Category: Book Reviews

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Hillbilly Elegy as Rorschach Test

I have already made clear in a prior post some of the reasons I am not a  fan of Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, J.D. Vance’s best selling 2016 memoir:  I think Vance is using his personal narrative to advance a neo-con agenda (and I will freely admit I don’t trust anyone who would work with Peter Thiel).  Further, I don’t think the book lives up the hype.

But lots of folks I know and respect do seem to like the book, and they have been willing to defend it.  Following are my recollections of some of the conversations I have had about Hillbilly Elegy, most of them initiated by my friends and acquaintances rather than by me–for whatever that’s worth.

Family, Luck and the Luck of Family.  When I opine that I see Vance takes too much credit for his success (which is not to say he deserves no credit) and focuses too much on the staple of conservative politics, “personal responsibility,” several friends have disagreed.  One said “No, he doesn’t take credit.  He says he got lucky by virtue of his stalwart grandparents who loved him” and kept him between the ditches (the latter part being my hillbilly paraphrase of what my friend actually said, which I don’t recall verbatim).  Ok.  Fair enough.  Yes, he appropriately gives his grandparents lots of well-deserved credit, and I relate to that.  I would never have made it to college or beyond without my mom and other key folks in my community who encouraged me and expected great things.  But family and friends as cheerleaders will not, alone, get you through college or graduate school–especially when they have never been there themselves and can rarely help you set appropriate goals.

It’s Really Complicated.  When I told another friend that I think Vance takes too much credit for his success, she (a Harvard educated lawyer) said, “Oh no. What he is saying is that it’s all very complicated.”  Well, I can hardly argue with that.  Of course it’s complicated!  But this is sorta’ like Donal Trump saying health care reform is complicated or the North Korea situation is complicated.  Are you kidding me?  The fact that the world didn’t know it was “complicated” before J.D. Vance published Hillbilly Elegy is, frankly, embarrassing.  (In this vein, read Alec MacGillis’s excellent piece in The Atlantic).  People living below, at, or hovering above the poverty line have very difficult lives–even if they are white (and I hope to return to the matter of whiteness in a dedicated way in a subsequent post).  Reports of what are now being called “Deaths of Despair” among low-education whites came out as early as 2013, such as here; among these is Case and Deaton’s high profile study in the fall of 2015.  We should know that these folks exist and that when they are able to escape the bonds of the low-income, low-education world, it pretty much requires a harmonic convergence–a small, multi-faceted miracle–every time.  It takes some combination of family support, mentoring, lucky breaks (which can include stable grandparents, like J.D.’s), sheer native ability, perseverance, grit and–yes–hard work.

Oh, I would argue that it takes “the state”!  Vance talks only vaguely of Pell Grants, government-backed student loans, or work study–or any other way that his family received any benefit from government policies, be they the EITC or food stamps or  … How about his public university degree from Ohio State?  the GI Bill?  In the last chapter, which is his policy recommendations chapter, he does refer opaquely to his grandparents’ Social Security, so there’s that.  Maybe I overlooked the structural stuff.  But for the most part, as Sarah Jones highlighted in her New Republic review, Vance writes as if the state is not an actor, either by omission or commission.  Really?  Can it be that the state was irrelevant to Vance’s class migration?  that all the state did for him is permit him to become a Marine and thereby bootcamp some discipline into him?  Is this absence of government what so many across the political spectrum find so appealing about Hillbilly Elegy?  Further, is it possible that the state can or should play little or no role in the plight of those left behind?

Memoir vs. Policy Manual.  When I told another acquaintance–a childhood  immigrant from Poland, a relatively recent University of Michigan law graduate–that I found Vance’s dalliance in policy matters annoying and regressive, she said she hadn’t really noticed, had skimmed over those parts.   She then allowed that the book probably worked better as a memoir than as a policy document.  I agreed.  But I was also somewhat puzzled that this white class migrant (her father was a truck driver, just like mine, and she, like Vance, had served in the military) had  been so taken with Vance’s narrative, his version of events.  Her own journey didn’t sound terribly different to his (though I assume the absence of extreme parental dysfunction and addiction)   That journey had, however, taken place in a major American city rather than a corner of Appalachia, which may have sufficiently differentiated it from her own to make Hillbilly Elegy interesting in her eyes.

Window into Another World.  A well educated, thoughtful and sage (yoga instructor, no less!) friend from an “old money” family back East asked me what I thought about Hillbilly Elegy.  Her book group was about to discuss it, and she said she felt the book was providing her insights into the value of relationships and people whom she would previously have dismissed as uncouth at best.  Specifically, she said that if she had met Vance’s cursing, gun-toting grandmother, she would have been entirely  disdainful–until she read the book, that is.  Hillbilly Elegy had helped her to see the value in Vance’s Mamaw.  I said, “fair enough, but read what I have written about the book,” and I passed along a partially written review.  It is self-serving to report, but my friend came back with, “yes, I can see your reflections on your upbringing are more mature and thoughtful than Vance’s. Nevertheless, I did benefit from Hillbilly Elegy as a window into another world.”  And this brings to the last of the exchanges that I will share …

Is Vance Seasoned enough to be publishing a “Memoir”?  As I have previously mentioned, not many written reviews of Hillbilly Elegy have been anything other than glowing.  In addition to the Sarah Jones review I have already cited and quoted, I have read very little negative commentary about the book.  Some of the few “bad” reviews I have seen were in the Daily Yonder, an online publication/blog of the Center for Rural Affairs (I know you are chuckling, but this is a serious outlet for rural perspectives and rural news).  They published three reviews, none of which was very flattering, and  two of which called out the inappropriateness (and perhaps even absurdity) of someone publishing a “memoir” at the age of 31.  One, Jim Branscome, a former managing director of Standard & Poor’s and a former staff member of the Appalachian Regional Commission, quotes Vance’s own book introduction.

I find the existence of the book you hold in your hands somewhat absurd.

Branscome then summarily agrees with the statement.  In another review, Charles L. Baker, a native of Eastern Kentucky and retired CEO of Presbyterian Child Welfare Agency, expands on that notion:

J.D. Vance lacks the maturity to see the blind spots that trouble his book… The culture he blames for spreading failure gave him some of the values that helped him succeed.  And the government he says institutionalized poverty in Appalachia helped him find a way into the middle class.

Baker’s review–like that of Sarah Jones–reminds us that Hillbilly Elegy is not just the story of Vance’s escape from Appalachia, it is the story of the multitudes left behind.  (This, of course, is why CNN regularly brings Vance on to educate the viewing public about the supposedly quintessential Trump voters).  The book’s importance is as much or more in what it says about the failures of Vance’s people as it is about Vance’s “phoenix from the ashes” success.  Don’t doubt, though, that both aspects of the book have made it especially popular among conservatives and libertarians.  Vance gets to be the poster child for Reagan’s vision of the potency of personal responsibility.  Yet many of us who have trod that path are less likely to “lean into our own understanding,” much less take so much credit for our own success without also acknowledging the many structural handicaps that hold back our communities and families of origin.

As for Vance’s maturity, I acknowledge that a childhood and youth like J.D. Vance’s will prematurely age a person.  It’s an exhausting way to live, and that which doesn’t kill you will not only make you stronger, it will often result in what I shall call premature maturity.  Nevertheless, Vance, a few years out of Yale Law, is surely nowhere close to maxing out on wisdom.  I wonder how the decades to come might lead him to reflect differently not only on his own journey, but also on what his people need, on the array of factors that are holding them back, keeping them down. (You may have heard that, in recent months, Vance has moved back to Ohio where he will be using some of the fruits of his labor to start a foundation; I anticipate a run for public office in his near future.)

I am thinking it is no coincidence that the few naysayers about Hillbilly Elegy that I have managed to identify are mostly from the region, and some of us are class migrants.  (Other important reviews of Hillbilly Elegy from those in the region are here and here; Jedediah Purdy, who grew up in Appalachia and teaches at Duke Law reviews the book here, though he is more descriptive than critical). We see a greater role for the state in places like Appalachia and the Ozarks and, like Vance, we have first-hand knowledge of the milieu.  We see the structural barriers to not only getting to Yale Law School (and few from any place or milieu even aspire to that), but the ones that keep kids from getting through high school or enrolled in community college or securing a decent blue-collar living.

In the 2016 election cycle, Democrats seem to have neglected these people and what government can (and should?) do for them.  Indeed, Hillary Clinton hardly showed up in rural America.  If liberals think Hillbilly Elegy represents some “gospel truth” about low-income, low-education whites, they may well continue down the current path of self-destruction, failing to prioritize races in rural places with large white working class populations (read more here and here).

In closing this post, let me return to Sarah Jones of the New Republic, because I can’t sum up my feelings about the election of 2016 and what working class whites need and deserve any better than she did (emphasis added):

By electing Trump, my community has condemned itself to further suffering. … Our schools will get poorer and our children hungrier. It will be one catastrophic tragedy out of the many a Trump presidency will generate. So yes, be angry with the white working class’s political choices. I certainly am; home will never feel like home again.

