PrawfsBlawg

What is missing from Hadfield’s Rules for a Flat World and the Susskinds’ The Future of the Professions?

I’m grateful to appear here for the first time, thanks to the kind invitation of Dan Rodriguez to join the Law’s New Frontiers Symposium covering recent books from Richard and Daniel Susskind (The Future of the Professions: How Technology Will Transform the Work of Human Experts) and Gillian Hadfield (Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy).

You’ve already heard from Phil Weiser and Andy Perlman about how these books help us better understand the future for legal services and legal education. Initially, I intended a similar contribution, in part because my own work explores how the legal profession and legal education should respond to the influences of technology, economic constraints, and an increasingly connected world. I’ve written about democratizing the delivery of legal services and democratizing legal education with the goal of expanding access to justice. I’ve taught courses on entrepreneurial lawyering and 21^st century law practice. I’ve served as the Reporter for the American Bar Association Presidential Commission on the Future of Legal Services. And lately, I’ve been thinking about the commercialization of legal ethics and a legal ethics agenda for big data.

I want to focus on a different topic, though, one largely ignored by the authors—the question of who will comprise the legal profession in the future. Neither book confronts the enduring lack of women and minorities among positions of leadership and power in the profession, even with improved numbers entering law schools over the past few decades. This surprised me given that both books aim to aid society in navigating law’s new frontiers. I will say more about this below, but first I want to offer a quick summary of both books for readers who have not yet had an opportunity to delve into them.

A Brief Overview of the Books

Followers of Richard Susskind will find his latest book familiar where, along with his son, he applies thinking behind earlier work such as The End of Lawyers? to other professions, including health, education, divinity, journalism, management consulting, tax/audit, and architecture. The bottom line? We lawyers are not alone in facing implications of technology advancement. In a chapter titled “After the Professions,” they predict eventually “high-performing, non-thinking machines will outperform the best human experts, and do so in quite unhuman ways.” The Susskinds then ask: “Given this, for which task that the professions currently perform, if any, will human beings be needed in the very long term?” Will “future systems be able to undertake all tasks to a standard higher than the best human experts?” Are there “any tasks that we feel should always be undertaken by human beings, even if they could be carried out to a higher standard by autonomous machines?” Should machine-driven professional expertise “be held in common for many or controlled by a few, … made available at little cost or at greater expense, … liberated or enclosed?” They conclude by turning to John Rawls’ A Theory of Justice: “We ask our readers, especially professionals, to place themselves behind a veil of ignorance and ponder how we should share practical expertise in a technology-based Internet society.”

Those who know Hadfield’s work like Equipping the Garage Guys in Law or The Price of Law similarly will be familiar with the premise of Rules for a Flat World and its conclusion. The book offers a blueprint for a more efficient, inclusive, and accessible legal system, mixing personal anecdotes with historical accounts to illustrate the role of rules in life.

At one moment, the reader is in the Hadfield family log cabin playing cards: “Can you count a four-card straight in Cribbage? What cards do you play when there are five people in a game of Hearts?” At another moment, the reader is running down the streets of San Francisco with Samuel Brannan in 1848, “waving a bottle of gold dust in the air and yelling, ‘Gold! Gold! Gold from the American River!’” Later, she invites the reader to the United Arab Emirates, venturing into the Dubai International Financial Centre, home to a small-claims court “with much greater ability to deliver accessible resolution of mundane disputes than any other American court.” She critiques the existing legal infrastructure system as “abysmal,” especially for “small businesses, ordinary people,” and “the four billion people living outside of workable legal frameworks around the globe and trying to make sure their land is not stolen, their business allowed to operate, and their savings safe.” For Hadfield, a solution lies in free markets. She advocates for external investment in law practices to fuel “game-changing innovation to develop the new models no one has even thought of yet.” She proposes “right regulation”—the idea is to create “intelligent regulations that ensure the markets for legal goods and services are functional and competitive.” And she calls for putting innovation of legal infrastructure “front and center” on the global agenda. Perhaps the likely soon-to-be Justice Gorsuch will at least do so on the national level. (He argues for new forms of legal services providers, outside investment and ownership for law practices, and other innovations to expand access to justice in a recent Judicature essay here.)

What’s Missing? Who is Missing?

Both books are visionary in nature, setting the stage for a new era of legal services, yet neither considers in any comprehensive way an important aspect about who will lead the new frontiers they envision. The legal profession remains disproportionately white and male, especially in positions of leadership and power. This is true despite relative parity among genders and increased representation of minorities entering law school. (For more about this in the context of nominees to the U.S. Supreme Court, see my articles with Professor Hannah Brenner here and here.)

Why do these authors avoid the ‘who’ question in examining the future of the professions and the role of law in the 21^st century? Who will be a professional in the future (or who will build and program the professional machines, if the Susskinds are right in their predictions)? Who will devise and implement the rules for a flat world? To be fair, Hadfield does touch upon the role of women and minorities in legal systems over time, offering examples of historic constraints (such as the “desire to protect the profession from what many of the [American Bar Association] founders perceived to be the ‘stain’ of immigrants, Jews, blacks, and women”) and of future possibilities (such as the work of Senegalese entrepreneur Magatte Wade who “relied on her local connections and standing [as a woman] to build a system that was able to enforce the terms of the deal she needed” with the local women suppliers ). But Hadfield’s call for increased diversity focuses primarily on other professions and businesses rather than increased representation of women and minorities to build her legal infrastructure for the flat world.

Hadfield and the Susskinds are right to identify technology, complexity, and lack of innovation as threats to the professions and legal services as we know them. An equally significant threat is whether the public views professionals, especially the legal profession, as credible and legitimate. As we contemplate law’s new frontiers, part of how we instill credibility and legitimacy is by ensuring that the legal profession reflects the public it serves. This requires increased pipelines for women and minorities not only to enter the profession, but also to attain and thrive in positions of leadership and power.

Prenups, Millenials, IP & Gender

Should prenups assigning ideas and inventions not yet born be enforced? In my book Talent Wants to be Free I analyze the vast expansion of pre-innovation assignment agreements in employment relations -- generic employment contracts that assign in advance any idea, whether patentable or not, whether copyrightable or not, whether it was conceived during work hours or not, whether it builds on company R&D or not -- to the employer. In related research, including The New Cognitive Property, Driving Performance, and Enforceability TBD: From Status to Contract in IP, I warn that these developments can have negative effects on innovation as well as problematic distributional effects. 

A related trend is the rise of couples signing prenups which pre-assign ideas and not-yet-developed IP --  films, songs, software, brands and apps - to the partner who plans to develop them. Today in the New York Times I write about this rising trend and in particular raise the question about potential gender inequities. Are millennial-dominated start-up communities prone to the following pattern: The wife holds a steady job while the husband works on his app. They share the risk now, but if they divorce, the husband reaps the rewards of his intellectual property, and the prenup ensures his ex-wife, often wife # 1, gets nothing.

Would love to hear your thoughts - comment here or in the comments section of the NYT.

Update on PrEP Access

As a follow-up to my initial post on barriers to accessing pre-exposure prophylaxis (PrEP) as a means of preventing HIV, I wanted to highlight new numbers provided by Gilead, the maker of the only FDA-approved PrEP pill—Truvada. According to Gilead, more than 79,000 people started using Truvada as PrEP in the U.S. during the period of 2012-2015, based on a survey of retail pharmacies (this number may be an underestimate because it does not include certain prescription programs). Recall that the CDC has suggested that over 1.2 million people have indications for PrEP. While the number of people starting PrEP has grown each year, Gilead indicated that those using PrEP are disproportionately white. As discussed, HIV is disproportionately spreading among black people (in 2014, 44% of new diagnoses were among black people, notwithstanding that black people accounted for 12% of the population). This seems to confirm that access to PrEP as a means of preventing HIV, like access to health care more broadly, has been uneven and that efforts to expand access through Medicaid expansion and awareness campaigns need to be strengthened.  

Been great visiting this month!  Thanks to Howard for the opportunity!

The Meaning of Sex Discrimination

In response to a number of questions from school districts about how to serve transgender students under Title IX, the Departments of Justice and Education issued joint guidance in May explaining how they interpreted the prohibition on sex discrimination contained in Title IX and its implementing regulations. In bringing clarity to the issue, the guidance explains that the prohibition on sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” Pursuant to the guidance, “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” The guidance then details that transgender students should be permitted to use restrooms and locker rooms consistent with their gender identity.

A number of states have filed lawsuits challenging the guidance, arguing that the Administration is “foisting its new version of federal law” on schools. But the Departments’ interpretation is not drawn from whole cloth. In fact, courts have recognized that sex discrimination under federal civil rights statutes includes discrimination based on someone’s transgender status for some time, authority that is noted in the Departments’ guidance, and is collected here and here. And of course, in Price Waterhouse v. Hopkins, the Supreme Court adopted a capacious understanding of what constitutes “sex” discrimination, prohibiting sex stereotyping or treating people differently because of their perceived failure to conform to gender norms.

The states also argue that the Departments are attempting to “redefine the unambiguous term ‘sex.’” But the statutory and regulatory meaning of the prohibition on sex discrimination as it relates to transgender individuals is far from clear, as the Fourth Circuit recently concluded in G.G. v. Gloucester County School Board, the lawsuit by a Virginia transgender boy challenging his exclusion from the boys bathroom. Indeed, as one of the lawsuits challenging the Departments’ guidance concedes, “[n]othing in Title IX’s text, structure, legislative history, or accompanying regulations address gender identity,” suggesting—at most—that the statute doesn’t speak, one way or another, to whether transgender individuals are protected by the statute. As the Fourth Circuit held in G.G., because the law is “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms,” there is an ambiguity which the Departments are permitted to clarify.

As an alternative interpretation, those challenging the Departments’ guidance suggest that “sex” means what they call “biological sex.” But neither the statutory language or the legislative history quoted by those challenging the guidance appear to reference so-called “biological sex” at all. As discussed in a prior post, medical experts have established that the factors contributing to one’s sex are multifaceted, including “external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes.” Thus, even if one focused purely on the physical characteristics of sex, reliance on “biological sex” creates more ambiguity than it resolves. Again, as the Fourth Circuit reasoned: “For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”

When one combines the statutory and regulatory ambiguity with the medical reality, defining “sex” with reference to one’s gender identity is far from radical,  is certainly reasonable, and is probably the best interpretation of the relevant language.

The reasonableness of that interpretation is heightened when one considers that, at least with regard to public schools, the Equal Protection Clause overlays any analysis. And, without diving into a detailed discussion, the Supreme Court’s Obergefell decision makes clear that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity” (emphasis added). Given Obergefell’s context, this is powerful language suggesting that we possess constitutional rights over our sexual and gender identity.

Privacy and Transgender Bathroom Access

In the litigation and public debate surrounding transgender people’s rights to use the bathroom, two of the principal issues are the meaning of “sex” and the privacy rights of everyone using restrooms or locker rooms. In this post, I’ll address the privacy claims because doing so highlights, to me, that separate and apart from the merits of any interpretive debate on the statutory meaning of “sex,” the underlying real world concerns of all involved are, in fact, not in conflict. Transgender bathroom access does not harm or implicate the privacy concerns of anyone else. Conversely, excluding trans people from bathrooms consonant with their gender identity publicly outs them every time they use the facilities.

Opponents of permitting trans people to use the bathroom corresponding to their gender identity seem concerned that a person’s genitalia will be seen by someone with different genitalia, or that a person may see genitalia different than their own. In terms of both logistics and law, these concerns seem overstated.

First, bathrooms provide private spaces—stalls. This is true even in men’s rooms. So, if someone has a concern about who sees their genitalia, or if one prefers not to view another person’s, one can use the stall and avoid the urinals. Even in locker rooms, practical solutions such as privacy curtains can be affordably installed to provide greater privacy to those who desire it. Such curtains have been endorsed by the Department of Education.  

Second, to the extent there is concern over someone’s prurient interest, those supporting bathroom bans overlook issues of sexual orientation. Transgender people—like cisgender people—can be straight, gay, or bi. Our gender does not dictate our sexuality. That’s to say, a straight transgender woman will have no sexual interest in other women in the restroom. But even if she did, we obviously permit gay men and lesbians to use public restrooms and changing facilities, so why should trans people be treated differently?

Third, the myth that transgender bathroom access somehow represents a risk of sexual violence has already been empirically refuted by government officials in jurisdictions that have trans-inclusive policies. Existing laws prohibit voyeurism and violence and transgender bathroom access doesn’t change that.

Although privacy is not endangered by the presence of transgender people, excluding trans people does endanger their privacy and safety. Forcing transgender individuals to use a bathroom that does not correspond with their gender identity and outward gender expression outs that person as transgender each time they use the public restroom.

Of course, transgender people should feel no shame over their identity or their bodies—quite the opposite. But unfortunately, misunderstanding and, at times, animus toward transgender individuals is not uncommon. As discussed in my previous post, transgender people are subject to high levels of violence, poverty, incarceration, and employment discrimination. And because comprehensive nondiscrimination protections for transgender people are lacking, maintaining privacy over one’s trans status may be critical to a range of activities from obtaining a job to keeping safe.

