Disobedience, Asceticism, and Disparity

I am grateful to Concurring Opinions for the invitation to participate in this symposium on Bernard Harcourt’s elegant and timely book, Exposed.  My comments here repeat and elaborate some of the remarks I offered at a Columbia faculty workshop on the book earlier this year.

I want to hone in here on two aspects of Exposed. The first continues the #ApplevFBI conversation that Frank Pasquale’s post has started in this symposium. The second takes up the role of individual discipline against desire, where I associate myself with the skepticism that David PozenDaniel Solove, and Ann Bartow express about disobedience as a form of reform online.

Public-Private Collaborations in Surveillance

The most troubling feature of the surveillance state, according Exposed, is the way in which current governmental intelligence agencies have forcibly deputized information service providers under cover of law.  Statutes like the Foreign Intelligence Surveillance Act, the Patriot Act, and the Electronic Communications Privacy Act have made federal and state surveillance far reaching; under these authorities, online transactions and conduct that many of us have long presumed are insulated from public view are now available for use and abuse by powerful public and private actors.

Of course, government-mandated public-private collaborations in national security and law enforcement are not novel.  The recent high-profile contests between the Department of Justice and Apple over the San Bernadino terrorist’s iPhone and in another case arising out of Brooklyn, are just the most recent episodes in the longstanding saga over whether and how much governments can commandeer private firms in the name of national security or law enforcement.

As Exposed suggests, there are good reasons to think that the more recent disputes involving mobile devices are different.  Yesteryear’s cases involved technologies that are simply not as powerful as iPhones and smartphones generally.  Of course, smartphones of today afford users easy access to an ostensibly unlimited number of resources.  They also are deeply embedded in our daily routines.

On the other hand, all of these great new affordances also make smartphones terrific repositories of and gateways to users’ personal information.  Apple knows this, of course.  That is why it is leveraging its deep-pockets and strong brand loyalty to invest in even more powerful encryption protocols and technologies for the iOS8 that will make today’s disputes moot.

But Apple’s stake in all of this is really just secondary.  The core question is how far the public-private collaboration in surveillance that Exposed identifies can go.  It is a pressing enough matter that a stunning array of who’s who in networked information technology has filed briefs and, in the process, projected this run-of-the-mill pretrial procedure into a cause célèbre for national security proponents and civil libertarians alike.

Discipline Against Desire: Not for Everyone

Exposed paints a picture in which we – most users – are complicit in perpetuating the whole arrangement.  The remedy for this failing is not so much a matter of reaching the right balance in law and policy, although that is certainly part of the fix.  The real challenge, Exposed argues, is to have users reject the impulse to so willingly give in.  Reform requires a new kind of personal discipline.  Consider the last sentences of the book:

Revolutionaries often forget, or do not like to recognize that one wants and makes revolution out of desire, not duty,” Deleuze and Guattari remind us in Anti-Oedipus.  What a cruel reminder, given that it is precisely our desires and passions that have enslaved us, exposed us, and ensnared us in this digital shell as hard as steel.  What a painful paradox.  What a daunting prospect.  That, I take it, is our greatest challenge today.

In some regards, it can’t be wrong that widespread resistance to the networked world will deliver us from the current state of affairs.  But one must wonder at the feasibility of this kind of grassroots reform, since, all substantive policy reform (in, for example climate change policy, immigration reform, policing) requires some degree of political will.

Defiance here may also be impossible, since, even in Exposed’s own account, users generally have no choice but to be connected. This is to say nothing of the communities across the U.S. and around the world that are desperate for networked connections.  Everything from political organizing, the provisioning of healthcare, and ordering a taxi requires a live and reliable networked connection.  Defiance is unresponsive to this fact.  At worst, it would only engender its own problems, not the least of which would be the perpetuation of disparity between networked elites (including those who have helped to engineer our information ecosystem) and the underserved (including communities who are lucky if they have a stripped down version of Facebook).

Exposed concedes that the latter – those “on the other side of the divide” – do not figure in its analysis.  But perhaps they should, particularly since low income people, blacks, and Latinos are disproportionately likelier to access the Internet through a mobile device than a PC.  This is significant if mobile devices expose users to far more invasive forms of surveillance, like law enforcement’s use of devices that mimic cell tower signaling to capture phone data.  In any case, what are we to do with the new programs that the FCC and others have developed very recently to expand public subsidies and other redistributive broadband efforts that are meant to improve the quality of online connections for the underserved today?  Should those go too?  How far should disobedience go without worsening inequality in access?

Exposed aims in the end to trigger a change of heart; it wants to cure users’ relative indiscipline as much as (if not more than) reform the incentives that drive firms and service providers to traffic in users’ personal information.  As such, it is above all a call to a kind of Thoreau-inspired quasi-religious asceticism against desire.  On the one hand, this may be soft stuff compared to the vast political economy and tens of billions of dollars that app developers stand to reap by making every click and swipe as viscerally pleasurable as possible.  On the other hand, if enough of us can muster the will to stay offline or at least constrain the information we are willing to volunteer away (say, on Buy Nothing Day, after Thanskgiving), we might begin to see positive change.  Until then, I will not be the one to tell those “on the other side of the divide” to disobey or stay away, for fear of what they’d be missing.  At a minimum, there are too many examples in just the past couple of years in the U.S. to suggest that online engagement might actually fuel offline activism against racially discriminatory policing.


#ApplevFBI: Think Different

Bernard Harcourt Exposed 02

Frank Pasquale’s post to the on-line symposium on Exposed: Desire and Disobedience in the Digital Age provides the perfect opportunity to discuss the ongoing controversy between Apple and the FBI—especially in light of David Pozen and Daniel Solove‘s respective concerns that “digital disobedience” may fall short of what’s required to properly address the problems surrounding digital privacy today.

Frank Pasquale is undoubtedly right that Apple’s newfound embrace of privacy is little more than a smart business decision: “Large firms like Apple now see commercial advantage in fighting demands for decryption in the US,” Pasquale writes convincingly.

