Category: Law and Humanities

0

Law’s Picture Books

As the Wall Street Journal reported a few weeks back (along with the New Yorker and the Frankfurter Allgemeine), the two of us recently opened an exciting exhibition in New York about the history of illustrated law books.

The exhibit is called “Law’s Picture Books: The Yale Law Library Collection,” and it includes over 140 items drawn from Yale’s unique collection in the field—which Mike developed. The exhibit is accompanied by a 220-page, full-color exhibition catalogue, as well as a companion exhibit at Yale Law School.

Here are a few snaps from the gallery at the Grolier Club, near the corner of Park and 60th, where the exhibit is on display until November 18:

Over the next ten posts, we’d like to share some images from the exhibit with the readers of Concurring Opinions, and we’d like to reflect a bit on their meaning. We think they’re fascinating, mysterious, beautiful, and intriguing—and that they can teach us a lot about law.

Read More

0

Hillbilly Elegy as Rorschach Test

I have already made clear in a prior post some of the reasons I am not a big 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 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.  In any event, recalling these has me pondering the book as “Rorschach test,” that in which we can see what we choose to see.

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.

1

AALS Law and Film Selections At This Year’s Meeting @TheAALS @MacheteCine

The two AALS Law & Film selections at this year’s meeting in San Francisco are Anatomy of a Murder, Tuesday evening at 7 p.m.,and La Jaula de Oro, Thursday evening at 6:30. I will moderate the discussion for Anatomy of a Murder, the classic courtroom drama about the quest for the truth behind an Army lieutenant’s killing of the man he accuses of raping his wife.  Michael Olivas, Professor of Law, University of Houston Law Center, and a former AALS President, will moderate the discussion for La Jaula de Oro, a striking Mexican film about Central American undocumented immigrants and their dangerous journey to the United States. Special guest for the Thursday night presentation is the film’s producer, Luis Salinas. William S. Hein and Company is providing refreshments for both evenings.

Come find out why law and film matters!

0

Roundup: Law and Humanities 10.13.2016

In somewhat of an October surprise, the Swedish Academy has announced the award of the Nobel Prize for Literature to singer-songwriter Bob Dylan. Law and humanities mavens, take note: scholars and commentators have been examining Laureate Dylan’s work for links to the law for some time.

The New York Times’ Adam Liptak surveyed the uses of Bob Dylan lyrics in judicial opinions here, listing some here.

Some lawprofs have written about Mr. Dylan’s use of law and legal themes. Here are some examples.

Adam Gearey, Outlaw Blues: Law in the Songs of Bob Dylan, 20 Cardozo Law Review 1401 (1998/1999).

Matthew McNeil, The First Amendment Out on Highway 61: Bob Dylan, RLUIPA, and the Problem with Emerging Postmodern Religion Clauses Jurisprudence, 65 Ohio State Law Journal 1021 (2004).

 

See also music scholar James Dunlap, Through the Eyes of Tom Joad: Patterns of American Idealism, Bob Dylan, and the Folk Protest Movement, 29 Popular Music and Society 549 (2006).

 

The Fordham Urban Law Journal devotes an entire issue to Bob Dylan and the law (38 Fordham Urban Law Journal 2010-2011). The issue includes (complete with poetic titles):

Samuel J. Levine, Foreword, at 1267.

Louise Harmon, Bob Dylan on Lenny Bruce: More of an Outlaw Than You Ever Were, at 1287.

Renee Newman Knake,  Why the Law Needs Music: Revisiting NAACP v. Button Through the Songs of Bob Dylan, at 1303.

Randy Lee, Bob Dylan’s Lawyers, a Dark Day in Luzerne County, and Learning to Take Legal Ethics Seriously, at 1323.

Alex B. Long, The Freewheeling’ Judiciary: A Bob Dylan Anthology, at 1363.

Alex Lubet, Arrested Development: Bob Dylan, Held for Questioning Under Suspicion of “Autism,” at 1385.

Michael Perlin, Tangled Up in the Law: The Jurisprudence of Bob Dylan, at 1395.

Laurie Serafino, Life Cycles of American Legal History Through Bob Dylan’s Eyes, at 1431.

Abbe Smith, “No Older ‘N Seventeen”: Defending in Dylan County, at 1471.

Richard H. Underwood, When the Law Doesn’t Work, at 1495.

David M. Zornow, Dylan’s Judgment on Judges: Power and Greed and Corruptible Seed Seem To Be All That There Is, at 1511.

 

Idealawg discusses some of Mr. Dylan’s lawprof fans here.

