Where Are The Women? A precious few were published in recent addition of the UCLA Law Review

Invited articles by fourteen men, but only two women, in a Symposium edition?

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Volume 56, Issue 5 (June 2009)

Symposium: The Second Amendment and the Right to Bear Arms After D.C. v. Heller

Gun Control After Heller: Threats and Sideshows From a Social Welfare Perspective (pdf)
Philip J. Cook, Jens Ludwig, and Adam M. Samaha

Heller, New Originalism, and Law Office History:”Meet the New Boss, Same as the Old Boss” (pdf)
Saul Cornell

Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson (pdf)
Alan Gura

The Heller Paradox (pdf)
Dennis A. Henigan

A Modern Historiography of the Second Amendment (pdf)
Don B. Kates

The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data (pdf)
Gary Kleck and Shun-Yung Kevin Wang

Why The Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America (pdf)
David Thomas Konig

The Second Amendment, Heller, and Originalist Jurisprudence (pdf)
Nelson Lund

The Supreme Court and the Uses of History: District of Columbia v. Heller (pdf)
Joyce Lee Malcolm

Heller & Originalism’s Dead Hand : In Theory and Practice (pdf)
Reva B. Siegel

Permissible Gun Regulations After Heller: Speculations About Method and Outcomes (pdf)
Mark Tushnet

Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda (pdf)
Eugene Volokh

Heller’s Catch-22 (pdf)
Adam Winkler

Comment

The Right to Know: An Approach to Gun Licenses and Public Access to Government Records (pdf)
Kelsey M. Swanson

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Posted in Academia, The Underrepresentation of Women | 2 Comments

“United [Airlines] Breaks Guitars”

The company pummels the crud out of suitcases, too. Via.

–Ann Bartow

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On Tenure

Feminist Law Prof Kim Krawiec is   guest-blogging at the Faculty Lounge as Bridget noted here and produced a very thought-provoking series of posts:

My Tenure’s For Sale.   How About Yours?

Incentives and Institutions:  Why Stop With the Banks?  (My Tenure’s For Sale, Part II)

When It Comes to Law Faculty, We’re All Post-Modernists (My Tenure’s For Sale, Part III)

“We All Contribute in Our Own Ways” is Not a Valid Institutional Goal (My Tenure’s for Sale, Final Installment)

–Ann Bartow

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Why hasn’t the “degree gap” closed the “salary gap”?

Prof. Mark Perry prepared this graph:

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If I’m reading it correctly, women and men got the same number of college degrees in 1982. By 1983, women started obtaining more college degrees then men, and this trend has continued on into the present, so this is a trend that has been observable for 27 years. In addition to outnumbering them, women college students also outperform the men.

You’d think with more degrees and better grades, women would be earning substantially more than men. But in fact the opposite is true. According to this site, “The ratio of women’s to men’s median weekly earnings for full-time workers was 79.9 in 2008, the third consecutive decline since the historical high of 81.0 in 2005.” So let me offer an explanation for why women enroll in colleges in higher numbers and earn higher grades once we are there: We have to. If we didn’t, the salary gap would grow even larger.

–Ann Bartow

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Women selling sex are arrested and jailed, but the buyers go free?

That’s how I interpret what this article is saying when it reports:

… The November raid came after a six-week surveillance of the house on Round Hill Road. The dwelling’s owner, Stephen A. Clark, was arrested Nov. 26 and pleaded no contest to charges of promoting prostitution and conspiracy. He was sentenced to 5 to 23 months in jail….

… Clark’s codefendants – Cara Martin, 32, and Lacy Welsh, 20 – also have been prosecuted in the case.

Welsh pleaded guilty to promoting prostitution and conspiracy, and is awaiting sentencing. Martin, who has a history of arrests on prostitution and other charges in Pennsylvania, New Jersey, and Delaware, pleaded guilty to promoting prostitution and received an 8-to-23-month jail term.

Sargent paid Martin $170 for 35 minutes of sexual contact between noon and 1 p.m. on Nov. 25, according to the police report. Sargent said he saw an ad on Craigslist, “got curious,” and responded to it, the report said.

Not only was the john (a long time law school dean who is the subject of the article)   not charged, but according to the convicted pimp:

“If you watch the taped interview, the police are almost apologetic with this guy,” Clark said of Sargent. “They told him, ‘You just happened to be in the wrong place at the wrong time,’ and they agreed to contact him at his office, not his home.”