The fact is, Apple’s newfound embrace has to be understood against the backdrop of what was probably its most humiliating moment in history—and probably its most costly, in terms of international business. Yes, I am referring to that infamous NSA Powerpoint PRISM slide, leaked by Edward Snowden, showing Apple on that long list of Silicon Valley firms turning over our personal data to the NSA. Everyone will, no doubt, remember the slide all too well:



Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL… and, yes, last but not least, trailing behind the others, just one among many, just another undifferentiated firm “added Oct. 2012”: Apple. Apple was, after all, the one company we all had faith in, we all thought might be different than the others. It was the company that made its reputation on being “different.” Recall its famous advertising campaign, “Think Different,” in the late 1990s, with images of Martin Luther King, Muhammad Ali, Mahatma Ghandi, Albert Einstein, and John Lennon, with references to the rebels, the misfits, the trouble makers, the ones who see things differently… “They’re not fond of rules and they have no respect for the status quo,” Richard Dreyfuss narrated in the Apple commercial (and Steve Jobs as well in the unreleased video). “Because the people who are crazy enough to think they can change the world, are the ones who do.”


But there was Apple, right there on the NSA slide, trailing the others, trying to catch up with the others, collaborating with the spies and giving away our data to the signal intelligence agency. There it was, just another embarrassing ne’er-do-well. Hardly a rebel, hardly a trouble maker, hardly the one who sees things differently. No, Apple was just like all the others, giving our information away to the government. No Martin Luther King, no Ghandi, in fact, no courage or backbone or spine.

Of course, as long as nobody knew, Apple didn’t seem concerned about our privacy. But once that NSA slide went public, wow, how things changed! And this makes business sense, naturally, especially for a company like Apple that wants to dominate the markets in China and Europe and elsewhere abroad—and desperately needs, to do so, to appear independent of American intelligence interests. A company that, perhaps, desperately needs to regain a bit of our trust and to try to distinguish itself once again.

But, today, in 2016, there is even more to it than that. Apple has been increasingly flexing its own “governmental” muscle. It has increasingly been trying to act like the state. In effect, Apple is now showing the world that it may be even stronger than the United States government—which incidentally may be true given that it is, fiscally, so much more solvent and, in our neoliberal imagination at least, so much more legitimate.

The lines between the state and commerce have been falling apart for some years now. You may recall the story about Josh Begley that I detailed in Exposed: how Apple rejected Begley’s application for a drone stream app because it did not appeal to a “broad enough audience.” (Exposed, p. 189-190). Apple and other firms like Google have taken over security and surveillance functions, and in the process are breaking down the traditional lines that separate commercial from governmental functions.

So Apple’s resistance to the FBI not only makes business sense, it also contributes to a larger trend that is reshaping our form of government in the twenty-first century.

Given all of this, it makes little sense to approach the #ApplevFBI controversy from a traditional public policy perspective. Rather, we need to approach it from a critical theoretic perspective, and remember and emphasize that Apple would not even be resisting the FBI were it not for the type of digital disobedience that Edward Snowden embodies—were it not, that is, for the fact that Snowden exposed Apple.

Nothing here is intended to suggest, as Ann Bartow intimates, that legal reforms have no place alongside digital disobedience. To the contrary, as I suggest, the entire property relation to personal data needs to be reformed. But it is to underscore the need, as well, for more radical or extra-legal interventions. Without those, useful legal reforms are unlikely to attract much public support. We need to think different.


Symposium on Wedlocked: Author Meets Readers

In what follows I aim to respond to each of the contributions to this symposium on Wedlocked. As an initial matter let me say thank you to each of your for reading the book, for your rigorous engagement with its arguments and for the gift of intellectual friendship. (Each of these responses also appears as a comment to the individual posts.)

I am delighted by Professor Elizabeth Clement’s engagement with Wedlocked. As evidenced by her “We Are Family” scholarship, she has been tilling some of the same soil that drew my attention in this book. Her review/comment above offers an amazing synthesis of so many of the main arguments of my book and I am enormously grateful for the way she engages it. A question: she suggests that the gay community turned to marriage in the 1970s and in later decades because of insecurity our families experienced on marriage’s outside. I agree – but the book aims to suggest that marriage was not the only legal instrument that might have addressed that insecurity. Many of us in the lesbian community felt other legal forms could create a structure for our families without reproducing the troubling history and gendered nature of marriage. Paula Ettelbrick and Tom Stoddard staged this discussion in their now canonical debate about the wisdom of a marriage strategy in Outlook in 1989. I remember Paula writing the early drafts of that essay in our living room in Brooklyn in 1988, screaming at the legal pad on which she was writing (this was a pre-computer era!) that pursuing marriage was a terrible mistake. So yes, I agree with Clement’s explanation of why turn to marriage, but that doesn’t address the larger historical question of whether there was debate in the community about the wisdom of this approach and what the bases of that debate amounted to. Wedlocked tries to give those now-familiar debate a new context in which to be considered.

Thank you to the historian – pet or otherwise – for taking the book’s history seriously.

Allison Tait offers a generous and generative comment on the arguments I offer in Wedlocked. Your own work is a testament to the rich forms of analysis that the win in Obergefell calls forth – not to deny the legal/political goal of marriage equality, but to consider anew the structural inequalities and historical legacies that continue to reside in marriage itself, notwithstanding the repudiation of its heteronormative limits. Your article, Divorce Equality, 90 Wash.L.Rev. 1245 (2015), takes up the meaning of equitable distribution rules in the era of marriage equality, and your The Return of Coverture, 114 Mich.L.Rev.First Impressions 99 (2016), unpacks the ways in with Justice Kennedy’s reasoning in Obergefell draws from arguments that are, to borrow at term from Eve Sedgwick, kind of “gendery.” This excellent work challenges us to consider whether the win for marriage equality might be premised on a loss for hetero women in marriage. So too, your work reminds us of the ongoing work to be done to dismantle the afterlife of couverture. I look forward to reading where you take us in future work.

For Rick Banks, thank you so much for reading and engaging Wedlocked. I appreciated the arguments you made in your book: Is Marriage for White People? You surely have thought hard about the relationship between marriage, respectability, and the collectively conjured notion/fantasy of a good life at stake in the cultural value we place on marriage.

I suppose I would be less sanguine about the ways in which marriage has become a more egalitarian institution (“the legal structure of marriage is less gendered than ever” and “Throughout the nation, couples lives together and have sex without any fear of prosecution. Marriage also is no longer the sole means of establishing a parent-child relationship. One no longer has to be married to be recognized as a father.”) Just last month a bill was introduced into the Illinois legislature that would condition the issuance of a birth certificate to a child whose mother is unmarried on the mother naming the child’s father. Specifically, HB 6064 would establish that “if the unmarried mother cannot or refuses to name the child’s father, either a father must be conclusively established by DNA evidence or, within 30 days after birth, another family member who will financially provide for the child must be named, in court, on the birth certificate. Provides that absent DNA evidence or a family member’s name, a birth certificate will not be issued and the mother will be ineligible for financial aid from the State for support of the child.”

