The Faculty Lounge

Law & Morality: John Edwards' Defense Works

In closing arguments, John Edwards' attorney argued that he committed sins, not crimes.  With one not guilty verdict and a mistrial on the other five counts due to a deadlocked jury, it appears that his defense worked.  This explicit defense separating law from morality could be good fodder for Jurisprudence courses and other dicussions about the overlap between law and morality.

For an interesting read on how the National Enquirer broke the story, here's an article on Huffington Post by David Perel, then-Editor-in-Chief of the National Enquirer.  The article details the investigation and provides Perel's take on what this saga says about our presidential politics and the ability to find truth in courtrooms.  Here's an excerpt:

Edwards, Hunter and Young retained separate counsel in an attempt to stop the Enquirer's expose of the affair, the pregnancy and the money trail. None of them knew that for months a team of Enquirer reporters, living in Young's gated community, watched Hunter and Young daily and had knowledge of Hunter often dining at the Young's house. So when Andrew Young and his attorneys contended that HE was the father of Hunter's baby, incredulity was replaced by laughter from my team. Yes, we were supposed to believe that he brought his pregnant mistress home regularly for dinner with his wife and children.

I can imagine The Who's I'm Free running through Edwards' brain head right about now.

 

I'm the Slime?

As the Supreme Court’s second decision in three years in FCC v. Fox Television Stations, Inc. nears, a brief history of indecency regulation may be of interest and begins with a tie to music.

In 1970, the FCC levied its first indecency fine.  The FCC fined a Philadelphia non-profit educational radio station, WUHY-FM, $ 100 for broadcasting a pre-recorded interview with Jerry Garcia.  Garcia interspersed his musings on a vareity of topics with indecent language, such as "political change is so fucking slow." No one complained about the broadcast.  The FCC was monitoring the radio station.  In dissent, Commissioner Nicholas Johnson conveyed bewilderment and disdain about the FCC’s decision to fine this particular station:

[W]hen we do go after broadcasters, I find it pathetic that we always seem to pick upon the small, community service stations . . . It is ironic to me that of the public complaints about broadcasters' ‘taste’ received in my office, there are probably a hundred or more about network television for every one about stations of this kind. Surely if anyone were genuinely concerned about the impact of broadcasting upon the moral values of this nation — and that impact has been considerable — he ought to consider the ABC, CBS and NBC television networks before picking on little educational FM radio stations that can scarcely afford the postage to answer our letters, let alone hire lawyers. We have plenty of complaints around this Commission involving the networks. Why are they being ignored? I shan't engage in speculation.   Download In Re WUHY FCC 1970

In 1975, the FCC received one complaint because a New York radio station broadcasted George Carlin’s Filthy Words monologue in the afternoon.  In 1978, the Court held in FCC v. Pacifica Foundation that regulating indecent speech on broadcast radio and television did not per se violate the First Amendment.  The Court based its decision on the dual rationales that broadcast radio and television are uniquely pervasive in society and that they are uniquely accessible to children.  Justice Powell’s concurrence made clear that the Court did not decide whether the isolated use of a potentially offensive word could be regulated and that the holding was limited to the specific context of Carlin’s “verbal shock treatment.”

For a quarter-century, the FCC maintained that fleeting expletives did not rise to the level of indecent speech.  But, after Bono used a fleeting expletive when receiving a Golden Globe award, and Cher and Nicole Richie made similar transgressions on the Billboard Music Awards, the FCC reversed course and issued its 2004 Golden Globe Order finding that any use of the words fuck or shit is inherently indecent, except for a couple of exceptions.

 In 2009, the Court held 5-4 that the FCC rule change did not violate the Administrative Procedure Act’s arbitrary and capricious standard.  Justice Stevens, who wrote the majority opinion in Pacifica, dissented in Fox I.  Now, the Court considers whether the FCC’s indecency regulation violates the First or Fifth Amendments.