Happily for the john, Chester County District Attorney Joseph W. Carroll said that at least in his part of Pennsylvania, “Customers are not charged or identified in prostitution busts.” But the   women selling the sex (who probably had to perform degrading sex acts Sargent was unable to obtain elsewhere per this study and then turn most of the money received in exchange to their pimp) are deemed by law enforcement to deserve jail time and public shaming.   It would be nice to see these folks praying for them too. Chances are the referenced women   have had pretty difficult, unprivileged lives so far [“According to our estimates, a woman working as a prostitute would expect an annual average of a dozen incidents of violence and 300 instances of unprotected sex,” see also “High rates of drug abuse and the exchange of sex for drugs has been widely documented.   In turn, it has been found that this relationship between drug use and sex work plays a critical role in women’s subjection to physical violence and arrest,”] and their unfortunate contacts with Sargent have only brought them additional trouble. Sargent may have been   humiliated, but they are going to jail.

Wondering why police like to have the power to arrest women for selling sex?   Could it be so that they can extort sex from them? This study reports:

… But perhaps more striking is the rate at which a police officer can extort free sex from a prostitute. Levitt and Venkatesh found that about one in 30 tricks performed by a prostitute is a freebie to the police in return for avoiding arrest. In other words, a prostitute is more likely to have sex with an on-duty police officer than to be arrested by one.

If the police wanted to have coerced sex with the johns, maybe the pertinent laws and/or enforcement practices   would change, but apparently the police and district attorney like the system just as it is.

Via.

–Ann Bartow

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The work of a testy academic?

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Via.

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“Women who drink alcohol, wear short skirts and are outgoing are more likely to be raped, claim scientists at the University of Leicester.”

Actually, that isn’t at all what the scientists found. But it is apparently what a reporter and editorial staff at the UK Telegraph wished the study had determined, for some reason. An article in the UK Guardian reports:

There is nothing like science for giving that objective, white-coat flavoured legitimacy to your prejudices, so it must have been a great day for Telegraph readers when they came across the headline: “Women who dress provocatively more likely to be raped, claim scientists.

Ah, scientists. “Women who drink alcohol, wear short skirts and are outgoing are more likely to be raped, claim scientists at the University of Leicester.” Well there you go.

Oddly, though, the title of the press release for the same research was: “Promiscuous men more likely to rape.”

The author of the study, which is still in progress, is quoted as saying the Telegraph’s report was grossly misleading. The article continues:

Women who drink alcohol, wear short skirts and are outgoing are more likely to be raped? “This is completely inaccurate,” Shaw said. “We found no difference whatsoever. The alcohol thing is also completely wrong: if anything, we found that men reported they were willing to go further with women who are completely sober.”

And what about the Telegraph’s next claim, or rather, the paper’s reassuringly objective assertion, that it is scientists who claim that women who dress provocatively are more likely to be raped?

“We have found that people will go slightly further with women who are provocatively dressed, but this result is not statistically significant. Basically you can’t say that’s an effect, it could easily be the play of chance. I told the journalist it isn’t one of our main findings, you can’t say that. It’s not significant, which is why we’re not reporting it in our main analysis.”

Read the whole thing here. Via the F Word.

–Ann Bartow

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Are all the pundits who matter at DailyKos male?

Over at Daily Kos is a post entitled “Abbreviated Pundit Round-up,” by “BarbinMD” with a first sentence that touts itself as “Your one stop pundit shop.” The pundits receiving links and blurbs? William Kristol, Tony Blankley, Richard Cohen, Cal Thomas, Eugene Robinson, William McGurn, Keith B. Payne, Derrick Z. Jackson, Jim Hoagland, David Ignatius, Joseph A. Califano, Jr., and Larry Tye.

–Ann Bartow

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E-mail, Anonymity and the First Amendment: State of Nebraska v. Darren J. Drahota

This case arose out of an e-mail exchange between a student and his professor. Here is an excerpt from the recent decision by the Nebraska Court of Appeals:

… The trial court found, summarized, that while there was initially some back-and-forth banter, Avery asked that it stop. Instead, Drahota waited 4 months, then created a fake address, “averylovesalqueda@yahoo.com,”from which he sent the two e-mails forming the basis of the charge. Avery testified that he was “disturb[ed]”by Drahota’s actions. The trial court convicted Drahota of disturbing Avery’s peace.

