Feminist Law Professors

Call for contributions to Controversies in Tax Law: A Matter of Perspective (Anthony C. Infanti, editor):

The Series

The Centre for American Legal Studies at Birmingham City University School of Law in Birmingham, England, has established a “Controversies in …” series of volumes with Ashgate Publishing. The series currently has five books in the pipeline—on equal protection, innocence, the death penalty, health care, and the environment. The newest addition to this series is a volume on controversies in tax law. The proposal for this volume has been accepted by Ashgate, and the book is currently under contract to be delivered in September 2014.

Description of Volume

Despite beginning with the word “controversy,” the title of this volume should itself be without any controversy whatsoever. After all, taxation has been a perennial source of debate and unrest in the United States—and it remains none the less so today.

Historical examples are easily enumerated and include such pivotal events in American history as the Boston Tea Party, Shays’s Rebellion, the Whiskey Rebellion, and the woman suffrage movement. Though less momentous, today’s debates are no less consequential, implicating such important questions as who should pay tax (think of Republican presidential candidate Mitt Romney’s remarks about the “47 percent” who pay no income tax) and how much (think of President Obama’s insistence during the 2012 campaign that the Bush tax cuts for those with more than $250,000 of income should expire).

This volume will approach today’s tax controversies in a unique fashion. The subtitle of the volume—“A Matter of Perspective”—reflects the fact that today’s tax debates often turn on the differing Weltanschauungen of the participants in these debates. For instance, a central tension in the academic tax literature—which is filtering into everyday discussions of tax law—exists between “mainstream” and “critical” tax theorists. This tension results from a clash of perspectives: Is taxation primarily a matter of social science or a matter of social justice? In other words, should tax policy debates be grounded in economics or in critical race, feminist, queer, and other outsider perspectives?

Too often the two sides of these academic debates simply talk “at” or “past” each other rather than engage in a dialogue with each other. To capture and interrogate—and perhaps even to begin to bridge—what often seems like a chasm between these two sides of academic (and, increasingly, everyday) tax debates, this volume will comprise a number of pairs of essays. Each pair of essays will approach an area of controversy in the tax laws from two different perspectives. One essay will approach the topic from a “mainstream” perspective while the other will approach the same topic from a “critical” perspective. The authors of each of the essays in a given pair will be afforded the opportunity to read and incorporate reactions to each other’s essays in the writing of their own. In the writing and rewriting of their essays, authors will be asked to pay specific attention to the influence of perspective both on the issue that they are addressing and on the writing of their own contributions to the debate.

Contributions

Those interested in contributing an essay to this volume should send a proposed title and abstract of no more than 500 words (per individual contribution) to infanti@pitt.edu. Preference will be given to proposals by pairs of contributors on a predetermined topic (one writing from a critical perspective and the other from a “mainstream” perspective); however, all proposals will be considered and the pairing up of individual proposals will be done wherever possible. The target length for final contributions is 7,500 to 10,000 words. The volume will contain a maximum of eight chapters (and, therefore, eight pairs of essays).

The deadline for proposals is March 15, 2013.

Please join us for this symposium at Pace Law School – a series of conversations about the wave of corporate board quotas.  Our discussions will take place at the intersection of feminist theory, corporate governance and democratic legitimacy, informed by social science and critical theory.

http://www.law.pace.edu/comparative-sex-regimes-and-corporate-governance-symposium

What new politics and ethical imperatives emerge when the rights of lesbian and gay people begin to gain traction, and when the state becomes a partner in defending those newly-won rights?  In Dating the State: The Moral Hazards of Winning Gay Rights, just published by the Columbia Human Rights Law Review, I offer a critical analysis of the complexities of having the state recognize and then take up gay rights as a cause of its own. I examine three principal contexts – the role of gay rights in the state of Israel’s re-branding campaign, the response to Iranian President Mahmoud Ahmadinejad’s 2007 speech at Columbia University in which he claimed that there were no homosexuals in Iran, and the role of gay rights in Romania’s effort to join the European Community – as examples of the moral hazards that a minority faces when the state takes up their interests and uses their rights for purposes that well-exceed the obvious interests of the new rights-bearing community. I conclude that critical awareness of the state’s role as fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised.