One would be hard pressed to argue that broadcast radio and television are still uniquely pervasive in society and uniquely accessible to children in light of the numerous media technologies that exist, especially considering the ubiquity of mobile devices with internet access.  Not only do the rationales of Pacifica fail to reflect the realities of 2012, advertisements like the Go Daddy commercials that air during the Super Bowl and for products like KY Intense, an “arousal gel” make futzing around with fleeting expletives a rather futile exercise. Justice Stevens made a similar point in a footnote to his Fox I dissent: "It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

Here’s Frank Zappa performing, I’m the Slime on Saturday Night Live in 1976, complete with guest vocals by Don Pardo.  Zappa’s take on the slime oozing out of the tv set is more aligned with Commissioner Johnson’s WUHY-FM dissent, than a concern about “bad words.”

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

 

 

Goldberg Guest Post on Sterilization

The following is a guest post from my friend Daniel Goldberg of East Carolina University's Bioethics and Interdisciplinary Studies Department.  I hope we'll hear some more from him as the discussion about compensation of victims of North Carolina's sterilization program moves forward:

Thanks much to Al for the invitation to contribute to TFL.  I am a peculiar academic creature; about 60% of my work involves public health ethics and population-level bioethics, and about 30-40% of my work is original research in the history of medicine and public health.  Although I am no historian of eugenics, my period of the mid-to-late 19th c. (and into the early 20th), and my interest in the history of public health, combined with my work on race, class, inequities, and the social determinants of health means that I cannot afford to be entirely ignorant about the enmeshment of fin-de-siècle and progressive public health activities and eugenics.

Having moved to North Carolina just a few years ago, and now living in eastern North Carolina (which is substantially poorer, sicker, more rural, and more African-American than the Piedmont), I have taken a particular interest in the activities of the sterilization task force and the history of involuntary sterilization here in my adopted fair state and in my region.

 I am at heart an intellectual historian, and one of the things I find fascinating is the way in which ideas are social actors.  That is, ideas can have a powerful effect on material history, and one of the most obvious ways in which this happens in context of health is the importance of individual agency.  The conventional view that American political culture is highly individualist turns out upon close scrutiny to be exactly correct, and there is virtually no doubt that this individualism has had and continues to have a profound impact on our ideas about health, our causal attributions of disease and health, and on our ideas about the remedies we should implement to ameliorate poor health.

 Thinking about the sterilization program, and communicating with peers, colleagues, and community members on its history in eastern North Carolina in particular, what has become plain is the complexity of some of the issues underlying it.  Not, of course, that this complexity serves to diminish either the horror of involuntary sterilization or its class and race-based applications.  But there is ample social epidemiologic evidence showing that single parentage is a significant determinant of all sorts of adverse health outcomes, as is having multiple dependents.  Moreover, social disadvantage tends to cluster, which means that across a population, those who are single parents are more likely to suffer from other disadvantages (low income, low educational attainment, exposures to violence, racism, discrimination, etc.)  So persons experiencing deleterious social and economic conditions often face the enormous obstacles posed by compound disadvantage.

What interests me about the role of individualism in thinking about the sterilization program is the way in which the problem to be solved -- reproduction that creates all sorts of problems and burdens for the mother, larger family, children, etc. -- is read according the script of that individualism.  In other words, the very real problems posed by the deleterious social and economic conditions in which many of the victims of the program lived and worked are reformulated as problems of the individual body, of the woman for whom sterilization was sought.  If the social problems for which reproduction is a proxy are in fact recast as pathologies of the individual body, then the obvious remedy is to eliminate the pathology, in this case, surgically.

But note that under this interpretation, the intervention alleviates the pathology on both the individual and the collective level -- through sterilization, the pathology inscribed within the individual woman’s body is eliminated, but so too is the pathology inscribed on the body politic.

 Lest this seem far-fetched, we have very good evidence in the history of eugenics that this kind of thinking was critical, that what Robert Jay Lifton terms a ‘biocracy’ had an enormous amount to do with the breadth and social power of scientific racism and eugenicist interventions.  Individual ‘degeneracy’ -- a key term of art in eugenicist thought -- was a stain on the society itself, analogized to a lesion which should properly be excised or alleviated in some manner provided through the instrumentarium of biomedicine and science.