This bill – a proposal that has a good chance of being enacted – renders legally invisible a child born to a woman who does not have a husband or some other man who will stand up and claim economic responsibility for the child, treats marriage as the only institutional structure for legitimate childbearing, and reinforces the notion that dependency must be privatized into the nuclear family – since the absence of a birth certificate renders the child and the mother ineligible for public benefits.

So while same-sex couples celebrate the modernization of marriage as an institution that is finally divested of a heteronormative premise, we witness a resurgence of punitive measures brought against low income, largely women of color, whose sexual and reproductive lives are unlikely to satisfy this expectation. As I argue in the book, the win in the Obergefell case was tragically accomplished by redistributing shame from same-sex couples (whose decency is now manifest) to the domain of marital failure represented by the “unwed poor mother of color.” I wouldn’t suggest that this redistribution of shame was a conscious strategy pursued by the advocates of marriage equality, but rather it was a predicable effect of this campaign that we bear a responsibility to account for.

Let’s talk more about this – I appreciate how difficult these issues are, and your book takes them up in a thoughtful and complex way. I am grateful that you have engaged Wedlocked so thoughtfully and look forward to the synergies that our two approaches produce.

Professor Ed Stein’s poignant assessment of the arguments I advance in Wedlocked put pressure in all the rights places. He hesitates to join me in my concerns about the domesticating power of marriage, and is more hopeful than am I that same-sex couples will have the ability to transform marriage more than marriage will transform same-sex couples. On this point I can only say: we’ll have to wait and see. I clearly recall discussing this issue with Paula Ettelbrick and Nan Hunter at the beach in Cherry Grove in the late 1980s, just as Paula and Tom were debating the merits of a marriage equality litigation strategy. Nan, like Ed, was much more optimistic about the power of same-sex couples to transform the deeply gendered nature of marriage. Paula and I were more dubious. On this one, I hope our side was wrong, but I don’t see evidence of it yet.

Ed also points us to Michael Boucai’s and Douglas NeJaime’s new work that seeks to situate the marriage equality campaign in a more radical and complex history. Both of these accounts, to my mind, suffer from distortions that arise when historiography is done with a presentist bias, misreading facts and values in history in light of current meanings. These concerns may say more about me – as I was part of those earlier debates and feel personally attached to them – than they do about marriage and LGBT politics today.

Ed also raises some concerns about the story I tell in the book of a family court judge in New Jersey backdating a divorcing couple’s relationship to the point they started dating, rather than to when they legally wed. He sees a kind of justice in retroactively legitimizing a relationship, particularly in cases where doing so would benefit one of a surviving spouse upon the death of another. “I favor ‘back dating’ in both cases over not doing so in either,” he writes. In response I’d suggest that we not collapse these two cases – one where the parties disagree about when their relationship ought to be governed by the laws of marriage and the other where there is a disagreement between the couple and the state. In the scenario I offer, backdating the marriage at the time of divorce as a form of reparation accomplishes an unjust repair, as the facts do not justify any fair reading that the couple would have married had they been able to at an earlier time. In the example Ed offers the only thing that kept the couple from marrying earlier was a state prohibition from their doing so, thus resulting in an unfair distribution of benefits upon one spouse’s death. Facts here matter, and a wholesale solution that sweeps everyone into marriage’s shadow strikes me as creating its own set of injustices that the law can avoid by undertaking individualized inquiries about the marital intent of the parties in the pre-Obergefell era.

Thank you Ed for reading the book and for engaging it so carefully.

Professor Kimberly Mutcherson’s rich engagement with Wedlocked pushes on what might be one of the most challenging issues I raise in the book: what threat does marriage equality pose to the viability of queer families? In asking this question she provokes us, well really me, to be more precise about what I mean when I deploy the term “queer” – what actually makes a family queer, if not merely reducing the notion to lesbian or gay parents? And given that the ideal of the heterosexual nuclear family has long ago surrendered to the reality of a wide range of family forms, isn’t queer the new norm? (Professor Mutcherson writes: “If queer simply means not the nuclear family model of one man, one woman, and their biological children living in a single household, then a huge number of families are queer in this country, which starts to make them seem more mainstream even if not traditional.”)

In effect, what Mutcherson is highlighting is the way in which queer gets thrown around rather promiscuously these days, and she invites me to be more precise when I figure the win in the marriage equality fight as posing a threat to queerness.

So here are some thoughts: queerness is not a stable identity that ought to be added to the list of categories we protect in law or for whom we create national organizations that fundraise in its name (eg: NGLBTQ Task Force). It is not a hipper version of gay or lesbian that, when rendered as a verb, will somehow “queer” marriage by populating the institution with fabulous same-sex couples.

Rather that approaching law and demanding recognition, queerness inhabit the interstices between forms of legal recognition, gaining its coherence, and in some cases pleasure, from the ways it resists legibility in law’s terms. The examples in the book of families I term “queer” offer a glimpse of this possibility: defying the law’s injunction to organize kinship within a grid of intelligibility, and privilege, that serves larger social interest, such as the privatization of dependency. Queer families are not simply non-nuclear – as Mutcherson suggests – but are made up of attachments of intention, an intention to a kind of subterfuge or irony or exploitation of law’s internal contradictions.

Kim, thank you for this provocation and for your engagement with Wedlocked.

My comments on Professor Kim Mutcherson’s review of Wedlocked, Queering the Family in an Age of Marriage Equality, lead me to Professor Tey Meadow’s reflections, “Our Precious Perversions.” Mutcherson asks what the queer outside of marriage might look like, and Meadow suggests that queerness may be found on marriage’s inside. Meadow wonders aloud of how we might use marriage to “recuperate some of the radical potential of queer kinship,” and notes the frequency with which the media casts a prying eye on married couples who are committed to “polyamory and kink” among other non-normative sexualities. So, Meadow proposes, since marriage is here to stay, let’s see what happens if and when we cultivate perversion within the marital form.