 

0

Roundup: Law and Humanities 06.28.16

 

Conferences

 

Call For Papers: 2016 Law & Society Association of Australia and New Zealand Conference

Disruption, Temporality, Law:
The Future of Law and Society Scholarship

2016 Conference of the Law & Society Association of Australia and New Zealand

30th November – 3rd December 2016

Call for Papers closes: 30th June 2016

The Call for Papers for the 2016 Law & Society Association of Australia and New Zealand Conference, hosted by the Law Futures Centre and Griffith Law School in conjunction with the Southern Cross University School of Law and Justice closes on the 30th June 2016. Details of the call for papers are attached.

We are also pleased to announce the following confirmed keynote speakers:

  • Professor William MacNeil, The Hon John Dowd Chair in Law, Dean and Head, School of Law and Social Justice, Southern Cross University
  • Professor Irene Watson, Research Professor of Law, School of Law, University of South Australia
  • More keynote announcements to come!

The conference will open on the evening of Wednesday 30th November with a public debate on “The Future of Legal Education”. Confirmed debate participants include:

  • Professor Margaret Thornton, ANU College of Law, Australian National University
  • Bill Potts, President, Queensland Law Society & Founding Director, Potts Lawyers
  • John Briton, Former Legal Services Commissioner, Queensland
  • Professor Reid Mortensen, Head of School, School of Law and Justice, University of Southern Queensland
  • Magistrate Jacqui Payne, Queensland Courts
  • Professor Charles Sampford, Director of the Institute for Ethics, Governance and Law, Griffith University

Submission of Proposals:

Please submit proposals for papers, panels or streams to LSAANZ2016@griffith.edu.au. Proposals should consist of a short abstract (max. 250 words), 3 keywords and a short biography (100 words). Panel proposals should include a title/theme for the panel, and abstracts, keywords and biographies for each presenter.

We looking forward to welcoming you to Brisbane.

The 2016 Conference Organising Committee.

Professor John Flood, Dr Timothy Peters, Dr Edwin Bikundo, Mr Shahram Dana, Dr Roshan de Silva Wijeyeratne, Associate Professor Susan Harris-Rimmer, Ms Heron Loban, Dr Jennifer Nielsen, Professor Charles Sampford and Ms Kandice Cherrie.

For Conference enquiries email: LSAANZ2016@griffith.edu.au

 

Read More

0

Roundup: Law and Humanities 06.20.16

So much going on in law and humanities these days that it’s hard to pick and choose what to bring you. Here’s a sampling.

Conferences

There will be a Conference on Law and Ritual September 22-23, 2016 Leeuwarden, The Netherlands, sponsored by Voices of Law.

Here is a link to the conference website.

Follow news of the conference on Twitter:  #LawAndRitual @VoicesofLaw

_____

The organizers of the LSU Conference on Law, Authorship, and Appropriation are still accepting paper proposals for the Conference, which will take place at LSU A&M, Baton Rouge, on October 28 and 29, 2016. The original call (with updated dates) is reproduced below.

Call for Papers

By Any Other’s Name: A Conference on Law, Authorship, and Appropriation

Louisiana State University, Baton Rouge, LA, October 28-29, 2016

On October 28-29, 2016, the LSU College of Music and Dramatic Arts, LSU School of Theatre, the LSU Law Center, LSU’s ORED (Office of Research and Economic Development) and the Law and Humanities Institute will co-sponsor a conference on law, authorship, and appropriation on the LSU A and M campus in Baton Rouge, LA. This conference will bring together scholars, performers, and students to discuss law and authorship in the face of challenges issued by artists who engage in appropriation—the practice of taking the works of others to rethink or recreate new works.

Some artists who engage in appropriation may describe their activities as parody, sampling, or remixing. Some artists whose work is appropriated may describe the result as misappropriation. Writers might describe the use or reuse of words variously as hommage or plagiarism. Lawyers weigh in both sides of the issue, interpreting such reuse as fair use or infringement, depending on the circumstances.

Digital technology creates a host of new considerations, from the opportunity for a creator to license rights up-front (or not at all) to opportunities for users to create content cooperatively, either on the Web or in face-to-face settings.

What do such changes, in law and in aesthetics and art, mean for our understandings of authorship and the relationship between creator and audience? Do words like “author” and “creator” even continue to have meaning?

Read More

0

Roundup: Law and Humanities 05.18.16

What’s new in the world of law and humanities:

Conferences

Call for Papers

By Any Other’s Name: A Conference on Law, Authorship, and Appropriation

Louisiana State University, Baton Rouge, LA, October 28-29, 2016

On October 28-29, 2016, the LSU College of Music and Dramatic Arts, LSU School of Theatre, the LSU Law Center, LSU’s ORED (Office of Research and Economic Development) and the Law and Humanities Institute will co-sponsor a conference on law, authorship, and appropriation on the LSU A and M campus in Baton Rouge, LA. This conference will bring together scholars, performers, and students to discuss law and authorship in the face of challenges issued by artists who engage in appropriation—the practice of taking the works of others to rethink or recreate new works.