 But the individualism of American culture is of course contingent.  What if a different social imaginary dominated the way we think about health, disease, and disadvantage? What if the problems posed by adverse socioeconomic conditions, single parentage, and multiple dependents were seen as failures in the social safety net, as social problems that were both fundamentally caused by breaches in social and collective policies (whose effects accumulate over generations) and sustained, as Engels might surmise, by continued failures to provide material assistance and break what Madison Powers and Ruth Faden term ‘densely-woven patterns of disadvantage’?  If that were the case, and the problem was seen as a social problem than as one of individual bodies and their pathologies, then the solution would hardly seem to be sterilization of any kind, but amelioration of the social and economic conditions that caused and sustained the destitution and suffering the proponents of the program sought to ameliorate.

 

Uterine Transplants?

Inspired by Kim Krawiec's example, I thought I'd share a topic from my course on Social Regulation of the Body:

Should surgeons transplant a uterus into a woman who was born without a uterus or has had a hysterectomy and wants to become pregnant? The debate reminds us that efforts to promote family values often neglect the interests of the infertile.

Transplanting life-extending organs, like hearts, livers, lungs and kidneys, has become well-accepted, but ethicists have raised additional questions about transplantation for life-enhancing body parts like faces and hands. It's one thing to assume health risks for the possibility of a longer life, but are the risks of being a transplant recipient justified by improvements in the quality of life?

As surgeons contemplate uterine transplants, the closer scrutiny can make sense--for example, what risks are posed to the child from the drugs that the woman must take to prevent her body's immune system from rejecting the transplanted uterus? (Proponents of uterine transplants, like Dr. Giuseppe Del Priore, observe that kidney and other organ transplant recipients who take the same drugs have become pregnant and given birth without harm to their children.) We should be careful before adopting a new kind of transplantation.

On the other hand, it's troubling to see scholars question uterine transplants on the ground that giving birth to one's own child is not that important an interest. According to an ethics professor, "tons of people have perfectly normal lives without gestating a biological child." Yet, the alternative for the woman lacking a functioning uterus is to have children with the participation of another woman. This may work for many women, but the legal battles that can follow gestational surrogacy illustrate the risks of that alternative, as well as the significant role that gestation plays in forming motherhood.

Masculinities and Law Conference

Professor Nancy Dowd at the University of Florida is one of the most important scholars doing work in the field that has come to be called law and masculinities.   

I am very pleased to announce that other scholars who work in law and masculinities have convened a workshop at the University of Florida in honor of Nancy’s recently published book, The Man Question.

Professor Martha Fineman at Emory will provide that keynote address and confirmed speakers include Professors Frank Rudy Cooper, John Kang, Ann McGinley, and Valorie Vojdik.    

The event is free and all are invited.  Those interested may email me at johnmkang@gmail or Professor Rachel Rebouché.  The formal announcement follows.      

 Asking “The Man Question:” A Workshop on Contemporary Masculinities

 University of Florida Levin College of Law

Third Floor, Holland Hall, Room 345

Friday, November 18, 2011, 10:00 a.m.

This workshop brings together leading gender and masculinities scholars to discuss the issues raised by Professor Nancy Dowd in The Man Question.  Speakers will explore questions of masculinity across diverse areas of employment discrimination, criminal law, international law, and constitutional law.  In addition, participants will grapple with theoretical questions of history, identity, vulnerability, and the limitations of equality rights.

 

Live Blogging "Critical Perspectives on Tax Policy" Conference at Emory Law - Part 1

At Emory University School of Law, the first day of the "Critical Perspectives on Tax Policy" conference is well under way.  They program began with a welcome from Dean Robert Schapiro and an introduction by Professor Dorothy Brown.  Professor Brown explained the origins of the conference in conversations with national tax colleagues about a desire to "put the 'critical' back in critical tax theory."  

Here's how Tony Infanti (Pitt) and I described the field in Critical Tax Theory: An Introduction.