The couple highlighted in Meadow’s review is “A Composer and His Wife,” a white Austrian man and an African American women who have chosen to supplement their marital contract with a kind of pre-, or extra-nuptial agreement: a BDSM contract that structures their marriage through a set of scripts of subjugation, discipline, and punishment. (A recent Note published in the Harvard Law Review explores the enforceability of these sorts of contracts, Nonbinding Bondage, 128 Harv. L. Rev. 713 (2014).) This sort of agreement suggests a wide range of interesting readings. Given that the legal and cultural structure of marriage, unmodified by anything like a BDSM contract, entails power relations and scripts of subjugation, discipline, and punishment, can the addition of the BDSM contract merely amplify what is already going on in a “vanilla-esque” marriage? Or does the component of explicit consent to a relation of power contained in these extra-marital contracts render the power relations within a marriage more just? Is justice, for that matter, a value even relevant to marriage, whether of the modified or unmodified sort?

Returning to Professor Mutcherson’s provocations, should we, or might we consider the composer and his wife’s relationship queer in some way? By the term queer I don’t mean simply strange or odd, but rather self-consciously aiming a kind of subterfuge, irony or exploitation of law’s internal contradictions. Yet the composer and his wife seem uninterested in law, or Law, and instead find old desires satisfied in new ways through the forms of dominance and subjection that structure their life together. That structure doesn’t come from marriage, but from their extra-marital “agreement.” I wonder, as I read the New York Times article (curiously in the Arts section as a music review) about their relationship and why they chose to marry. The husband, Georg Friedrich Haas, the Times reports, has suffered three “failed marriages” and what renders this marriage a “success” is his capacity to “come out” as “the dominant figure in a dominant-submissive power dynamic.”

Actually, I’d rather disassociate the marriage from the BDSM relationship here – these are actually two overlapping forms of governance that coexist harmoniously so long as the relationship is working. Yet, once one or the other party wants out, the law of marriage, or even criminal law, will likely trump whatever side agreement they’ve made with one another, and the consent upon which that agreement was premised. What was consensual caning or whipping when things are going well becomes assault, or worse, a hate crime when things fall apart. The law has taken a very dim view of consent in BDSM agreements, refusing to allow parties to consent to what would otherwise be considered assault. (See the Spanner, Twyman and other cases.)

In this sense, the submissive wife in this marriage, Mollena Williams-Haas, consents to her submission in the shadow of the law of marriage and criminal assault, laws that have not evacuated the scene of her subjection, but rather await her summons.   Marriage does not serve as a container or holding environment for the celebration of their perverse desires, rather it merely tolerates the forms of power to which they have contracted and stands ready to assert its own form of governance as soon as it is inclined to do so. In this regard, it would not have been surprising to see the Domestic Violence Unit of the Manhattan District Attorney’s office arrest Georg Haas after the Times ran this story. After all, he confessed in print to criminal assault. What is more, feminist reforms to the law have contributed to the law’s capacity to intervene in a marriage to offer “protection” to the more vulnerable member of the relationship – a complaining witness or victim is not necessary to initiate a criminal prosecution in the domestic violence context. For better or for worse, the law would have a very hard time distinguishing between a woman suffering from battered women’s syndrome and Mollena Williams-Haas’s consent to systematic subjugation in her marriage.

Meadow ends the review with the following: “Perhaps one thing we might do is take a lesson from Haas and Williams and make sure we don’t lose our precious perversions to the marriage discourse.” I want to take this kind of call seriously, but I’m not sure what it means. What lesson, lesson about marriage, should we draw from Haas and Williams’ relationship? What difference does it make that they are married? In what ways does the fact that their precious perversions are taking place in a space governed by the law of marriage hold out any kind of radical re-working of marriage itself? Meadow may share something here with Ed Stein, who in his review of Wedlocked posed the possibility that same-sex couples may rework the meaning of marriage in new and exciting ways.

Professor Jana Singer offers a direct challenge to one set of arguments I make in Wedlocked, that is that lifting of the bar against same-sex couples marrying may have the negative, and unintended effect, of undermining some of the progressively distributional rules contained in the current law of divorce and equitable distribution. These rules, I argue, have evolved in such a way as to account for the gendered nature of marriage and as a corrective of the gender-based economic inequality that is often reinforced at the end of a marriage. Professor Singer argues that I overstate the degree to which distributional rules at the time of divorce are guided by a commitment to address gender-based power in marriage specifically, or in the wage labor market more generally.

In one respect, Singer’s critique of this argument in Wedlocked echoes some accounts of why the marriage equality movement gained such success so quickly: marriage rights for same-sex couples represented the logical next step in what has been a decades-long modernization of the rules of marriage, from status to contract. In many respects I suppose Professor Singer is correct, but one of the insights I sought to offer in the book was the notion that gender remains quite sticky in the minds of many family court judges – creating a situation where it is difficult for them to shake loose from the notion that a marriage is made up of a husband and a wife. The anecdotes I offer in the book illustrate the circumstances in which judges interpret two women in a marriage in terms that render one of them a husband and the other a wife – economic disparities and wage labor market power differentials between the two female spouses are looked to to slot one of them in the husband role and the other in the wife role. Any understanding of the nature of their relationship and the agreements they made between one another that do not mirror a husband/wife script are invisible to these judges.

That all said, Professor Singer’s comments are well-taken and it remains to be seen how judges presiding over same-sex divorces will apply heteronormative presumptions and preferences. Let’s check back in in ten years!

Michele Zavos brings the eye of a legal practitioner with years of lesbian-feminist activism to her reading of Wedlocked.  Given that I wrote the book intending it to be both interesting and accessible to smart non-academic readers I am delighted that Michele has contributed to this symposium.

Michele and I came of age around the same time and we both have watched more radical politics of the 1970s and 1980s evolve into today’s more conventional gay rights movement.  The HIV/AIDS epidemic played a critical role in my life, both personally and professionally (most of my career as a litigator before going into the academy was devoted to HIV discrimination cases), just as it did for Michele.  The lessons I drew from that period all point in a direction other than marriage: we developed complex and strong families or kin-of-choice during that period, relying not only on a “spousal-equivalent” (remember that term?) for the care that was needed when one got sick, but turning instead to a web of friends, ex-lovers and others.   An inability to marry wasn’t what stood between people with HIV disease and their loved ones, rather visceral homophobia and AIDS-phobia posed a much greater threat to our security and care.

To say that the politics of this era “morphed into Evan Wolfson’s focus on establishing marriage equality” papers over the ugly battles that ended in the capture of “our” national organizations by the “freedom to marry” campaign.  As I mentioned in my comment to Elizabeth Clement’s contribution to this symposium, I witnessed first hand the toll that that evolution in the LGBT movement took on the likes of Paula Ettelbrick, activists who believed strongly that our work should be focused on shoring up life outside marriage.  It felt to Paula and others like a hostile takeover.