The essay turns to several diverse sites of global politics to illuminate the centrality and manipulation of sexuality and sexual rights in struggles for and against the civilizing mission that lies at the heart of key aspects of globalization. I began this essay with the discussion of Israel not to single it out, but to illustrate a larger, more widespread phenomenon. It is worth tracing why, how, and to what effect a state’s posture with respect to the rights of “its” homosexuals has become an effective foreign policy tool, often when negotiating things that have little or nothing to do with homosexuality.

I aim in this discussion to intervene in an ongoing conversation among scholars of international law and politics that has cleaved into two rather unfriendly camps. On the one side are human rights groups and activists who seek to secure human rights protections for subordinated, oppressed, tortured, and murdered sexual minorities around the globe. They have worked hard to bring lesbian, gay, bisexual, and transgender (LGBT) people within the protective infrastructure of the well-organized human rights communities. On the other side is a group, perhaps most provocatively represented by Joseph Massad in Re-Orienting Desire: The Gay International and the Arab World, that derides the work of LGBT human rights actors and organizations for a kind of missionary zeal to universalize Western, sexualized identities that have little or no fit with the ways in which sexuality—or, for that matter, identity—takes form in settings outside the West. “Following in the footsteps of the white Western women’s movement, which . . . sought to universalize its issues through imposing its own colonial feminism on . . . women’s movements in the non-Western world—a situation that led to major schisms from the outset—the gay movement has adopted a similar missionary role,” wrote Massad in Public Culture in 2002.  Not surprisingly, Massad received some pushback from the persons and entities he identified as imperialist missionaries who have sought to redeem their good names and good work.  In the middle of these two polarized perspectives lie a few activists and scholars who have charted a middle course, acknowledging the everpresent risk of imperial effects, if not aims, when undertaking rights work in an international milieu, while at the same time recognizing the important and positive work that rights-based advocacy can bring about.  For this last group, as for Gayatri Spivak, rights are something we “cannot not want,” yet we proceed with them cognizant of the complex effects their use entails.

The present essay carries a brief for neither side of this debate (though I will confess sentiments that strive toward the middle course). Rather, it seeks to introduce an analysis none of the disputants have acknowledged: To focus this discussion on the relationship between LGBT human rights non-governmental organizations (NGOs) in the metropole and the potentially colonial subjects they seek to aid misses a third and vastly important actor in this theater—the state. In hugely interesting ways, states have come to see that their political power, their legitimacy, indeed their standing as global citizens, are bound up with how they recognize and then treat “their” gay citizens. A careful analysis of the role of human rights mechanisms and institutions in the expansion of human sexual freedom requires that we recognize and account for the manner in seek to aid, often find their work and their interests taken up and deployed by state actors for purposes that well exceed the articulated aims of something called “human rights.” The Israeli example I opened with is but one of the ways in which sexuality bears a curious relationship to global citizenship, politics, and governance.

Illuminating this complex dynamic reveals some patterns: Modern states are expected to recognize a sexual minority within the national body and grant that minority rights-based protections. Premodern states do not. Once recognized as modern, the state’s treatment of homosexuals offers cover for other sorts of human rights shortcomings. So long as a state treats its homosexuals well, the international community will look the other way when it comes to a range of other human rights abuses.

Katherine Franke, Columbia Law School

The Columbia Law School Center for Gender & Sexuality Law Presents:

A Symposium Honoring the Contributions of Patricia Williams
to the Scholarship and Practice of Gender and Sexuality Law

Friday, March 1st, 2013, 9 am – 7 pm

Jerome Greene Hall, 435 W. 116th Street, rooms 104-106
435 West 116th Street
New York, NY 10027
(corner of 116th Street and Amsterdam Avenue)

Please RSVP to the Center for Gender & Sexuality Law, gender_sexuality_law@law.columbia.edu.

