oversimplifying" that science.

[Cross-posted at Bill of Health]

Of Twerkers and Twerkees: An Open Letter to Robin Thicke’s Mother

[This post falls squarely in the “[pop] culture” portion of TFL’s “law, culture, and academia” mandate. Regular programming will resume in due course.]

Hi Gloria. Can I call you Gloria? I understand that you were displeased by the duet performed by your son and Miley Cyrus (as you know, your boy shows up at the 3:00 mark) at the MTV VMA awards Sunday evening.

Specifically, you said:

I was not expecting her to be putting her butt that close to my son. The problem is now I can never unsee it. . . . Him? Loved it! I love that suit, the black and white suit. I don’t understand what Miley Cyrus is trying to do. I just don’t understand. I think she’s misbegotten in this attempt of hers. And I think it was not beneficial.

Gloria, I’m confused about your confusion. I mean, look, the whole obscenity concern trolling thing isn’t my bag. VMA has been doing this for years, and if you wanted to see something else, well, that’s what they have C-SPAN for. But hey, you’re certainly free to know it when you see it. Obscenity, that is.

What I don’t get is why you see it in Cyrus but not in your own son.

To be fair, it’s not just you. All the commenters I’ve seen, from Sean Hannity (“outrageous,” “downright raunchy,” and “inappropriate” for a role model) and Bill O’Reilly (“she’s a troubled young lady” and “out of control”) to Camille Paglia (whose focus is on the philistine rather than the obscene nature of the routine) have reserved their criticism for Cyrus.

A mommy blogger’s open letter to her daughter, warning her not to follow in Cyrus’s footsteps, has gone semi-viral. But not a single Mommy blogger has warned her son against following in your son’s footsteps.

To no one's surprise, Bill O’Reilly blames Cyrus’s twerking on “bad parenting,” and after Miley’s father, country singer Billy Ray Cyrus, defended his daughter, O’Reilly asked whether he should be “shunned.” Even Brooke Shields, who played mom to Cyrus’s Hannah Montana, felt the need to weigh in and demand answers: “I was Hannah Montana’s mother. I do not approve. Where did I go wrong? I just want to know who’s advising her, and why it’s necessary?” (By contrast, Shields remains “shocked” by the controversy over her own performance in the infamous “You wanna know what comes between me and my Calvins? Nothing.” ad campaign, which she shot when she was just fifteen years old (Cyrus is twenty), and which was banned by CBS.)

And yet no one blames you, Gloria, for raising a son whose music and videos are—in addition to being just as "obscene" as Cyrus’s (and just as arguably misappropriating of black culture and glorifying of drugs)—kinda rapey. Following the VMA hoopla, Cyrus's father canceled a scheduled interview with Piers Morgan at the last minute. But free from the burden of having to defend your parenting and your child, you can grant media interviews in which you accept the condolences of a shamed nation and join the #MileyGate pile on. It’s all a little reminiscent of Justin Timberlake, whose image was only barely and very temporarily tarnished by the “wardrobe malfunction” of Janet Jackson (remember her?), which he, too, apparently helped orchestrate. I don’t personally care about either Cyrus’s butt or Janet’s nipple, Gloria. But I am annoyed by the double standard involved in criticizing the female but not the male co-venturers in these manufactured controversies—the twerkers but not the twerkees, if you will—which is why I'm writing. (More after the jump.)

Marriage & Polyamory

Interesting survey results on polyamorists' interest in marriage were recently published on Loving More's website.  As background, conservatives who oppose marriage equality have been making slippery slope arguments for years about the purported danger of legally sanctioning same-sex marriage and a resulting inability to distinguish plural marriage.  See, e.g., Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting).  In response, as I noted in my article Polyamory as a Sexual Orientation, some marriage equality proponents have tried to distance themselves from polyamory and have sometimes cast aspersions on it.  79 U. Cin. L. Rev. 1461, 1484 (2011).  However, polyamorists themselves face considerable discrimination and appear to be deserving of legal protections, although there is uncertainty about whether and what types of protections they want.  79 U. Cin. L. Rev. at 1513-14.  Hadar Aviram's research on the Bay Area poly community suggested that that community at least did not want to advocate for poly marriage, partly out of fear of taking away steam from the marriage equality movement.  Hadar Aviram, Make Love, Not Law: Perceptions of the Marriage Equality Struggle Among Polyamorous Activists, 7 J. Bisexuality 261, 264 (2008).  This new survey data, however, shows that a significant majority of Loving More's national respondents (65.9%) would take advantage of plural marriage if legally available, although, interestingly, an almost equal--but slightly larger--percentage (66.9%) think that no relationship structure "deserves special recognition."   Thus, there seems to be a preference for disestablishment of rules privileging certain relationships, perhaps along the line of Nancy Polikoff's work, coupled with a practical willingness to marry if the option were available. 

Too Sexy for This Job?

On Friday, the Iowa Supreme Court ruled that an employee could be lawfully terminated because her employer found her to be an "irresistible attraction."  The Court's decision (here) - which, in the words of a friend of mine, "reads a bit Mad Men-like" - is worth a quick read.  In this case, the employer, a dentist, developed an attraction to his dental assistant, Ms. Nelson.  Over the years, Dr. Knight made several comments about Nelson's clothing being "too tight" and warned that she might see his "pants bulging" if her clothing was "too revealing."  When Knight's wife became concerned about the nature of the relationship between the parties, she demanded that her husband terminate the assistant.  And he did.

The Court held that neither Title VII nor the state's Civil Rights Act forbade the adverse employment action, despite the plaintiff's argument on appeal that the doctor's behavior amounted to sexual harassment which would have, itself, been actionable even without termination.  The decision appears to turn on the fact that the relationship/fresh language/etc. was not "unwanted" - in other words, Ms. Nelson did not complain about Knight's language and maintained a friendship with him over the course of their working relationship.  According to the court, their workplace environment never assumed the level of "hostility" required for such claims.

A few media outlets have picked up the decision and are reporting it with surprise - reporters rarely get the law right in such blurbs, so here's the decision for you to draw your own conclusions.