Tax law is political. That is a fundamental assumption of critical tax theory....[A]ll critical tax scholarship shares one or more of the following goals: (1) to uncover bias in the tax laws; (2) to explore and expose how the tax laws both reflect and construct social meaning; and (3) to educate non-tax scholars and lawyers about the interconnectedness of taxation, social justice, and progressive political movements. Critical tax scholars employ a variety of methods to achieve these goals. Among other methods, the contributions to this book demonstrate how critical tax scholars bring “outsider” perspectives to the study of tax law; use historical material, contemporary case studies, and personal or fictional narratives to illustrate the practical impact of the tax laws on individuals and groups; interpret social science and economic data to show how the tax laws impact groups differently; and explore the interconnectedness of tax laws with economic forces such as the labor market (especially as it impacts women) and international financial and political development.

During the first panel this morning, John C. Scott (Public Policy, UNC) presented his work on "The Problem of Private Pensions: Risk, Institutions, and Politics in the Hidden Welfare State."  Reginald Mombrum (NCCU) spoke on "Shifting the Paradigm by Bringing Tax Arbitrage to the Lower Income Separated Family: Why Should the Middle to Upper Class Family Have All the Fun?"  I shared a few thoughts on "Wealth, Inequality and Democracy."

In the morning's second panel. Lynn Lu (NYU) workshopped her paper, "Beyond Watchdogs, Whistleblowers, and Scapegoats: Pushing the Limits of Social Justice Reform through Tax Exemption for Public Charities."  Carolyn Jones (Iowa) just began her talk by saying, "This is a low-tech presentation on sin."  The formal title of her presentation is "Taxation as a Means of Reaching the Kingdom of God."  Up next will be Andre Smith (Widener) talking about "Taxes and the Demise of White Supremacy in the United States." 

Lots more to follow!

Is Rep. Anthony Weiner a Sexual Harasser?

Is Representative Anthony Weiner a sexual harasser?  I think not, based on what we know so far.  Here's how I see it:

• Some stupid people are sexual harassers.
• Some sexual harassers are stupid people.
• Not all stupid people are sexual harassers.
• Not all sexual harassers are stupid people.

By stupid people, I mean those who are susceptible to making or proven to have made mistakes of judgment, especially in the realm of sexualized communications.  Is there any among us who has not made a mistake of judgment, even if not in the particular nature or realm of Rep. Weiner's?

Let's be clear that sexual harassment is not simply communication of a sexual nature.  It is intimidating or unwelcome speech or action of a sexual nature that impacts someone's work or educational environment.  If one adult wants to "sext" another in a non-work/non-education context, that may be stupid and it may reflect on the sender's poor judgment, but it's not sexual harassment, in my opinion.

Fallout From Law School Speech: SlutWalk Toronto

Back in January, a Toronto police office - speaking to students at Toronto's Osgoode Hall Law School - suggested that one way for women to avoid sexual assault was to "not dress like sluts."  Naturally, and appropriately, this comment generated much anger - and an apology from the officer.  But in the great tradition of reappropriating language, activists in Toronto have now organized SlutWalk Toronto for April 3.

 

DOMA, ENDA, and Sexual Orientation as an Immutable Characteristic

Last week the Obama administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage for federal law purposes as a legal union between a man and a woman.  This development was welcomed by gay rights advocates.  

However, we are still a long way away from establishing comprehensive federal anti-discrimination mandates to protect homosexuals.  The Employment Non-Discrimination Act (ENDA), which would ban workplace discrimination based on sexual orientation and gender identity has been introduced in almost every Congress since 1994 but has failed to pass. 

ENDA would be consistent with other well-established civil rights protections.  The civil rights statutes can be understood to protect discreet and insular minorities with a history of discrimination.  This civil rights model would appear to encompass the gay community. In the alternative, the law can be understood to prohibit discriminatory conduct based on effectively immutable characteristics.  Many now believe that sexual orientation is biological in nature, and I would argue that it is at least as immutable as religion, which is a protected characteristic.

I have written extensively about the concept of immutability in employment discrimination law in an article  that is forthcoming in the William and Mary Law Review.  What do you think, will American society soon be prepared to support legislation such as ENDA?