I appreciate that Michele may have a somewhat different story to tell about the shift in values in our community.  That’s cool.  But what Wedlocked aimed to do, among other things, is restore a critical, left perspective on the promise of state recognition.  Surely that recognition is something many same-sex couples my want, but our politics ought to aim for something deeper than satisfying what feels good.  (I would frame the desire many people in the lesbian and gay community have as a yearning for recognition by the state more than for “belonging” as Zavos puts it.)

Professor June Carbone’s generous and generative reading of Wedlocked poses one of the most difficult questions we face in the post-Obergefell era: What is marriage for? Professor Carbone would surely agree with the position I take in the book, namely that prohibiting same-sex couples from marrying is clearly wrong and ought to be treated as unconstitutional. But agreement on this point doesn’t necessarily entail agreement on the reasoning underlying the unconstitutionality of a ban on same-sex marriage. Nor would it entail agreement on the question of whether marriage remains an institution we ought to fight for and defend now that the Supreme Court has rendered it a more egalitarian institution.

It is these more difficult questions that Professor Carbone’s reading of Wedlocked unearths. Returning to her framing of the question: “What is marriage for?”, the book aims to point out how marriage is necessary to, or “for,” family security if and only if we abandon efforts to render non-marital families more secure. The dissolution of civil union and domestic partnership laws in the aftermath of winning marriage equality contributes to reinforcement of marriage as the best, if not only, means to “make a family.”

Professor Carbone poses an equally challenging question when she asks whether the divorcing lesbian couple I describe (Ruth and Beth) could just as easily be Ruth and Rick – and that the issues I raise about the structures of power in their relationship are similarly at stake in many heterosexual relationships. Carbone pushes this inquiry further to consider deeply gendered assumptions about marriage more generally. “Are,” she asks, “these assumptions still appropriate for anyone’s relationships? What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.”

I’m not sure I agree that marriage is no longer an intrinsically gendered institution. Of course it isn’t for some people, but in many cases marriage seems to exert a kind of gendered gravitational pull on a couple – both same- and different-sex couples – in ways that turn them into “husbands” and “wives” or “Dads” and “Moms.” I watch this pull with same-sex couples of a certain class when they decide to have kids: one stays in the wage labor market and the other stays home to be a full time parent. In ways too complex to unpack here, we may be watching the butch/femme roles that used to characterize so many lesbian relationships transform into wife/husband roles (I deliberately contrasted butch/femme to wife/husband so as to disrupt the idea that butches would become husbands and femmes would become wives. Spousal roles have turned out not to map onto previously familiar identities of butch and femme. Class, rather than gendered or sexual identity tends to drive spousal roles in many cases.)

As I discuss in Wedlocked the fact that marriage transforms two people into one economic unit brings with it certain moral hazards. These hazards include the perverse incentive for one person in the couple to become economically dependent on the economic and legal structure that marriage creates – and in the event the marriage ends, renders that person more vulnerable when they exit the marriage. This person is usually the “wife/mother” regardless of their sex. It is this moral hazard that I think bears attention as we consider how same-sex couples might transform the gendered nature of this institution. Creating circumstances where men can be wives and women can be husbands isn’t the kind of gender radicalism I have in mind, to be sure.

I guess marriage is most appropriately for those couples that want to maintain a deeply gendered relationship. As I end the book: “If those are roles you’re happy with, then marriage is for you. But if you intend to resist their pull, then alternative relationship forms ought to be a viable alternative. In ways as yet under-examined by the lesbian and gay community, to be wed is to be locked into a set of traditions and roles that we had no part in creating and that were not formed with us in mind.”


Naked and Afraid

“Exposed” author Bernard E. Harcourt does an outstanding job of describing what he calls our “Expository Society” in the book’s introduction, observing that “everything we do in our new digital age can be recorded, stored and monitored,” (p. 1) and explaining in detail how and why it happens, and ways to think about the situation.  The introduction does a nice job of cueing up the topics Harcourt will cover in the rest of the work. It also foreshadows the complexity of ideas and expression that the reader is about to encounter.

If all you want to know from this review is whether I recommend buying and reading this book, my recommendations are, yes and yes.  It’s not the kind of book that you will likely read at a single sitting, but if you persist, it draws you back and you will find yourself thinking about its lessons frequently.  I certainly have. Nevertheless, in the spirit of this group review, I offer the following criticisms:

  1. Writing Style

“Exposed” is an excellent book in many ways.  It covers a lot of important information in minute detail, and it raises many provocative questions.  But after the introduction, something about the tone of the book becomes decidedly off-putting.   Harcourt uses devices like deployment of the pronoun “we” to avoid sounding mocking or condescending, but it doesn’t quite work.  For example, Harcourt writes: “Most often we expose ourselves for the simplest desires, the pleasure of curiosity, a quick distraction—those trifling gratifications, that seductive click the iPhone shutter makes, the sensual swoosh of a sent email.” (p. 15). And he asserts we lack discipline. (p. 17).  And he says: “it is precisely our desires and passions that have enslaved us, and ensnared us in this digital shell as hard as steel.” (p. 283). There is aggressive shaming here and throughout the book that the author’s self-inclusion by use of the first person plural does not dilute.

Although the writing is at times very elegant, it also runs to the impenetrable.  For example, Harcourt’s infatuation with Foucault takes even the well-known panopticon privacy metaphor and makes it obtuse.   A little over a third of the way into the tome I encountered this paragraph:

“The ambition of virtual transparence magnifies the disciplinary ambition of visibility within enclosed structures.  Recall that there was an important gradual evolution from rendering visible to transparency during the disciplinary turn.  “The old simple schema of confinement and enclosure, Foucault wrote, “began to be replaced by the calculation of openings, of filled and empty spaces, passages and transparencies.”  Rendering visible would develop into internal transparency, to the point that the panopticon itself would “become a transparent building in which the exercise of power may be supervised by society as a whole.”  Foucault refers to Bentham’s panopticon as his “celebrated, transparent, circular cage,” and places the element of transparency at the center of the panoptic principle: it is what made “architecture transparent to the administration of power.” The element of transparency played an important role in the internal structure of the disciplinary edifices. “The perfect disciplinary apparatus would make it possible for a single gaze to see everything constantly,” Foucault emphasized.”” (p. 119-20).