But don’t emulate Vance in your rage. Give the white working class the progressive populism it needs to survive, and invest in the areas the Democratic Party has neglected. Remember that bootstraps are for people with boots. And elegies are no use to the living.

I’ll be returning soon with more thoughts on other important issues that Hillbilly Elegy brings to the fore.

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On Donald Trump, J.D. Vance, and the white working class

Thanks for the opportunity to guest blog here at Concurring Opinions. Though I am a law professor on a law faculty, I plan to spend much of the time and space afforded by this blogging invitation to write more about politics and culture than about “law” in a narrow sense. Indeed, a great deal of my scholarship over the past decade has drawn heavily on politics and culture, and I’ve even had the opportunity to engage in some political punditry post-Election 2016.  I plan to write some posts about rurality, yes, but I’m also going to write a series of posts about low-income, low-education whites, a population with which we as a nation have a newfound fascination following the election of Donald Trump, who drew considerable support from this demographic segment. I hope readers will provide some feedback on these musings, as I am engaged in ongoing, more substantial writing about this population as a critical race project, exploring what is at the particular intersection of white skin privilege with socioeconomic disadvantage and distress.

I’m going to begin with some musings on J.D. Vance’s Hillbilly Elegy: A Memoir of a Family and Culture in Crisis (HarperCollins 2016), a book that has been widely reviewed—and nearly as universally praised—since its publication early last summer. If you think you’ve read all you need to know (or all you can stand!) about this bestseller, bear with me.  I’m not going to join the resounding chorus of praise you’ve you already consumed regarding Hillbilly Elegy.  Further, what I find interesting about the book is less its content than the elite, coastal reaction to it. (Yes, fellow law professors, when I say “elite,” I’m talking about us, you and me, along with the media and other privileged institutions of the narrating classes/interest public.)

Let me preface my comments by outing myself as a class migrant and a hillbilly. Vance grew up in Appalachia; I grew up in the Arkansas Ozarks, both high and/or persistent poverty white regions. I’m a first generation college graduate (and, as a law graduate, a first generation professional), and I’m not sure if Vance also is, given that his mother was a nurse.  Nevertheless, we’ve both migrated from being low-income, low-status whites to being higher status whites, largely by virtue of access to and consumption of a great deal of higher education.

Shortly after Hillbilly Elegy was published, one of my former law professors asked me, only partly tongue in cheek, if I had written the book—then quickly added, maybe “you should have written it.” (This makes for an interesting reminder that I was apparently not class passing very effectively back in law school). You get the idea: my own life story shares many similarities with Vance’s (though I’m two decades older, and upward mobility for po’ folk has declined over the 20 years that separate me from J.D.), sans the elite law degree (my J.D. is from the University of Arkansas, Vance’s from Yale).  This latter distinction may be quite significant in any number of regards, and I hope to return to that point in a subsequent post.

While I have reflected on my own class migration in some law review articles (here and here), I did not reach for the brass ring of a popular press book contract. So, alas, J.D. Vance is a millionaire, best-selling author who appears regularly on television as everyone’s  favorite “white trash ‘splainer” and I continue to toil away in the obscurity of my Ivory Tower.  All of this means, among other things, that if you think I’m too hard on Hillbilly Elegy, you can write it off as sour grapes.

Let me begin, though, by telling you what I liked about Hillbilly Elegy. First and foremost, before I started reading it, I loved the fact that someone had written a book about this milieu—my people, too, I assumed—and that the media outlets I consume (mostly liberal, all elite) were paying attention to it. I sent lots of affirming Tweets, cheering on the new book.  Second, once I finally started reading the book, I found that the memoir parts (as opposed to the social science blurbs and policy suggestions) of the book rang authentic, so much so that I found myself both laughing and crying at the tales of Mamaw and Papaw. I, too, grew up in a family of straight-talking folks who often expressed themselves in colorful language, delivered at high volume, sometimes with guns. Many of the vignettes resonated strongly with me based on my own hillbilly upbringing.

Third, I thought Vance provided an occasional insight into his people, who seem closely akin to “my people.”  For example, Vance talked about their attitudes toward Obama, noting, among other things, that “[h]is accent—clean, perfect, neutral—is foreign; his credentials are so impressive they’re frightening…he conducts himself with the confidence that comes from knowing that the modern American meritocracy was meant for him.” With this passage Vance contrasts the knowledge in his Ohio community—a realization that hit at about the time “Obama came on the scene”—that “the modern American meritocracy was not built for them.” (p. 191).  Ah, yes, meritocracy, shmeritocracy.  Guinier refers to The Tyranny of Meritocracy, a title that speaks volumes.  “Meritocracy” has actually come to be for only a select few, and they are not by and large the children of Appalachia and the Ozarks.  Read more here.

My read is that Vance is opining that the disaffection of the white working class is not so much about race as the mainstream media seem to have concluded. It is more about a growing sense that working class whites’ prospects are declining, and this has happened more dramatically as elites have come to dominate both the Democratic and Republican parties.  I also give Vance credit for calling our attention to white working class distrust of the mainstream media—even before the election made it an undeniable force. Indeed, Vance notes–months before the election of 2016–the significance among hillbillies of Alex Jones and others who perpetuate what we now call “fake news.” (p. 192)

Yet contrary to many reviewers’ opinions, I did not find Hillbilly Elegy especially well written—even acknowledging that it would take extraordinary skill to write about a life permeated by such sensitive and stigmatized matters, e.g., domestic violence, drug abuse, gun toting grandmothers. Nevertheless, a much stronger memoir of a low-income, dysfunctional white family and the author’s escape from it is Pulitzer Prize winning journalist Rick Bragg’s All Over But the Shoutin’ (1998). A much more compassionate depiction and far more incisive commentary about this milieu can be found in Joe Bageant’s Deer Hunting with Jesus: Dispatches from America’s Class War (2007). Among tales of class migration, Alfred Lubrano’s Limbo: Blue-Collar Roots, White-Collar Dreams (2005) is superb. I don’t recall those books garnering nearly as much media attention as Hillbilly Elegy, but that may be because the one thing Vance got most “right” was his timing.

So why have so many reviewers been complimentary of Vance’s writing? I have two theories. First, reviewers may be surprised that anyone who grew up with so much childhood and adolescent trauma—in Appalachia no less—is capable of writing a solid sentence, let alone a solid paragraph.  (Yes, I’m suggesting a best selling memoir should require more than that).  Alternatively, reviewers may give any graduate of Yale Law School a free pass—that is, Vance may enjoy a presumption that he is a good writer because he earned a law degree at Yale. Vance does in the book’s latter chapters acknowledge the extraordinariness of his elite education and the doors it opens (chapters 12-13).

Hillbilly Elegy is also made less readable by Vance’s distracting practice of peppering policy prescriptions (e.g., food stamps (SNAP) are bad because poor white folks abuse them (p. 139); unregulated payday lending is good because it gives poor folks choices (p. 185)) awkwardly amidst his first-person narrative. Sometimes these are accompanied by social science or other evidence to bolster a point, or to explain the psychology of a phenomenon he has experienced by virtue of his traumatic upbringing. Sarah Jones, writing in the New Republic, called the book mostly “a list of myths about welfare queens repackaged as a primer on the white working class.” (Indeed, I recently published an essay arguing that our nation increasingly views these two populations similarly, showing no more sympathy (or empathy) for poor whites than for poor blacks.) Even more problematic, to my mind, is Vance’s use of those myths to advance a regressive policy agenda.

In my next post, I’ll return with a more substantive critique of Hillbilly Elegy–and, implicitly, a commentary on the book’s fans.

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Symposium on Carol Sanger’s “About Abortion”: Introduction & Commentaries

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

Related

Professor Carol Sanger

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Sanger’s Tour de Force on Abortion (with a Blind Spot for Geography)

We would expect nothing less from Carol Sanger than what we get from About Abortion: Terminating Pregnancy in 21st Century America: a wide-ranging, provocative, thoughtful and beautifully written monograph. As legal scholarship (if that is what Sanger intends it to be, and I am guessing she appeals to a broader audience than that), the book is “out of the box” because it is so extraordinarily, seamlessly cross-disciplinary. (Sanger is, after all, the scholar who brought us the  path breaking Girls and the Getaway:  Cars, Culture and the Predicament of Gendered Space (1995), one of my all-time favorite law review articles). As with her past work, Sanger’s prose is engaging, the breadth of literature she draws on sweeping, and the turn of phrase clever.  I am happy to report that hhis book is no doctrinal slog through the Supreme Court’s abortion law canon, though Sanger gives the germinal cases their due, along with a number of especially interesting ones from lower courts.

Near the outset of About Abortion, Sanger stakes out the territory she intends to cover and she articulates an over-arching point regarding women’s agency and competency:

This book is guided by a very different premise [from that of most abortion regulations and restrictions]. Women—even young women—understand very well what an abortion is. They understand that abortion ends pregnancy and that if they have an abortion, they will not have a baby: that is its very point. The significance of an abortion decision may differ from woman to woman and from girl to girl, but in deciding whether to continue a pregnancy, each will draw upon her own sensibilities, circumstances and beliefs. But as with other intimate decisions and commitments—who to marry, whether to pray, how to vote, what to do with one’s life in matters large and small—women themselves are best able to decide what is at stake.