New York State CLE credits will be provided.  Online CLE registration is now available here. Online registration will close February 22nd.
_____________________________________________
9:00 – 9:30 Welcome, Katherine Franke

9:30 – 11:00 Panel 1, Race, Gender and the Law – moderated by Olatunde Johnson

Gina Dent, University of California, Santa Cruz, Feminist Studies
Paula J. Giddings, Smith College, Afro-American Studies
Anita Hill, Brandeis University, Senior Advisor to the Provost: Social Policy, Law, and Women’s Studies

11:30 – 1:00 Panel 2, Ethics and the Body – moderated by Alondra Nelson

Lauren Berlant, University of Chicago, English Language and Literature
Evelynn M. Hammonds, Harvard University, Dean of the College
Robert Pollack, Columbia University, Biological Science

1:00 – 2:30 Lunch

2:30 – 4:00 Panel 3, Law As Interdisciplinary Enterprise – moderated by Kendall Thomas

Eduardo Cadava, Princeton University, English
Lani Guinier, Harvard Law School
Anna Deavere Smith, New York University, Performance Studies
4:30 – 6:00 Keynote by Patricia Williams

6:00 – 7:00 Reception

The guy who has been the voice and puppeteer for Elmo, Kevin Clash, resigned yesterday from Sesame Workshop on account of recent accusations that he had sex with under age boys.  Maybe he did it, maybe he didn’t – we don’t know yet.  But Sesame Workshop wanted him out as we head into the holiday shopping nightmare extravaganza.

The New York Times contacted me today for a comment in connection with Clash’s resignation and the lawsuit that was filed today by Cecil Singleton, a man who is now 24 years old claiming that Clash had sex with him when we was 15 years old, demanding $5 million in damages.

Here’s what I told the Times:

While I can’t speculate as to the merits of this new lawsuit, that will be left to the judicial process, I am concerned about Kevin Clash’s resignation today.  I assume that he stepped down in response to pressure from Sesame Workshop that felt that it could no longer tolerate the association of it’s corporate brand with notions of homosexuality, sexuality, or illegal sexuality.  I mention all three because I wonder if the “scandal” that threatened Clash’s employment would have been any less troubling for Sesame Workshop if the terms circulating onTwitter had been  “Elmo” and “sex,” or “Elmo” and “gay,” instead of “Elmo” and “under-age-sex”.

Just as I thought it shocking that David Petraeus was driven from public service on account of “marital infidelity” rather than the alleged war crimes and crimes against humanity committed by the U.S. government in the Petraeus-led military campaigns in Afghanistan and Iraq, or the expansion of the CIA’s Predator campaign in Yemen, or his role behind a recent push to expand the agency’s drone flee, (see my recent piece on this issue), so too I worry that Clash is the most recent victim of what we call in my world a “sex panic.”

At precisely the moment when gay people’s right to marry seems to be reaching a positive tipping point, sexuality is being driven back into the closet as something shameful and incompatible with honor (in the case of Petraeus) or decency (as in the case of Clash).  Clash has not been convicted of a crime, but merely accused of one in a completely unsubstantiated, vague complaint.  As you note below, this smacks of a shake down.  But what is telling is Sesame Workshop’s quick overreation, not waiting for any credible evidence of wrongdoing to be presented before making it clear to Clash that the voice of Elmo cannot be associated with sex, legal or otherwise.

To my mind, of equal concern is the other aspect of this issue that stems from a moral sense that sexuality of any kind poses a threat to childhood (in the form of Elmo and other Sesame Workshop characters).  Recall the panic when it was implied years ago that Bert and Ernie were gay, or that the Teletubbies were as well.  Any implication that children or child-like characters had a sexuality was to be immediately disavowed.  It does children a disservice to construe sexuality as something that can only hurt them and from which they must be protected, rather than acknowledging that children are sexual beings whether we like it or not, as sexuality is a natural part of human and child development.  In the name of protecting them from adult predators, so many children, particularly gay children, learn almost nothing about healthy sexuality and are left to figure it out on their own – a predicament that often exposes them to additional risks they could have avoided had they received adequate and age-appropriate sexual education as children.

Here’s what they published:

Elmo Puppeteer Resigns After Fresh Allegation

5:11 p.m. | Updated Kevin Clash, the longtime voice and puppeteer behind “Sesame Street’s” Elmo character, resigned on Tuesday after a new allegation was made that he had underage sexual relationships.

Announcing the decision with what he called a “very heavy heart,” Mr. Clash said in a statement, “Personal matters have diverted attention away from the important work ‘Sesame Street’ is doing and I cannot allow it to go on any longer. I am deeply sorry to be leaving and am looking forward to resolving these personal matters privately.”