As such, to the extent this debate is about privacy, the real world harms seem to tilt in favor of access for transgender individuals, not exclusion.  

The same holds true for privacy law.

While in broad strokes case law supports constitutional limits on the government’s ability to disseminate our private, intimate information, the cases relied on by proponents of transgender exclusion do not support their argument here.

For example, proponents of trans exclusion have relied on cases involving a female police officer being videotaped partially nude by a male colleague after taking a decontamination shower, schools installing video cameras in student locker rooms, strip searches of students, and the forceful removing of an inmate’s underclothes. These are, of course, horrific privacy invasions. But they are quite distinct from the mere presence of transgender people using facilities corresponding to their gender identity. As the Fourth Circuit Court of Appeals acknowledged in its recent decision in G.G. v. Gloucester County School Board, it is doubtful that a trans student’s “use of the communal restroom of his choice threatens the type of constitutional abuses present” in such appalling privacy cases.

Instead, to the extent that the law recognizes limits on the government’s ability to disseminate personal information (and it does), courts enforce those limits most rigorously when information regarding a stigmatized characteristic is disclosed—for example, one’s HIV status, minority sexual orientation, or transgender identity. This is because disclosure of that information can result in further harm to the individual, including discrimination. And certain courts have specifically held that laws that out a person’s transgender status implicate this right to informational privacy.

In other words, the right to informational privacy—the right to limit disclosure of one’s information—appears to be at its zenith when dealing with information that might expose someone to stigmatization, discrimination, or some other concrete downstream harm.

As noted, in a world with continued misunderstanding and hostility towards trans people, there can be little doubt that outing of a person’s transgender status can lead to very real harms. The constitutional right to privacy restricts such outing.

*Parts of this post draw on articles of mine first appearing in Slate and Salon.

Learning About Gender Identity

As transgender people have gained more visibility over the past couple of years, many of us have had to consider what it means to be transgender for the first time. Understanding what it means to be transgender is important for unpacking the legal issues confronting transgender individuals, but, as educators, being knowledgeable about gender identity is also necessary to make sure we are serving our students. As a recent study by UCLA’s Williams Institute concludes, roughly 1.4 million adults in America are transgender, suggesting we are likely to have trans or gender nonconforming people in our classrooms.

So, while in future posts I will dive into some of the legal issues, I thought it might be useful at the outset to share some of things I’ve learned about gender identity.

First, a transgender person is someone whose sex assigned at birth (usually based on a quick exam of their external genitalia) does not accurately reflect their gender identity.

Second, we all have a gender identity, which simply refers to one’s personal sense of being a certain gender. People whose gender identity comports with their sex assigned at birth are referred to as “cisgender.”

Third, sex and gender are not as straightforward as the boxes we check, or even our external genitalia, might suggest. There are many aspects to sex. According to medical experts such as Dr. Deanna Adkins, “although we generally label infants as ‘male’ or ‘female’ based on observing their external genitalia at birth, external genitalia do not account for the full spectrum of sex-related characteristics nor do they ‘determine’ one’s sex. Instead, sex related characteristics include external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes. These sex-related characteristics do not always align as completely male or completely female in a single individual.”

Fourth, gender identity is increasingly understood as the principal determinant of sex.

Fifth, many people do not fit neatly into categories we love to create (such as male, female, trans or cisgender). Many people are simply gender nonconforming, which, according to one definition, “refers to the extent to which a person’s gender identity, role, or expression differs from the cultural norms prescribed for people of a particular sex.” Indeed, to a certain extent we are all gender nonconforming in particular ways—if we are a female with short hair, a male with skinny jeans, then we are cutting against the grain—we are not conforming with gender norms or stereotypes.

Sixth, one of the most important aspects of transgender health is socially transitioning. Yet socially transitioning is extremely difficult, and to be transgender also means being subject to higher rates of violence, suicide, poverty, discrimination, and incarceration, as detailed in the National Transgender Discrimination Survey.  

Finally, given the significance of socially transitioning and our responsibility to our students as educators, to me at least, it is important that we do what we can to make trans students’ lives as smooth as possible, and reduce any feelings of isolation and despair they may be feeling. We should consider ways in which our teaching methods may be silencing or singling out trans students. Gabriel Arkles has put together a great list of suggestions for ways we can make our classrooms more inclusive for trans and gender nonconforming students. One simple thing that I’ve adopted from colleagues is instead of using the school’s attendance list, I circulate a sign-up sheet on the first day of class letting students provide me their name and preferred pronoun, which prevents me from using an inaccurate pronoun based on my perception of their gender or calling them a name they no longer prefer.

Thanks for reading; happy to discuss and learn about these issues with anyone further! I look forward to launching into some of the legal barriers facing trans folk in the coming weeks.

Expanding Access to the HIV Prevention Pill, Truvada

Thrilled to be guest blogging with Prawfs this month!

To kick things off, I thought I’d highlight some of the barriers that are preventing widespread access to Truvada, a once-daily pill that can help prevent infection with HIV even if exposed to the virus. Although approved by the FDA for use as pre-exposure prophylaxis (or “PrEP”) in 2012, awareness of Truvada as a tool for preventing the spread of HIV is not universal, and several barriers to uptake exist.

According to the CDC, daily use of PrEP can reduce the risk of getting HIV from sex by over 90%. Importantly, Truvada is not a replacement for condoms, and should be used with condoms (particularly since Truvada doesn’t prevent other STDs). The CDC recommends that those at “substantial risk” of HIV consider taking Truvada. In America, about 1.2 million straight and queer people engage in behavior that puts them at “substantial risk” of HIV, and yet the number of people taking Truvada as PrEP numbers only in the tens of thousands. If taken more widely, PrEP could meaningfully reduce the number of people infected with HIV each year, which has remained steady over the past few years at about 50,000 new infections each year. (More than 1.2 million people in the United States are currently living with HIV).

As outlined in a wonderful new report by Duke Law’s Carolyn McAllaster and the Southern HIV/AIDS Strategy Initiative (SASI), the key barriers to PrEP uptake include lack of awareness, stigma, and cost/access. Of these, I want to draw attention to two key points.

First, as recognized by the White House’s National HIV/AIDS Strategy, HIV stigma remains one of principal roadblocks in preventing, detecting, and treating HIV. In addition to discouraging PrEP, HIV stigma contributes to what is known as the care continuum, where, according to estimates, roughly 86% of those with HIV are diagnosed, only 40% are engaged in care, and only 30% are virally suppressed through use of anti-retrovirals. But, unfortunately, certain government policies, such as the FDA’s blood donation deferral policy toward gay and bisexual men and laws that criminalize HIV transmission, stigmatize HIV and push it further into the shadows. But there is also PrEP-specific stigma, with some suggesting that those who use Truvada are promiscuous and irresponsible, when, in reality, taking PrEP is sexually responsible.

Second, as the SASI report notes, while HIV is disproportionately spreading in the South and, there, disproportionately among black women and black men who have sex with men, most Southern states have not adopted Medicaid expansion. Why is this significant? Medicaid and most private insurers will actually help pay for Truvada, which costs about $1,300 a month. But nearly 3 million adults fall in the so-called “coverage gap” between traditional Medicaid and the Affordable Care Act’s insurance subsidies (a gap that Medicaid expansion would cover). And 89% of people in the coverage gap are in the South, the region most in need of HIV prevention tools. As such, without Medicaid expansion, millions of people lack health insurance, including many who may have indications for PrEP.

That’s enough for now, but for those interested in additional steps that can be taken to expand access to PrEP and prevent the spread of HIV, I once again recommend the SASI report!

Misrepresenting the Employment Law Impact of HB 2

One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly.  As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here). 

The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights.  Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect.  [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”] 

The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law.  In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.”  (emphasis added).  Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25.  In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?”  Gov. McCrory’s answer: “No.” 

Put simply, McCrory’s statements are clearly and undeniably false. 

However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg).  Rep. Bishop is an attorney.  When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law.  In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."  

Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law.  But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact. 

Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate.  Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference.  Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant. 

I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.

Employment Law Easter Eggs in North Carolina’s HB 2

The vast majority of the commentary around and criticism of N.C.’s HB 2 [see the full text as enacted here] has, perhaps rightly, focused on the elimination of LGBT rights in North Carolina.  The lawsuit filed early this morning by the ACLU, Equality NC, and others (including NC Central Law Professor and Assoc. Dean Angela Gilmore) focuses exclusively on the LGBT rights provisions of HB 2.  [Read the Complaint here]. 

However, HB2 was not just about LGBT individuals.  It also has some rather nasty Easter Eggs for all employees in North Carolina. 

First, and most openly, it prohibits all local governments in North Carolina from enacting a local minimum wage that exceeds the federal minimum wage.  No local government in N.C. had tried, but I guess the General Assembly figured it would rather be safe than sorry – especially when the LGBT provisions would tie up the news cycles. 

Most importantly – and most sneakily – HB 2 eliminated (yes, ELIMINATED) the only state law cause of action available to private employees to redress employment discrimination based on race, national origin, religion, color, age, or biological sex.  The General Assembly accomplished this profound change in North Carolina employment law via a single sentence in middle of page 4 of the five page bill.  That sentence reads:

“This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” 

To a lay reader (or legislator), this sentence would not seem terribly important.  However, it was inserted into Article 49A of Chapter 143 of the NC General Statutes [here, before being amended].  Article 49A is called the “Equal Employment Practices Act” (“NC EEPA”) and contains the heart of North Carolina’s state law protection from employment discrimination.  NC EEPA, which was enacted in 1977, is merely a statement of public policy.  It declares that it is the public policy of North Carolina “to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.”  N.C. Gen. Stat. 143-422.2.  Unfortunately, NC EEPA does not contain a private right of action.  Thus, the only way to enforce it was through a common law tort action for wrongful discharge in violation of public policy. 

Now, of course, you see the problem with the sentence inserted into Article 49A via HB 2.  “[N]o person may bring any civil action based upon the public policy expressed herein.” 

Poof.  With that sentence, 34 years of state law protection for employment discrimination based on race, national origin, color, religion, sex, and age VANISHED.  Millions of working North Carolinians (whether they knew it or not) relied on NC EEPA to help protect them from discrimination.  Thousands – tens of thousands? – of North Carolina workers have asserted wrongful discharge claims premised on NC EEPA since our appellate courts officially recognized the claim in 1982. 

As a management-side employment lawyer for more than 11 years, I never heard a single client complain about the existence of this claim.  But now, it is gone. 

I wonder how many members of North Carolina General Assembly knew it was in HB 2?  I wonder how many of them knew the ramifications of that sentence?

Wednesday in North Carolina

It has been an interesting week in North Carolina.  Last Wednesday, the ultra-conservative Republican super majority in the NC General Assembly called itself into a special “emergency” session to overturn an ordinance passed by the City of Charlotte on February 22.  Charlotte (like many other cities) has long had a non-discrimination ordinance (section 12-58 of the Charlotte City Code), which prohibited discrimination in public accommodations on the basis of “race, color, religion, or national origin.”  The new ordinance simply added “sex, marital status, familial status, sexual orientation, gender identity, [and] gender expression” to the existing list of protected categories.  Additionally, the new ordinance deleted section 12-59 of the Charlotte City Code which prohibited sex discrimination in public accommodations but also provided as follows: 

    (b) This section shall not apply to the following:

        (1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.

        (2) YMCA, YWCA and similar types of dormitory lodging facilities.

        (3) A private club or other establishment not, in fact, open to the public.

This rather innocuous change in a long-standing provision of the Charlotte City Code became known as the “bathroom ordinance.”  So vile was the bathroom ordinance that it was necessary for the legislature to convene a special session to overturn it before it took effect on April 1. 

Governor Pat McCrory (R) (who served has a member of the Charlotte City Council and as mayor for a total of 20 years, all without questioning the legality of the then-LGBT free non-discrimination ordinance), declined to call the General Assembly into special session because he feared (no doubt based on inside knowledge) that the General Assembly, if summoned, would pass legislation that was far broader than the “bathroom ordinance.” 

The Republican legislature, not to be stymied, called itself into special session, which it scheduled for Wednesday, March 23, 2016.  Despite requests from members of the General Assembly and the media, the powers that be in the General Assembly refused to release a draft of the legislation that would be introduced on March 23 claiming that it was not yet complete.  When the legislature convened around 10:00 am, the bill (House Bill 2 or “HB 2”) was introduced and made public for the first time.  [The date stamp on the last page “(03/16)” makes fairly clear that the bill had been drafted at least in substantial part well in advance.]  HB 2 was 5 single spaced pages of fairly dense statutory language.  The first vote was held 5 minutes after it was introduced.  There was a 30 minute public comment period for those who were able to get to Raleigh to testify.  Then some limited debate.  Then two more votes, culminating in final passage by the House at about 3:30 pm.  The Senate took up the bill at about 4:45, had an initial vote and then another 30 minute public comment period.  After it became clear that the Republican leadership was not interested in anything the other side had to say (according to Senate Democrats) all of the 15 Democrats walked out in protest.  The chair called a final vote and HB 2 passed by a vote of 32-0.  This was roughly 7:00 pm.  Although Governor McCrory had 30 days to consider whether or not to sign HB 2 into law, he signed it at 9:57 pm that night. 

