Feminist Law Professors

Dear Friends,

You may be interested in these great feminist panels to be held at the upcoming Law & Society meeting (note the work of the new Feminist CRN!)  Here are the details:

Violence Against Women  panels

Saturday, June 4, 10:15-12:00

Author-Meets-Reader – Restorative Justice & Violence Against Women, edited by James Ptacek, LSA  3220

Authors: Rashmi Goel,  Mimi Kim, James Ptacek

Readers: Madelaine Adelman,  Lynne Henderson, Leigh Goodmark,  Chair & Reader: Donna Coker

Saturday, June 4, 4:30-6:15

Structural Inequalities & Violence Against Women, 3527  Organizers:  Donna Coker & Deborah Weissman Chair/Discussant: Liz Schneider

Elizabeth MacDowell and Ann Cammett, Structural Inequality and Violence Against Women: Models of Invisibility (discussing the work of their UNLV clinic that assists poor families affected by incarceration and the potential for clinical pedagogy to teach students about intersectional issues, and the possibilities for advocacy and social change.)

Madelaine Adelman, Title: TBA  (The relationship between the state and domestic violence is multidimensional, contested and contradictory. In this study based in Israel and the US, I trace how the state has been mobilized and reconfigured to intervene into and prevent domestic violence, but I also demonstrate how the state engenders domestic violence.)

Carrie Bettinger-Lopez, Gender Justice and Human Rights: Revisiting the Links between Domestic Violence & Reproductive Rights Advocacy (courts, advocates, and academics view domestic violence and reproductive rights as separate spheres of women’s rights advocacy in the U.S., and fail to recognize their common ground: the expropriation of women’s sexuality by a patriarchal system that dominates the family and the law.)

Donna Coker, Teaching Domestic Violence Through the Lens of Structural Inequality in a Non-Clinical Domestic Violence Law School Class (discussing in particular the challenges of teaching class and economic rights.)

Deborah Weissman, From the Politics of Denunciation to the Politics of Redistributive Justice (addressing the failure of feminist activism to sufficiently engage in a critique of political economy and how such failure has materialized in troubling response to the crises in Mexico – femicides and drug cartel violence– both of which have consequences for feminism.)

Sunday, June 5, 8:15-10:00 a.m.  Respecting and Contesting the Rights of Women and Children 4116

SESSION PARTICIPANTS:                    
Session Organizer: Mindie Lazarus-Black
Chair/Discussant: Donna Coker
Contradictions in Children’s Rights in Peru: The Right to Work or the Right Not to Work? – Dena Aufseeser
From Gender-Based Violence to Women’s Violence in Haiti – Benedetta Faedi Duramy
Rights, Resources, and the Vulnerability of Children in Post-Disaster Settings – Jonathan Todres
The Diffusion of Disability Rights Policy: A Focus on Special Education in South Korea -Elizabeth Palley and Joan Yoo

Translating the UN Convention: Language and Inclusive Education Rights in Germany – Katharina Heyer

Who Benefits from Constitutional Equality Rights? An Empirical Overview of Canadian Court Rulings Since 1989 –  Bruce Ryder

Feminist Legal Theory CRN 

Friday, June 3^rd

8:15 to 10:00 AM Marriage, Divorce, Parenting, and Sexuality

Chair:  Nancy Knauer

 Modernizing Divorce Jurisdiction, Courtney Joslin

                        Commentator:  Susan Appleton

 Changing the Marriage Equation, Deborah Widiss

                       Commentator:  Alicia Kelly

The Neutered Parent, Suzanne Kim

                        Commentator:  Eleanor Brown

 June Cleaver, Mommie Dearest, the Lone Wolf, and the Family Man: How Constructions of Gender, Marriage, Love, and Parenthood Influence Penal Attitudes, Jody Madeira

                        Commentator:  Zvi Triger

10:15 to 12:00 PM

The “Economics” of the Family

            Chair:  Noah Zatz

 Mobility Mandates, Naomi Schoenbaum

                        Commentator:  Gillian Lester

 An Unusual Theory for the Economic Success of Jamaican Migrant Families: The Grant of Constructive Property and Contract Rights to Jamaican Slave Women, Eleanor Brown

                        Commentator:  Nestor Davidson 

Navigating Gender, Vulnerability and Connection, Alicia Kelly

                        Commentator:  Laura Kessler

The Family and the Market: Redux, Maxine Eichner

                        Commentator:  Noah Zatz

2:30 to 4:15 PM

Business Meeting

            Discussion facilitator:  Kathryn Abrams

 4:30 to 6:15 PM

Challenging the Canons of Family Law and Feminist Legal Theory

Chair: Susan Appleton

Disenchanting the Public-Private Distinction, Kathryn Abrams

            Commentator:  Pat Cain

Family Law Reimagined: Recasting the Canon of Family Law, Jill Hasday

            Commentator:  Dorothy Roberts

The Performative Family, Clare Huntington

            Commentator:  Susan Stiritz

Work Wives, Laura Rosenbury

            Commentator:  Martha Chamallas

 7:00 PM

Pay-your-own-way dinner at Straits Café, 845 Market Street, prix fixe menu (including numerous vegetarian options), $45/person (drinks excluded).   RSVP by May 27^th to Maya Manian, at mmanian@usfca.edu.  Guests welcome.  

