Category: Feminism and Gender


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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The Mommy Wars and Breast Milk

Last month, we saw the revival of the “Mommy Wars” once again. Triggered by the publication of Leslie Bennetts’ book, The Feminine Mistake, major newspapers, magazines, and blogs debated Bennetts’ premise that mothers who leave the workplace to raise children, even temporarily, risk significant economic losses in the future. As commentators debated the pros and cons of women’s life choices, and the effects on their children, there was little discussion of an issue that may have a much greater impact on children—outsourcing of breast milk. Yes, you read it right the first time. Although women have always breastfed other women’s children, as Time magazine recently reported, only now is there a clear for-profit market in human breast milk in the United States.

Studies have shown that breast-fed babies enjoy numerous health benefits which infant formula simply cannot replicate. Clearly, breast milk is best but the question is “whose breast milk?” An infant might benefit most from his own mother’s milk, but there is evidence that another woman’s breast milk is preferable to infant formula. Some mothers are physically unable to provide their children with their own breast milk, while others choose not to because, according to Time, they have “high powered careers.” If the market for human breast milk continues to grow, this latter group (although small) might find itself in the center of the Mommy Wars.

Women who purchase human breast milk are generally wealthier than the women they employ to nurse their children. Although at a salary of $1,000 per week, wet nurses earn more than most nannies, and demand for their services is increasing, some people are uncomfortable with the class and racial implications of this line of work. Let’s not forget that during slavery, Black women often nursed their masters’ children.

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Why So Few Black Ballerinas?

There was an interesting article in yesterday’s NY Times discussing the absence of Black ballerinas in prominent ballet companies in the U.S. The reasons are many and complex, including economic (ballet is expensive), the pool of qualified dancers is very small, and access to ballet training is quite limited in the U.S. But I was struck by the suggestion that ballet companies are reluctant to hire even exceptionally gifted Black ballerinas because they are afraid to challenge their subscriber base and their expectation of “a ballet company, the way you thought ballet was.” Other Black ballerinas suggested that stereotyping of Black women was a major obstacle to their success because “Black women are perceived as being forceful, which doesn’t square with the ethereal image of a ballerina.”

I must confess that my exposure to ballet is quite limited. Thus, I found it hard to believe that dance companies would pass up the opportunity to recruit talented dancers because they feared their audience reaction. Then I remembered a column which appeared in the NY Times Magazine last December. A reader asked “The Ethicist” columnist whether she was racist because her enjoyment of “The Nutcracker” ballet had been “severely marred by the appearance of a black snowflake and then, even worse, a black Snow King.” According to this anonymous reader, “the aesthetic incongruity was inconceivable. The entire ballet was spoiled.” I am not sure what to make of this reader’s question, but it does suggest that ballet companies’ concerns about their audience’s ability to welcome Black dancers are not completely unfounded. Any thoughts?


Partial Birth Abortion and Scientific Uncertainty

Although my area of research is primarily environmental law, I also explore how lawmakers deal with scientific uncertainty. And so the recent decision in the consolidated partial-birth abortion cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382) really interests me.

In these cases, Justice Kennedy states that “when medical uncertainty persists . . . The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Accordingly, the Court deferred to Congressional findings in 2003 that partial-birth abortion is never medically necessary. While this is definitely a blow for advocates of abortion rights, I can’t say (without further deeper reflection) that I automatically disagree with this approach, in which the majority deferred to Congressional findings, albeit not “uncritically.” This approach, after all, affects many areas in which Congress has made decisions to regulate in the face of scientific uncertainty, including environmental and health regulation. For example, how much can the presence of scientific uncertainty allow Congress to authorize agencies to protect the environment under the Commerce Clause?

The key, though, is how this “not uncritical” examination plays out in the future, and how “uncertainty” is defined. How much medical disagreement is necessarily to overcome a Congressional finding? If the bar is too high–which it could be, given how one could argue that all of science is “uncertain” and “unstable” to some extent–then Congress is free to entirely ignore scientific determinations. Yet if the bar is too low, then Congress would be unable to act in the face of predicted, yet “uncertain” risks.

What I would have liked to have seen, therefore, is a more thorough delineation of the nature of uncertainty and degrees of uncertainty, setting out ways for courts to inquire into its legal existence, which of course could be distinct from its epistemological existence. (This, by the way, seemed incomplete in the global-warming case of Massachusetts v. EPA as well.) Instead, it’s treated as almost an on-off thing, rather than recognizing degrees (and kinds) of uncertainty.

I would also like to have seen some recognition that scientific findings and legal findings are often intermingled. As many scholars observe, much of the science at issue in legal decisions involve “trans-scientific determinations”–determinations that involve both scientific and policy components. Because of this, a judicial determination could go either way depending on whether you look at a given determination as scientific, or legal (despite the presence of both elements). On one hand, you’ve got courts deferring to Congress when it “act[s] in areas fraught with medical and scientific uncertainties,” but you’ve also got the canon that courts apply (somewhat inconsistently) to construe statutes to avoid constitutional risks–which also involve areas of uncertainty, albeit legal uncertainty. And so without delineating how you “tell” what counts as science (for legal purposes) or law (for legal purposes), you end up with a situation where the rule of deference that one applies (or doesn’t apply) will depend heavily on a standardless characterization of the nature of a determination.

Anyway, I’m still thinking this through! So I’d really appreciate further thoughts and suggestions!