In just under 12 hours from introduction to gubernatorial signature, North Carolina enacted what many have called the most aggressively anti-LGBT legislation in the country. 

ALL local non-discrimination ordinances were banished.  All local governments in NC were prohibited from protecting any group not protected by state law.  In the place of inclusive local laws (passed by the duly elected representative of those local jurisdictions), the General Assembly created a statewide public accommodation law was passed which protects only race, national origin, color, religion, and BIOLOGICAL sex.  It also mandated that all public restrooms in NC (including in public schools and universities) must be single sex and that a person may only use the restroom designated for his or her BIOLOGICAL SEX, as listed on his or her birth certificate. 

Not content to stop there, HB 2 also contained a slew of EMPLOYMENT related provisions, despite the fact that Charlotte’s ordinance had nothing to do with employment.  More on those later. 

So, North Carolina – once the most progressive of southern states – is now, perhaps, the most regressive on LGBT rights. 

Perhaps it was fitting that this special session that culminated in HB 2 was on Wednesday of Christian Holy Week, the day on which Judas Iscariot betrayed Jesus.  I cannot think of a bigger betrayal of the teachings of the Jesus I learned about in Sunday School than legalizing discrimination against a minority group.

Posner, Porn, and Prison

Decision here.  The Seventh Circuit, via Judge Posner, upholds warden's interception and confiscation of a number of pornographic magazines, but in extended dicta questions the wisdom of the prison's pornography ban.  Judge Posner points to a number of studies showing little (or even inverse) correlation between violence and pornography in prison.  Now, I have no idea what the prison's past experiences with inmate pornography have been, but I do think the nudge towards empirics and social science is an improvement over the "common sense" fears that tend to drive regulation of sexual content.  For a good overview of this tendency, I highly recommend Allegra McLeod's California Law Review article from last year.

What the Ashley Madison Hack Teaches Us About Digital Privacy Invasions

Hackers just published a massive amount of data about the roughly 36 million members of the website, Ashley Madison, a social network that markets itself to those in relationships who may want to explore, shall we say, "what else is out there." Along with the 36 million emails, 33 million first and last names, street addresses, and phone numbers, and 9.6 million documented credit card transactions were released. The data also tell us about subscribers' sexual preferences.

There has been some fanfare about a few of the names on the list: Josh Duggar, the conservative star of TLC's "19 Kids and Counting," had two accounts. The Associated Press notes that "subscribers included at least two assistant U.S. attorneys, an IT administrator in the Executive Office of the President, a division chief, an investigator and a trial attorney in the Justice Department, a government hacker at the Homeland Security Department and another DHS employee who indicated he worked on a U.S. counterterrorism response team."

Mr. Duggar, who molested his younger sisters years ago, has already conceded that he cheated on his wife. But being among those whose credit cards were used to create Ashley Madison accounts does not necessarily mean you made the same choices as Mr. Duggar. Nevertheless, every name, from the hypocrites to the innocent, is about to experience the very same shame, and it will be difficult to recover. Digital privacy invasions are cold and permanent: they remove necessary context and create a permanent truth. And, in this way, they cause untold harm.

We don't know the possibly myriad reasons why millions of people subscribed to Ashley Madison. A jilted ex or a prankster could have used your credit card. You may have been curious. You may have signed up accidentally, as Marge Simpson did (on the parody site, sassymadison.com) on "The Simpsons" episode, "Dangers on a Train." You may have wanted to have an affair and then decided not to. Perhaps you logged on, had an affair, but ultimately admitted it to your spouse and the two of you worked it out. Another possibility: you created an account to practice immersion sociology, much like the controversial sociologist Sudhir Venkatesh did with respect to gang culture. In fact, it's pretty easy to create an account on Ashley Madison using someone else's name and it's not that easy to erase it. In other words, the data is devoid of context. Now, all 33 million individuals whose first and last names were hacked are "cheaters" or, worse yet, "sluts."

And they will be branded as such forever. The internet stores information permanently because it can: it has essentially infinite storage capacity and a search platform that can find anything in 0.0000043 seconds. Even if the raw data were ever taken down, it has already been copied, recopied, told, and retold so often that it can never be scrubbed. And Google's ubiquitous search platform will ensure that anyone with an internet connection can find it. There is even a handy tool to determine if your email is included in the data dump. Furthermore, the United States does not have a European-style "right to be forgotten," which could help unlink data and reports on that data for persons innocently caught up in the breach.

As Glenn Greenwald suggested, the result is a modern scarlet letter: an invasion of privacy that gets wrapped up in a moral crusade against infidelity. This can result in long term negative effects: depression, social ostracism, loss of employment and employment opportunities, lower academic achievement, a receding from social life, and much worse.

Hackers that gleefully disseminate private personal information entrusted to a third party are causing significant harm. It may be easy to smirk and hard to find pity for victims of this particular hack, but consider some other invasions of privacy:

Victims of revenge porn similarly entrust private personal information -- an intimate "selfie" texted to a then-romantic partner -- to another only to have that data posted on websites that extort money, endanger lives, and ruin reputations. Danielle Keats Citron and Mary Anne Franks have spoken eloquently on the need for criminal revenge porn statutes as well as the very real emotional, physical, and professional damage caused by nonconsensual pornography.

Cyberbullying targets are ripped from private life and thrust into a very public humiliation when online aggressors, known or anonymous, take photos, harassing language, text messages, "I Hate" videos, or private encounters and post them online. This is particularly harmful to LGBTQ youth, who are unique in both their frequency of victimization and the importance of a safe internet.

A wry smile at Mr. Duggar's comeuppance is not the same as condoning privacy invasions, revenge porn, or cyberbullying of LGBT youth. His hypocritical moral crusade against gays in the name of "family values" made him a public figure on the matter of values. But the same social norms that lump all Ashley Madison account holders into one class of "cheaters" are the same norms that slut shame revenge porn victims and tell victims of cyberharassment to just turn off their computers. More to the point, it is the nature of online invasions of privacy that foster these harmful over-generalizations: the internet erases context and hoards raw, decontextualized data, transforming it into a searchable gospel. 

The internet, the raw, decontextualized internet, can be a dangerous place. Ashley Madison is just one unique case study showing us how.

Baby Mama Esq.

By now we all know that the US is dead last among OECD member countries in the parental leave benefits that are offered to working mothers: in the US, there is no paid parental leave guarantied by law, and only 12 weeks protected unpaid leave (and even then only if employed for 12+ months at a big-enough company). This is, frankly, an embarrassment to the country and speaks volumes with respect to the value our society and government truly places on motherhood and on children. 

Women lawyers who have babies, however, are usually better off than their non-lawyer peers. Most firms offer paid leave (50% - 100% of salary) for anywhere from 6 to 16 weeks. When I had my first baby in 2002, Fried Frank gave me a generous 4 months of fully paid leave. In fact it was a huge selling point for me when I considered their offer of employment (even though I was not pregnant at the time, I expected that I would have a child at some point after joining the firm).  One might therefore think that the real battleground for paid parental leave lies beyond the personal experience of lawyers. But that isn't necessarily true. First of all, as a June 2015 article in the ABA Journal put it, "for many female attorneys, maternity leave can be the equivalent of a poisoned chalice - offered as a benefit, but damaging to a career." The New Republic agrees - generous leave policies can inadvertently reinforce a glass ceiling in a profession. My anecdotal experience (personal and thosee of friends and colleagues), supports this conclusion as well.

Reality here truly does bite: most women who take advantage of generous maternity leave policies and flex-time policies end up sliding off the partner track and settling into the mommy track. A study published by Working Mother magazine found that although flex-hours were offered and widely accepted work arrangements for women with children at top 50 firms, none of the top 50 firms had promoted a flex-time attorney to partner in 2014. And among the 50 top law firms, only 19% of the equity partners are women.

The ABA Journal column noted that some firms (like Minneapolis-based Nilan Johnson Lewis) have bucked the trend and have promoted women to partner shortly after taking maternity leave. But this remains the exception to the general rule that partnership and motherhood are challenging to balance. As a mother of 4 who practiced law for a decade and a half before making the jump to academia, I'm keenly aware of this challenge.  And today's female law students - who constantly approach me as a "role model" of a mother who continually practiced law while having multiple children - are very concerned about this too.  They need to be aware, however, that reality in firms doesn't always match optics.  I've spoken to big-firm interviewers after their on-campus interviewing and heard expressed concern about 2L candidates who mention that one reason that they were attracted to the firm was because of its touted flex time options. This  seems to suggest to the interviewer that the candidate is more interested in family (gasp!) than billable hours. (I think that the fact this point was raised in a first interview also suggests that these 1Ls are both more honest and more naive than one might expect.)

The impact of paternal leave on tenure and promotion in legal academia is unproven. (There was an interesting post in this blog 3 years ago on the topic of delaying going up for tenure because of paternal leave - here, and the AAUP has a paper regarding parental leave for university professors here.) My sense (devoid of any empirical study) is that policies regarding parental leave for female law professors are all over the map - from no paid time off to an entire semester or more of paid leave.  When I was at the new law professor AALS summer program, discussants in the women in law group shared a wide variety of experiences with respect to pregnancy and childbirth and maternity leave on a law school faculty. Policies with respect to paternity leave, I believe, vary even more.

Gentle reader (to borrow the phrase), what are your experiences with parental leave at your law practice and law teaching workplaces? Should the legal profession develop norms and expectations regarding paid leave as a way to increase gender diversity in partnership (and tenured professorship) ranks? Have you seen a generous leave policy backfire into mommy-tracking competent, ambitious female lawyers? And, if so, what is the right solution?

Approximately 50% of law school graduates today are female.  It is likely that a large number of these will at some point in their career have one or more children.  I believe it is time that the legal profession confront this reality and ensure that women in law are not forced to choose one of these three unsatisfactory options:

(a) dropping out of practice,

(b) going into a mommy track limbo, or

(c) sacrificing an unreasonable amount of time with their newborn.  

Yes, this is an issue that faces both mommies and daddies in law, but the biological reality remains that although an uber-dedicated father-to-be big law associate might even miss his child's birth, that option is frankly never possible for even the most overly dedicated expectant lawyer mom.

 

SEALS

Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

Uterus Transplants?

While controversial among some ethics experts, uterus transplantation has been performed several times, most commonly in Sweden. A few weeks ago, a mother for the first time gave birth to a baby gestated in a transplanted uterus.

Should we worry about uterus transplants? Transplanting life-extending organs, like hearts, livers, lungs and kidneys, has become well-accepted, but observers have raised additional questions about transplantation for life-enhancing body parts like faces and hands. As long as transplant recipients have their new organs, they must take drugs to prevent their immune systems from rejecting the transplanted organs. The risks can be substantial. For example, the immunosuppressive drugs put people at an increased risk of cancer. It is 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?

We always should worry about risks from novel treatments, but the risks seem quite tolerable for uterus transplantation. Over time, scientific advances have reduced the side effects from immunosuppression. The risks are not as serious as they used to be. In addition, a transplanted uterus can be removed after childbirth, avoiding the need for long-term immunosuppression that exists with other kinds of transplants. Finally, we generally allow patients to weigh the benefits and risks of medical treatment for themselves. Absent a disproportionate balance between risks and benefits, it is not appropriate for society to usurp health care decision making from patients. Hence, face and hand transplants are becoming more common even though they do not prolong life.

Of course, with uterus transplants, we also have to worry about the risks to the child from the drugs that the mother must take to prevent her body's immune system from rejecting the transplanted uterus. On that score, we have reassuring data. Recipients of kidneys, livers, and other organs take the same immunosuppressive drugs as do recipients of a uterus transplant, and more than 15,000 children have been born to transplant recipients since the 1950’s.

Though not definitive, the data are generally reassuring. While children exposed to immunosuppressive drugs during pregnancy are more likely to have a premature birth and low birth weight, they do not appear to be at elevated risk of physical malformations or other serious side effects. Moreover, it is generally difficult to argue that people should not reproduce because of the health risks to their offspring. Procreation is a right of fundamental importance and should be recognized for all persons, even if they may pass a serious disease to their children. Thus, for example, it is acceptable for women to reproduce when they are infected with HIV or carry the gene for a severe inherited disorder.

Can't women rely on gestational surrogacy instead of a uterus transplant? This may work for many women, but not in locales where gestational surrogacy is prohibited. Moreover, 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.

There are many important reasons why women want to bear their own children. Women may want to have children with their chosen partner and without the involvement of third parties (an interest considered in this article). They may want to benefit from the ties with their children that develop during pregnancy. For these and other reasons, we should be careful not to be overly skeptical of uterus transplants. 

[cross-posted at Health Law Profs and orentlicher.tumblr.com]

Can't They Read on the Fifth Circuit?