In the two e-mails sent to Avery from the above address, with no indication that they were actually from Drahota, Drahota first wrote concerning the death of Abu Musab al-Zarqawi (a known high-level terrorist in Iraq), and asked Avery:”Does that make you sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq? . . . You . . . and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments.”

In Drahota’s e-mail of June 16, 2006, with the subject line”traitor,”Drahota wrote to Avery: “I have a friend in Iraq that I told all about you and he referred to you as a Benedict Arnold. I told him that fit you very well. . . . I’d like to puke all over you. People like you should be forced out of this country. Hey, I have a great idea!!!! . . . Let’s do nothing to Iran, let them get nukes, and then let them bomb U.S. cities and after that, we will just keep turning the other cheek. Remember that Libs like yourself are the lowest form of life on this planet[.]

Therefore, looking at only the two e-mails that were sent on or about June 14, 2006, per the complaint filed against Drahota, we note that after a hiatus of 4 months, Drahota, using a libelous e-mail address, accused Avery of being aligned with a terrorist group responsible for unspeakable violence in this country as well as in Iraq against U.S. troops and Iraqi citizens. He called Avery a traitor, said that he wanted to”puke all over”him, and stated that Avery is the”lowest form of life on this planet.”…

This factual circunstance is unusual. Almost every feminist blogger I know has received this kind of e-mail or much worse, but rarely (never that I am aware of) will law enforcement take any action. The e-mailers are savvy enough to make only passive statements rather than overt threats, writing e.g. “You should choke on an enormous dick and die” rather than directly stating that they will kill you, and the pro forma police response is “this isn’t any actual threat and we can’t arrest people just for being nasty.” Here Avery’s concern about the e-mails was taken seriously by the police, and then by judges at both the trial and appellate levels. Some civil libertarians are enraged by this, perceiving an acute threat to the First Amendment if people like Drahota don’t have the right to send these kinds of anonymous e-mails to people who have asked them to cease contact. So this case bears watching.

–Ann Bartow

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Posted in Academia, Acts of Violence, Feminism and Law, Feminism and Technology, Sociolinguistics | 2 Comments

Echidne on Palin

Here’s an excerpt:

… So yes, I hate McCain for what he did to me as a feminist, by putting me in the position of having to wade into the sewers of lefty blogs to find out what sexist crap might be floating around on the topic of Sarah Palin. I do that not to defend Palin but to defend the women of the future who might one day run for the office, and I do it with great bitterness, because I’m going to be told off for spending time on someone like Palin by all those who don’t see that certain comments are not just about Palin but about women in politics in general.

Had I not observed much the same aimed at Hillary Clinton I might be more willing to believe that the same kind of sexism wouldn’t be aimed at women in general but only at those who appear to almost seek that kind of attention. But it was aimed at Clinton and will be aimed at other women, too, unless the distinction between acceptable (if harsh) criticism and unacceptable sexism is being made clear.

For all these reasons, I have put together a quick survey of sexist comments from Eschaton and Democratic Underground threads. They are not the majority of the harsh Palin comments and not even a significant minority. But they appeared not to provoke any discussion or any disagreement. ….

You can read the whole post, including the comments she culled from two Supposedly Liberal Dood blogs, here.

–Ann Bartow

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Mark Gonzales: “As With Most Men”

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Where are the Women? SSRN Downloads Edition

I recently posted here a list of law schools ranked #23-#100 by U.S. News, ranked by recent SSRN downloads.  For anyone who would like to use it, the data file is  here as an Excel spreadsheet and  here in CSV format.

A question from Dan Sokol (Florida) prompted me to do a gender analysis.  Here are the (surprising?) results. Of the 241 professors listed among the “Top 3” contributors at 81 schools, 183 (75.9%) are men and 58 (24.1%) are women.  (Gonzaga,  #81 on the list,  has only 1 faculty member with articles on SSRN.)

Before seeing the stats, Dan offered some thoughts by email (reprinted with permission):

I suspect that there is an echo effect of the “where are the women” phenomenon that you regularly note.   When there is a high profile symposium   and no/few women get invited and the symposium places in a top law review, there are more citations merely because someone is more likely to download something designated “forthcoming Michigan Law Review”.   Previous work suggests that women publish less than men.   It may be that this effect also come up in the SSRN context.   The alternative might also be true – in the marketplace of ideas the most interesting piece gets the most downloads and so perhaps there is more equal representation between men and women particularly since younger faculty are evenly split gender-wise and younger faculty have been more ready to embrace SSRN.