Saturday, June 4

8:15 to 10:00 AM

Selected Topics: Sexualities, Domestic Violence, and Mothering

Chair:  Deborah Widiss

Sex Ed for Tomorrow’s Lawyers: Regulation and Revision, Susan Appleton & Susan Stiritz,

            Commentator:  Jody Madeira 

Reimagining Domestic Violence Law and Policy through an Anti-Essentialist Lens, Leigh Goodmark

            Commentator:  Deborah Widiss

Of Woman Born? Technology, Relationship and the Right to a Human Mother, Jennifer Hendricks

Commentator:  Maya Manian

 4:30 to 6:15 PM

The Future of Fatherhood

Chair:  Maxine Eichner

Legal Lessons from the Media, Masculinities, and Mr. Mom, Beth Burkstrand-Reid

Commentator: Courtney Joslin

The Paternity Riddle, Melanie Jacobs

Commentator:  Maxine Eichner

Absent and Unnatural Fathers: The False Competition between Black Dads and Gay Dads, Kim Pearson

Commentator:  Prabha Kotiswaran

The First Father, Jessica Dixon Weaver

Commentator:  Jennifer Hendricks

Sunday, June 5^th

8:15 to 10:00 AM

The Law and Economics of Family Obligation

Chair: Laura Kessler

Discussant: Martha Ertman

Fairness and Formulas: The Standardization of Family Law When There Is No Standard Family, Katharine Baker

When Someday Is Today:  Updating Hartog’s History into the Era of Medicaid and Modern Marriage, Mary Anne Case

The Reluctant Caregiver, Laura Kessler

Adult Children and Disabled Elderly Parents: Proximity, Co-residence, and Introa- and Inter-Household Transfers, Liliana Pezzin, Robert Pollak (presenter), & Barbara Schone

When the Ordinary Becomes Extraordinary: Compensating Family Caregivers in the Workers’ Compensation Context, Peggie Smith

Daniel Solove is garnering a lot of positive attention for an essay he published in the Chronicle of Higher Education to promote his new book.

It was republished in part here and here and no doubt other places as well.  The thesis of the essay is that privacy is important even to people who have nothing to hide.  I absolutely agree with this obvious point, as would everyone else with even the most superficial grasp of privacy law and policy. Asserting that privacy is valuable to everyone is like arguing that it would be great to cure cancer. It is hard to find anyone who reasonably disagrees.

Yet to make his essay seem more powerful, Solove apparently needed to make it seem as though someone was making the contrary argument that he was “debunking,” even if it required utter fabrication. Unfortunately for me, I’m the one he elected to smear and slander.

Early in his essay Solove writes: “Commentators often attempt to refute the nothing-to-hide argument by pointing to things people want to hide.” Which commentators? I’m the only person who gets names and I do no such thing. Here are the facts. In January of 2006, Solove published an article in the University of Pennsylvania Law Review entitled A Taxonomy of Privacy. The editors of the University of Pennsylvania Law Review invited me to a write a short essay responding to this article, which was published in the summer of 2006 and entitled A Feeling of Unease About Privacy Law. The exchange got a bit of scholarly attention, see e.g. this post at Larry Solum’s excellent blog.

In 2006, Solove understood exactly what I was saying in my review essay, as evidenced by this post as his blog where he wrote: “Bartow’s primary criticism is that my taxonomy “frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” Bartow claims that the taxonomy doesn’t have “enough dead bodies” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.”

In 2007 in this law review article Solove said:

One of the difficulties with the nothing to hide argument is that it looks for a visceral kind of injury as opposed to a structural one. Ironically, this underlying conception of injury is shared by both those advocating for greater privacy protections and those arguing in favor of the conflicting interests to privacy. For example, law professor Ann Bartow argues that I have failed to describe privacy harms in a compelling manner in my article, A Taxonomy of Privacy, where I provide a framework for understanding the manifold different privacy problems. Bartow’s primary complaint is that my taxonomy “frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” Bartow claims that the taxonomy does not have “enough dead bodies” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.”

I don’t think Solove was being particularly articulate there, but at least he represented my viewpoint mostly accurately. Yet five years later in his essay for The Chron, Solove writes:

Investigating the nothing-to-hide argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for greater privacy protections. For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must “negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” She says that privacy needs more “dead bodies,” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other [types of harm].”

Bartow’s objection is actually consistent with the nothing-to-hide argument. Those advancing the nothing-to-hide argument have in mind a particular kind of appalling privacy harm, one in which privacy is violated only when something deeply embarrassing or discrediting is revealed. Like Bartow, proponents of the nothing-to-hide argument demand a dead-bodies type of harm.