Lying and Consensual Sex

I was listening to an NPR broadcast at lunchtime today and was struck by a talkback portion of the show dealing with a case in Israel where a man was sentenced to an 18 month jail term for rape in Israel because he had lied to a Jewish woman to convince her to have sex with him - he told her he was Jewish when, in fact, he was an Arab.  The judge in the case referred to his conduct as "rape by deception".  BBC story here.

What was particularly interesting to me was listening to a panel of non-lawyers talking about how they perceived the definition of rape.  Most of the talkback part of the show focused on things like the perceived necessity of physical violence to support a rape conviction and/or various social definitions of fraud.  During the time I was listening to the show, no one - not even the host - talked about the concept of "consent" to sex, or discussed whether the sexual act could be meaningfully "consensual" in situations where one party has lied to the other to convince them to engage in sexual activity.  Am I missing something or shouldn't this have been an important part of the discussion?

Incidentally, one person who called into the show made an analogy between lying to someone to get them to have sex and slipping drugs into the person's drink in order to induce them to have sex.  Interesting analogy, but I'm not sure that it works on close examination.  The drug situation physically removes a person's ability to make clear decisions, whereas the lying situation leaves the "victim's" natural ability to analyze the situation intact, but presents the victim with false information.  Is this significantly different or not?

For Love Or Money Conference Post-Script (Part II)

In my last post, I began a breakdown of the recent For Love or Money conference at Wash U, which I continue below.

In Testing as Commodification, Kate Silbaugh (Boston University, Law) argues that debates within the standardized testing literature represent a split similar to the one witnessed in traditional debates on the commodifying effects of market exchange:  those who extol the virtues of a common metric by which to make comparisons and evaluations, on the one hand, versus those who argue that test scores have swallowed other notions of the public good in education.  Because Kate is special, she had two discussants: Kieran Healy (Duke University, Sociology) and me. 

Healy argued that the U.S. education system has been dysfunctional for some time, and questioned whether standardized testing has really been the problem for public education that Silbaugh contends.  He focused instead on other social and organizational issues that contribute to problems in the standardized testing movement and, indeed, in U.S. public education more generally.  I invoked the “dark side” of commodification arguments, contending that they may be: (1) a catch-all, in that not all of the objections to markets (or standardized testing) that are packaged under the commodification rubric are necessarily about commodification, nor the inevitable result of market exchange or standardization; (2) political, in that they are sometimes raised by constituencies in pursuit of a self-interest that is at odds with broader social goals, and (3) elitist, in that the freedom to ponder the value of social goods other than individual economic betterment is a luxury not available to all.  We both questioned whether most of the objections to standardized testing are really of the commodification variety.

The next morning, Larry Ribstein (University of Illinois, Law) and commenter Bob Ellickson (Yale University, Law) discussed Ribstein’s paper, Incorporating the Hendricksons, which argues that differences between domestic and business associations suggest that using the same types of standard forms for both types of relationships can cause the forms to lose much of their coherence and therefore value, which would hurt both marriage and business law.   Ribstein’s paper was prompted by specific proposals to apply the law of business associations to the family, especially non-traditional families, including a recent paper by conference participant Adrienne Davis (see below).  I thought that Ribstein and Ellickson (who, as most readers know, has written extensively on private ordering, both within the family and in other close-knit communities) agreed on more things than they disagreed on.  Importantly, both felt that the laws governing business associations were a poor fit for family relationships, disputes, and dissolutions.

Finally, Susan Appleton (Washington University, Law) and Susan Stiritz (Washington University, Women, Gender, & Sexuality Studies) presented “Money Can’t Buy Me Love”:  Sex Therapy in the Age of Viagra, which examines the history of sex therapy and its contemporary practice in the age of Viagra.  I could tell you more, but none of it would be as effective as this video, shown by the two Susans (as I had begun to refer to them by the end of the weekend) as part of their presentation:

Discussant Adrienne Davis (Washington University, Law) took issue with the particular views of sex, equality, intimate relationships, and sex therapy envisioned by the paper, arguing that it reflected a particular normative view of acceptable sex and sexual relationships that was not universally shared. 