With a highly troublesome reading of the U.S. Supreme Court's opinion in Planned Parenthood v. Casey, the U.S. Court of Appeals for the Fifth Circuit managed to uphold a statute that has closed many abortion clinics in Texas, at least for the time being. The statute requires abortion clinics to meet standards for ambulatory surgery clinics, and the costs of doing so are unaffordable for the majority of abortion clinics. According to the New York Times, 

Thirteen clinics whose facilities do not meet the new standards were to be closed overnight, leaving Texas — a state with 5.4 million women of reproductive age, ranking second in the country — with eight abortion providers, all in Houston, Austin and two other metropolitan regions. No abortion facilities will be open west or south of San Antonio.

At issue was whether the statute imposes an "undue burden" on pregnant women seeking an abortion in Texas and is therefore unconstitutional. The district court found an undue burden because some women will have to travel 500 miles to reach an abortion clinic and therefore incur a substantial hardship from the increased time and expense of the travel. The women will have problems with child care, transportation, and getting time off from work.

The Fifth Circuit overrode the district court on the ground that Casey requires challengers to demonstrate that an abortion regulation imposes an undue burden "in a large fraction of the cases in which it is relevant." Since the women who live great distances from remaining clinics are not a "large fraction" of pregnant women in Texas, the appellate court upheld the clinic standards regulation.

But that reading ignores half of the Casey standard. Yes, the Casey Court referred to a large fraction of the cases, but it also referred to the cases for which the regulation "is relevant." Thus, when the Casey Court struck down Pennsylvania's spousal notification requirement, it observed that abortion regulations "must be judged by reference to those for whom it is an actual rather than an irrelevant restriction." Indeed in Casey, the spousal notification requirement would have been an undue burden for less than one percent of women seeking abortions in the state.

It is not always easy to interpret Supreme Court opinions, but the Fifth Circuit's reading is not tenable. Fortunately, this is only a temporary ruling pending a full appeal before the Circuit, and the Fifth Circuit will not have the final word on this matter.

[cross-posted at HealthLawProfs and orentlicher.tumblr.com]

A victory for the rule of law - apparently not

I had to edit this blog because literally as I posted it, the news changed.  Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order.  As I previously wrote, her imprisonment violated Sudanese law.  Her release was a victory for the rule of law.  International pressure influenced this outcome.   But the victory was very short (less than 24 hours).  The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.

Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way.  There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention.  Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim.  Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.

The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old

As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention. 

Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls.  Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison.  Their father is a U.S. citizen.  Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith.  Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family.  The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.  

There are clear human rights violations and violations of Sudanese law.  Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law.  Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process.  Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan.  Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.

The pressure from the international community caused some movement, albeit ineffectual as it currently stands.  A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later.  This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur.  What can be done?  What should be done?  Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children.  More legal attention and monetary support should be put in place to uphold the rule of law. 

'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity

The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials.  As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act.  In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by.  In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal. 

Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice.  No doubt, there is a rule of law problem.

Rule of law issues are complex.  Developing countries do not have the funds to enforce laws.  Citizens of developing countries are often unaware of their rights and protection under the law.  Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges.  The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front).  The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily.  Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law. 

It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice.  This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute.  A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity.  There are some potential problems with this analysis, though. 

Even if the failure to enforce laws (an act of omission) could constitute a crime against humanity, could anyone really be charged?  Many developing nations (including India and Pakistan) have not ratified the Rome Statute.  However, the U.N. Security Council has referred a few matters (Sudan and Libya) to the International Criminal Court.  In the Sudan matter, the ICC issued an arrest warrant for the leader of Sudan under the Rome Statute even though Sudan is not a party member.  With enough international pressure, perhaps the Security Council would act again.  Even if it did not, some of the countries where gender and children violence is pervasive are parties to the Rome Statute (like Nigeria).

Second, and perhaps more important, even if a government official is charged with a crime against humanity, so what?  The ICC is struggling with number of issues, including the problem of enforcement.  Despite the issues surrounding the ICC, however, the shame brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.

Student Teaching Evaluations

As classes wrap up, many of us are wondering how our teaching evaluations came out.  How did we do?  Not only are these evaluations deeply personal commentary on us as teachers, they can be important for promotion and tenure.   And I’m here to suggest, along with many others including  William Arthur Wines and Terence J. Lau, Observations on the Folly of Using Student Evaluations of College Teaching for Faculty Evaluation, Pay, and Retention Decisions and Its Implications for Academic Freedom, that in most colleges, universities, and law schools—they shouldn’t be.  Or at least not until we know a lot more about what we want to measure, how to ask the right questions to do that, and how to understand the information we get back.

I think getting information from our students about their experiences in the classroom is important, but at the risk of spoiling what will be a series of posts on this topic, I suggest that few of us as law professors can do this well without considerable assistance from people who do educational assessment for a living.

 Here are a few things to get on the table.

 First, there is a substantial literature on teaching evaluations.  Thanks to Professor Deborah J. Merritt who published a terrific article summarizing the data, we all should be aware that evaluations done based on 30 seconds of teaching the first day of class have been found to correlate closely to evaluations made after an entire semester.  In other words, students make up their minds very quickly. 

 Second, (and thanks to Prof. Merritt for this too—I assume everyone is reading her blog on law school reform, the law school café) women, women of color and men of color, respectively, get lower teaching evaluations than white men.  Across the board.  In every subject. 

 Third, teaching evaluations are a classic example of the dangers of not understanding some basics about statistics. I suggest reading this three part blog post by Professor Philip Stark at Berkley “Do teaching evaluations measure teaching effectiveness”—but here are some of my favorite distortions:

  1—We use averages—that means adding up all the scores and dividing them by the number of students responding—when we should be using medians (numbers reflecting the middle of the scores) or modes—(the most common score). Lets say on a scale of 1-7, two teachers both come in at a 5.  But one gets all 5s and the other a wide range of scores that contained both 1s and 7s.   Are these the same?

Also, by not looking at all the scores, we can miss important themes—like consistently low scores for availability or respect for students.

 2.  We think we know how to compare one faculty member’s scores with another’s—but we really don’t. 

That’s because the scores are presented as numbers, but they’re really categories.  Unlike a thermometer or a ruler where we know that the numbers all have an equal amount of “space” between them, the teaching scores are an “ordinal categorical” variable.  As Prof. Stark explains, “We could replace the numbers with descriptive words and no information would be lost: The ratings might as well be “not at all effective”, “slightly effective,” “somewhat effective,” “moderately effective,” “rather effective,” “very effective,” and “extremely effective.”

As he asks, “does it make sense to take the average of “slightly effective” and “very effective” ratings given by two students?”

 Also, without any information about the scores of the faculty as a whole, we can’t assign relative meaning to these numbers.   So, if every faculty member teaching first year courses has a score of 4.5 or above, then someone with a 4 is outside of the mainstream.  On the other hand, if the numbers cluster very tightly between 3.9 and 4.2—with 4 being the most common score—than it would be fair to say that someone getting a 4 is succeeding about as well as everyone else—in terms of achieving scores.

 This problem (not knowing the scores of other faculty members in similar courses) becomes even worse when looking at the teaching evaluations of a faculty member at another institution.

 There is a lot of information out there on how we can set goals for ourselves as communities of law teachers and how we can measure the results of those goals.  And more on that tomorrow.

 

 

Gender Diversity and Same-Sex Marriage

The recent district court decisions regarding same-sex marriage in Utah and Oklahoma have drawn a great deal of attention in the past few days.  The Tenth Circuit is a particularly interesting venue for adjudication given what we might infer about the ideological composition of the court.  Currently the court has five Republican appointees and five Democratic appointees, but just today nominees Carolyn McHugh and Nancy Moritz were voted out of the Senate Judiciary Committee, which would make the court seven-to-five in favor of Democratic appointees.  While I don't want to overstate the importance of a nominee's political background -- which I think has sometimes been exaggerated in the same-sex marriage cases -- the potential new additions to the court would create a particularly engaging scenario were the Tenth Circuit to take the case en banc.

Rather than retread ground others have covered, I want to focus on a particularly odd argument that the state of Utah recently raised in its brief to the Supreme Court requesting a stay of the district court's judgment pending appeal.  Utah makes three arguments.  The first two are familiar to everyone who has followed the same-sex marriage cases: that "traditional marriage marriage reinforces responsible procreation" and that "children generally fare best when reared by their two biological parents in a loving, low-conflict marriage."  Others have addressed -- and in my view, pretty thoroughly debunked -- these arguments.

The third argument might charitably be described as more creative.  The state argues that "society has long recognized that diversity in education brings a host of benefits to students," and "[i]f that is true in education, why not in parenting?"  If I read the brief correctly, the idea is that having one male and one female parent will provide children with benefits that surpass those provided by having either two male or two female parents.  As the state puts it: "the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children" (emphasis theirs).

The first problem with this argument is that it relies on unexamined assumptions about gender.  What, exactly, are the "strengths of both genders"?  What strengths do women inherently have that men inherently lack?  What strengths do men inherently have that women inherently lack?  Within any two-person relationship, of course, the people involved will have different strengths.  But these strengths map very loosely, if at all, onto gender.  One can find both men and women who possess any conceivable personality trait, and who engage in any given part of the spectrum of child-rearing responsibilities.  Some men are more nurturing than their partners, and so are some women.  Some women are more aggressive than their partners, and so are some men.  Some women stay home with their children, and so do some men.  Some men cook and do dishes, and so do some women.  Some women fix cars, and so do some men.  All of this is potentially valuable in a marital or parenting arrangement.  But none of it is inherently associated with gender.  And so there's no reason to assume that a diversity of parental attributes is more likely to occur in an opposite-sex marriage than a same-sex one.

The second problem is that the "traditional marriage as gender diversity" argument draws an inapt parallel between education and marriage.  Even if we agree that diversity is a good thing in education, that doesn't mean that the same holds true for marriage.  Admitting a class of students involves bringing together hundreds or thousands of people with different characteristics and different life experiences.  No individual student is presumed to bring any specific quality to the table based on gender, race, sexual orientation, class, or other attributes.  Rather, in the aggregate, a diverse student body provides benefits because bringing together enough people from different backgrounds improves the learning experience.  In contrast, marriage is simply a different endeavor.  At least as the state's brief envisions it, marriage involves only two people, and the claim that traditional marriage promotes gender diversity inherently requires a presumption that men will behave one way and women another.

The argument is also poor strategy.  Several of the justices on the Court are openly contemptuous of diversity as a rationale for affirmative action.  In Grutter v. Bollinger, for example, Justice Thomas slightingly described diversity as "more a fashionable catchphrase than it is a useful term," and a school’s interest in diversity as an "aesthetic" desire to "have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them."  These are not exactly the words of a justice looking to provide additional support for the diversity rationale by tethering it to arguments against same-sex marriage.

And finally, it seems to me that the argument works far better as an argument in favor of certain types of relationships that lead to non-traditional parenting -- specifically, polyamory and parenting arrangements that involve more than two people.  Assuming for the sake of argument that two people of different genders bring different qualities to the table, and that this is good for children, wouldn't it be even better for a child to have three parents?  Or five parents?  Preferably with at least one parent who rejects binary notions of gender, and chooses to identify as neither a man nor a woman?  If we assume that Utah is right about the benefits of gender diversity in marriage, it seems to me that such parenting arrangements would provide even more of the gender diversity benefits that Utah envisions.  But I seriously doubt that this line of reasoning is what Utah intends.

In short, this argument seems like a pretty bad one -- at least insofar as it's intended to support a prohibition against same-sex marriage.  And perhaps it's an indication of exactly how far marriage equality opponents are reaching these days to find support for their position.

(cross-posted at nancyleong.com)

Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.

Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger[] all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence  has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.

The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.

The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement. 

But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race  - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)  

Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?

That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.

Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters

I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful. 

 Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.

What Exactly Is the Indian Child Welfare Act?

The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible. 

In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.  

The Facts

Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding”  - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.

This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.

How the Court Narrowed ICWA

It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her. 

(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)

The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.

For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked. 

 

Selling Made-To-Order Embryos and the Split on the Right

The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:

The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”

Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I  use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).

The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.

The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."

By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)

Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered.  I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.

[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.

 

9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion

Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:

The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:

A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

 B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

 The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).

After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.

Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.

That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:

The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.

Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.

These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.

Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.

By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:

 

1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.

2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).

3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 "were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out"). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.

4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman's right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: "But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open[] up the scissors [and stick in] a high-powered suction tube into the opening, and suck[] the baby’s brains out” was not enough in Gonzales to justify a complete prohibition."

What happens next? Rehearing en banc is possible but my guess is it won't happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon's opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court's prior precedent, a view I could easily see several Justices wanting to "correct".

- I. Glenn Cohen

Sex, People with Disabilities, Prostitution, and Universal Health Care: Reflections on "The Sessions"

One of my favorite initiatives at Harvard Law School, where I teach, is that faculty members get to offer an optional 10-12 student not-for-credit "First-Year Reading Groups" on a topic of interest to them that is related to law in some way but not too law-class like. I've taught a reading group on bioethics and law through film that pairs films with papers/topics in bioethics (e.g., A.I. with readings on personhood, Minority Report and neuroscience and law and predicting criminality, Dirty Pretty Things and organ sale and exploitation, The Constant Gardener with clinical trials in the developing world, Eternal Sunshine for the Spotless Mind and therapeutic forgetting and "cosmetic neurology" and many others...)