Woman Town? has an interesting blurb on “Woman Town,” an experimental town inside the Shuangqiao district in the Chongqing municipality of China dedicated to being a place where women make the decisions. It’s an interesting concept, though I’m not entirely sure what the point of it is. Is it to respond to what’s seen as a predominantly patriarchal culture? Is it meant more as an amusement for tourists? Time will tell, but it’ll be fascinating to see whether or not any different local legal approaches develop as a result of an institutionalized “female dominated” structure. Keep your eyes peeled, Carol Gilligan!


Virtual Women

Yesterday, the Virtual Women conference was held at Thomas Jefferson School of Law. It was the seventh annual Women and the Law conference for TJSL, and it was a good one. The keynote speaker was Rochelle Dreyfuss (NYU); panelists included Ann Bartow (South Carolina), the proprieter of Feminist Law Profs blog, Boatema Boateng (U.C.S.D.), Dan Burk (Minnesota), Carys Craig (Osgoode Hall at York University, Toronto), former Co-Op guest Christine Haight Farley (American), Michele Goodwin (DePaul), K.J. Greene (Thomas Jefferson), Eileen Kane (Penn State), Mary LaFrance (UNLV), Doris Estelle Long (John Marshall), Malla Pollack (American Justice), Cheryl Preston (BYU), and Rebecca Tushnet (Georgetown), as well as a panel of practicing attorneys. Kudos to conference organizers Julie Cromer and Sandy Rierson for putting together a great group.

With that line-up, it’s no surprise that the conference is already being blogged. On her blog, Rebecca Tushnet has posted summaries and reactions for the first two panels. If you haven’t already done so, you should take a look at Rebecca’s posts on the conference: Panel 1, Panel 2 (part 1), Panel 2 (part 2), Panel 3, and the Keynote.


Should the state put gender under erasure?

I was delighted to see this story about Chanda Musalman, a Nepalesse person who asked that the census not record his/her gender. The census workers, wanting to put something down, decided that “both” would be more suitable than “none”.

This would be a very interesting move if adopted here in the US. Legal and social classifications, of course, run along a two-way street. A fair portion of equal protection theory and doctrine can be thought of as a response to this fact: Once we realize that laws both reflect and contribute to social classifications that carry different status benefits, the game is on. Part of the fun of watching traditionalist legal actors is watching both how insistent they are that their classifying reflects some natural reality and how nervous they are that legal classifications might work against their preferred social order.

Are there a more sophisticated argument against multi-coding? None come to mind. I’m curious what others think. Political feasibility aside, would you support such a change in our census? How would you classify yourself? Do you know anyone who you think would prefer to cross-classify?


Cheerleaders for girls and for geeks

The N.Y. Times has an interesting article by Winnie Hu on movements to have cheerleaders cheer equally for boys and girls teams. The legal theory is that girls’ sports, deprived of cheerleaders, are receiving less support from their schools than boys’ sports receive. The unsurprising reality in many cases is that the equal cheering makes no one happy — including the players on the girls’ teams that receive the cheers.

Will the next move be equal cheering for the coed academic teams? I did receive a varsity letter in high school — for my participation on the math team. Our team coach was able to convince the administration that we needed to be treated equally with the sports teams. You will not be surprised to hear that I put the big orange “M” in the bottom of the dresser instead of sewing it onto a jacket.

I can just imagine what math team might have been like if we had cheerleaders: “Calculate the area, hooray, hooray; pi-r-squared, that’s the way.” That would have been enough to get me to quit the math team, although thinking with all of the cheering going on might have created some additional challenge. Plus, I suppose that I might have gotten to know some of the cheerleaders on the bus rides to competitions. This could have made a great ’80s movie.

On the merits of the curernt dispute, my own view is that having (almost exclusively) girls cheering the boys does not send the right messages about our idealized views of sex roles. But it probably doesn’t make things much worse either, and the new interpretation seems like a stretch of Title IX. My preferred solution would be to turn cheerleading into a sport in its own right, if there remains enough demand for it, with squads competing against each other while not disturbing other athletic contests. Some will say that to cheer, you need something to cheer. But I saw “Bring It On,” so I know better.


Xoxohth 1.2: The Whys and Wherefores

[This is Part I, Section 2, of the project I announced here. (Part 1.1 is here.) The goal of today’s installment is to present a diversity of views on why people spend time on Xoxohth, drawing largely on the voices of posters themselves.]

inkblot.cgiI’ll start by acknowledging an uncomfortable fact. This project suggests, and perhaps even reinforces, that critique of academic life often bandied about by the popular press: I’m asking a minor question, focusing on the uninteresting choices of marginal members of society, and using a methodology of debatable validity.

I felt bad about this for a while. And then I realized that the next best use of my time is grading: a similar process, but with higher perceived stakes.

Forward. The issue for today is why people continue to spend substantial amounts of time on XO. The question arises from the obvious point that students and lawyers have many ways to spend their time. Most of those ways are unlikely to lead to professional embarrassment if publicized, and may even enable individuals to build reputations for probity and acuity. It is odd, then, that hundreds or thousands of students and lawyers devote significant chunks of their free time to talking anonymously on XO. What gives?

It seems to me that there are a few motivations in play: entertainment, a search for information, the need for community, and the pleasures of transgression. Before we begin, let’s get some reader input. What motivation do you think drives XO’s traffic?

Why Do People Spend Time on XO?
The Community
The Transgression!
Information (Giving and Getting)
Free polls from

Now that we’re done with the scientific polling, let’s look at the qualitative data.

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