Bartow is certainly right that people respond much more strongly to blood and death than to more-abstract concerns. But if this is the standard to recognize a problem, then few privacy problems will be recognized. Privacy is not a horror movie, most privacy problems don’t result in dead bodies, and demanding evidence of palpable harms will be difficult in many cases.

Solove completely twists what I said, and distorts the context in which I said it. Here is the actual paragraph he pulled the first quotation from.

This essay responds to Daniel Solove’s recent article, A Taxonomy of Privacy.  I have read many of Daniel Solove’s privacy-related writings, and he has made many important scholarly contributions to the field.  As with his previous works about privacy and the law, it is an interesting and substantive piece of work.  Where it falls short, in my estimation, is in failing to label and categorize the very real harms of privacy invasions in an adequately compelling manner.  Most commentators agree that compromising a person’s privacy will chill certain behaviors and change others,  but a powerful list of the reasons  why this is a negative phenomenon that the law should seek to prevent is not a significant attribute of Solove’s taxonomy.  That omission left this reader a little concerned about the ultimate usefulness of the privacy framework that Solove has developed.  To phrase it colloquially, in this author’s view, the Solove taxonomy of privacy suffers from too much doctrine, and not enough dead bodies.  It frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.

It should be clear to the reader that my statements are not about privacy law or policy generally. They are criticisms very specifically and explicitly pitched at Solove’s A Taxonomy of Privacy. I didn’t think the Solove taxonomy was inclusive enough and I said so. How can this possibly be ”consistent with the nothing-to-hide argument” to anyone with even basic reading comprehension skills?

The second and third quotations of mine that Solove deployed came from a paragraph at the very end of my review essay. Here are my actual, verifiable words:

Solove’s A Taxonomy of Privacy is an interesting and worthwhile undertaking, but its lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.  It relegates privacy violations to a very low place in the taxonomy of immediate and visceral public policy concerns, and foments a feeling of unease about the importance and future of privacy law.

Again, I think it is absolutely clear that I am criticizing Solove’s Taxonomy, period. No one could in good faith construe that as an argument that privacy doesn’t matter if one has nothing to hide. I also make it clear in the essay I think privacy is crucial, writing near the end of the essay:

Solove consistently accords to violations of information privacy the default harm of feelings of unease and discomfort.  Though he occasionally weaves some other negative consequences through his descriptions of his taxonomical categories, he devotes substantially more energy to explaining causality than he does to explaining impact.This renders the taxonomy incomplete and unsatisfactory. At the most superficial level, persuading observers to take privacy concerns seriously requires convincing them that people who are not engaging in illegal conduct are harmed in a significant, cognizable way when their personal information is collected and distributed against their will or without their knowledge.  Toward this end, a more effective taxonomy would dramatically and thoroughly document the consequences of privacy violations in very visceral, dramatic ways.

There is no shortage of potentially gripping hypotheticals that could be developed.   A perceived lack of medical privacy may lead people to avoid medical testing and treatment.  An actual lack of medical privacy may cause people with particular health problems to be denied credit, employment, or housing.  Real and immediate consequences of privacy violations could be cataloged along with descriptions of the violations themselves.

There are also plenty of real life examples.  In Griswold v. Connecticut, the Supreme Court placed access to contraceptives within the rubric of a type of privacy that is not readily discerned within Solove’s taxonomy.  However, recent practices by certain pharmacies demonstrate an attempt to dissuade women from utilizing certain forms of contraceptives such as the “morning after” pill by requiring unnecessary and intrusive personal information from those seeking them. These acts situate reproductive freedom within the realm of information privacy concerns.

I think this illustrates exactly how powerfully important I consider privacy issues. Solove’s gross misstatements of what I wrote are deeply offense and come pretty close to defamation. Solove describes defamation as privacy tort he calls “distortion” at pages 546-58 of his Taxonomy of Privacy. Maybe he needs to re-read his own words as well as mine.

Cross posted from Madisonian.net

From here! (Click on it for larger version)

Dear Colleagues,

There are two recent video postings that you may find of interest –

1) Holly Maguigan and Joshua Dressler’s “debate” (more like a discussion) of self defense issues when battered women are defendants (Fordham.) Go to http://vimeo.com/22909809. It’s a really wonderful explication of an area of law that could use a lot more light. Holly does such a good job at setting out the relevant doctrinal questions, I intend to make viewing a required part of my criminal law syllabus.
2) My talk at Cleveland-Marshall on the history of the Wanrow case. I include a fair number of archival documents and pictures that I gathered in researching Wanrow for my forthcoming chapter in Criminal Law Stories. The “story” describes a fascinating account of both feminist and Native American activism on fair trial rights for women. Go to http://mediasite.ulib.csuohio.edu/mediasite/Viewer/?peid=868378ebc65f4d4e84ee14cb8af5a3971d

Donna Coker