His statement came at around the same time that a lawsuit was filed in federal court in New York accusing him of “sexual activity” with a 15-year-old. The accuser, Cecil Singleton, is now 24. The suit said that Mr. Singleton “did not become aware that he had suffered adverse psychological and emotional effects from Kevin Clash’s sexual acts and conduct until 2012.” It sought $5 million in damages.

Mr. Clash had no comment on the lawsuit. He was first accused last week of sexual improprieties by a man who later recanted and said they had an “adult consensual relationship.” That man has remained anonymous and has not filed a suit.

While Mr. Clash’s departure on Tuesday put some distance between the sex allegations and the iconic children’s character, the claims may affect the “Sesame Street” brand in ways that remain to be seen.

Hasbro, the main toy licensee for “Sesame Street” products, said in a statement Tuesday, “We are confident that Elmo will remain an integral part of ‘Sesame Street’ and that ‘Sesame Street’ toys will continue to delight children for years to come.” Macy’s, in a statement, said the episode would have no bearing on “Sesame Street’s” presence in the Macy’s Thanksgiving Day Parade later in the week.

Jim Silver, editor in chief of Time to Play, a Web site that follows the toy and licensing business, estimated Hasbro’s wholesale sales of “Sesame Street” branded toys to be about $75 million annually. Elmo-related products account for 50 to 75 percent of that figure, he said, depending on the year.

Before Mr. Clash resigned, Mr. Silver said he was estimating that Elmo-related toy sales would be down perhaps 10 percent because of the stories about Mr. Clash’s personal life. But with the resignation, he said, the total impact will probably be less than that. This fall, Hasbro’s Playskool brand introduced “Playskool Sesame Street LOL Elmo,” a new version of 1996’s “Tickle Me Elmo,” with a suggested $40 retail price tag.

“People are making the separation that this is about Kevin Clash, this is not about Elmo,” he said. “The more people make the separation, the less effect on sales.”

Mr. Clash took a leave of absence last week to defend himself when the first accuser received attention from the gossip Web site TMZ. Production of “Sesame Street” will be unaffected by his absence, in part because Mr. Clash had been helping to identify other puppeteers who could play Elmo.

Still, his name has been synonymous with Elmo for more than 20 years, and especially so since his star turn in a documentary, “Being Elmo: A Puppeteer’s Journey,” last year. The complaints this month contributed to what Sesame Workshop, the producer of “Sesame Street,” on Tuesday called a distraction.

“None of us, especially Kevin, want anything to divert our attention from our focus on serving as a leading educational organization,” the organization said in a statement. “Unfortunately, the controversy surrounding Kevin’s personal life has become a distraction that none of us want, and he has concluded that he can no longer be effective in his job and has resigned from ‘Sesame Street.’”

The statement concluded, “This is a sad day for ‘Sesame Street.’ ” The organization declined interview requests.

After the resignation announcement, there were unanswered questions about whether Mr. Clash was forced out by the organization (whose publicists announced his departure an hour before his own personal publicist did).

Katherine Franke, a professor of law and the director of the center for gender and sexuality law at Columbia University, said she worried that Mr. Clash was “the most recent victim of what we call in my world a ‘sex panic.’ ” She named a second recent example, David Petraeus, who admitted having an extramarital affair and resigned as the C.I.A. director earlier this month.

“At precisely the moment when gay people’s right to marry seems to be reaching a positive tipping point, sexuality is being driven back into the closet as something shameful and incompatible with honor (in the case of Petraeus) or decency (as in the case of Clash),” Ms. Franke said in an e-mail message. Mr. Clash, she added, “has not been convicted of a crime, but merely accused of one in a completely unsubstantiated, vague complaint.”

I’m already getting really ugly hate mail.  Used to be that when I wrote about gay rights the hate mail swamped my Inbox.  Now it happens when I write about sex.  Many of the critics say I’m defending the likes of Jerry Sandusky (Ann Althouse reposted my Elmo quote on her blog and that’s been the spirit of many of the hostile comments).  Seems it’s too hard for many readers to see a difference between a defense of sex and a defense of sexual exploitation.