As other reviewers in this forum have noted and detailed, Sanger takes up topics such as “Fathers and Fetuses: What Men Would Do,” “Sending Pregnant Teenagers to Court,” and “Abortion Privacy/Abortion Secrecy.” Even less conventional (as legal scholarship), though, are the chapters titled “The Eye of the Storm,” “Facing Your Fetus,” and “You Had Body, You Died.” In the first of these, Sanger analyzes the fetus as the eye of the political, cultural and religious storm about abortion. Here she explores images of fetuses from different cultures, how these images have evolved over time to look more like babies (or even little adults, with softened features), and the purposes to which fetal imagery has been put. The chapter features about a dozen illustrative images, some from outside the U.S., laying the groundwork for the next two.

In “Facing Your Fetus,” Sanger draws a clever parallel between mandatory ultrasound laws and the law of negligent infliction of emotional distress, in particular the bystander cases that typically featured mothers traumatized at having seen their child seriously injured or killed in an accident. As Sanger observes, both contexts and laws “draw upon a deep reserve of sentiment about what mothers are like and what causes them harm.” (p. 109) (It is worth noting that this is hardly a singular instance of Sanger making connections across law’s often arbitrary silos, as when she compares “abortion secrecy” to a germinal invasion of privacy (tort) case or when she compares the indignity of a minor having to air the details of her need for an abortion to the indignity of going to court for a divorce in the era when doing so required specific and detailed assertions of “fault,” e.g., cruelty, adultery).

In “You Had Body, You Died,” Sanger again uses images, this time to juxtapose women’s loss by miscarriage or even death of a child against the experience of abortion. This lays the groundwork for her discussion of the Supreme Court’s decision in Gonzales v. Carhart. Sanger is exploring here, as in the prior chapters, how “imagery acquires meaning in abortion,” (p. 147) including how the Supreme Court in Carhart used the imagery evoked by the written word (describing intact dilation and extraction) to justify its decision.

Much as I was enthralled by Sanger’s engagement with imagery and meaning in these chapters, I also appreciated the more practical turn she takes in “Sending Pregnant Teenagers to Court.” Here, Sanger builds on some of her earlier work and grapples with “on the ground” workings and consequences of abortion regulation, specifically judicial bypass for minors. Sanger surfaces an array of illustrations, mostly from reported cases but also from interviews with judges, bypass attorneys, and advocates, regarding how these laws undermine young women. One way the disservice occurs is by misunderstanding and harshly judging these teenagers, like the one in Texas who told the judge,

if I really put the cards out on the table and look through them—I—I having a baby right now would probably stop 75 percent of what I want to do … I know—I’m—like I said, I’m very busy. I have a lot of high goals, and having a baby would stop me from having them.

The judge used the “very busy” language against the young woman, ruling that—at least in part because of the way she had expressed herself—she “was not mature enough to make the [abortion] decision without parental guidance.” (p. 171). Sanger puts herself in these teenagers’ shoes, offering a very powerful critique.  She also credits the many organizations around the country, e.g., Jane’s Due Process, who help teens navigate these processes, and she notes recent legal limitations (Texas, 2016) that prevent teens from availing themselves of the anonymity an out-of-county/non-local filing and video-conference appearance might afford them.  (This is one point where Sanger might have noted the legal relevance of rurality, theorization of rural difference, see below).

In sharp contrast to this very textured and empathic discussion of what young women are up against in the judicial bypass context, About Abortion says far less about poor women seeking abortion and less still about rural women (often also poor) doing so. Sanger includes an obligatory discussion of Harris v. McRae (1980), the Supreme Court decision that upheld the Hyde Amendment’s ban on the use of federal funding for abortion. (p. 28) Later, regarding the run up to the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt (2016), Sanger acknowledges that the proliferation of TRAP regulations (Targeted Regulations of Abortion Providers) like the regulations at stake in that case (Texas H.B. 2) had returned the nation to a landscape with a “pre-Roe hue, with abortions available in some states and barely available in others, wealthy women traveling again, and poor women making do” (p. 35).

Otherwise, beyond a passing reference to “zip code jurisprudence” (p. 33), the book does very little to acknowledge the significance of geography to abortion access—including in relation to the “undue burden” standard adopted in Planned Parenthood of SE Pennsylvania v. Casey (1992) and the numerous federal courts who have since applied that standard. Admittedly, as a legal geographer, this is my pet issue, and it would be churlish of me to suggest that Sanger should have written the book I would have written. Yet it is a perennial surprise to me that scholars of reproductive rights and reproductive justice pay so little attention to the plight of rural women, devote so few scholarly resources to the geography angle on the exercise of rights.

The petitioners’ brief in Casey mentioned “low-income, young, rural or battered women,” three times in relation to the informed consent and waiting period laws imposed by the State of Pennsylvania. Yet the Casey plurality opinion failed to mention rural women at all except in a quoted finding of fact from the district court, which it ultimately dismissed. That plurality concluded that the trial court’s finding that “for those women with the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be ‘particularly burdensome’” was “troubling in some respects” but insufficiently burdensome to invalidate the law. Many federal courts in the wake of Casey similarly dismissed the burden that waiting period/informed consent laws imposed on those living far from abortion providers.

Next, of course, came the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the Court finally took distance seriously—although it’s worth noting that it took vast Texas distances of 300-to-500 miles to get the Court’s attention. In short, Whole Woman’s Health put some teeth back into the undue burden standard, and Sanger notes the salience of travel and distance to that holding. In Whole Woman’s Health, Sanger writes, the Supreme Court balanced Texas H.B. 2’s “near non-existent medical benefits” against the “longer travel times, more time away from home, increased costs of child care, and the greater risk of being found out put in play by the lengthier process.” (p. 35).

Yet Sanger reserves her passion and a long quote from the Supreme Court opinion for another issue incident to the clinic closures wrought by Texas H.B. 2: the long wait times and the “crammed to capacity superfacilities” where women would have been expected to get abortions had the Supreme Court upheld the Texas regulations, leading to the closure of all but some half dozen Texas clinics. This mirrors the shift in media focus as Whole Woman’s Health made its way from the federal district court to the Supreme Court—a shift from a focus on distance to a focus on wait times as the dwindling number of clinics struggled to accommodate Texas’s 5.4 million reproductive-age women. It was a shift in focus from space to time, effectively from rural to urban.

The difference between Sanger’s passionate critique of sending teenagers to court in judicial bypass procedures and her brief matter-of-fact recital of the role of travel and distance in Whole Woman’s Health is striking. Again, Sanger’s passion need not be mine, but I can’t help grieve the lack of attention to rural Americans—especially low-income ones—whose lived realities are so little understood by coastal elites, by those who shape litigation with respect to rights whose exercise implicates the traversal of distance (including voting!), those who may take public transportation for granted, those who do not subsist on poverty  level wages. If the 2016 Election has taught us anything, it is surely that the narrating classes need to see rural Americans in all of their complexity—and that rural Americans resent their invisibility on the national stage. In short, rural America needs an advocate (better yet, a dozen or two, in an array of contexts) as eloquent and passionate as Sanger is generally about abortion.

This relative neglect of spatiality, geography, rurality should not, of course, dissuade anyone from reading About Abortion. Quite the contrary: the book is a tour de force, perhaps Sanger’s magnum opus. She accomplishes a great deal, in her inimitable way, and with elegance. It is an important book, and it deserves a wide audience, across many disciplines.

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Nine to Five and the Limits of Litigation

Joanna Grossman has written a wonderful, mid-level guide to the law that protects women in the workplace.  As a comprehensive account of recent employment cases, it is more engaging than law treatises or law review articles.  She tells the stories of the plaintiffs who have brought precedent setting cases, and explains the significance of the rulings with a minimum of legalese.  Yet, the chapters still provide a much more in-depth account than journalistic reports.  She brings a law professor’s careful analysis to the recent decisions and scenarios she selects, describing the way that they expand or restrict the legal protections available to working women.   Lawyers and law students will find not only succinct summaries of the substantive law, but suggestions about what will be necessary to establish the required elements in future cases, and attention to the procedural implications of the decisions.   Grossman also does not hesitate to rate the outcomes, telling her readers when the courts go astray and when they get things right.  Indeed, one of the intriguing tidbits is her commentary on Supreme Court Justice Clarence Thomas’s opinions.   The former Chair of the Equal Employment Opportunity Commission, he tends to be a doctrinaire conservative on most issues, and was, of course, the subject of a sexual harassment charge that threatened to derail his nomination to the Court.  Grossman nonetheless suggests that his positions on the issues that arose while he was at the EEOC are more nuanced than those arising thereafter.