That’s all, folks!  Since no one would want to have to follow the highly animated Viagra discussion, we closed the show there.  All of this, of course, doesn’t even address the most meaningful aspect of the conference – the discussions among the participants.  The event was specifically designed to engender active discussion and, especially, cross-disciplinary discussion.  And thanks to our wonderful group of participants, who diligently read in advance and came prepared with interesting questions and comments, I think we accomplished that.  Thanks to all for their efforts, and especially to Marion and the other Wash U folks, who really made the whole thing come together.

Above Image: The Love of Money, By: Rein Nomm 

For Love Or Money Conference Post-Script (Part I)

Last week, I attended the For Love Or Money Conference at Washington University in St. Louis, co-organized by Marion Crain and me, which I blogged about earlier.  The event was a success, I think – the papers and comments were interesting and the discussion lively.  The conference brought together folks from different disciplines, including law, economics, sociology, psychology, and gender studies, as well as from different subfields within law, such as corporate, family, property, contract, and other legal disciplines. 

I’ll refrain from saying too much about the papers or the comments at this time, as most folks will continue to revise their drafts in response to feedback at the conference, and the discussants have not yet written their papers. But I’ll at least attempt to give a brief flavor of what transpired so that you can make a note to keep an eye out for papers that might interest you as people post them to SSRN over the summer (which is only weeks away now, hallelujah!) 

Julie Nelson (Economics, University of Massachusetts Boston) kicked off the show with, Does Profit-Seeking Rule Out Love? Evidence (or Not) From Economics and Law, which argues that corporate profit-maximization is not seen in practice nearly as often as generally assumed, nor mandated by the "laws of economics," nor commanded by statutory or case law. Rather, Nelson contends, the idea was invented and has maintained its power to shape our thinking through mutually-reinforcing historical, social, political, and psychological processes. Bill Bratton (Georgetown, soon to be Penn, law) was the respondent, who – in addition to his substantive comments -- humorously noted that he liked the article because it reminded him of some his own early articles, though he eventually stopped writing on the topic because no one paid attention to him. 

Yuval Feldman (Bar-Ilan University-Israel, Law), who flew all the way from Israel for the event, next presented The Complexity of Disentangling Intrinsic and Extrinsic Compliance Motivations: Theoretical and Empirical Insights From the Behavioral Analysis of Law. The paper seeks to improve our understanding of the interrelations between "love" and money in legal contexts, through discussion of a series of theoretical dilemmas related to the interplay between intrinsic and extrinsic compliance motivations. Discussant Rebecca Hollander-Blumoff (Washington University, Law), whose research focuses on the intersection of law and psychology in the context of dispute resolution, offered thoughtful commentary on the nature of extrinsic versus intrinsic motivations and, indeed, whether and why such distinctions matter.

I very much enjoyed the lively exchange between Laura Rosenbury (Washington University, Law) and her discussant, Ethan Leib (University of California-Hastings, Law) on Friends at Work.  From what I gather, this is an ongoing debate between these two on the nature of friendship and its proper place in law.  At least some of the debate seemed to revolve around whether “friends” have sex (with Rosenbury believing that they could and Leib that they could not).  I’m sure they’re appalled that this is my primary takeaway from the exchange, but what do you expect when two interesting, intelligent people start arguing about sex halfway through a long conference afternoon?

Marion Crain (Washington University, Law) and her discussant, Scott Baker, (Washington University, Law) argued less (and failed to mention sex at all, as I recall), but were still engaging. In Arm's Length Intimacy: Employment as Relationship, Crain argues that employment should be reconceptualized as an affective and often intimate relationship, one that is far richer than the economic model of an exchange of dollars for labor that currently guides employment policy and law.  Baker responded that employment relationships were different from intimate ones in important ways that suggest the law should continue to distinguish employment relations from intimate ones.