Sex is getting such a bad rap these days.  Just as feminists have found it challenging to Theorize Yes to sex, seems the larger public has as well.  Sure, there is dangerous, exploitative, predatory, violent sex.  But not all of it is.  When someone is accused of having (or liking) non-normative sex, let’s wait a moment before we conclude that the moment calls for pitchforks and stockades.  Sex, and life, are so much more complicated.

Katherine Franke, Columbia Law School

Cross-posted from the Gender & Sexuality Law Blog

From the FLP mailbox:

Call for Symposium Papers

Gender Matters: Women, Social Policy and the 2012 Election 

April 2, 2013 at American University Washington College of Law, Washington, DC

The American University Journal of Gender, Social Policy & the Law and Women and the Law Program invite papers for a symposium on gender, social policy and the election of 2012. The organizers welcome papers that explore how current or proposed social polices affect the lives of women and their families, and/or that analyze what role, if any, rhetoric about those polices may have played in the recent election. Abstracts from professors or practitioners (sorry, no student pieces) addressing gender and health care, labor and employment, taxation, fiscal policy and social welfare or other relevant social policy are due by midnight January 7, 2013.  Papers selected will be presented at a symposium on April 2, 2013 at American University Washington College of Law, and strongly considered for publication.  To read the full Call for Papers and to submit an abstract online, please visit the symposium website. Please contact the organizers at gendersymposium2013@gmail.com with any questions.

-Br

As many now know, CIA Director and retired four-star Army General David Petraeus has resigned his post at the CIA on account of newly emerging information that he had what the media calls an “extra-marital” affair with Paula Broadwell, who is also married.  Broadwell is the author of the flattering Petraeus biography All In: The Education of General David Petraeus.

Others have pointed out the irony that Petraeus’ career ended in humiliation on account of adultery, not the alleged war crimes and crimes against humanity committed by the U.S. government in the Petraeus-led military campaigns in Afghanistan and Iraq, or the expansion of the CIA’s Predator campaign in Yemen, or his role behind a recent push to expand the agency’s drone fleet. He played a key role in decisions to carry out controversial strikes, including the Predator attacks last year that killed two U.S. citizens: the alleged al-Qaeda leader Anwar al-Awlaki and his teenage son.  The Center for Constitutional Rights and the ACLU have filed a lawsuit charging senior CIA and military officials, including Petraeus, with violating the Constitution and international law when they authorized and directed drone strikes that resulted in these deaths as part of a broader practice of extrajudicial “targeted killing” by the United States outside the context of armed conflict.

But no, it was adultery that brought down Petraeus.  Other facts will no doubt emerge in the coming days that may implicate additional c0mplications connected to his affair with Paula Broadwell, and/or with Broadwell’s behavior toward others, but the official story of his resignation, acknowledged by the Obama administration, was that his “marital infidelity” was what rendered him no longer fit to serve as the country’s top spy.

Gay men and lesbians were vulnerable to this kind of take down from public service until recently on the theory that illegal and shameful behavior such as being gay or having an extra marital affair could render you susceptible to blackmail, thus jeopardizing national security.

What a moment this is that on the heels of having won enormous victories in electing openly gay candidates such as Tammy Baldwin and securing marriage rights for same sex couples in four more states, marriage remains an institution whose mores, morals, and social standing can bring down someone as powerful as David Petraeus when he violates them.  It seems that we live in a time when it’s safer to be gay than to be an adulterer.

Yet gay people continue to clamor to be included in the venerated institution of marriage so that we, just like straight people, can get in trouble, lose our jobs and be publicly ridiculed when we have sex with someone who isn’t our spouse.

Oh, and just as a reminder, adultery remains a crime in 27 states including the states that Petreaus claims as his residence: New Hampshire and Virginia.  And of perhaps greater importance, the Uniform Code of Military Justice treats adultery very seriously:  Adultery is punishable under Article 134, with a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

And lest we forget, the military is an institution gay people have been clamoring to get into as well, rendering us subject to its morality code a few short years after we escaped the surveillance of civilian sodomy laws in the Lawrence v. Texas case.

All In.

Katherine Franke, Columbia Law School

Cross-posted from the Gender & Sexuality Law Blog