Grossman’s critiques the judicial decisions that have come down the pike in terms of their implications for individual litigants (and their lawyers).   She tends (though not invariably) to cheer those rulings that make it easier for plaintiffs to prevail, and dissent from those that create more obstacles, leavening these judgments with commentary on whether the new decisions can be reconciled with earlier precedents and workplace realities.  She links her analysis of the allegations in individual cases to the systematic factors that make it difficult for women to achieve true equality in the workplace: unequal pay, sex stereotyping, sexual harassment, maternity discrimination, and the maternal wall that limits the positions open to involved parents (most typically mothers with substantial childcare responsibilities).

Nine to Five further includes extended commentary on newly enacted and pending legislation, and it pays considerable attention to the circumstances that make it difficult for women to take advantage of the protections the law provides.  It thus offers a thorough account of the existing state of the law told through the lens of unfolding developments; standing by itself it could serve as a text for the right law school course or as a primer on women’s employment rights.  The one issue it does not address, however, is the role of litigation itself; indeed, the book’s focus on individual cases often makes it seem as though the primary effect of employment law is to provide a means for individual employees to realize vindication.  While Grossman often does incorporate the social science research that shows women’s overall progress and the shortcomings that remain, and while she acknowledges the limitations of grievance and other administrative procedures (pp. 128, 142, noting that while 40% of working women continue to experience sexual harassment, they rarely file complaints of any kind), she only occasionally acknowledges the question that underlies a volume like this: what role does litigation play?  In particular, to what degree do individual cases contribute to a change in workplace conditions and when they do, to what extent are there unacknowledged costs?

In examining these issues in the context of this review, I begin with my own experiences litigating cases like these.  I started my legal career as a trial attorney with the Department of Justice (DOJ) in Washington, D.C., and handled the defense of a number of employment discrimination cases while I was there.  The experience left me with two firm conclusions.  The first was that discrimination certainly existed.  On the wall of the office in which I served there was a picture of the office attorneys in 1977, a year before I joined DOJ.  The attorneys were all white and all male, with the exception of one white woman in a short skirt.  By the time I left five years later, the office was almost half women and approximately a quarter minorities.  Moreover, in that five year period, office culture changed with the new generation of attorneys.  Lunch time banter became less of an assumed measure of effectiveness in the courtroom and women began to assume supervisory positions, in part because, while the best of the men often left for higher paying law firm jobs, the best of the women often stayed because of the more reasonable hours, with family needs pushing both trends.  Our clients in discrimination cases were typically other federal agencies who lagged behind.

The second lesson I took from those years was that employment discrimination plaintiffs, like the woman described above, were rarely ideal employees.  Even in cases where we defense attorneys had our suspicions about an office’s efforts to include women or minorities, the individual plaintiff was rarely the person who had suffered the greatest wrong.  In one case, for example, a woman at the Department of the Interior’s Bureau of Land Management had applied for a higher paying job as a title examiner and did not get it because the office preferred candidates with law degrees and had no trouble attracting them.  The agency’s Equal Employment Opportunity office concluded that to require a law degree where the position description said one was “preferred” (but not mandatory) had a disparate impact on women, who in that era were significantly less likely than men to attend law school.  In investigating the case, however, I learned that even without the law degree requirement, the office would have viewed the particular plaintiff as a weak candidate.  It would have preferred another woman, with significantly better qualifications, who had since taken another job.  The people who pursue the expense and inconvenience of litigation often do so either because they are incensed or because their relationship with a particular employer had already been destroyed.  Those with other options take them.

Taken together, I concluded that litigation had its greatest impact in changing the experience of the next generation of employees.  The better qualified women and minorities who applied for subsequent openings in these agencies benefitted from the changing law and the changing employment ethos – without ever going near a courtroom.

How do these experiences from the long ago eighties relate to the cases of today that Grossman documents?  I believe that the lessons from these early days of women’s inclusion in the workplace continue to frame the questions that determine when litigation can be an effective tool.  First, these lessons are important in underscoring the fact that litigation is a blunt instrument.  It is expensive, time-consuming and cumbersome, even for those who eventually win.  Complete vindication either for plaintiffs who have suffered a serious wrong or for defendants who have been wrongly accused is rare.   Second, litigation had the greatest effect when it changed office practices in a systematic way; a challenge to the government civil service exam, for example, which occurred while I was at DOJ, led to a negotiated settlement that encouraged much greater employee diversity.  Third, litigation is sometimes the only way to challenge bad actors, who are unlikely to change without outside intervention.  Some supervisors needed to be replaced.  Finally, litigation imposes costs even when the net effects are worthwhile.  I suspect, for example, that some of the supervisors whose decisions I defended would never again fire another civil servant, however poor their performance.

Reading Nine to Five with these insights in mind changes the perspective, though perhaps not many of the final conclusions.  Many of Grossman’s commentaries focus on the ability of individual employees to receive redress, often for reasons rooted in the procedural obstacles the courts place in the way.  Yet, her broad categories address systemic practices, such as access to pregnancy leave or contraception, that affect women’s full workplace inclusion.  The book thus captures the changing nature of the challenges women face.

Grossman’s discussion of sexual harassment, which occupies a major section of the book, illustrates these issues.  As Grossman explains, the courts initially viewed the idea of sexual harassment as a form of employment discrimination with skepticism, treating it instead as a “personal proclivity, peculiarity or mannerism . . .” (p. 72).  Survey data indicates that sexual harassment in the eighties was pervasive.   Many workplaces had a locker room atmosphere, with the men viewing women as appropriate subjects of sexual humor or sexual advances.  Catherine MacKinnon persuasively argued in The Sexual Harassment of Working Women: A Case of Sex Discrimination (1979) that such behavior re-enforced sex-segregated jobs, and drove out or relegated women to inferior positions when they worked alongside men.  The courts and the EEOC quickly accepted MacKinnon’s analysis, and recognized sexual harassment as a form of sex discrimination either when sexual favors become a condition of employment or sexual advances, comments and conduct create a hostile work environment (p. 74).  The Supreme Court ultimately found that when supervisors sexually harass their employees, the company is automatically liable for their behavior, even if the individual behavior violated company policy (p. 75).

Grossman picks up with the issue before the courts today, starting with the question of whether the reformation of the workplace to insure greater gender equality will continue.  A single case, one that Grossman believes gets it right, illustrates almost all of the issues that underlie an assessment of litigation’s role.  Orton-Bell v. Indiana (p. 98) involved a prison counselor, who complained that night shift employees were having sex on her desk.  An investigator confirmed her allegations, but dismissed them as trivial, and advised her to “wash off your desk every day” (p. 97).  Soon thereafter, however, the Prison Superintendent ordered an investigation into Orton-Bell’s relationship with another employee in violation of prison rules and had them both fired.  Orton-Bell alleged that the termination was brought in retaliation for her complaints about the desk, the male employee was discharged in accordance with more favorable terms than she, and the work environment was rife with sexual comments and conduct.   The district court dismissed the entire complaint on the basis of a summary judgment motion, but the Seventh Circuit reversed and remanded for a hearing on the allegations of a hostile work environment and unequal treatment.

The district court seemed to treat this case as one of an employee who made a minor complaint (about the sex on the desk) and was then dismissed for a clear violation of prison rules.  And the Seventh Circuit did affirm that part of the lower court ruling.  Having other employees conduct their liaisons on a fellow employees’ desk (which of course became the subject of derision from other colleagues) is annoying, but not, the court concluded sex discrimination because there was no evidence she had been singled out on the basis of gender.  And to the extent that her supervisors retaliated against her because of the complaint, she enjoyed no protection because the complaint itself did not address protected activity.  This type of behavior (the sex on the desk) may be more likely to bother women than men, and women whose desks are used in this way may be more likely to become the butt of office jokes or to suffer more from the ribbing.  Orton-Bell did not offer any evidence that her desk had been singled out for impermissible reasons, however, and if the alleged retaliation itself constituted a separate cause of action, then every employee complaint could give rise to a lawsuit.  The courts have little interest in policing office conduct generally and Grossman concurs that the court correctly granted summary judgment on this part of the case.

The rest of the complaint received a more sympathetic hearing on appeal.  Whether or not it had anything to do with her dismissal, Orton-Bell’s complaint alleged that the workplace included a constant barrage of sexual comments and conduct.  The most dramatic included the former superintendent’s insistence that attractive women unnecessarily attend meetings so that he “could look down the table” at them, and extended public pat-downs of the female employees conducted for the entertainment of male staff (p. 97).  In addition, she argued that the more lenient treatment accorded her male paramour was sex-discrimination.  The Court of Appeals agreed that the complaint should have survived the summary judgment motion and it reversed and remanded the case for trial (p. 99).