Some artists who engage in appropriation may describe their activities as parody, sampling, or remixing. Some artists whose work is appropriated may describe the result as misappropriation. Writers might describe the use or reuse of words variously as hommage or plagiarism. Lawyers weigh in both sides of the issue, interpreting such reuse as fair use or infringement, depending on the circumstances.

Digital technology creates a host of new considerations, from the opportunity for a creator to license rights up-front (or not at all) to opportunities for users to create content cooperatively, either on the Web or in face-to-face settings.

What do such changes, in law and in aesthetics and art, mean for our understandings of authorship and the relationship between creator and audience? Do words like “author” and “creator” even continue to have meaning?

Read More

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.

0

Roundup: Law and Humanities 02.05.16

An update on the Law and Humanities Scene, February 2016.

CONFERENCES

1.The Law and Society Association meets in New Orleans from June 2 to June 5, 2016. The theme of the conference is At the Delta: Belonging, Place and Visions of Law and Social Change. Registration opens in early February, 2016. More information is available at the conference website here.

2.The Association for the Study of Law, Culture, and the Humanities 19th Annual Conference takes place at the University of Connecticut Law School April 1-2, 2016. This year’s conference theme is Reading Race, Writing Race, and Living Race. More information is available at the conference website here.

3.The Kent Summer School in Critical Theory will run for the second time this year, in Paris, 13-24 June 2016. The website has just gone live.

This summer school for early career researchers and doctoral students aims to create a unique pedagogical experience, enabling leading critical thinkers to conduct an intensive 2-week seminar with members of a new generation of critical scholars.

Applications are now open to attend the summer school, and you will find application instructions on the website.

The teachers of the intensive seminars in 2016 will be Professor Samantha Frost, Professor James Martel, and Professor Bernard Stiegler. The website also contains information about the seminars, in addition to the school’s other events.

 

Read More

0

A Christmas Movie that Led to a Financial Reg (Sort of)

Trading Places is a Christmas movie in that it is set during the holidays and I suppose making hundreds of millions (or probably billions in today’s dollars) is a 1980s Christmas wish as compared to other Christmas wish movies. It is a heart-warming story of a young Eddie Murphy and Dan Akroyd taking on the entrenched elite by, oh well, by insider trading. The ending and the glory of frozen concentrated orange juice live on. First the full explanation of how the two manage to out maneuver the Dukes is a little tricky. But after the thirtieth anniversary a two years ago, a few places explain it nicely. NPR’s coverage is succinct. Business Insider is good and has better pictures. But the best is from Don’t Worry I am an Economist which has a step-by-step on short selling, and then applies it to the movie including explaining how the pricing worked (142 is in fact A $1.42 and 29 is $0.29 per pound but the contracts are for thousands of pounds thus “Trading begins at 102 cents per pound (at 15,000 pounds of F.C.O.J. per contract – size of a typical contract – the value of a single contract is $15,300).”.). So he shows that

How much have they made? Let’s see. In the movie Winthorpe says they’ve moved around 20,000 contracts. Assuming they’ve sold short at a constant pace from 142 down to 102, and that later they’ve bought them back while the price was falling from 46 down to 29, let’s say that the average sell price was around 122 cents per pound, where the average buy-back price was 37.5 cents per pound. The spread is therefore 122 – 37.5 = 84.5 cents per pound profit. Per single contract this is 15,000 pounds * 84.5 cents per pound = $12,675 per contract. Multiply this by roughly 20,000 contracts and their total profit was: $253,500,000.

Oh and here is the law and regulation part: The movie was explicitly invoked as the Eddie Murphy rule when the government finally made insider trading on the commodities market illegal. Per the WSJ when the rule passed CFTC Chief Gary Gensler explained:

We have recommended banning using misappropriated government information to trade in the commodity markets. In the movie “Trading Places,” starring Eddie Murphy, the Duke brothers intended to profit from trades in frozen concentrated orange juice futures contracts using an illicitly obtained and not yet public Department of Agriculture orange crop report. Characters played by Eddie Murphy and Dan Aykroyd intercept the misappropriated report and trade on it to profit and ruin the Duke brothers. In real life, using such misappropriated government information actually is not illegal under our statute. To protect our markets, we have recommended what we call the “Eddie Murphy” rule to ban insider trading using nonpublic information misappropriated from a government source.

Law and lit and reg I guess. Anyway Merry Christmas and in the words of Nenge Mboko “Merry New Year.”