This is just one of Dan’s different (and competing) hypotheses.  For his thoughts on gender issues in antitrust scholarship, see here.

I think Dan is right about the echo effect — or maybe it’s a ripple effect.  Who gets invited to symposia very much impacts who gets published in X school’s law review (allowing for the facts that plenty of law reviews publish both a symposium and other editions, and some publish no symposium edition at all).

There may be some overlap between the “ripple” theory and the “marketplace of ideas” theory.  If we assume that, from the perspective of SSRN users, women’s scholarship is as interesting/good/worthwhile as men’s, then we would expect the gender break-down for overall SSRN downloads (although perhaps not the “Top 3” list) to correspond to the gender break-down for all SSRN contributors.  Further questions:

  • Do female law professors contribute to SSRN at a rate that corresponds to their representation in the legal academy?  If not, why not?  Might one factor be that women are over-represented in legal writing positions, for example, in which the scholarly publication expectations are different?  Is it because women are comparatively more represented on non-elite law faculties, and those faculties might place less importance on scholarly publications, or on posting to SSRN, than elite schools do?
  • If the overall percentage of women contributing to SSRN does not correspond to their representation in the academy, how do women’s per capita downloads compare with men’s per capita downloads?  In other words, is the “average” woman who posts on SSRN “more downloaded” than the “average” man who posts on SSRN?
  • How does the SSRN gender gap among the “Top 3” contributors compare with the overall SSRN gender gap?  Are women are under-represented in the fields that use SSRN most frequently?  Brian Leiter observes  here that scholarship in certain fields dominates the “most-downloaded” lists.
  • Is any SSRN gender gap less salient among junior scholars than senior scholars?
  • Do the SSRN downloads reveal a different gender gap than other studies of faculty productivity do?  If so, how and why is the SSRN gap different?
  • Is there any relationship between the gender gap and a school’s rank by overall number of downloads?  Rank by U.S. News?

What other questions would help us understand a 75.9% vs. 24.1% differential?

-Bridget Crawford

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Call for Papers–University of Baltimore School of Law Third Annual Feminist Legal Theory Conference

The University of Baltimore School of Law’s Center on Applied Feminism seeks submissions for its Third Annual Feminist Legal Theory Conference.   This year’s theme is: Applied Feminism and Marginalized Communities.

This conference seeks to explore the following questions:   What do we mean by”marginalized communities”and what purposes does that designation serve?   How has feminist legal theory created or contributed to the understanding of who is or is not marginalized?   How has feminist legal theory rendered women universal and marginal simultaneously?[1] How has feminist legal theory contributed to the erasing, shifting and/or merging of boundaries and how does that affect how we think about marginalized communities?   How does feminist legal theory intersect with other critical theories regarding marginalization?   How can feminist legal theory work towards alleviating poverty and other barriers faced by marginalized communities?   How has feminist legal theory addressed marginalization relating to such issues as housing, welfare, domestic violence, family composition, human rights, immigration, and religious freedom?   And finally, how has feminist legal theory made (or not made) a difference for those who are portrayed as marginalized or see themselves as marginalized?

This conference will attempt to address these questions from the perspectives of activists, practitioners and academics.   The conference will provide an opportunity for participants and audience members to exchange ideas about the current state of feminist legal theories and how those theories are being actualized to help women in marginalized communities. From the conference, we hope that a new discourse about applied feminist legal theory and marginalized communities will begin and that this discourse will shape policy and practice.   In addition, the conference is designed to provide presenters with the opportunity to gain extensive feedback on their papers.

The conference will begin the evening of Thursday, March 4, 2010, with a workshop for conference participants.     Building from last year’s workshop, which addressed making space for feminist writing, this workshop will continue the tradition of involving all attendees to be participants in the interactive discussion and reflection.   The workshop will be approximately one to two hours in length.

On Friday, March 5, 2010, the conference will continue with a day of presentations by legal academics, practitioners and activists regarding current scholarship and/or legal work that explores the application of feminist legal theory and marginalized communities.   The conference will be open to the public and will feature a keynote speaker Friday evening.   Past keynote speakers have included Dr. Maya Angelou and Gloria Steinem.