This case demonstrates what sexual harassment litigation can do.  The allegations in the complaint, taken at face value as they should be in the context of a motion for summary judgment, constitute a hostile work environment in which women are treated as sexual objects.  Taken as a whole, they clearly constitute a violation of the law, which once made visible becomes difficult to ignore or justify.  In addition, the dismissal offered a seemingly straightforward discrimination case: a man and a women engaged in the same alleged misconduct, but with substantially different consequences for each.  Yet, the case arose only because of Orton-Bell’s dismissal and the fact that it seriously affected her future job prospects.  She had little to lose by suing, and once she did, a seemingly weak case contesting her dismissal became a much stronger one because of the misogynist work environment and the direct comparison with a male co-worker.  While the Seventh Circuit decision did not guarantee that Orton-Bell would prevail on remand, it dramatically increased the settlement value of the case.  As a practical matter, therefore, the existence of such a work environment makes it easier for dissatisfied employees to sue, and those most likely to do so are women like Orton-Bell who face what might otherwise be seen as a justified dismissal.  The result creates an incentive to clean up a toxic workplaces that has less to do with the merits of Orton-Bell’s individual circumstances than the risk of continuing future liability and the negative scrutiny it generates.

While the Orton-Bell decision largely addressed settled law, many of the cases Grossman discusses are important because they challenge established practices, particularly those addressing pregnancy and child care needs, that limit women’s full inclusion in the workforce.  As Grossman presents them, many of these cases involve punitive responses to pregnancy that seem inexplicable.  In a case that went to the U.S. Supreme Court, for example, UPS forced a pregnant delivery driver out of her job until after she gave birth because she could not lift heavy packages, even though it offered temporary accommodations to other employees who could not lift such packages and even though she rarely needed to lift packages that exceeded the weights allowed during the pregnancy (Young v. United Parcel Service, Inc., pp. 208-209).  Much of the analysis in the case had to do with finding the right comparators: the question was whether pregnant women had to be offered the same accommodations as any other employees who suffered from temporary disabilities or from a policy that discriminated in the provision of accommodations based on the source of the disability (e.g., pregnancy versus an automobile accident or back injury).  The case illustrates the role – and limits – of litigation in this area.

As Joan Williams has long argued, companies that value their workers should be able to accommodate family and pregnancy needs in the same way that they deal with employee illnesses and other workforce interruptions.  Yet, pregnancies differ from back injuries in that the timing can be planned.  If a company has a reputation for generous (or in some cases even minimally adequate) pregnancy benefits, it might find itself with a workforce more likely to become pregnant.  In my DOJ office of 90 attorneys, for example, once the number of female attorneys increased, nine gave birth in the same year, seven between July and September.  The office, which had accepted occasional requests for part-time returns to work, stopped approving them.  UPS could find itself in a similar situation.  Accommodations that do not seem that onerous for a single employee could become substantially more burdensome if a substantial number of employees ask for them at the same time.

The much more effective solution, therefore, would be a general norm shift, requiring all employers to accommodate the effects of pregnancy and caretaking.  Yet, as Grossman points out, this is unlikely to happen.  The law, rather than mandate pregnancy or child care benefits, only requires that employers not discriminate in the provision of benefits that they do provide.  This does little to promote family supportive workplace norms.  Grossman notes the limited protections of the Family and Medical Leave Act do not cover all workers, and many covered workers cannot afford to take the guaranteed unpaid leaves the act provides (p. 263).  The anti-discrimination provisions at issue in individual cases such as that involving UPS could lead to a cutback in accommodations for all workers rather than expanded provisions for the pregnant.  As Grossman observes, the United States has a long way to go in catching up with other developed nations in guaranteed paid medical and caretaking leave (p. 259).

Moreover, one of the changes over time has been the ideological opposition to greater protections for employees.  Although Grossman does her best to provide evenhanded commentary on the legal developments, it is virtually impossible to ignore the impact of increased partisanship in, as Grossman puts it, “making a mess of pay discrimination law” (p. 285).  That partisanship was particularly evident in the Supreme Court’s 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co (p. 277).  Grossman argues persuasively that Justice Alito’s majority opinion cannot be convincingly reconciled with earlier precedents, and as a practical matter, it dramatically cut back on the ability to seek redress for equal pay violations.  With Democratic control of both houses of Congress, President Obama signed the Lilly Ledbetter Fair Pay Act, reversing the decision, as one of the first acts of his presidency in January, 2009 (p. 291).  Grossman provides a thorough account of the case, the legislation and its implementation.

At the end, Grossman takes stock of the progress that women have made in the workforce and the distance still to go.  Yet, she does not fully acknowledge the forces that have not only undermined political support for more effective legal remedies, but have exacerbated gender inequality more generally.  In discussing Wisconsin’s repeal of that state’s Equal Pay Act, for example, she quotes a state senator who insisted that the men and women have difference goals in life and money “is more important for men” while women take more time off and refuse to work 50 or 60 hours a week because of their greater involvement in childrearing (p. 299).  Grossman responds that the gendered wage gap remains even after controlling for factors such as labor force interruptions and hours worked (p. 300).  Grossman’s data, however, is more than a decade old.  Since the late nineties, pay has become more steeply hierarchical in the United States with the greatest rewards going to those who work the longest hours.  And both the greatest increases in pay and the greatest gender disparities tend to be in positions such as the top executive ranks and the financial sector that place disproportionate emphasis on financial rewards tied to reductionist measures such as short term earnings.  The AAUP has concluded that gender disparities have grown with greater emphasis on the values of competition and individualism.  Individual litigation cannot and should not be expected to address these disparities.   Thus, while Grossman provides a superb account of the state of employment law, truly addressing women’s role in the marketplace requires a commitment not just to combat sex discrimination, but to create a more just and equal society.  The fight for gender equality will be a lengthy one.

 

 

0

The Limits of Anti-Discrimination Law

Joanna Grossman’s Nine to Five is a masterfully assembled set of commentary on sex discrimination cases. Joanna’s deft explanations and critiques of doctrine would make it great for the classroom, sort of like a volume from the “Law Stories” series but with a lot more law. Bringing the commentaries together also allows the collection to highlight some limits of discrimination law as it is now constituted. Nancy Dowd has already raised the challenge of intersectionality; another classic constraint in discrimination law is that equality can be achieved either by leveling up or by leveling down. On the issue of accommodating family responsibilities, for example, American law’s narrow conception of equality has a hard time justifying a level-up, despite the extensive body of feminist scholarship on the gendered nature of the neoliberal marketplace and its “ideal worker.” (See chapter 35, on Young v. UPS.) The demands of “the market” serve as conversation-stoppers in discrimination law, which is understood as regulation of the market, even though aspirations for sex equality include non-market goals. In light of emerging movements demanding that markets serve people instead of the other way around, the next phase in the development of discrimination law will be defined by whether it can move past the ideology of the market.

As I read through Nine to Five—especially the chapters on accommodating pregnancy, work/life balance, and the masculinity of the ideal worker—I kept coming back to the title. Joanna uses the movie 9 to 5 as a jumping off point for talking about gender in the workplace. I have long been curious about the phrase “9 to 5” and its relationship to the labor movement’s hard-won eight-hour workday. “9 to 5” has at times been a pejorative term for a corporate drone, but today it carries the aspirational tone of the past—the wish for a work day that really ends at 5, an office job that stays at the office.

An early expression of the demand for the eight-hour workday came from Robert Owen, who proposed an even division of the day: “8 hours labour, 8 hours recreation, 8 hours rest.” Today, we refer to the eight-hour workday as standard. After all, the Fair Labor Standards Act requires overtime for hourly workers above forty hours a week, and the archetypal, salaried office worker is “on the job from 9 to 5.”

Except that almost nobody is actually on the job from 9 to 5. I discovered this for myself when I started my first office job, working for the federal government. As Joanna discusses (chapter 54), the federal government is the nation’s largest employer and is therefore not only the enforcer of laws but also a standard-setter in practice. With Dolly Parton echoing in the back of my naïve mind, I learned that as a salaried employee I was expected to work a minimum of eight hours per day, with a half-hour unpaid lunch break, a 15-minute unpaid break in the morning, and a 15-minute unpaid break in the afternoon. My workday could be 8 to 5, 8:30 to 5:30, or 9 to 6, but definitely not 9 to 5. Today, the vast majority of office workers work the federal day or longer. Workers subject to FLSA rules not only get their breaks unpaid but have had to go to court over whether hours spent donning protective gear or descending into coal mines are part of their work day.

From the employer’s perspective, of course, it isn’t eight hours of work if the employee disappears for an hour at lunch. What is notable, however, is that law and culture adopted the employer’s perspective and thereby shifted from the “eight-hour work day” to “eight hours of work.” When eight hours is understood not as the portion of one’s life to be devoted to employment but as the quantity of production to which the employer is entitled, the “work day” expands, stealing time from recreation and rest because the work day has been excused from recognizing the humanity of the worker.

The work day could, instead, be “one-third of the day of a human being,” who will necessarily have to deal with some aspects of her humanity during that period. After all, no one is getting any reimbursement or comp time for having to spend some of their “8 hours for recreation” on eating or going to the bathroom, nor do we get to come in late for work when our “8 hours for rest” are interrupted by any number of human realities. “Eight hours of work” instead of an “eight-hour work day” converts time, a human experience, into a commodity defined by its alienation.