If you can absorb all that in the first reading, I congratulate you.  But I don’t know too many people outside of academia and maybe a few think tanks who will want to put as much work into its reading as this book demands.  The writing is breathtakingly brilliant in places, but its accessibility to even educated and highly interested readers may be limited.  Expressing complicated ideas in clear language is hard but worth it. If the wonderful and clear writing Frank Pasquale had not recommended this book so strongly, I am not sure I would have made it through the first couple of chapters or agreed to write this review.

  1. Uncharitable Generalizations of  We the Proletariat

So engaged is he in excoriating us for indulging our desires and passions online, Harcourt fails to fully acknowledge the degree to which people are compelled to participate in what he describes as our current digital situation. I don’t know anyone in real life who doesn’t “get” the importance of privacy.  I don’t know anyone in real life who doesn’t care about their privacy.  And I definitely don’t know anyone personally who thinks they don’t have to worry about privacy if they aren’t doing anything wrong.  Google CEO Eric Schmidt reportedly once said: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”  But this is a fairly anomalous statement, made by a man who profits directly and greatly from personal data.  Of course he would like to shame people into disregarding their own privacy.   But there is no evidence that he has succeeded.

In the world of ordinary people, every single person I know has had an unpleasant airport security line episode, or has found fraudulent charges on a credit card bill, or had an email or Facebook account hacked, or an interception of their income tax refund, or some other identity theft issue.  No one is complacent!  All are aggrieved.  But there is no clear path to better privacy or security.  You can’t (or at least definitely shouldn’t) avoid filing your federal tax forms, even though the IRS is demonstrably terrible at keeping them confidential.  You can’t stop eating or wear clothes, so you have to buy food and clothing somewhere.

People who travel need access to plane tickets, hotel rooms, and rental cars.  Some travel is for hedonic purposes, which Harcourt might be especially judgmental about if we are inattentive to personal privacy concerns, but many of us also need to travel for work.  This requires credit cards, and therefore involuntary contributions to data streams.  Many of us have to advance the funds for work related travel out of our own pockets and on our personal credit cards, and then wait to be reimbursed, sometimes for lengthy intervals. Compromising our data privacy along the way is simply another burden we bear.  We need the rental car waiting for us in the parking garage when it is very late or very early and the service desk is closed. We loath flying a tiny bit less if we can occupy one of the plane’s aisle seats.  It’s nice to have free wifi at a hotel, because otherwise we might have to pay for it out of pocket. And if submitting great swaths of personal information to the government in exchange for “TSA pre-check” at airports means an extra hour of pre-flight sleep in the morning, should we really be ashamed of this sybaritic desire?  Is forgoing an “easy pass” and instead waiting in long lines to pay highway tolls with cash the kind of activism that is going to foster a privacy revolution?

  1. Under-Appreciation of Law as a Tool for Digital Resistance

Even simple new legislation can improve lives and lived privacy. For example, implementation of a short, clear law establishing privacy favoring defaults on commercial websites could be a simple way to start changing the culture of online commerce.  I prefer not to “remain signed in” to any website.  Because “remain signed in,” or “remember me” are the proactive defaults at most websites, this means I have to affirmatively uncheck the “remain signed in” or “remember me” boxes dozens of times each day.  Occasionally I forget or am unable to uncheck the box, and have to figure out how to log out of a website, which is rarely obvious.  If the law required an unchecked “remain signed in” or “remember me” box as the default, joining the production of an online data stream by signing on permanently to a website would require a volitional act. This would improve privacy and enhance awareness about data collection. The same sort of law could require online merchants to give consumers the option not to have their credit card information stored by the store website, and even make a “do not remember credit card info” option the default, leaving less information around for hackers to appropriate as well as improving the privacy climate.

These and other relatively small changes instigated by new laws could eventually lead, albeit incrementally, to significant changes.  A federal data breach notification statute could replace and improve upon 47 different state law approaches, and enhance the lives of people living in the three states with no data breach notification laws at all. Another possibility is a law that forces venders on and offline to offer the same prices to customers who do not have “loyalty cards” or memberships as to those who do, so that no one will have to cede personal data for a product discount.

Ultimately individuals in the United States would benefit from a European Union style approach to data privacy.  Harcourt indirectly makes the case for why it is needed, but doesn’t advance the cause overtly.  Instead he advises readers about technological steps they can take if they can afford them and understand computers well enough to implement them.  And then he insists we engage in resistance, in the form of hip, edgy political disobedience. I think direct lobbying for a better legal regime will be more effective in the long run. The two approaches are not mutually exclusive of course, but I think that openly and assertively advocating for specific new laws could be the most effective mechanism for change, and attract the most support.

A Social Theory of Surveillance

LocksBernard Harcourt’s Exposed is a deeply insightful analysis of data collection, analysis, and use by powerful commercial and governmental actors.  It offers a social theory of both surveillance and self-exposure. Harcourt transcends methodological individualism by explaining how troubling social outcomes can be generated by personal choices that each seem rational at the time they are made. He also helps us understand why ever more of daily life is organized around the demands of what Shoshanna Zuboff calls “surveillance capitalism:” intimate monitoring of our daily lives to maximize our productivity as consumers and workers.

The Chief Data Scientist of a Silicon Valley firm told Zuboff, “The goal of everything we do is to change people’s actual behavior at scale. When people use our app, we can capture their behaviors, identify good and bad behaviors, and develop ways to reward the good and punish the bad. We can test how actionable our cues are for them and how profitable for us.” Harcourt reflects deeply on what it means for firms and governments to “change behavior at scale,” identifying “the phenomenological steps of the structuration of the self in the age of Google and NSA data-mining.”

Harcourt also draws a striking, convincing analogy between Erving Goffman’s concept of the “total institution,” and the ever-denser networks of sensors and training (both in the form of punishments and lures) that powerful institutions use to assure behavior occurs within ranges of normality. He observes that some groups are far more likely to be exposed to pain or inconvenience from the surveillance apparatus, while others enjoy its blandishments in relative peace. But almost no one can escape its effects altogether.

In the space of a post here, I cannot explicate Harcourt’s approach in detail. But I hope to give our readers a sense of its power to illuminate our predicament by focusing on one recent, concrete dispute: Apple’s refusal to develop a tool to assist the FBI’s effort to reveal the data in an encrypted iPhone. The history Harcourt’s book recounts helps us understand why the case has attracted so much attention—and how it may be raising false hopes.