The requirements for paper and workshop proposals are detailed below.   To be considered for the workshop presentation, please submit a workshop proposal by 5 p.m. on October 16, 2009 to Professor Margaret E. Johnson (majohnson@ubalt.edu).  The proposed workshop need not focus exclusively on the theme of this year’s feminist legal theory conference, but should focus on the general area of feminist legal theory and other critical theories.   A workshop proposal should detail the topic of the workshop, your approach for conducting the workshop, and the activities or other methods that you will employ to make the session interactive.   The proposal should also identify how long the workshop will last and any technology or other materials required.   Due to the limited time available during the conference, we will only be able to select one of the proposals for the Thursday, March 4, 2010, evening workshop.   We will notify the selectee by November 13, 2009.

To submit a paper proposal, please submit an abstract by 5 p.m. on October 16, 2009 to Professor Margaret E. Johnson (majohnson@ubalt.edu).   Abstracts should be no longer than one page.   Practitioners’ and activists’ papers need not follow a strictly academic format but all paper proposals should address the conference theme.   We will notify presenters of selected papers by November 13, 2009.   We anticipate being able to have twelve paper presenters during the conference on Friday, March 5, 2010.   Working drafts of papers, which can include works-in-progress, completed drafts, and papers already scheduled for publication elsewhere, are due no later than February 12, 2010. All abstracts and working drafts will be posted on the Center on Applied Feminism’s conference website to be shared with other participants and attendees.    Finally, please note that a limited amount of money may be available to presenters for travel expenses.


[1] This idea is loosely based on one presented by Professor Patricia J. Williams in The Alchemy of Race and Rights: Diary of a Law Professor 7 (1991).

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The Supposedly Liberal Doods Are STILL Odiously Hypersexualizing Sarah Palin

I don’t know why she is resigning her governorship, and I’m no Palin fan, but she absolutely did not deserve this:

… As Hunter [S. Thompson] said, “When the going gets weird, the weird turn pro.” Sarah Palin makes Mark Foley, the congressman who sent filthy emails to pages look almost normal. She makes David Vitter, the senator who was hanging out with hookers, look almost boring. She makes Larry Craig, caught hitting on a cop in a men’s room, look almost stable. She makes John Ensign, the senator who was having an affair with a staffer, look almost humdrum (and compared to the rest of the GOP whack-jobs, he is). And she makes Mark Sanford, the governor with the Latin lover, look positively predictable. …

Foley? Vitter? Craig? Ensign? Sanford? Every single comparison by Paul Begala in the above paragraph is to a man who engaged in sexual behaviors the media, and seemingly most of the public, condemned. As I understand it, all Palin did was announce her resignation, which Begala characterizes as “turning pro,” which in context strikes me as an unsubtle reference to prostitution. This kind of sexism from a high profile Dem politician is simply disgusting.

–Ann Bartow

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Posted in Feminism and Politics | 9 Comments

Nellie McKay: Feminists Don’t Have a Sense of Humor

Via Tennessee Guerilla Women

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A Feminist Legal History of U.S. Patriotism

To mark the July 4 holiday, I’m reading a book by Francesca Morgan (History, Northeastern Illinois University). In  Women and Patriotism in Jim Crow America (UNC Press 2005), Morgan details the activities of these women’s volunteer organizations founded after the Civil War: the Woman’s Relief Corps, the Daughters of the American Revolution, United Daughters of the Confederacy, and the National Association of Colored Women.  Part of what Morgan does well is highlight the interconnectedness of patriotism, nationalism and racism.

Reviewing the book for h-net.org, Cristina Nelson said this:

Morgan argues that each of these organizations [listed above] emphasized civic nationalism, patriotism, and allegiance to federal authority. The women’s groups stressed ritual and tended to defer to male interests. Leaders and members were hesitant to define their activities as public political participation. The DAR and the UDC commemorated their respective soldiers’ bravery and loyalty to cause, preserving icons of the white past long before the rise of national historic preservation efforts. * * *The WRC also sought to place flags in every classroom and was crucial in establishing the formal commemoration of Memorial Day as the nation’s “holy day.” * * *

The NACW did not acquiesce in this white-defined nationalism but contributed a vital counterpoint to it. Gendered in its outlook and also shaped by notions of racial uplift and black manhood, the NACW espoused its own brand of patriotism * * *

If the Spanish-American War re-energized white clubwomen’s efforts to effect a white-based patriotism, World War I invigorated black women’s activism. Even as the NACW was preserving Cedar Hill, black men’s exclusion from combat and a ban on black women’s overseas nursing radicalized a number of NACW members, weakening their devotion to the ideal of nation. While, in the context of war, they continued to identify themselves as committed Americans, fewer black clubwomen connected patriotism with obedience to the state that rejected their service. Black women managed to oppose racism while backing the war effort.  