Mary Anne Case (University of Chicago, Law) and discussant Bob Pollak (Washington University, Economics) discussed Case’s paper, Enforcing Contracts in an Ongoing Marriage.  Case argues that marriage in the U.S. by and large remains subject to what Saul Levmore has dubbed the rule of “Love It Or Leave It:” Courts generally are closed to those who seek judicial enforcement of bargains or judicial resolution of disputes in an ongoing marriage and Case questions why this should be so.  Pollak, who has written extensively on matters relating to the economics of the family, offered many thoughtful insights and suggestions on bargaining within the family unit.

I'll be back later with Part II.

Like A Virgin? We Sell That Here!

A few days ago, an anonymous 19-year-old New Zealand student offered her virginity to the highest bidder on the Web site www.ineed.co.nz under the name "Unigirl," saying she would use the money to pay for her tuition.  According to Unigirl, more than 30,000 people have viewed her ad and over 1,200 made bids before she accepted a $32,000 offer.  Story from NPR.  (HT: Tonja Jacobi)

Though the story is creating a ruckus, including international press, the attention pales in comparison to that bestowed on the very similar story of “Natalie Dylan,” a pseudonym adopted by a 22-year old UC San Diego graduate who auctioned her virginity on the website of the Moonlight Bunny Ranch, a Carson City brothel, in January of 2009 in order to foot the bill for graduate research in women’s studies. In contrast to Unigirl’s paltry returns, Dylan reportedly received over 10,000 bids, the highest of which was $3.8 million, receiving both condemnation and praise in the auction process.  Critics have argued that she is degrading herself and women generally, risks exporting Nevada’s poor morals to the rest of the country, and is selling something (virginity) for profit that should be cherished and freely given.

In an article I posted to SSRN over the weekend, A Woman’s Worth, I consider the reactions to Dylan’s virginity auction plan and the possible motivations underlying those reactions. What drives the attention and controversy generated by the Dylan auction? What are the perceived harms associated with Dylan’s actions, and in what ways are they greater than the harms associated with similar common activities?

Dylan was trading sex for cash, but against the backdrop of a legal, thriving, and (absent the involvement of a celebrity or politician) largely ignored Nevada sex industry, it is unreasonable to believe that the sex-for-cash aspects of the transaction drove the enormous attention dedicated to the event.  Dylan, of course, was selling more than sex.  She was selling virginity – a “priceless and rare commodity” in the eyes of some, including, presumably, her numerous bidders. But, virginity-for-cash objections seem to rest, at best, on a highly romanticized view of most females’ first experience with sexual intercourse and reinforce a concept of virginal sanctity that many women reject.  Moreover, to contend that the sale of virginity is more problematic than the sale of sex by a non-virgin is to contend that women should be free to commodify only that which is less valuable; that which will produce less income.

Finally, I argue that objections stemming from Dylan’s self-promotion, self-pimping, and aggressive marketing, while the source of much of the resistance to Dylan’s actions, should also give pause: is conduct undertaken with adept marketing really more problematic than the same product offered less effectively?  Although the answer may be “yes” to some, such commodification objections, by their very nature, are an uncomfortable vehicle through which to package concerns about women’s economic and social well-being.   If Dylan had charged less, promoted herself less effectively, or been less creative in marketing her value as a virgin, then her transaction would have passed into the millions of similar trades that occur each year, largely without notice.

The article is still in draft form, and comments, criticisms, feedback, praise, adulation (okay, I’ll stop there) are most welcome.   For those who have not yet “met” Dylan, the video clip below provides a nice introduction:  Tyra Banks (a surprisingly tough interviewer in some respects) quizzes Dylan on her motives, expected profits, auction strategy, and whether she risks unrequited love for her winning bidder.  Because, even at $3.8 million, a sexual transaction must be primarily emotional, rather than economic, at least from the woman’s perspective, right?

(HT for the video: Kate Bartlett)

Swinger Economics

On SSRN. 

Better yet, these comments on the paper, lifted from the comments section at Robin Hanson’s Overcoming Bias:

Anon: “It’s somewhat unhinging to realize that there is an economist studying these things in Italy, and his name is Fabio.”

Bejeebus: “These communities undergo all the drama/gossip/dynamics that can be seen in any such community. It’s not that different from Linux User Groups.”

