Category: Feminism and Gender

Division of Inappropriate Analogies: Surgery as Haircut

The NYT’s Natasha Singer reports that breast augmentation has become “the country’s most popular cosmetic operation.” Carol Ciancutti-Leyva (director of the documentary “Absolutely Safe”) warns women that they may be in for more than they bargained for:

Your implants may last less than 10 years or more than 10 years, but when you start having problems with them, your health insurance is unlikely to cover the M.R.I. tests or the reoperations. It can be a very expensive proposition, especially if you are young.

I wonder if company wellness programs will soon be asking women to reveal if they’ve had implants? But they shouldn’t worry about “maintenance” in general, says a past president of the American Society for Aesthetic Plastic Surgery, offering one of the more bizarre analogies I’ve seen:

Women are used to having their hair or nails done on a regular basis to maintain their appearance. Ultimately, breast implants may also be a matter of maintenance.

More on what this maintenance can entail after the break.

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Nussbaum on Extremism

Reports from Pakistan suggest that militant extremists were responsible for the tragic death of Benazir Bhutto. Anil Kalhan and Barbara Crossette provide insightful commentaries. I also found a great deal of insight on the situation in a lecture at Yale Law School by Martha Nussbaum. Though it was given three weeks ago, it sheds light on very recent events by describing the psychologically manipulative tactics extremists use to recruit impressionable young people to their cause. (The lecture video is here; it’s also on iTunes University, Yale Law division).

Though Nussbaum focuses on the Hindu far right in India, her nuanced theory may be useful generally. Her lecture brings together themes from her recent book on religious violence in India (Clashes Within) and prior books on education (Cultivating Humanity) and the role of emotions in human life (Hiding from Humanity and Upheavals of Thought). Nussbaum seeks to understand why “right-wing Hindu extremists . . . condone and in some cases actively support violence against minorities, especially the Muslim minority.” Her somewhat surprising answer focuses on the role of “humiliated masculinity” and European fascism in fueling a right-wing movement paradoxically premised both on avenging the wrongs done by invaders and imitating those invaders’ violent impositions.

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Disparate Impact in the Blogosphere

Danielle Citron gave a compelling presentation at the recent Yale Symposium on Reputation in Cyberspace exploring how group dynamics can deter women from participating online. The Yale Pocket Part has done a symposium on online harassment. Citron moved the discussion forward by analyzing social psychological dynamics in online life and describing how much more likely women are to be threatened by the worst type of comments:

Threats, lies, and the disclosure of private facts discourage women from blogging in their own names. Women lose opportunities to establish online identities that would enhance their careers and attract clients.

Destructive online groups prevent the Web from becoming an inclusive environment. Disappointingly, this phenomenon throws us back to the nineteenth century, when women wrote under gender-neutral pseudonyms to avoid discrimination.

Web 2.0 technologies provide all of the accelerants of mob behavior but very few of its inhibitors. . . . Individuals who feel anonymous do and say things online that they would never seriously entertain doing and saying offline because they sense that their conduct will have no consequences. A site operator’s decision to keep up damaging posts encourages destructive group behavior. Online mobs also have little reason to fear that their victims will retaliate against them.

The AutoAdmit lawsuit is a first step toward addressing the last concern. Making internet intermediaries more responsible may be another.

Given that the Yale conference had been criticized for failing to adequately include women’s voices, Citron’s presentation was especially important. While cyberspace may be liberating for many, the same prejudices that permeate real life can infect the online world. And as more of our life gets conducted online, combating these prejudices is going to need to become not merely a legal, but a cultural project. That issue has a long history, and has sparked many valuable discussions. Citron has already done very important work on making computer systems more accountable, and I look forward to reading her contributions in this area.

Administering Family Values

Following some excellent reporting on the failures of the CPSC, the NYT gives a big picture forecast of rapid rulemaking in the remainder of the Bush administration:

Hoping to lock in policies backed by a pro-business administration . . . [b]usinesses are lobbying the Bush administration to roll back rules that let employees take time off for family needs and medical problems.

***

The National Association of Manufacturers [NAM] said the law had been widely abused and had caused “a staggering loss of work hours” as employees took unscheduled, intermittent time off for health conditions that could not be verified. The use of such leave time tends to rise sharply before holiday weekends, on the day after Super Bowl Sunday and on the first day of the local hunting season, employers said.

The NAM should watch out–they might provoke a hunter-FMLA alliance as durable as the hunter-environmentalist one. They could also generate more lawsuits in the future by putting complex limits on FMLA leave.

But I’m sure NAM has its eye on not just legal but cultural change. Perhaps the endgame is to force more and more workers to be like this one, quoted in Jill Andresky Fraser’s White Collar Sweatshop (p. 23):

[A worker from Intel said] “If you make the choice to have a home life, you will be ranked and rated at the bottom. I was willing to work the endless hours, come in on weekends, travel to the ends of the earth. I had no hobbies, no outside interests. If I wasn’t involved in the company, I wasn’t anything.”

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Advising Female Graduates

Hello to everyone and thanks to Dan for inviting me to post this month.

I wanted to begin by noting an article that appeared in today’s New York Times. In it, Lisa Belkin surveys the flood of research on how women in the workplace are viewed differently than men. Belkin’s article cites many studies, all of which will sound familiar—probably because if you haven’t heard of the study she is discussing, you’ve heard of one that had similar results. These studies all boil down to the same conclusion: women are perceived to lack whatever qualities are most valued in the workplace, at least when compared to men who are behaving the same way as their female counterparts.