Read More


Irresistible Surveillance?

Bernard Harcourt’s Exposed: Desire and Disobedience in the Digital Age offers many intriguing insights into how power circulates in contemporary society.  The book’s central contribution, as I see it, is to complicate the standard model of surveillance by introducing the surveilled’s agency into the picture.  Exposed highlights the extent to which ordinary people are complicit in regimes of data-monitoring and data-mining that damage their individual personhood and the democratic system.  Millions upon millions of “digital subjects,” Harcourt explains, have come to embrace forms of exposure that commoditize their own privacy.  Sometimes people do this because they want more convenience when they navigate capitalist culture or government bureaucracies.  Or because they want better book recommendations from Amazon.  Other times, people wish to see and be seen online—increasingly feel they need to be seen online—in order to lead successful social and professional lives.

So complicit are we in the erosion of our collective privacy, Harcourt suggests, that any theory of the “surveillance state” or the “surveillance industrial complex” that fails to account for these decentralized dynamics of exhibition, spectacle, voyeurism, and play will misdiagnose our situation.  Harcourt aligns himself at times with some of the most provocative critics of intelligence agencies like the NSA and companies like Facebook.  Yet the emphasis he places on personal desire and participatory disclosure belies any Manichean notion of rogue institutions preying upon ignorant citizens.  His diagnosis of how we’ve lost our privacy is more complex, ethically and practically, in that it forces attention on the ways in which our current situation is jointly created by bottom-up processes of self-exposure as well as by top-down processes of supervision and control.

Thus, when Harcourt writes in the introduction that “[t]here is no conspiracy here, nothing untoward,” what might seem like a throwaway line is instead an important descriptive and normative position he is staking out about the nature of the surveillance problem.  Exposed calls on critics of digital surveillance to adopt a broader analytic lens and a more nuanced understanding of causation, power, and responsibility.  Harcourt in this way opens up fruitful lines of inquiry while also, I think, opening himself up to the charge of victim-blaming insofar as he minimizes the social and technological forces that limit people’s capacity to change their digital circumstances.

The place of desire in “the expository society,” Harcourt shows, requires rethinking of our metaphors for surveillance, discipline, and loss of privacy.  Exposed unfolds as a series of investigations into the images and tropes we conventionally rely on to crystallize the nature of the threat we face: Big Brother, the Panopticon, the Surveillance State, and so forth.  In each case, Harcourt provides an erudite and sympathetic treatment of the ways in which these metaphors speak to our predicament.  Yet in each case, he finds them ultimately wanting.  For instance, after the Snowden disclosures began to garner headlines, many turned to George Orwell’s novel 1984 to help make sense of the NSA’s activities.  Book sales skyrocketed.  Harcourt, however, finds the Big Brother metaphor to be misleading in critical respects.  As he reminds us, Big Brother sought to wear down the citizens of Oceania, neutralize their passions, fill them with hate.  “Today, by contrast, everything functions by means of ‘likes,’ ‘shares,’ ‘favorites,’ ‘friending,’ and ‘following.’  The drab blue uniform and grim gray walls in 1984 have been replaced by the iPhone 5C in all its radiant colors . . . .”  We are in a new condition, a new paradigm, and we need a new language to negotiate it.

Harcourt then considers a metaphor of his own devising: the “mirrored glass pavilion.”  This metaphor is meant to evoke a sleek, disorienting, commercialized space in which we render ourselves exposed to the gaze of others and also, at the same time, to ourselves.  But Harcourt isn’t quite content to rest with this metaphor either.  He introduces the mirrored glass pavilion, examines it, makes a case for it, and keeps moving—trying out metaphors like “steel mesh” and “data doubles” and (my favorite) “a large oligopolistic octopus that is enveloping the world,” all within the context of the master metaphor of an expository society.  Metaphors, it seems, are indispensable if imperfect tools for unraveling the paradoxes of digital life.

The result is a restless, searching quality to the analysis.  Exposed is constantly introducing new anecdotes, examples, paradigms, and perspectives, in the manner of a guided tour.  Harcourt is clearly deeply unsettled by the digital age we have entered.  Part of the appeal of the book is that he is willing to leave many of his assessments unsettled too, to synthesize a vast range of developments without simplifying or prophesizing.

Another aspect of Exposed that enhances its effect is the prose style.  Now, I wouldn’t say that Harcourt’s Foucault-fueled writing has ever suffered from a lack of flair.  But in this work, Harcourt has gone further and become a formal innovator.  He has developed a prose style that uncannily mimics the experience of the expository society, the phenomenology of the digital subject.

Throughout the book, when describing the allure of new technologies that would rob us of our privacy and personhood, the prose shifts into a different register.  The reader is suddenly greeted with quick staccato passages, with acronyms and brand names thrown together in a dizzying succession of catalogs and subordinate clauses.  In these passages, Harcourt models for us the implicit bargain offered by the mirrored glass pavilion—inviting us to suspend critical judgment, to lose ourselves, as we get wrapped up in the sheer visceral excitement, the mad frenzy, of digital consumer culture.

Right from the book’s first sentence, we confront this mimetic style:

Every keystroke, each mouse click, every touch of the screen, card swipe, Google search, Amazon purchase, Instagram, ‘like,’ tweet, scan—in short, everything we do in our new digital age can be recorded, stored, and monitored.  Every routine act on our iPads and tablets, on our laptops, notebooks, and Kindles, office PCs and smart-phones, every transaction with our debit card, gym pass, E-ZPass, bus pass, and loyalty cards can be archived, data-mined, and traced back to us.

Other sentences deploy a similar rhetorical strategy in a more positive key, describing how we now “‘like,’ we ‘share,’ we ‘favorite.’ We ‘follow.’ We ‘connect.’ We get ‘LinkedIn”—how “[e]verything today is organized around friending, clicking, retweeting, and reposting.”

There is a visceral pleasure to be had from abandoning oneself to the hyper-stimulation, the sensory overload, of passages like these.  Which is precisely the point.  For that pleasure underwrites our own ubiquitous surveillance and the mortification of self.  That pleasure is our undoing.  More than anything else, in Harcourt’s telling, it is the constant gratifications afforded by technologies of surveillance that have “enslaved us, exposed us, and ensnared us in this digital shell as hard as steel.”

*  *  *

I hope these brief comments have conveyed some of what I found so stimulating in this remarkable book.  Always imaginative and often impressionistic, Exposed is hazy on a number of significant matters.  In the hope of facilitating conversation, I will close by noting a few.