Call for Papers

"What Pertains To a Man"?  Transcending Gender Boundaries in Jewish and Israeli Law

Conference to be held at the University of Chicago Law School, Monday March 1, 2010

This small one day conference will be structured around two documentary films, Praying in her Own Voice and Paper Dolls (Bubyot Niyar), each centered on ways in which Israeli law and culture deal with individuals and groups who transcend the gender boundaries of  Jewish law.  The conference title is taken from Deuteronomy 10:22, which declares it to be an abomination for a woman to put on what pertains to a man and for a man to wear women's clothing. The conference will be held Monday March 1, coincident to the feast of Purim, which commemorates Esther's saving the Jewish people by crossing uninvited from the women's quarters to the king's inner court and is traditionally celebrated with masquerades including some cross-dressing.

Purim and the megilla of Esther are also important to the subjects of Praying in her Own Voice, the Women of the Wall, whose decades- long quest to pray and read from Torah scrolls wearing tallit at the Western Wall in Jerusalem led them several times to the 

Israeli Supreme Court.  The conference will juxtapose the Women of the Wall's attempt to transcend gender boundaries with that of a very different group, the Paper Dolls, a drag performance troupe whose members are transgendered Filipino care workers in Israel.  The award-winning Paper Dolls documentary explores the mulitiplicity of ways in which the group negotiates and transcends gender boundaries, as it examines the group members' interactions with both the elderly orthodox Jewish men they are employed to care for and the gay male Israeli club patrons for whom they audition as performers.

Confirmed speakers for the conference include Aeyal Gross of Tel Aviv University, Pnina Lahav of Boston University, and Martin F. Manalansan IV of the University of Illinois.   We will be adding a few additional speakers and to that end seek proposals in the form either of an abstract or draft paper dealing with any aspect of Transcending Gender Boundaries in Jewish or Israeli Law, by no means limited to the subjects of the two films.  We welcome papers from all disciplines.  The conference sponsors include the University of Chicago Law School’s Workshop on Regulating Family, Sex and Gender, and the University’s Center for Gender Studies, Program in Jewish Studies and Program in Human Rights.

 

Please e-mail proposals to Mary Anne Case at [email protected] .  Proposals received before January 6, 2010 will receive full consideration.

"Sex-toy Study at Duke Raises Some Eyebrows"

... and not just eyebrows.

An Orgasm A Day Keeps The Doctor Away. Is This Really NHS?

Sometimes the real news seems so good that you wonder whether The Onion is mere surplussage.  Such is the state of affairs today, as leading British papers the Times of London , the Daily Mail, and the Telegraph notify us of a new leaflet, Pleasure,  created and...disseminated (?!?)... to parents, teachers, and youth workers by the a branch of the NHS out of Sheffield, England. 

From the Times story headlined "NHS tells school children of their 'right' to 'an orgasm a day'":

Alongside the slogan “an orgasm a day keeps the doctor away”, it says: “Health promotion experts advocate five portions of fruit and veg a day and 30 minutes’ physical activity three times a week. What about sex or masturbation twice a week?”

Maybe they need to hire Ayelet Waldman to help do PR on this one.  The Brits have obviously got a different attitude about sex.   But I have to wonder whether this story will be appropriated by opponents of nationally funded health care in the US, used as evidence that the federal government ought not meddle in such value laden matters as health.  What sort of values will a national health program promote?  Having sex (or for that matter, having health care) may help a person live longer.  But at what cost to society at large? 

And let's be clear.  Even this British story is all about shock value.  It's hard to know what they're more breathy about - the age of the target audience or the blatantly pro-sex message.   None of the papers note that this document was produced by a smal unit of NHS - the Sheffield Centre for HIV and Sexual Health - an important detail that might deflate the story a bit (especially compared to the way the Daily Mail described the office - as "a primary care trust.")   AIDS prevention groups have a history of being very forward in their outreach efforts and one more bold claim might be a bit of a yawner.  A far more balanced (but not entirely uncritical) exposition of the document is  here . (If it that site, which has been a bit unstable, becomes hard to access, you can download it here.)

H/T David Cohen.  Image: the document at issue.