As Belkin explains, women are advised:

Don’t get angry. But do take charge. Be nice. But not too nice. Speak up. But don’t seem like you talk too much.

She continues:

These are academic and professional studies, not whimsical online polls, and each time I read one I feel deflated. What are women supposed to do with this information? Transform overnight? And if so, into what? How are we supposed to be assertive, but not, at the same time?

Belkin’s article has made me consider what I say to graduating female law students. My gender-specific advice always involves the thorny issue of balancing a legal career and children. I don’t say anything about the situation that all female graduates will find themselves in: that is, being a woman in a legal workplace.

I’m wondering what advice others give on this topic, or what valuable counsel others have received. If you have anything useful, please pass it along.

Eugenics Problems, Left and Right

Michael Gerson has an interesting editorial in the Washington Post on the Eugenics Temptation–of the left. He quotes the following statement of James Watson on embryo selection:

“If you could find the gene which determines sexuality and a woman decides she doesn’t want a homosexual child, well, let her.” In the same interview, [Watson] said, “We already accept that most couples don’t want a Down child. You would have to be crazy to say you wanted one, because that child has no future.”

Gerson then quotes Yuval Levin on a tension within liberalism that I’ve noted on this blog–between egalitarianism and libertarianism:

Science looks at human beings in their animal aspects. As animals, we are not always equal. It is precisely in the ways we are not simply animals that we are equal. So science, left to itself, poses a serious challenge to egalitarianism. The left . . . .finds itself increasingly disarmed against this challenge, as it grows increasingly uncomfortable with the necessarily transcendent basis of human equality. Part of the case for egalitarianism relies on the assertion of something beyond our animal nature crudely understood, and of a standard science alone will not provide. Defending equality requires tools the left used to possess but seems to have less and less of.

Gerson, whom David Frum “ranks among the most brilliant and most influential presidential speechwriters in decades,” has put his finger on what is probably the most dangerous tension in “left” ideology today. Positional arms races for designer babies dovetail with an ethos that says that choice in reproductive matters must be absolute. As I stated five years ago in an article, egalitarian principles should check this tide.

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Roberson for the Social Networking Generation?

Picture (Flour of the Family).JPGThe New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of “loser” pen pal that cell phone subscribers could finally “dump.” The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I’m most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan “flour of the family.” Although the New York Court of Appeals rejected the young woman’s claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article “The Right to Privacy” was adopted in a variety of related contexts, but this dimension of privacy — the appropriation of likeness for commercial purposes — has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that’s a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one – the hurt feelings stemming from the unwanted exposure of one’s likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it’s no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce – we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.

Joan Williams, Law Professor Making a Difference

There’s a must-read NYT Mag. piece on Joan Williams, who has done amazing work to restore “work/life balance” to lawyers and employees generally. As the piece notes, “in the United States today, working parents receive supports and benefits that in much of the developed world would be considered scandalously ungenerous.” Williams’s book Unbending Gender has advanced lawsuits combating “workplace discrimination because of family care-giving obligations:”

Williams argued that the growing tension between work and family was not simply a product of economic necessity. It stemmed, rather, from a marketplace structured around an increasingly outdated masculine norm: the “ideal worker” who can work full time for an entire career while enjoying “immunity from family work.” At a time when both adults in most families had come to participate in the labor force, Williams argued that this standard was unrealistic, especially for women, who remained the primary caregivers in most households.

Williams’s focus has also helped extend antidiscrimination law beyond “so-called ‘glass ceiling’ cases involving women barred from the top rungs of a handful of elite professions,” to plaintiffs who “have ranged across the occupational spectrum, from physicians to police officers to grocery clerks.” It’s good to see that a law prof can help spur the EEOC to take the problems of working parents seriously, even as some in DC are unwilling to offer the most basic supports provided by our OECD peers.

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Sex, Laws, and Videotape (Genarlow WIlson Edition)

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year’s Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence “a grave miscarriage of justice,” but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge’s proper role in such circumstances. But I am going to focus on an information law angle — specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?

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Vanity Taxes vs. Worthless Competitions

vanity.jpgNew Jersey adopted a “vanity tax” in 2004, levied on “any medical procedure performed on [an] individual which is directed at improving [his/her] appearance and which does not meaningfully promote the proper function of the body or prevent or treat illness or disease.” In a critique of the tax, Michael Duel argues that it is sexist and such surgery is frequently nondiscretionary:

Women can either feel inferior, enjoy a lower quality of life, and be rejected by mainstream society, or else suffer the pain and toil of cosmetic surgery to achieve the exact same ideals society uses to reject them.

Cosmetic surgeons have also railed against the tax, unctuously declaiming that it “discriminates against women” because they buy about 86% of the procedures.

NOW President Kim Gandy has a nice response to that canard:

In general, I’m opposed to most things that impact women disproportionately, but disproportionate use isn’t a good measure if a tax is unfair or not. I can’t imagine someone arguing against having a luxury tax on yachts because more of them are bought by men.

State Senator Karen Keiser is uppping the redistributive ante in Washington state, with a plan to earmark vanity tax revenue for health insurance for poor children. As one tax policy analyst claims, “In this anti-tax climate, these user-based, selective tax proposals are more palatable than broader ones.”

Duel also attacks the vanity tax as a matter of tax policy, but I have a feeling he misses its point. . .

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