This same shift from human-centered goals to market-centered rules, which ultimately place the values of the market above all else, operates in the difficult corners of discrimination law. For example, Nine to Five tackles several problems that arise in the context of school-affiliated sports: pay disparities between the coaches of boys’ and girls’ teams (chapter 3); unequal treatment of the teams themselves (chapter 9); and the toxic masculinity of sports culture, which bleeds into politics, business, and education (chapters 55 and 56). One reason discrimination law often fails to advance equality in these contexts is that it allows market ideology to trump not only non-discrimination principles but also the purported values of sports and educational institutions themselves.

In the case of coaches’ salaries, Joanna dissects the “market defense” that the EEOC has made available to schools: to justify discriminatory salaries, a school need only refute that coaching its girls’ team requires as much skill, effort, or responsibility as coaching its boys’ team. Schools routinely argue that male coaches are responsible for more money and more media management, and that male coaches arrive at the school with higher prior salaries and more experience coaching and playing sports. (p. 20) Joanna points out that these factors allow the school to “buil[d] on past discrimination against female coaches” and that the school itself creates the expectation that boys’ teams will play for higher stakes in both prestige and money. Here, not only the logic of the market but also the explicit sexism of the market is invoked to constrain discrimination law, even when the market defense is offered by non-profit institutions who claim that they sponsor athletic contests not to make money but to support “the higher education mission” and create “an inclusive culture” with “career opportunities for coaches and administrators from diverse backgrounds.”

Players from the U.S. women’s national soccer team (of which Joanna is clearly a fan!) have filed a pay equity suit that will raise these issues, albeit without a school affiliation: the soccer federation’s main defense is that the women’s game doesn’t make as much money as the men’s because it isn’t as popular with fans. There are factual questions about whether this is true and the extent to which, if true, it is the result rather than the cause of discrimination. But a larger question is whether that should matter. Assuming the market defense to be factually true, it should not end the conversation but begin it. Joanna demonstrates how this conversation should proceed in a different context: Discussing employer liability for “sudden, severe [sexual] harassment” (chapter 25), she notes that, sometimes, severe harassment will occur that no reporting system could have prevented. The question, then, is who should bear that cost? Nothing in the logic of sex discrimination law, or greater aspirations for an equal and just society, suggests that the victim rather than the employer should bear 100% of the cost. Similarly, it is not written in stone that women rather than soccer federations should bear the costs of sexist sports culture.

Other workplaces have their own versions of this market defense. In academia, it is a commonplace at many institutions that the only way to increase one’s salary is to get a job offer elsewhere. It is also a commonplace that this is a terrible policy and that it has a disproportionately negative impact on women. It persists because of the market defense.

In public debates about the gender wage gap, various factions talk past each other about whether the gap reflects “real discrimination” or “women’s choices,” which include things like taking “time off” for children or subordinating one’s own career to a spouse’s. This dichotomy is largely beside the point. Some portion of the wage gap is due to flat-out pay discrimination; some is due to discrimination in hiring; some to discrimination in the “pipeline”; some to job segregation that is linked to historical pay inequities between men’s work and women’s work; and some is due to women continuing to perform the bulk of unpaid family labor (details in chapter 51). Why does any of those things justify a skewed distribution of economic security and wealth? The market defense, writ large, puts artificial limits on aspirations for equality.

Speaking of family labor: Readers of this symposium were likely amused by Robert Owen’s facile division of the day into “8 hours labour, 8 hours recreation, 8 hours rest.” When, pray tell, was dinner to be cooked, the house cleaned, and the children’s noses wiped? Those tasks, in Owens’s mind, presumably belonged in someone else’s work day, but today we know them as the second shift, performed by people who “talk about sleep the way a hungry person talks about food.” It’s time to revisit not just minimum wages but maximum hours so we can earn our bread and bake it too, and still have time to tend our roses.

 

1

Our Precious Perversions

It’s a strange time to be a pervert in America. Donald Trump may well be elected the 45th president, running on a platform of protecting the traditional family by rolling back newly-won, sweeping marriage rights for gays and expanding the first amendment to protect outright anti-gay discrimination. At the same time, the New York Times ran a human-interest story last week about an interracial, sadomasochistic relationship involving a well-known musician and Columbia University professor, calling it, blandly, “A Composer and His Wife.”. Just a few years ago, both would have seemed equally improbable, perhaps even farcical. There’s something vertiginous about both the speed of the progress made by gay marriage advocates and the severity and far-reach of the backlash. How do we understand the simultaneous expansion of marriage regimes and the increasing public articulation of “alternative sexualities”? Are they, as many queer thinkers lament, impossible bedfellows? While public discourse about polyamory and kink is all but ubiquitous, we are still unbearably, insufferably held hostage to the marriage discourse. As Katherine Franke has so beautifully elaborated in her new book Wedlocked, marriage, particularly reproductive marriage, is increasingly the sole vehicle through which we can make space in public to talk about sex. That is one of the many unanticipated and vexing consequences of the push to legalize same-sex marriage. It used to be that marriage was “the place where sex goes to die,” but now I think marriage is just, somewhat disappointingly, where sex goes, period. But is that the end of the story?

As a “recovering” lawyer-turned-sociologist, I’ll focus here on some of the more general socio-legal claims in Franke’s book, which press us to approach the current moment with sobriety rather than celebration. As marriage expands its umbrella to shelter the dyadic, reproductive (“homonormative”) gay family, rights to marriage risk ossifying into obligations. Intermediate forms of relationship recognition, like domestic partnerships, begin to fall by the wayside, and a crag separating the legitimacy of the legal marital form for all other forms of kinship widens to a chasm.

Freedom has rules, Franke tells us, and they are not always the ones we might choose if we were in charge of our won freedom (3). History is instructive here. Attempts to force the plurality of kinship ties forged by newly freed slaves into legal, marital families required a series of arbitrary distinctions (for example, which of a succession of female partners would qualify for an emancipation or pension tied to one man’s military service). Coincident with the transfer of African American families from the “private control of owners to the public control of law” (5) was the political sentiment that any kinship tie outside of those marriages was either unimportant or the sign of social pathology. While we may think of marriage as a means of escaping the burden of social abjection (60), marriage regimes themselves produce that abjection. They are self-reinforcing. Communities with weblike, inventive kinship networks, which often serve protective functions for disadvantaged groups like racial minorities or sexual dissidents, are simultaneously invited into the dominant family form and told their existing affiliations are signposts of their unfitness.

I felt a familiar sense of hopelessness reading Wedlocked. As I’ve watched the gay movement rebrand itself from one focused on sexual and gender liberation to a “focus on the family,” I’ve wondered how we might recuperate some of the radical potential of queer kinship. And now, I’m left wondering how we might use marriage, since clearly it isn’t going anywhere, to assist in this project. In that spirit, I’d like to add a point to Franke’s “Progressive Call to Action for Married Queers,” for which I think we might take inspiration from Mollena Williams and Georg Friedrich Haas, the subjects of the Times story I described above.

It’s a rich story with a banal headline: world-famous composer and college professor finds love after three failed marriages—but this is not just any kind of love. Haas, a white Austrian, meets Williams, a black American, on a typical, bland dating site, and they commence a deep, negotiated power exchange, in which Williams submits to serving Haas, to making his life “as comfortable as possible.” Though the text of the Times story is less direct, this is a configuration familiar to those schooled in sexual diversity. Haas is a dominant; Williams is a submissive. He likely controls much of their joint life, and Williams derives satisfaction from being controlled. (This is not conjecture; Williams, a well-known sex educator, writes openly about her submission on her blog, The Perverted Negress.)

http://www.mollena.com

http://www.mollena.com

The rich layers of complexity in such a dynamic are, I’m sure, not lost on this readership: the juxtaposition of a feminist consciousness with female submission, the racialized power dynamics inherent in the configuration, the likely illegality of some of the sexual practices they admit to engaging in (when was the last time we saw the word “caning” in the New York Times?), the fact that such a relationship can also be, and indeed is, a marriage. Yet, while each of the dynamic concerns appears in a single sentence, the word marriage weaves its way through the narrative, the most dynamic portrayal being his failed previous marriages and his journey into this one.

But BDSM, a “compound acronym that connotes sexual interactions involving bondage/discipline, domination/submission, and sadism/masochism” often leans into and not away from the law. It is likely that Haas and Williams have both a marriage contract and an extra-legal bdsm contract detailing the terms of their Dominant/submissive dynamic. And perverts are not the only ones making such creative use of law. Martha Ertman’s new book, Love’s Promises, profiled in an earlier symposium on this blog, describes those used by a range of what she terms “Plan B” families to negotiate the terms of cohabitation and parenting in ways formal law fails to address.

If marriage “cleaves the sex out of homosexuality” (6), we certainly shouldn’t see marriages like this one in the popular press. But, increasingly, we do. And while gays have struggled mightily to distance ourselves from this type of depiction to preserve our standing as viable legal and political subjects, now that we have attained it, perhaps it’s time to let some of that abjection back in. In a context of legal and social exclusion, both racial minorities and non-heterosexual people form a variety of kinship structures that mediate relations of intimacy and of care and dependence. Think, for example, of the “army of ex-lovers” responsible for caring for the first sufferers of hiv/aids. What happens to forms of non-marital intimacy under a marriage regime? They risk disappearing. 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.