Next year I will add The Sessions, a film I found very enjoyable starring John Hawkes, Helen Hunt, and William H. Macy from last year that I also found very bioethically interesting. The film is based on a true story and follows Mark O'Brien, a poet who lives in an Iron Lung due to complications from Polio. After unsuccessfully proposing to his caretaker, and believing the end of his life may be nearing, he decides he wants to lose his virginity. He hires Cheryl Cohen-Greene, a professional sex surrogate, who will offer him a maximum of six sessions but makes clear to him this is therapy not romance. I will stop there to avoid ruining the film, but on to the bioethics...

There are fairly clear issues raised about commodification, exploitation, the difference between sex therapy and prostitution, that I have written about in various forms in various places. These are certainly interesting issues but familiar enough. What the film newly prompted me to think about, though, is actually universal health care. In particular, as I have written about indirectly in a couple of papers, what would some of the most prominent theories explaining why we need universal health care say about whether the state should pay for sex therapy (or perhaps even prostitution) for people with disabilities like Mark who find themselves otherwise unable to have sex?

For example, in his wonderful book Just Health, my colleague Norman Daniels, coming from a more Rawlsian tradition (i.e., a liberal tradition focused on promoting liberty and distributive justice through giving priority to the worst-off), grounds the state’s role in promoting health in the obligation, as a matter of political justice, to ensure access to the “normal opportunity range” to pursue the “array of life plans reasonable persons are likely to develop for themselves.” Although Daniels' focus is on health care, it seems to me that sexual satisfaction is also part of that normal opportunity range and part of a life plan most of us would like to pursue.

Similarly, Martha Nussbaum in her great book Frontiers of Justice, writing from a more aretaic (i.e., Aristotelian, focusing on character and virtue) perspective, has argued that the state’s role is to enable human flourishing by raising people above the threshold level on a number of “capabilities.” Among these she mentions “bodily integrity,” as including “having opportunities for sexual satisfaction and for choice in matters of reproduction." I have previously discussed how this kind of approach may justify funding reproductive technologies, but it seems to me as though it also fairly directly establishes an argument for funding Mark's attempts to lose his virginity.

Now this is meant to be provocative, of course. And for some this is no doubt a reductio ad absurdum against universal health care. Fair enough. But for those who believe there is a moral case for funding universal health care, does the argument also lead to funding these kinds of sex therapies? Health is important, of course, but let's be frank (and my parents can stop reading at this point) so is sexual satisfaction, and both seem to me essential parts of the normal opportunity range and/or human flourishing.

Now one distinction might be the anti-commodificationist objections I gestured at above in the sex therapy or prostitution case, that distinguish health care. But for those not moved to forbid the kinds of services Cheryl provides Mark on these grounds, should the state pay? Perhaps there is, to use Radin's term, there is an opportunity for an incomplete commodification posture by allowing it to be bought and sold but not having the government pay.

Others might say the kind of good Mark seeks, sexual satisfaction from a paid therapist, is a kind of ersatz version of what is good. I am not sure I agree with this, and think that there are many for whom sex with a relative stranger may be as valued as sex with a life partner, and this notion seems somewhat quaint in an era of hooking up and open relationships. In any event, even if you think this is a kind of second-class good, many health interventions also offer less than ideal artificial substitutes (prosthetic limbs instead of real ones) but that does not stop us from funding it.

Still others might agree that this is a valuable thing to fund for for someone like Mark, but suggest it should get relatively low priority in the pantheon of health care and education interventions. To those I would push back and say man people spend a disproportionate part of their life in search of a sexual partner, and attempts to cope with sexual dysfunction (e.g., Viagra) is something on which many Americans put their money where their mouth is (hmm... maybe not the best choice of aphorism in this context...)

Finally, some might object that some people with disabilities would not want these services. Fair enough, but as with Nussbaum's capabilities approach we are talking about enabling those who want it not forcing it on those who don't.

As I said, this is meant to be provocative. But I will be curious to know what others think, does the state have an obligation to fund these services the way it does health care? If so, should that obligation extend beyond those with disabilities like Mark to those who face other deficits making sexual relationships hard to achieve?

- I. Glenn Cohen

Spousal Hiring, Ethics, and the Theory of the Family

Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]. As part of her interview with several university presidents and academics, apparently spousal hiring is often credited with helping to improve the number of women on faculties and there is also some data suggesting that in universities with spousal hiring the "index spouse" if you will (the one the university has gone after) performs better than where there is no such policy. I am very interested in how the laudable goals of accomodation and family support intersect with general priors against nepotism.

For today's post, though, I wanted to examine the notion that spousal hiring rules or tendencies may reflect a certain theory of the family. To see this, imagine the following hypotheticals.

1. Brenda and Allen are married. Brenda is hired to teach physics, and the university finds a position for her husband Alan in its law school clinic.

2. Carl and Dan are same-sex partners in a state without legalized gay marriage. Dan is hired to teach physics, and the university finds a position for Carl in its law school clinic.

3. Evelyn is the daughter of Frank. Evelyn is hired to teach physics, and the university finds a position for her father Frank in its law school clinic.

4 Garret is the father of Jordi and a senior scholar in the field. Garret is hired to teach physics, and the university finds a position for Jordi in its law school clinic.

5. Hector and Ingrid are best friends and have been for life. Ingrid is hired to teach physics, and the university finds a position for Hector  in its law school clinic.

So each of these is a potential family relation. My sense is that many schools would do or have done hiring in case 1, some would do it in case 2, but none would do it in case 3 through 5.  3 and 4 at least are what average people would call family relationships, so this is interesting.

By making a cut (whether between 1 and the rest or 1 and 2 and the rest) universities are essentially endorsing once conception of the family over others. I want to suggest this is contested terrain, and we may need a justification for why they do so.

One answer would be that everyone asks for 1, and no one asks for 4 or 5. That kind of conventional answer, though, might suggest no one asks for the others because universities have never offered them. A more essentialist answer is that 1 is endorsed because there is a particular value that familial hiring is meant to secure relating to child rearing. That would raise the question of why universities should support that particular goal -- after all closeness and ability to care for an aging parent is also important -- whether some of these other family structures might also facilitate that goal (case number 3 in particular -- and what to do about relationship hiring that has no child rearing involved (including possibly case number 2). Finally, one might suggest that universities are committed to romantic love, or at least believe potential people they might hire care more about romantic love, than parental love or friendship. Again, though, it seems to me highly contestable as to what relationships people value more, very culturally contingent, and also I wonder what it is about the Telos (if I can be Aristotelian for a moment) about the university that connects it to romantic love?

What do people thing about these cases?

Productivity: A Mother's Day Blog Post

In honor of Mother's Day, I thought I'd write about work-life balance, which is a bit like the Marquis de Sade writing about abstinence. This year my scales have had the elephant of work on one side and the feathers of my life on the other, and still I constantly feel as if I should do more better faster.

My husband has been on my case about this problem, and for good reason. But he finally said something last week that hit home, so to speak. I was complaining that I hadn't been "productive" during the week, and he replied, "That's because you've defined productivity to exclude anything to do with home."  His words weren't angry nor were they an attempt to be consoling.  He was just stating a fact, which is what made his words so resonant for me. It would be an overstatement to say that I define productivity by my word count, but not by much.

As a wife and mother of three sons, my family is my top priority. But I'm not sure I consistently send them that message, and it can be hard to know what making family your top priority means on a moment-t0-moment or day-to-day basis.  I definitely put a high value on time spent in direct interaction with them: I try never to work late nights or weekends, and I've gotten rid of cable television and wi-fi at home to prevent distractions from swamping family life.  That said, I don't much value the time I spend making home "a home." I almost completely discount the value of performing the mundane chores that make up this thing called a life.  I tend to begrudge every second spent folding the Sisyphean piles of laundry on my dining room table, taking the emotionally withholding cat to the vet, or doing the dishes, treating these chores as obstacles to productivity. I don't even enjoy cooking much anymore because it takes "too much time."  I do all these things, but they give me little sense of accomplishment, and I tend to view them as getting in the way of what I "should" be doing.

As I write this, it sounds pretty misguided.  The worst part is that I suspect I'm not the only academic who has defined productivity so narrowly that she has trouble setting a satisfying work-life balance as a result. The problem, ultimately, is one of accounting.  On the life side of the balance, motherhood has fleeting and fortuitous moments of joy, but one finds few signposts, while guiding children to adulthood, that one is headed in the right direction. Even when one knows certain tasks are necessary, there are few direct measures that tell one whether one is doing them well or poorly. [Is yelling ever warranted to make sure the kids' homework gets done? I sure hope so.] For many of the tasks, indeed, such concepts seem entirely beside the point.

Work, on the other hand, has a strict system of productivity accounting. (Academia's productivity accounting is much too strict, but that's a topic for a different productivity blog post.) One can measure one's productivity by words written, articles published, lectures delivered, students taught, and there are often encouraging signs along the way that one is doing one's tasks well.  It is easy, therefore, to let work, with its tangible rewards, overbalance life, with its intangible ones.

My hope for Mother's Day is that I can recalibrate.

 

Circumvention Tourism: Traveling for Abortion, Assisted Suicide, Reproductive Technology, Female Genital Cutting, Stem Cell Treatments, and More...

This past week I was in lovely Hermance, Switzerland, as a guest of the Brocher Foundation and the International Society for Stem Cell Research's Ethics and Policy Commitee to talk to them about stem cell tourism -- travel abroad to receive treatment or be part of a clinical trial using stem cells not authorized in the patient's home country.  This is often a sub-type of what I call "circumvention medical tourism" -- medical tourism for services that are illegal in the patient's home country but legal in the destination country to which they travel.

I have just posted on SSRN a draft of my new article, Circumvention Tourism, 97 Cornell L. Rev. _ (forthcoming, 2012), which uses the real world examples of  medical tourism for abortion, assisted suicide, reproductive technology (especially surrogacy), and female genital cutting to build a bigger legal and ethical theory of circumvention tourism.

I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition?

Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage.

I then use this analysis as scaffolding to build towards a larger theory of circumvention tourism that includes examples outside of the medical context (such as prostitution, drug use, honor killings, and others)

I don't normally post drafts on SSRN until they are in page proofs (this draft is before the editors have had a chance to improve it) but am doing so early in this case because the topic is developing and I want my views to be part of the conversation. Still, it is a work-in-progress, so if you have any feedback you want to give me I always value it; though I think it makes more sense just to email me comments on the paper directly rather than post it on here so as not to clog the blog...but happy for more editorial/conversational comments to be added on here.

PS: I've already benefitted greatly from workshops of this paper at HLS, UT Austin, and by the NYU/Brooklyn Crim Law Theory Group that Dan Markel coordinates. I love workshopping papers, so if you are interested in having me present this or another paper feel free to get into contact.

Should the U.S. Prohibit Anonymous Sperm Donation?

In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in the Georgetown Law Journal, The New Kinship (not yet up on SSRN), and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”

In my new Article, Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, forthcoming in the same issue of the Georgetown Law Review (out in print in Jan or Feb 2012 and up on SSRN now), I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.

I demonstrate four problems with the arguments Cahn offers for eliminating anonymous sperm donation:

(1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves.

(2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011) and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon).

(3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation.

(4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.

For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.

The Curricular Powder Room?

A female friend who teaches family law recently wryly suggested to me that family law had become "the curricular powder room," in that circa 2011 it is a subject whose teaching and scholarship is dominated by women in the American legal academy.  This was not always so. In her work on the development of family law textbooks out of domestic relations courses, my wonderful colleague Janet Halley's What Is Family Law? A Genealogy, Part I and II (the latter is forthcoming) shows that in its early days family law textbook writing was dominated by men, just like all other fields of law, and the female dominance is of fairly recent vintage.

I only dabble in family law with my reproductive technology work, but my experience with the various conferences I attend has led me to believe that the number of heterosexual men who primarily write and teach in the area and have joined the academy in the last 10 years or so is extremely small, and even when I teach family law topics I can feel myself performing my sexuality to some extent as if it were a ritual to get access or credibility.  The only other field that I know of which comes close in terms of gender splits, is health law, although here the split feels more like 50/50, which is striking more because of the gender disparity of almost all the other fields in law.

Of course, one reaction to all this is that it is the other legal fields that are the problem in terms of gender skew so far in favor of men, and I am sympathetic to that point, but in this post I am primarily curious about what the ramifications are of family law having become "the curricular powder room"?

Would family law scholarship and teaching be different if more men were involved? Does the female domination of it lead to a kind of reactive devaluation of its importance or seriousness by the rest of the legal academy? Are there methodological correlates to the gender skew – for example, again from my relative outsiders' perspective, there seems to have been less law and econ in family law than elsewhere, and I wonder if that is partially a function of gender (but worry that this hypothesis itself might be based on gender stereotypes)? What impact does all this have on our students' enrollment in these classes, experienc of them, and career choices in the area? Are any of these descriptive claims (if they obtain) actually problems, or at least things the field should be concerned with?