First, what are the distributional dimensions of the privacy crisis that we face?  The implicit digital subject of Exposed seems to be a highly educated, affluent type—someone who would write a blog post, wear an Apple Watch, buy books on Amazon.  There may well be millions of people like this; I don’t mean to suggest any narcissism in the book’s critical gaze.  I wonder, though, how the privacy pitfalls chronicled in Exposed relate to more old-fashioned forms of observation and exploitation that continue to afflict marginalized populations and that Harcourt has trenchantly critiqued in other work.

Second, what about all the purported benefits of digital technology, Big Data, and the like?  Some commentators, as Harcourt notes in passing, have begun to argue that panoptic surveillance, at least under the right conditions, can facilitate not only certain kinds of efficiency and security but also values such as democratic engagement and human freedom that Harcourt is keen to promote.  I share Harcourt’s skepticism about these arguments, but if they are wrong then we need to know why they are wrong, and in particular whether they are irredeemably mistaken or whether they might instead point us toward useful regulatory reforms.

And lastly, what would dissent look like in this realm?  The final, forward-looking chapter of Exposed is strikingly short, only four pages long.  Harcourt exhorts the reader to fight back through “digital resistance” and “political disobedience.”  But remember, there is no conspiracy here, nothing untoward.  Rather, there is a massively distributed and partially emergent system of surveillance.  And this system generates enormous perceived rewards, not just for those at the top but for countless individuals throughout society.  It is something of a puzzle, then, what would motivate the sort of self-abnegating resistance that Harcourt calls for—resistance that must be directed, in the first instance, toward our own compulsive habits and consumptive appetites.  How would that sort of resistance develop, in the teeth of our own desires, and how could it surmount collective action barriers?

These are just a few of the urgent questions that Exposed helps bring into focus.

*  *  *

David Pozen is an associate professor at Columbia Law School.

Bernard Harcourt Exposed 02

Surveillance and Our Addiction to Exposure

Bernard Harcourt ExposedBernard Harcourt’s Exposed: Desire and Disobedience in the Digital Age (Harvard University Press 2015) is an indictment of  our contemporary age of surveillance and exposure — what Harcourt calls “the expository society.” Harcourt passionately deconstructs modern technology-infused society and explains its dark implications with an almost poetic eloquence.

Harcourt begins by critiquing the metaphor of George Orwell’s 1984 to describe the ills of our world today.  In my own previous work, I critiqued this metaphor, arguing that Kafka’s The Trial was a more apt metaphor to capture the powerlessness and vulnerability that people experience as government and businesses construct and use “digital dossiers” about their lives.  Harcourt critiques Orwell in a different manner, arguing that Orwell’s dystopian vision is inapt because it is too drab and gray:

No, we do not live in a drab Orwellian world.  We live in a beautiful, colorful, stimulating, digital world that is online, plugged in, wired, and Wi-Fi enabled.  A rich, bright, vibrant world full of passion and jouissance–and by means of which we reveal ourselves and make ourselves virtually transparent to surveillance.  In the end, Orwell’s novel is indeed prescient in many ways, but jarringly off on this one key point.  (pp. 52-53)

City wet-868078_960_720 pixabay b

Orwell’s Vision

City NYC new-117018_960_720 pixabay b

Life Today

Neil Postman Amusing Ourselves to DeathHarcourt notes that the “technologies that end up facilitating surveillance are the very technologies we crave.”  We desire them, but “we have become, slowly but surely, enslaved to them.” (p. 52).

Harcourt’s book reminds me of Neil Postman’s Amusing Ourselves to Death, originally published about 30 years ago — back in 1985.  Postman also critiqued Orwell’s metaphor and argued that Aldous Huxley’s Brave New World was a more apt metaphor to capture the problematic effects new media technologies were having on society.

Read More


Symposium on Exposed: Desire and Disobedience in the Digital Age

Frank Pasquale and I are delighted to introduce Professor Bernard Harcourt and the participants of our online symposium on his provocative new book Exposed: Desire and Disobedience in the Digital Age (Harvard University Press 2015).  Here is the description of the book from HUP’s webpage:

Social media compile data on users, retailers mine information on consumers, Internet giants create dossiers of who we know and what we do, and intelligence agencies collect all this plus billions of communications daily. Exploiting our boundless desire to access everything all the time, digital technology is breaking down whatever boundaries still exist between the state, the market, and the private realm. Exposed offers a powerful critique of our new virtual transparence, revealing just how unfree we are becoming and how little we seem to care.

Bernard Harcourt guides us through our new digital landscape, one that makes it so easy for others to monitor, profile, and shape our every desire. We are building what he calls the expository society—a platform for unprecedented levels of exhibition, watching, and influence that is reconfiguring our political relations and reshaping our notions of what it means to be an individual.

We are not scandalized by this. To the contrary: we crave exposure and knowingly surrender our privacy and anonymity in order to tap into social networks and consumer convenience—or we give in ambivalently, despite our reservations. But we have arrived at a moment of reckoning. If we do not wish to be trapped in a steel mesh of wireless digits, we have a responsibility to do whatever we can to resist. Disobedience to a regime that relies on massive data mining can take many forms, from aggressively encrypting personal information to leaking government secrets, but all will require conviction and courage.

We are thrilled to be joined by an amazing group of scholars to discuss this groundbreaking work, including Concurring Opinions co-founder Daniel Solove, Frank Pasquale (the co-organizer of this symposium), Lisa Austin, Ann Bartow, Mary Anne Franks, David Pozen, Olivier Sylvain, and, of course, Bernard Harcourt.   They will be posting throughout the week so check in daily and as always, we encourage you to join the discussion.


Who Owns Soccer?

I’m pleased to announce that Mike Madison, a terrific IP scholar at the University of Pittsburgh Law School, will be giving a talk at my school on Tuesday, March 29th on “Laws of the Game:  Who Owns Soccer?”  The details are here for those who would like to attend.


National Party Conventions as Authoritative Bodies

A thought that occurred to me yesterday is that the forum most likely to decide the issue of whether Ted Cruz is a natural-born citizen eligible for the presidency is the Republican National Convention. If the convention is contested, then the Trump delegates are bound to make a motion stating that Cruz is ineligible and to force a debate on the issue.  The decision of the convention could then be cited in any future discussion or case on that provision.  I’m not sure if courts have cited convention decisions or platforms in the past, but that’s something that I’m going to explore.