1

Neither Freedom Nor Equality

Be careful what you wish for – that’s the clear warning that Katherine Franke gives the reader in her new book, Wedlocked: The Perils of Marriage Equality. In the book, Franke offers a far-reaching and incisive critique of marriage, based on the ways in which marriage was both sought after and suffered through by two distinctly different populations: newly freed slaves after the Civil War and same-sex couples in the wake of marriage equality. Careful not to make direct comparisons between the two populations, Franke presents the experiences of both groups side by side and draws out similarities that are always striking and often surprising. The intertwining stories of these two groups provide a window into “what it means to elaborate a new conception of freedom and equality through a form of state licensure.” (p. 11)

Freedom and equality frame the discussion and serve as touchpoints for Franke as she details the unintended consequence of access to marriage for both populations. What becomes clear, as the book progresses, is that the elaboration of freedom and equality through marriage is quite different than the reality of obtaining freedom and equality through marriage. Franke’s first overarching theme – marriage is not freedom – comes through sharply in the wide-ranging stories she tells about couples, both then and now. Marriage does not and cannot equate with freedom because it is a form of state control. This is not news, but the way in which Franke adeptly draws out the myriad ways in which marriage is used as a mechanism for domestication and governance is compelling. But Franke does not stop there. She deepens this argument by describing the peculiar genius of marriage which is that, despite its being a freedom-constraining relationship, the promise of equality that it offers is sufficiently tantalizing to make the trade-off not only acceptable but even desirable. As she presses on the idea of equality in the context of marriage, however, Franke develops her second, twin theme – that marriage rights do not necessarily produce equality. Not only is freedom illusory; equality is not guaranteed.

Beginning with freedom, Franke presses on this concept throughout and skillfully underscores how marriage operates as a “tactic of governance” (p. 62) that is both plastic and persistent. One particular loss of freedom that concerns Franke derives from marriage being deployed by the State as a technology of power that regulates sexuality, erasing all forms of “fantasmatic curiosity.” (p. 115) The embrace and imposition of marriage on both populations has placed alternative sexualities in service of hetero- and now homonormative ideals. Franke regrets in particular with the gay community that, under the yoke of marriage, “we have lost for now the opportunity to explore the possibilities of a ‘lawless homosexuality.’” (p. 115) Marriage is (as I have explored elsewhere) deeply implicated as a part of the “civilizing process.” As such, marriage demands that sexuality be confined to be legitimized and that individuals discipline their internal, sexual drives. Consequently, relationships that tolerate alternate sexualities – such as bigamy, informal marriage, and multi-party relationships – have been penalized, and might be again, in the rush to ensconce marriage as the one legitimate container for sexual intimacy and activity.

Marriage also entails another, related, loss of freedom because it demands not only sexual but also social conditioning. Marriage is a public-facing relationship that requires that families look and act a certain way: a husband and wife, several children, a well-ordered household. Measured against these perfect families, Franke’s “fluid families” come up short and are penalized for their different-looking, non-traditional forms. Women bear a particular burden of regulation and correction, because the picture-perfect form of marriage is a hierarchical and gendered one. “Fluid families” are therefore disrupted and disciplined not only because of their expressive sexuality but also because they do not conform to gender-based hierarchy. In the context of freed slaves, “female-headed households, or even matrifocal families, in many slave communities were pointed to as evidence of the dysfunction, or even the pathology, of slave family life.” (p.81) Even current marriage laws, however, “take matrimony to be a legal relationship that is fundamentally structured by gender inequality.” (p. 209) Accordingly, Franke worries about the effects of marriage on same-sex couples and how it might transform previously gender-fluid relationships into gender-filled ones. Whether or not same-sex couples will change marriage or marriage will change them, encouraging same-sex couples to reinscribe conventional gender roles in their relationships, remains to be seen. The sociology is in the making. Nevertheless Franke’s warning to monitor the impulse to gender within marriage is apt, especially given power imbalances that result in many couples due to asymmetrical earnings in a marriage.

Finally, marriage represents an immediately relevant form of state intervention and loss of freedom because it imposes default rules about money, resources, and sharing. Marriage economics are, as Franke points out, intimately related to the gendered nature of marriage and marriage as a form of “private welfare.” (p. 90) Because of legal assumptions about the specialization of household labor and marriage as an economic partnership, divorce laws mandate forced sharing, absent private contracting. Same-sex couples are not always aware of these rules (not unlike their different-sex counterparts) and, furthermore, divorce courts don’t always know what to do when confronted with couples who might have been married sooner than they were, had they been allowed to do so. Franke’s story of Ruth and Beth underscores these problems and highlight the possibility of unjust enrichment. (p. 211) Equally likely, however, is the possibility that long-term same-sex couples who have been economic partners for years will be dealt with unfairly by courts refusing to recognize those years of partnership upon divorce. That is to say, while backdating to the beginning of the dating period is one option courts have when constituting the marital estate, they also have the option of not taking into account anything that happened previous to the marriage and thereby artificially circumscribing the assets available to distribute at divorce. Given the reluctance of courts to accord property claims to unmarried cohabitants – and the almost complete rejection by state legislatures of the ALI principles (p. 156) – this may be the more likely danger. Either way, Franke establishes through an abundance of examples that freedom has little relationship with marriage.

Having deconstructed the notion of freedom with respect to marriage – the freedom to marry is really an invitation to relinquish personal freedom to the State – Franke goes on to suggest that the promise of equality through marriage may also be illusory. Marriage inequality operates on several levels. For starters, the right to marry for same-sex couples does not necessitate the right to equal treatment by a legal and societal culture still hobbled by bias and discriminatory desire. One noteworthy thread that runs through the book is that bias has an afterlife – it does not just disappear but rather gets channeled into new outlets and finds new modes of appearance. In the case of marriage equality, inequality may appear in the guise of reinvigorated enforcement of adultery and bigamy law with respect to same-sex couples. (p. 151) Laws that have been on the books for decades, never invoked, may be animated anew because of reconstituted homophobia. Gay men and lesbians, Franke remarks, “have long been accustomed” (p. 152) to outdated laws being selectively applied in order to penalize gay sex. Marriage equality may not change this. This bias may also find other ways to get into court. With same-sex couples having and adopting children, as well as divorcing, bias could easily show up in family court. It is, in fact, simple to speculate about how discrimination and stereotypes might find their way into judicial determinations about property division, spousal maintenance, and child custody. This is a matter, in many respects, of cultural change lagging behind legal change on certain issues and in certain locations. Franke does not have the space, nor is it necessarily a part of her project, to take on the question of how to move cultural change forward, to full acceptance of same-sex relationships and sexuality. The necessity of doing so, however, remains.

There are also other inequalities engendered by the push for equality. In fact, the larger problem with marriage “equality” may be that it creates inequalities within and between various communities. This is a major point in the book and one that weaves together the stories of the gay and African-American communities in the contemporary landscape. In short, the problem with the move to gain rights through marriage, thereby making marriage the standard by which other relationships are “both made legible and assigned value” (p. 112), is that it renders other relationships different and lesser. As Franke argues, “winning the right to marry should not result in making non-traditional families … even more vulnerable for their failure to take a nuclear form.” (p. 111) Perhaps one of the most damaging aspects of this bias “offloading” is that it penalizes and further stigmatizes African-Americans because of the high prevalence of non-normative families in African-American communities. (p. 61) The promise of equality is, consequently, tempered by competing claims to relationship legitimacy and the continuing legacy of racism.

Freedom is not free and equality is not equal. Looking at the possible losses rather than gains in freedom and equality that result from obtaining the right to marry, one is left to wonder two things. Why do we need marriage? And, if we do need marriage for certain purposes, how can and should we manage the technology of marriage so that it serves as a mechanism for enabling freedom and equality?

An answer to the first question is that we don’t need marriage for everything. Consequently, one way to reduce marriage governance is to stop provisioning goods and resources through marriage to the extent that we currently do. There are indisputably good instrumental and practical reasons to marry, given the structure of our current system. As Windsor winningly demonstrated, it is manifestly unfair to ask same-sex couple to be taxed when different-sex couples are not. And, on the flip side, if many different-sex couples count financial planning among the reasons for marriage, why shouldn’t same-sex couples do the same? The thousand-plus benefits that the government provisions through marriage constitute an extremely compelling reason to get married. This has led to a phenomenon of many same-sex couples “holding their noses” and getting married.

This argument, however, does not justify marriage on the merits. There is nothing inherent to marriage that makes it the right or only way to provision benefits. In fact, the answer to the benefits question may be to have the State provision them outside of marriage. Franke does not explore how else we, collectively, might choose to provision benefits or the responsibility of the State to do so in a more equality driven manner. She does, however, nod at the question of redistribution when she suggests that all “married queers” think about what it means to enjoy economic advantage through marriage and reshape their behavior accordingly. (p. 235) Actions like these will help decrease the marriage privilege and smooth out differences among the various types of intimate relationships. This will also prevent couples from being channeled into marriage without any real desire for it.