Incest, Surrogacy, Abstinence Education Funding, Single Parent Reproduction...or What's Wrong with the Regulation of Reproduction

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to reproductive technologies? Should the state fund abstinence education? 

One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal.

In Regulating Reproduction: The Problem with Best Interests, coming out shortly in the Minnesota Law Review (the penultimate draft now available on SSRN), I show why BIRC (or if you prefer, child welfare) arguments are a non-starter in justifying most regulation of reproduction, despite their dominance of the discourse. This is the first part of a larger project, and its companion paper Beyond Best Interests will appear in the Minnesota Law Review’s April 2012 issue, and should go on SSRN shortly.

What is the problem with best interests?

Drawing on insights from bioethics and the philosophy of identity (especially Derek Parfit’s work), I show why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the state’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, I show that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.

After demonstrating why the BIRC argument is unworkable as stated, I considers three possible reformulations of the argument that would save it, including one that focuses on population welfare (and non-person-affecting principles). I explain why none of these approaches is persuasive including by discussing their disturbing implications as to enhancement and eugenics.

In the companion paper, Beyond Best Interests, I consider a set of quite different substitute justifications for regulating reproduction – reproductive externalities, wronging while overall benefitting, legal moralism, and virtue ethics approaches – and evaluate their plausibility.

While Regulating Reproduction: The Problem With Best Interests is almost in print (the final version will hopefully make the diagrams a bit more readable), I still have time to work on the companion paper so I welcome any comments on- or offline.  I will also blog a bit later this month about a related paper, Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands, forthcoming in the Georgetown Law Journal, which I will post on SSRN shortly.

This project has been a long time in gestation, so I redouble my thanks to all those of you who have given me comments and invited me to present at your workshops and conferences (hopefully you are all thanked in the paper), since you have helped me improve this work immeasurably.

Sex and the Single Bathroom

I have a confession to make. I’ve recently used the women’s washroom.

Let me explain.  On the 5^th floor of Griswold Hall where I have my office, there are two single occupancy bathrooms with locks – one male and one female, not to be confused with the Ally McBeal style unisex bathroom.  Rather, this is a single occupancy bathroom that unlike George Constanza's is not limited to people with disabilities.

It turns out, though, that only the women’s single-occupancy bathroom has Palmolive with which I can wash my glasses before class (one of the assistants who is a woman mentioned this to me one day when I needed to clean them). It is unclear to me why only the women's bathroom has Palmolive,  but I have worried about disrupting something important if I moved it to the men’s. So I’ve started going into the women’s bathroom before class, locking the door, washing my glasses, and then leaving. I have received some funny stares from people who have caught me doing it…but it has caused me to re-examine my single-occupancy bathroom behavior and expand my gender subversive bathroom routine more generally:

If at a restaurant with single use bathrooms there is a line-up for the men’s but none for the women’s, I will walk over to the women’s. This too engenders funny looks, and I’ve noticed I am shyer about doing it when the men in line are more macho … no doubt a form of gender panic on my part.

So I am curious whether I am doing something wrong, and whether all single occupancy bathrooms should be neutered? The strongest argument I can fathom for gendering them is that women and men take different amounts of time in the bathroom, such that separate allocations are desirable. But, if anything, it seems to me that women get the short end of the stick on this one, and both more distributively fair and more efficient then to have both bathrooms be open to both sexes. But perhaps I am missing something?

Stem Cells, IVF, and Abortion: Is There a Right and Left Position?

This is my third post inspired by the Mississippi Personhood Amendment, and this one turns to the normative issues.

Many people who identify as pro-life as to abortion, oppose stem cell derivation involving the destruction of pre-embryos (or “embryos” simpliciter if you prefer, language is power), and often discard of embryos as part of IVF. Many people who are pro-choice by contrast oppose prohibitions on abortion, stem cell derivation, or IVF embryo discard.  What I try to show my students in the classes I teach, and I want to argue here, the three issues do not necessarily go together and the terrain is more complicated than the way it is usually presented.

First, for the left. As Judith Jarvis Thompson most famously tried to show in her (still quite controversial) work, support for an abortion right is not necessarily inconsistent with recognition of fetal personhood. That is, even if one believes fetuses are full persons, one can still support a right not to be a gestational parent (to use my terminology) for women that stems from bodily integrity or perhaps autonomy.  As I have argued, as a normative and as a constitutional matter recognition of a right not to be a gestational parent does not necessarily imply recognition of a right not to be a genetic parent, which suggests that the abortion right and the right to engage in IVF discard are quite severable because prohibiting the destruction of excess IVF embryos does not require forcing unwanted gestational duties on anyone. The disconnect is even stronger when it comes to stem cell derivation, where none of the “rights not to procreate” is involved. That means that one can very happily be pro-choice as to abortion, and prohibit embryo discard or destruction via stem cell derivation.

Second, as to the right....

Let us assume the pro-life position on abortion depends on the view that fetuses are persons or close enough to persons that their protection trumps the interests in avoiding gestational parenthood of pregnant mothers. That position does not imply that the destruction of embryos at all stages of development is also equally problematic. A lot depends on one’s theory of why fetuses should be given personhood or rights claims against destruction (on this issue I highly recommend Cynthia Cohen’s chapter on personhood in her book on stem cells). If your theory of personhood is about the actual possession of criteria X, on some ways to fill in “X” – such as fetal pain, which I have written about here – fetuses late in gestation may possess the criteria but not embryos as the stage they are discarded/destroyed as part of IVF or stem cell derivation.  Similarly, many have defended a 14-day or later view of personhood, where personhood begins on the 14^th day after fertilization where embryonic twinning – the potential for an embryo to become monozygotic twins – ends. This argument is usually premised on problems with numerical identity. If the embryo was a person before day 14, but twins into two people, which one was it – person A or person B? Many find this argument persuasive, although certainly there are objectors (for example, those who say that if a stick is broken into two that does not mean it wasn't originally one stick, though others doubt the analogy).  For present purposes all I want to suggest is someone who opposes abortion can thus fairly easily consistently oppose prohibition on destruction of early embryos.

None of that means that zealots on either side are capable of being nuanced here. The cultural cognition project, if anything, suggests the opposite.  Still I hope that judges and academics are better poised to see the nuances here.

What's in an Acronym?

Last weekend, I had the honor of attending Lavender Law, the annual conference of the National LGBT Bar Association. I gave a few talks and chaired a wonderful panel on cyberbullying and the First Amendment, but, as with many conferences, it was the individual and informal conversations with colleagues that were particularly rewarding.

On Friday, I met Mason Davis, Executive Director of the Transgender Law Center in San Francisco, California, and asked him how he responds to members of the gay and lesbian community who feel that they face different issues than members of the transgendered community and that gay and lesbian interest groups should not be diverted to transgender issues when gay causes are so in need. They wonder why the L and the G should always be linked with the T.

The question might seem strange or even hateful, but it exists as a undercurrent in many minority groups. All groups fighting for their civil rights do so with allies, or, at a minimum, with different generations or different subgroups. But, not every group wants or needs the same things. Not everyone's direct personal interests are always aligned and, in fact, those interests could be so misaligned that affiliation could, some think, be a bad idea. It is not often openly discussed, but many gay men have approached me wondering why our leaders' time is spent on issues like health insurance for gender reassignment surgery, for example, or our lobbyists would oppose clearly pro-gay legislation if it did not include pro-transgender elements.

I do not write on or research transgender issues. Nor do I know any transgendered persons, and I regret that. I am concerned that my views on these issues may be colored by the uniformity of my social and professional circles. Therefore, I have always stayed on the sidelines of these debates, unsure of where I stand until I could understand transgendered persons' needs better. But it always struck me as very selfish to think that just because a gay person's personal interests are not the same as a transgendered person's, that means that should not be allies in the search for civil rights. After all, gay men and lesbians are not always concerned with the same issues. In the 1980s and early 1990s, HIV/AIDS was almost exclusively a gay male concern, not a lesbian one.

I asked Mr. Davis if he hears these objections and how he responds.

He said he hears it all the time, but in his experience, it's not selfishness. Some gay strategists find gay people more relateable to the average American voter, so inclusion of transgender issues makes a successful gay rights strategy more difficult. Other gay donors are concerned about this or that issue and would prefer that their money be used for their area of concern. But, while our goals are not always the same, Mr. Mason says that we are all part of the same project: we are all trying to be who we really are unencumbered by discrimination, but some of us need a little more help to be who we really are.

Gays and lesbians can be who they really are by coming out of the closet, by being out at home and in the workplace and by marrying their partners and starting families. They are concerned with tearing down barriers that stand in their way: Don't Ask, Don't Tell, employment discrimination, same-sex marriage bans, second-parent adoption bans, and so on. But, transgendered individuals need a little bit more to become who they really are. They have unique medical hurdles to cross in order to get there, but Mr. Mason believes that L's, G's and T's are all searching for the same thing. We all want a country where nothing stands in the way of our true self.

I have yet to field test this argument on some of my gay friends. What do you think?

Amicus Support Requested: Hosanna-Tabor

Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination.  They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief.  Here's their description of the case and the issues, which I am happy to pass along:

Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired.  Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.

Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister.  If she is not a minister, she will probably win.  After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses.  She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.  

The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination.  The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it

The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.

We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply.  Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.  

 As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.

If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:

Leslie C. Griffin & Caroline Mala Corbin
[email protected]; [email protected]

What's Wrong With This Picture?

Like many other New Yorkers, I was proud and heartened by the fact that our state has joined the growing number of jurisdictions that now allow same sex couples to marry.  I am thrilled for my friends who can now legally marry in New York, and I look forward to the day in which all Americans enjoy these rights in all fifty states.

 I must admit, however, that when I woke up on Saturday morning and saw this picture,  my heart sank a bit.  The scene pictured should memorialize a major step forward for equality and gender issues in New York State.  But where, I wondered, were the women?  Where were the New Yorkers of color?   

To be clear, the signing photo features several men key to the bill's success, and they are to be commended for their efforts and courage.  Assemb. Daniel O'Donnell, who led the legislative effort, and Assemb. Matthew Titone are both openly gay representatives in the New York State Assembly.  They are listed as having introduced the bill -- but so is Assemb. Deborah Glick, another openly gay representative.  Several other assembly reps have "introducer" credit and yet more are listed "multi-sponsors" of the bill in the Assembly.  There are several women and minorities on the list.

Also pictured is Sen. Thomas Duane is the only openly gay state senator in New York, and Sen. James Alesi who was the first Republican state senator to pledge his support for the bill.  What about a more diverse group of senators who supported the bill?  Not all members who are women or minorities supported the bill, but the list is long enough to suggest that the photo could have been more inclusive.

It is perhaps, patronizing and backwards to insist on diversity in a picture for its own sake.  If the only people in the picture were those who were most responsible for its success, then it might be demeaning to ask a woman or a minority member of the legislature to join in the signing ceremony for the sake of a diverse image.  I should just appreciate the end result of the bill without dwelling on such trivialities.  The legislation was signed close to midnight after some tense days of bargaining, and my guess is that no one thought too hard about the image projected to the world.

Deep down, however, I can't help but bristle at that photo.  Did the governor's office overlook the participation of women?  Did minorities and women themselves demonstrate a leadership failure?  Answering either question in the affirmative is troubling.  Perhaps the strongest women and minority leaders on this issue came only from outside of the legislature.  For example, Christine Quinn was a major supporter of the legislation, but she is Speaker of the New York City Council, and therefore would not necessarily be a part of the signing since she is not a part of state government.

No matter what the explanation, the photo smacks of a bygone era -- one in which the white men of a polity are kind enough to bestow civil rights upon the rest of us.  Perhaps this picture is a reminder that as we celebrate this step forward, there are still many ways in which we can work to become a more diverse and inclusive society.

DOMA: Enforcing an Unconstitutional Law

Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. I am not alone in this view, with President Obama, Judge Joseph Tauro (D. Mass.) and many others on the left and right in my camp. But, even after announcing that the Department of Justice will no longer defend DOMA Section 3 because such laws fail heightened scrutiny, President Obama has rightly promised to continue enforcing DOMA Section 3 until it is either finally overturned by the Supreme Court or repealed in Congress. Today, I would like to consider what "enforcement" means.

DOMA Section 3 prevents the federal government from recognizing any marriage that is not between one man and one woman. It makes thousands of legally married same-sex couples strangers to more than 1000 federal rights that accompany opposite-sex marriages and injects the federal government into an area of family law traditionally and exclusively given to the States. Among other things, it denies benefits to same-sex spouses, prevents federal employees from putting their legally married same-sex partners on their health insurance and tears apart legally married same-sex binational couples. Recently, President Obama stated that he believes DOMA to be unconstitutional under heightened scrutiny and, therefore, refused to continue defending the statute in various challenges snaking their way through the federal courts. He did say that his Executive responsibilities required that his Administration continue enforcing the law.

What it means to "enforce" DOMA came into view this weekend. In a striking 180-degree turnaround, two U.S. Bureau of Citizenship and Immigration Services (USCIS) districts — Washington, D.C. and Baltimore — stated that departation cases in their districts involving married gay and lesbian couples would be put on hold. I was honored to be called by various media outlets to justify this policy change. How is this not an example of the Obama Administration declining to enforceDOMA, they asked?

More AFTER THE JUMP.

The USCIS is part of the Executive Branch and it is unlikely that only two of the country's CIS districts would make this policy shift on their own, suggesting that they are likely operating under instructions from somewhere up the Executive change. Regardless, the decision to postpone deportations of legally married same-sex binational couples is undoubtedly in response to President Obama's decision on the constitutionality of DOMA.

But, if DOMA is what is standing in the way of a married same-sex foreign national being allowed to remain in this country like his or her married opposite-sex foreign national comrades, is not the indefinite postponing of deportation proceedings tantamount to, at a minimum, an indefinite postponement of the Executive's responsibility to enforce duly enacted laws?

No.

Let us be clear about the policy. The USCIS offices statedthat alien relative petitions and green card applications filed by married same-sex couples will not be denied out of hand simple because of DOMA. Instead, the applications would be held in abeyance to allow for continued challenges to DOMA. As a leading gay immigration attorney has explained, "The significance of the 'abeyance' policy is two-fold: first, it means that petitions and applications that normally would have been denied because of DOMA, will now remain in 'pending' status, and second, this status will give protection and benefits to the applicant for an indefinite period."

In other words, the President's decision that DOMA is unconstitutional means that DOMA is no longer an a priori barrier to temporary reprieves from deportation. The CIS has not decided to stop enforcing DOMA; rather, it has decided not to tear apart loving, committed and legally married couples while DOMA's constitutionality is, at best, up in the air. DOMA still denies these couples thousands of federal benefits, but the CIShas come up with unique and creative strategies to at least keep married couples together while questions are answered. DOMA itself would not force deportation in these cases. The denial of an alien relative visa, pursuant to DOMA's discriminatory policy, would. All CIS has done is delay a final decision on alien relative petitions given the current challenges to DOMA. It sounds like an adequate compromise given the odious straight jacket DOMA forces upon us.

Two Models of Sociolegal Change

Thanks to Dan and the PrawfsBlawg crew for inviting me back to guest-blog and for allowing me to go overtime to wrap up my posts. You can catch me at either of my two regular blogging spots, the Marquette Law Faculty Blog (surprisingly active for a faculty blog!) and Madisonian.net. Just one more post before I go, this one not on copyright law, but on variable rates and directions of social change in a federal system.

I have a new article, Constitutional Safety Valve: The Privileges or Immunities Clause and Status Regimes in a Federalist System, out in the current issue of the Alabama Law Review. The article represents the end point of a fairly long process that began with a seminar paper in law school. In 1996, I was impressed with the tenor of the debate in Congress over the Defense of Marriage Act; there were several statements to the effect that failing to wall off the status of legally married same-sex couples would lead to the downfall of society. It reminded me strongly of the rhetoric in Dred Scott that recognition of Scott's citizenship would have calamitous effects. As I dug into it, I found even stronger parallels in antebellum debates in Congress over travelling black Northern citizens in Southern states, and the extension of slavery to the territories. Congress seemed, then as now, appeared alarmed at the prospect of a state-recognized social status to destabilize the societies of states that didn't recognize that status, merely by virtue of individuals with that status travelling.

The antebellum debates were ultimately resolved by the Fourteenth Amendment, and in particular the Privileges or Immunities Clause. So I wrote a paper about how the Privileges or Immunities Clause had a forgotten purpose that would mediate an entrenched conflict between states over an inconsistently codified sociolegal status. Of course, that argument will have the most contemporary relevance if such a conflict in fact develops. But it's not at all clear that we are heading that way. There's another model of sociolegal change when it comes to anxiety over travellers bearing destabilizing statuses: divorce.

There is, I think, a fairly interesting article yet to be written on the history of the conflict in the early twentieth century over interstate recognition of divorces. The Supreme Court decided no fewer than 17 divorce cases between 1901 and 1957. The controversy over one of those cases, Williams v. North Carolina, 317 U.S. 287 (1942), prompted Justice Robert Jackson to write a book about such interstate conflicts, Full Faith and Credit: The Lawyer’s Clause (1944). A number of states, with Nevada leading the way, eased their divorce laws in the early twentieth century, and with the increasing ease of travel, married individuals were travelling to such states with the purpose of getting a divorce they could not secure at home. This caused conflicts over whether such status determinations needed to be recognized by other states. The conflict concerned not only the changing view of marriage, but also the role of women in society. The women's movement was a part of the Progressive program of the early twentieth century, culminating in the right to vote.

But the conflict over divorce never became entrenched; instead, it dissipated. It turned out that the friction over divorce was due to a different rate of change in divorce law in the various states, but that change eventually became uniform, and with it the conflict disappeared. It is possible that same-sex marriage and gay rights generally are heading toward this conclusion; the difference between now and just 15 years ago is striking. If so, the second coming of the Privileges or Immunities Clause that I describe in my article will have to wait for another day.

Justice Scalia at Hastings: Sex, Lies and Originalism

When I last chatted with you all, I remarked upon Justice Scalia's remarks upon the dedication of our wonderful new building here at Marquette. I once again bring news of Nino.

During a question and answer period at a Constitution Day event at Hastings College of Law, Justice Scalia announced the view that the Constitution does not forbid sex discrimination. His argument, I take it, is that the original public understanding of the equal protection guarantee was that is was limited to race and that no one imagined that it was intended to constitutionalize a particular view of gender roles.

The day before I had been asked to guest lecture in a colleagues' course on Law and Social Change. The idea was apparently to bring in a real life conservative to talk about judicial restraint. I spent a fair amount of time on Justice Scalia's textualism with which these latest remarks are in, I think it is fair to say, tension. If the equal protection guarantee was to be limited to race, why not say so? Writing at Balkanization, David Gans certainly seems to thinks so.

The answer, I suppose, is that an equal protection clause that might apply to other things could apply to anything. Courts have traditionally tried to limit its scope through the devices of multi-tiered scrutiny and through the identification of suspect classes that are thought to be situated in ways that justify more intensive examination of distinctions that are claimed to burden them. Few  seem to believe that the extension of some form of heightened scrutiny to distinctions drawn on the basis of gender have proven unworkable or resulted in significant frustration of the popular will, so what's the problem?

My guess is that he Scalia's narrow concern is not so much about sex discrimination as it is about sexual orientation discrimination. In particular, I suspect that he is troubled by the use of changed gender roles to argue that the state can attribute no significance to gender. In Perry v. Schwarzenegger, for example, the district court used legal developments such as the abolition of coverture to argue that, because we don't have legally mandated gender roles, gender no longer has much to do with marriage.

My own sense in reading Perry was that the court had assumed the triumph of equality feminism over difference feminism. It is one thing to say that women are free to participate equally in public life. But it is yet another to say that there are not certain differences between men and women that might justify structuring certain institutions in a particular way thought to accommodate - or, perhaps more accurately - reconcile those differences. If men and women experience sexual desire in different ways and, therefore, have, in anthropological terms, differing "mating strategies" or if they experience parenthood in differing ways, then perhaps the state will wish to structure marriage in a way that accomodates or reconciles those differences.

These views cannot, in my view, be dismissed as "neanderthal" (many people experience them as significant factors in their lives) or as calling for a return of the hausfrau relegated to kirche, kuche und kinder. (Phrasing it in that way would also risk the invocation of Godwin's Law.)

Of course, they may not get you to a justification for the prohibition of same sex marriage. One might argue that, if same sex couples, due to inculturation or otherwise, want to buy into an institution shaped by the recognition of gender differences, perhaps they should be permitted to so. We are now at that curious point in the same sex marriage in which the views of conservatives and, for lack of a better word, radicals begin to proceed from the same set of presuppositions. Conservatives worry that same sex marriage will change the cultural and legal norms of marriage. Radicals hope that it will.

Scalia's broader concern is his oft-stated distrust of the views of "cultural elites." In his view, permitting courts to discern contemporary standards is a bit like the old line, about the nineteenth century modernist  protestant seeking the authentic Jesus. He tends to find Him at the bottom of a well and is pleased to note the resemblance.

I suppose this is no insight. It is no mystery as to how Scalia would view the district court's decision in Perry. But I don't know that it means, as Gans and some of the commenters at Balkinization seem to think, that Scalia's constitutional method is incoherent or hypocritical. To be sure, it leaves room for manuever. If one wishes to say that the original public understanding of the equal protection clause was that it had to do with race while abandoning the idea of the original expected application (i.e., that it wouldn't require desegregation of schools), one needs to justify the level of generality at which this "original public understanding" is pegged. One also needs to justify, as Gans point out, the view that the racial equality mandated by the clause can be reduced to color blindedness and does not extend to ameliorative measures designed to repair the harms to blacks brought about by slavery.

But to ask those questions, it seems to me, calls for extending the conversation and not for ending it by assuming that there can be no answers.

 

Cyberbullying/Cyberboorishness

If you’re a hammer, everything looks like a nail.  If you’re a law professor, every social problem seems to call for a legal solution.  “Cyberbullying” is this decade’s hate speech.  Like “hate speech,” "cyberbullying" is a label, not a legal definition.  The inherently pejorative label carries the implication that “cyberbullying” is a new and serious problem that the law should address.  Of course, the law already does address “cyberbullying.”  Online threats, stalking, and hacking are crimes.  Online defamation  is libel, and intentional infliction of emotional distress is tortious whether it takes place online or off.   

But what, you might ask, can be done about cyberbullies whose bad conduct isn’t proscribed by existing law?  For example, what should be done about law students who make sexist or racist or demeaning remarks about their classmates online, gaining the courage to speak from the cloak of anonymity?  Perhaps they should be denied admission to the bar on the grounds that they lack the character and fitness necessary to be lawyers.  This is the topic for debate by an AALS panel sponsored by the Section on Women in Legal Education and the Section on Defamation and Privacy.  The title of the panel is "The First Amendment Meets Cyber-Stalking Meets Character and Fitness," and it will be held on Saturday morning at 8:30.  Full disclosure:  I'm on the panel, cast in the role of defending cyberboorishness against legal sanction.  It should be fun.

Managing the Busy Days

Maybe because a busy fall approaches, two things struck me when I recently read a profile of Atul Gawande -- full-time surgeon, prolific writer, father of three.  

First, he "saves his writing" for the hours between 7 and 11am  and 4 and 7 pm to "capitalize on the body's circadian rhythms."  Hmmm.

Image:  Yassine Mrabet

Second, I wonder if the punchline was the parenthetical revealing that his wife is "now a full-time mom."  Maybe it's time to reread the essay "I Want a Wife." 

The Meaning of Y

Recently, I’ve been thinking quite a bit about Caster Semenya, the 18-year old world-champion runner from South Africa.   In response to concerns that Semenya is too fast and that her voice is too deep and that her build is too masculine, track and field’s governing body has arranged tests to ascertain her sex.  One Italian runner, Elisa Cusma, complained: “These kind of people should not run with us. For me, she’s not a woman. She’s a man.”  The concern is not that Semenya set out to fool the governing body.  The concern is that Semenya, who grew up as female, may in fact have sufficient male characteristics to be categorized as male.  As someone who writes about gender and race as social constructs and imperfect proxies, my fascination with the Semenya case goes beyond prurient curiosity.  For me, the controversy brings to mind the racial prerequisite cases from the early 1900s that Ian Haney Lopez has written about, such as United States v. Thind and Ozawa v. United States.  It also brings to mind Ariela Gross’s work on litigating whiteness.  Bust mostly, the controversy speaks volumes about the meaning of sex and gender.

            I have no idea what the outcome will be.  A gynecologist, an endocrinologist, a psychologist, an internal medicine specialist, and an expert on gender have all been asked to examine Semenya and weigh in on the issue.  Indeed, I can easily imagine a situation in which some tests will suggest Semenya is female, while other tests will suggest she is male.  Indeed, I can easily imagine a wringing of hands, a determination that Semenya is “different” and thus ineligible to compete “as a woman” or “as a man.”  For me, the real issue is not whether Semenya is male or female, but rather our compulsive need to understand sex and gender in binary terms, even when such binary thinking excludes significant segments on the population.  It is similar to the way we need to know whether someone is black or white, straight or gay, liberal or conservative, guilty or innocent, when the reality is often far more complicated.

A NY Times article speculates that whatever the outcome, 18-year old Semenya’s life will be forever changed.  And all of this makes me ask “what if?”  Since the election of President Obama, there has been talk, however premature, of living in a post-racial world.  Clearly a post-racial world seems something we should aspire to.  But how about a post-gender world?  Should that also be on the agenda?  What might it be like to live in a world in which the first question we ask when someone is pregnant is not “boy or girl”?  What might census data collection or Title VII or Title IX or marriage equality look like in such a world?  What might it be like to live in a world without “urinary segregation,” to borrow from Lacan?  Would it be possible to live in such a world?  Would we want to?  And can the law get us there?