Another answer is that we need marriage for certain people because, for these couples, the substance of marriage is compelling. Marriage, for some, is a positive good. Consequently, a second strategy – compatible with the first – is to commit to making marriage more equal for those who choose to be in it for affirmative substantive reasons. Franke rightly critiques the fact that “marriage has been recharged as the most august holding environment for the elaboration of one’s mature and authentic self.” (p. 61) Trying to find the charm and charisma of marriage, however, it may be that marriage is deeply appealing because it is a site for making and maintaining a unique connection with another person. The modern ideal of companionate marriage reinforces this ideal and demonstrates how marriage is more than money. Marriage provides a way for individuals to commit to one another, offer continuing support, and receive both love and encouragement. Marriage is of course not required for this type of relationship to develop and flourish. Marriage does, however, serve a signaling function and provide a legal framework for resource sharing and caretaking of multiple kinds.

For these people, marriage is an unalterable part of the social landscape. For them, Franke offers valuable suggestions in her “Call to Action For Married Queers,” including asking spouses to monitor their economic privilege, be aware of gender, and resist offloading bias on other, various non-normative groups. The notion alone of queering marriage is a project worth pursuing in an attempt to help further change the nature of marriage. In this vein, one additional suggestion for Franke’s Call to Action is for married queers – and unmarried ones as well – to open and protect robust critical, queer spaces both inside and outside of marriage. Franke’s message about preserving queer spaces in the context of sexuality is equally important in the political context. Part of keeping marriage equality in play and in question is curating spaces of play and resistance – critical spaces in which divergent practices and personae can be explored. Franke laments that the push to marriage has foreclosed many of these spaces in the gay community. These spaces, however, can be perpetually reinvented through critical inquiry and activity, and they will be the sites of cultural as well as legal resistance.

Ultimately, Wedlocked deftly deconstructs the notions of both freedom and equality with respect to marriage. What remains is to think through how to counter marriage primacy, change marriage internally, and keep open the space for critical play.

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B Corps for Bankers

Claire Hill and Richard Painter’s new Better Bankers, Better Banks aims to find a way forward by looking backward – and by casting a few sidelong glances as well. It is valuable for what it has to say about the view in all directions.

Begin from where we are – the point from which Hill and Painter would like to see forward movement. Where we are now is a world in which, even seven years out from the crash of ’08, banking scandal is near boring in its ubiquity. From Libor in 2012 to Euribor, forex, commodity and precious metal cornering thereafter, the story of financial markets of late seems an unending parade of horribles.

How do we get out of this seeming cesspool? Here is where Hill and Painter look backward and sideways.

First let’s look back. Time was when ‘bankers’ – Hill and Painter employ the term broadly to cover all folk who hold ‘other folks’ money’ – invested not only our money, but their money too. By organizing as general partnerships whose partners were jointly and severally liable for losses, they kept, as the current idiom has it, ‘skin in the game.’ This of course aligned their interests with client and institutional interests – to some extent, anyway. (Names like ‘Jay Gould’ should remind us that ‘some extent’ wasn’t the ‘full extent.’) And so there were limits on how much by way of other folks’ money the bankers were likely to fritter away.

Now let’s look sideways. There appears to be growing consensus, in the face of such scandals as those just rehearsed, that our regulatory and law enforcement regimes’ penchant for penalizing banks rather than bankers just isn’t cutting it. Compared to the gains to be had from wrongful behavior unlikely to be caught, even five or twelve billion dollar settlements between banks and their regulators are chump change. Oughtn’t we, then, focus our efforts upon the human agents through whom the banks act? After all, five billion – or five years in jail – are more likely to pinch if you’re human.

Hill and Painter like what they see in both directions. They find limitations, however, in how effective the enforcement of finance-regulatory provisions can be. These, they believe, are just too easy to game – a fact that might partly account for regulators’ going after the banks rather than the bankers in the first place. Why not, then, take yet another sidelong glance in another direction – that of contemporary moves to simulate better regulation through private ordering? Are there not means, for example, of appealing to socially responsible investors by committing to operate as a socially responsible business – e.g., as a ‘B Corp’ or ‘Benefit Corp’?

Indeed there are, and though they do not discuss these new business forms, Hill and Painter valuably adapt, in effect, the idea behind them to financial firms. Herewith the authors’ novel suggestion to introduce a practice of what they call ‘Covenant Banking.’ The idea is for financial firms whose owners or managers are comfortable with the idea to undertake ‘skin in the game’ commitments on the part of their managers. Managers would voluntarily assume some liability for losses, thereby partly replicating the ancien regime of pre-corporate partnership banking. Investors could then choose between what kinds of institutions through which they invest – the more risk-averse perhaps working through covenant banks, the more risk-cavalier working through today’s more familiar casinoish firms.

It would be hard not to like this proposal. What’s not to like? Like recent proposals for Wall Street voluntarily to maintain ‘naughty lists‘ of bankers who have gotten themselves into trouble, it imposes nothing, yet offers something – the prospect of ‘better bankers,’ hence ‘better banks,’ for at least some investors. It simply expands the field of choice, and who in these times doesn’t like choice?

If I have any reservations about Hill and Painter’s proposal or their brief in its favor, they have to do with the prospect of some people’s possibly taking the authors to claim or to promise more than they actually intend.

To begin with, we should note that wrongs such as those alleged in connection with Libor, Euribor, forex, and commodity and precious metal cornering are not wrongs of excessive risk-taking. They are wrongs of sheer fraud and manipulation. It isn’t the case that ‘skin in the game’ on the part of the relevant fraudsters in these cases ‘would’ have helped; the ‘skin’ seems to have been at the core of the ‘game’ from the start, and was indeed part of the problem – the fraudsters profited precisely by illicitly betting their own money on what they controlled. Hill and Painter, then, should not be taken to be targeting this form of market abuse through their proposal.

A distinct but related point has to do with the lead-up, not to 2012 and after, but to 2008. It is still common to hear that year’s cataclysm blamed upon venal behavior or ‘excessive risk-taking’ by ‘bankers.’ And such behavior clearly occurred – it always does. But a very strong case can be made – I think I and others have made it – that the principal causes of 2008 were more radical than mere vice or recklessness on the part of some bankers. They are endemic to capitalism itself absent serious and sustained effort on the part of the polity to distribute capital’s returns – or capital itself – far more equitably than we’d managed before 1929 or between 1970 and 2008. ‘Better bankers’ would certainly be better than worse bankers; better still would be better distributions of that with which bankers bank.

Finally, there is a danger in underselling what proper law enforcement, adequately funded and staffed, can do where finance-regulation is concerned. When Wall Street contributes more to political campaigns than most other industries, when DOJ officials openly admit to having feared to prosecute bankers for fear of rattling markets, and when regulators like the CFTC and the SEC are chronically understaffed and underfunded, we should be skeptical of suggestions that ‘gameability’ of the rules is the sole – or even principal – reason for old fashioned law enforcement’s not having eradicated rulebreaking by financiers. Indeed, as Hill and Painter themselves note, a rule change at the NYSE in 1970 played a critical role in the move from partnership to incorporated form among Wall Street investment banks. If that is so, could a legal re-imposition of some variant of the old rule not itself make for ‘better bankers’?

None of these caveats should be taken as more than what they are – mere caveats. There is much, much to be learned from a reading of Hill and Painter, and much is quite plausibly promised by their Covenant Banking. And since, as before noted, their proposal is made in effect to the banks rather than the polity, it seems to be all upside, no down. Let, then, those bankers intrigued by the Hill/Painter proposal give it a go. One might even imagine some funds offering their services in A and B flavors, so to speak – in Covenant and Noncovenant forms. In such case consistently better performance by one kind over the other might in future foment a stampede to the winning kind, and with it a privately worked transformation.

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Better Bankers Symposium, June Carbone

Thanks to everyone who participated in the Better Bankers Symposium.

My two cents worth it that the current system does not just reward “greed,” it create a Gresham’s dynamic where those most motivated not just by self-interest, but a preference for short term financial rewards, drive out others who see their self-interest defined in other ways.  Market discipline may produce boom and bust cycles that put firms like Lehman Brothers out of existence, but the corrections of the market often either overcorrect (Akerlof’s references to lemons’ markets) or do so at very high cost (the financial crisis).  This is because greedy individuals (those motivated by short term gains) have managed to create an opaque system in which market responses kick in only after individuals have a chance to leave the companies they undermined, with their outsized individual bonuses intact.

Better Bankers thinks more creatively about how self-interest can be marshalled to police such activities before they get out of control.  It seeks to restore the identity of interests between bankers and banks.  It thus seeks to create a system in which self-interest includes interests broader than short term financial incentives, and in which private market mechanisms can become more effective.  The old joke is “how many economists does it take to change a lightbulb?  None, the market will do it if it needs to be done.”  Hill and Painter’s answer is that it requires a design and it requires the will to create the conditions where the more intelligent design is likely to be adopted because it advances the common good at the expense of individuals who would like to be able to continue to game the system.  Let’s hope their proposal finds fertile ground.
JUNE CARBONE