The Daily Show -- Stewart and Huckabee on Abortion

This is a joint post with June Carbone         

 

   In mid-June, Jon Stewart conducted another of The Daily Show’s multiple part interviews with former Governor Mike Huckabee.  While the previous show had focused on gay marriage, Stewart asked Huckabee to choose a topic he’d like to discuss.  Huckabee’s choice:  “the pro-life issues,” paraphrased by Stewart as “abortion.”  The two reprised the continuing debate over abortion – and as has become increasingly the case, conducted the discussion almost entirely on Huckabee’s terms.  The articulate former preacher set forth the importance of a “culture of life” and how abortion denigrates it by permitting abortions triggered by comparatively trivial concerns about the “inconvenience” of the pregnancy.  Huckabee emphasized that every human life has value.

            Stewart responded with a classic defense of a woman’s right to reproductive autonomy.  His embrace of the pro-choice position focused almost exclusively on a woman’s right to control what happens to her body. 

            Missing entirely from this conversation was any articulation of why a woman might choose an abortion and why many women (and supportive fathers, husbands and boyfriends) might view it as a profoundly moral act.  Huckabee’s  references to “tak[ing] a human life” because the baby represents an “interference” or an “interruption”  to the mother’s life, socially or economically, fails to acknowledge that the woman’s decision is likely to be heavily influenced by concerns about the fate of the child rather than selfish concerns.   Stewart’s defense of a woman’s right to bodily integrity, though more sympathetic, reinforced Huckabee’s notion that pregnancy is the issue..

            We know of no women (other than those facing serious health issues) who would choose an abortion because of the effect of the pregnancy.  Instead, women choose abortion because they care profoundly about the future of their children.  Women who elect abortions know that true commitment to a child is an enormous – and lifelong – undertaking.  The pregnancy is the easy part.  They know also that to raise a child properly requires resources, support, and maturity.  They understand as well that the number of children for whom they can provide a decent chance in life is limited.  Having a child at seventeen, if it derails the mother’s life chances, shortchanges that child and the children she might have later.  Having a third child when a mother is struggling to provide for the two she already has diminishes the prospects for all of them.  Women who choose to terminate a pregnancy because of the supposed “economic inconvenience of the pregnancy” are making a decision that they cannot provide adequately for that child at that point in their lives.  It is because of a profound appreciation of the value of children’s lives, not a casual disregard for them, that women choose abortions. 

 

While adoption provides an acceptable alternative for some women, many women do not want their children to be raised by someone else.  Women in a small exploratory study of why they obtained abortions explained that they rejected adoption because “the thought of one’s child being out in the world without knowing if it was being taken care of or who was taking care of it was more guilt inducing than having an abortion.”    

            As governor of

Arkansas

, Huckabee riled conservatives by supporting some governmental assistance for poor children.  His allies who supposedly support the “culture of life” he advocates, however, rarely support systematic support for children’s wellbeing – for collective provision of the food, medical care, child care services, and educational assistance that would make childrearing less daunting.  Indeed, in the interview, Huckabee dodges Stewart’s efforts to define the true middle ground as support for accurate sex education and comprehensive access to contraception that would reduce the number of inopportune pregnancies. 

            It is time to redefine the abortion debate. Those who passionately defend a woman’s right to choose also care passionately about a culture of life that is committed to bringing children into a world in which every child has a decent opportunity to flourish.  As we discuss in our forthcoming book, Red Families v. Blue Families (OUP 2010), pro-choice advocates need to highlight the fact that the women most likely to seek abortions are those who are most likely to lack access to effective contraception, viz., the poor, the naïve, and the isolated.  They are the same women who choose abortion because they are the mothers least able to provide for the children who might result – and those most vilified by the supposed pro-life group who routinely oppose support for children.

            Pregnancy is not the issue; care and commitment to your children is.  Which is the true “pro-life” position?

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

Federalism and Abortion

          

Today’s Washington Post includes a depressing article   for those of us who are pro-choice.  The article documents how the abortion fight has moved to the state level, and details some of the means by which anti-abortion groups are chipping away at a woman’s right to choose.

My first job after I graduated from college was working at the National Abortion Rights Action League.  True, I was a mail clerk, but, as I checked packages to make sure that we were not receiving any bombs, and as I mailed out material supporting the right to choose, I felt like I was doing good and meaningful work.  Almost 30 years later, I can’t believe how little has changed in the culture wars over abortion, and I’m struck by how much positions have hardened.

When the Supreme Court guaranteed the right to choose in the seventies, the focus was on the changing lives of women, and the often tragic circumstances of those resorting to risky, illegal abortions.  Today, the women seeking abortion have almost disappeared from sight, replaced, when they are thought about at all, by inaccurate caricatures that overlook the fact  that poor women who lack systematic access to effective contraception are those who have the greatest need for access to abortion.   The overlooked issue in the abortion debate is its effect on poor women, who are more likely to get an abortion than are wealthier women.  As the Post article notes, poor women are disproportionately affected by the practicalities of obtaining an abortion and by legal restrictions. The Guttmacher Institute reports that the abortion rate for women whose income is lower than the federal poverty level “is four times that of women above 300% of the poverty level (44 vs. 10 abortions per 1,000 women).”    The higher rate is, at least partially, due to the much higher rate of unintended pregnancies among poor women. 

Even when they are able to obtain abortions, two-thirds of poor women report that they would have liked to have undergone the procedure at an earlier time.   Clearly, access to abortion is critical to the reproductive choice for poorer women.  The decrease in the number of abortions through the nineties was, perhaps surprisingly, not primarily due to legal restrictions on abortion.  Instead, the decline was based, at least in part, on states making a commitment to sex education that was not abstinence-only and on states making contraception widely available.  

 

            As June Carbone and I have argued, reproductive autonomy is most readily available for the affluent,  and it is increasingly beyond the reach of the most vulnerable. Family planning efforts of all kinds have been the biggest casualty of ideological politics. 

June Wedding Announcements

 

Gay marriage is, once again, in the news.  As of Wednesday, New Hampshire became

the 6th state to allow same-sex marriage, and gay marriages can be officiated there

as of January 1; Dick Cheney, whose daughter, of course, is gay, thinks that gay 

marriage is something the states should work out; and some 18,000 same-sex 

California marriages are legal, even though same-sex marriage is otherwise illegal

 in the state. And then there’s Surrogate (and former CUNY Law School Dean)

Kristin Booth Glen’s opinion in In re Sebastian (N.Y. Surr. Ct.

Apr. 9, 2009).  She granted one lesbian spouse's petition to adopt a son born to the other spouse.  Judge Glen acknowledged that while "an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of [both his mothers] as his legal parents throughout the entire United States.”

 

Not surprisingly, all of the states in which same-sex marriages are recognized or in which they are legal are blue.   June Carbone and I have written in Red Families v. Blue Families (Oxford University Press, forthcoming) that the new information economy is transforming the family, resulting in the development of two different family paradigms: red and blue.  The blue family paradigm emphasizes the

importance of women’s as well as men’s workforce participation, egalitarian gender roles, and delay of marriage and childbearing until both parents reach emotional maturity and financial self-sufficiency.   In this world, teen childbirth is a tragedy, gay and lesbian neighbors commonplace, and the consensual sexual lives of adults a matter of privacy.  Red families, or more accurately, those who have pushed a “moral values” agenda, reject the new culture.  They continue to emphasize religious teachings that celebrate the unity of sex, marriage and reproduction.  Red regions of the country, however, have higher teen pregnancy rates, more shot gun marriages, and lower average ages of marriage and first births.     

 

Same-sex marriage is, in many ways, critical to the terms on which the two paradigms will be defined going forward.  Recognition of same-sex marriage has the potential to revitalize discussion about what marriage is for – and for whom it is compelled.   The fear within the red family world is that recognition of same-sex marriage underscores the point that marriage is a socially constructed institution, governed by the law, rather than part of an eternal divine order.   If marriage is humanly created and defined, then it is also changeable – and ultimately optional as a way to order intimate relationships.  

On the other hand, the ultimate challenge to the red paradigm does not, of course, come from gays and lesbians. Instead, the real issue is sex – and the question of continued societal support for a principle – limiting all sex to heterosexual marriage – that no longer commands support from a majority of the population even in red states (though not necessarily the core red constituencies).  

 

 

Padel's Resignation from Oxford

The AP via NYT reports:

Oxford University's first female Professor of Poetry resigned Monday after acknowledging she had helped publicize charges that her rival for the post had sexually harassed a former student. Ruth Padel, 

the great-great-granddaughter of Charles Darwin, made history at Oxford when she became the first woman to be elected to the position of Professor of Poetry since the job was created in 1708....But Padel's election was marred by Nobel literature laureate Derek Walcott's decision to withdraw as a candidate from the election after anonymous letters attacking him were sent to Oxford academics. British newspapers reported that the letters made reference to an allegation of sexual harassment made against the St. Lucia-born poet by a former student in the 1980s. The papers said the letters included references from the book ''The Lecherous Professor: Sexual Harassment on Campus,'' by Billie Wright Dziech and Linda Weiner, which carries allegations against Walcott made by a Harvard freshman in 1981. At the time of his resignation, Walcott said he had never commented on the claims and would not do so now. But he called the anonymous letter campaign an attempt at character assassination. Padel came under increasing pressure after The Sunday Times quoted e-mails it said she had sent to two unidentified journalists drawing their attention to the book. In a statement announcing her resignation, Padel acknowledged sending the e-mails. But she said she did not engage in a smear campaign, explaining that she had only passed on information already in the public domain. ''I acted in complete good faith, and would have been happy to lose to Derek, but I can see that people might interpret my actions otherwise,'' she said in the statement.  Oxford University, which has been embarrassed by the controversy, said it respected Padel's decision and that ''a period of reflection may now be in order.'' A new election is expected sometime before the current Professor of Poetry, Christopher Ricks, steps down from his post at the end of the summer.

What do you all think about this? Is it wrong to draw attention to material in the public sphere--or to do so anonymously when one is the other candidate for the position? Was Padel engaged in a form of anonymous cyber-bullying? Was Walcott's resignation an appropriate form of just deserts? What if Padel had been approached by the journalists and/or offered the information on background and acted in response to student concern? Is it really enough to warrant the claim that she won the professorship as part of a "scurrilous ... campaign"? Last, consider this provocative, but probably unreasonable, claim by one commentor for the Independent:

With Padel too, the shockwaves set off by her emails suggests that ambitious women are not allowed to play hard. Men can and do use any weapons they have when battling against competitors, but not so the gentler sex. How many male professors across the land can honestly say they have always played fair to reach where they are?

I confess, I have no idea how this issue would play out in the US. Some of it reminds me of The Human Stain and Disgrace--two super novels by Roth and Coetzee, respectively.  Thoughts?

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

Blind Submissions Revisited

As law review submission season rolls around again, perennial questions about under-representation of women and minority authors in law reviews come up.  I am reminded of a passage from Blink, by Malcolm Gladwell, describing the dramatic results when orchestral auditions became anonymous:

Screens were erected between the committee and the auditioner, and if the person auditioning cleared his or her throat or made any identifiable sound - if they were wearing heels, for example, and stepped on a part of the floor that wasn't carpeted - they were ushered out and given a new number.  And as these new rules were put in place around the country, an extraordinary thing happened: orchestras began to hire women.  In the past thirty years, since screens became commonplace, the number of women in the top U.S. orchestras has increased fivefold.

I don't want to suggest that the analogy is perfect - the nature and experience of those selecting pieces/performers is different and maybe the "sound" of a law review article isn't as ungendered as an orchestral piece (see past posts on Prawfsblawg for a discussion of the "audacity factor").  But it does lead me to wonder about the blind submission practice of Harvard Law Review and a few other law reviews.  They have been much discussed, but have these policies had any effect?  And, if so, on what?  A wider variety of author affiliation or seniority?

This is what a President looks like . . .

I was moved by Paul's post about the momentousness of last night's election and what it means about the America we live in today and the one we will wake up in tomorrow and the day after that.  I also have a very young daughter and found myself thinking last night that as she grows and one day learns about the "President" -- the image her little mind will form will be first and foremost of an African-American man.  How unbelievable and inspiring.  Like many, I also grew teary last night as I listened to African-American parents talk about the joy they'll experience when they look their children in the eyes and tell them that they truly can achieve anything in America because an African-American man is the President of the United States.

To my surprise, however, I found myself aching for the day that I get to look my daughter in the eyes and tell her that she truly can achieve anything in America because a woman is the President of the United States.  My reaction surprised me because I've been a long and passionate supporter of President-Elect Obama (Yay! It's so fun to say!)  I was not moved by Sen. Clinton's candidacy or, clearly, by Gov. Palin's.  But my reaction is highlighting for me how much role models really do matter.  As a 1L at the University of Chicago, I did not have a female professor until the third quarter.  All year I told myself that it didn't matter -- that contracts was still contracts and torts was still torts. But when I finally had my first female professor (Elizabeth Garrett for Civil Procedure), I realized it did matter.  It mattered a lot. She was smart. She was qualified.  She was tough.  And she made it that much easier to imagine being in front of the classroom myself some day.

As I continue to celebrate last night's historic end to one discriminatory barrier, it's only making me increasingly anxious for others to fall too.  I want it to be that much easier for my daughter to imagine herself in the oval office some day.  I hope we don't have to wait too long.