The full review is here.

-Bridget Crawford

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Judge Kozinski Will Not Be Sanctioned For Hosting Web Site Featuring Racist, Degrading Porn

The SF Chron reported (in part):

… In a decision that it labeled an admonishment, the panel told Kozinski that his conduct “created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.”

But the panel said it saw no need to punish Kozinski because he has now removed the postings from his Web site and promised to install safeguards. The panel also noted that Kozinski requested the investigation himself, cooperated fully and apologized profusely. …

As was noted here, Kozinski publicly called for an investigation into his actions, but then somebody or other privately obstructed same. In addition to degrading women generally, Kozinski seemed particularly interested in porn that degraded Arabs, Asians and Latinos, and leveraged race as well as gender for his delectation.

–Ann Bartow

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Missing Girls

Got back from China yesterday, and one thing my colleagues and I noticed was the (completely anecdotal) vast majority of the children anywhere we looked were male.   We were told that the Chinese governmnet is considering modifying its   “one child” policy such that couples who give birth to and are willing to raise   female babies might be given the opportunity to have a second child without penalty, generally to try again for a boy.   According to the NYT “a bias in favor of male offspring has left China with 32 million more boys under the age of 20 than girls.” The article reports:

… Chinese government planners have long known that the urge of couples to have sons was skewing the gender balance of the population. But the study, by two Chinese university professors and a London researcher, provides some of the first hard data on the extent of the disparity and the factors contributing to it.

In 2005 , they found, births of boys in China exceeded births of girls by more than 1.1 million. There were 120 boys born for every 100 girls.

This disparity seems to surpass that of any other country, they said : a finding, they wrote, that was perhaps unsurprising in light of China’s one-child policy.

They attributed the imbalance almost entirely to couples’ decisions to abort female fetuses.

The trend toward more male than female children intensified steadily after 1986, they said, as ultrasound tests and abortion became more available.”Sex-selective abortion accounts for almost all the excess males,”the paper said.

The researchers, who analyzed data from a 2005 census, said the disparity was widest among children ages 1 to 4, a sign that the greatest imbalances among the adult population lie ahead. They also found more distortion in provinces that allow rural couples a second child if the first is a girl, or in cases of hardship.

Those couples were determined to ensure they had at least one son, the researchers noted. Among children born second, there were 143 boys for 100 girls, the data showed. …

It might be nice to think that because as girls grow   scare, they might be valued more. But other evidence suggests “excess demand” will be met with prostitution and other forms of human trafficking. I will write more about this and many other things as the jet lag lifts and I catch up on oh so many things that accumulated while I was away. NB: I couldn’t access the blog from many locations in China, sorry if I didn’t post everything sent my way.

–Ann Bartow

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Posted in Reproductive Rights, Sisters In Other Nations, Travels | 1 Comment

Susan Williams on “Feminist Theory and Freedom of Speech”

Susan WilliamsSusan Williams, the William W. Foskett Professor of Law at Indiana Maurer School of Law has published her article, Feminist Theory and Freedom of Speech, 84 Ind. L.J. 999 (2009).

La liberté d'expression aux Etats-Unis et en Europe

The article was previously  published in French as Theorie feministe et liberte d’expression, in La Liberte D’Expression  Aux Etats-Unis et en Europe 233  (Elisabeth Zoller ed., 2008).  Here is Williams’s conclusion:

Feminism offers a critique of the traditional truth theory of free speech, but it can also offer a foundation for an  alternative theory: one that sees truth as fundamentally relational, contextual, and normative. In our philosophical tradition, truth has too often been used to assuage a longing for certainty, and certainty has, in turn, been purchased at the price of hierarchy. But truth is and should be important to us. Truth is the symbol of our commitment to live together in a way that meets our moral standards, to create our destiny and our reality together. A feminist vision of truth offers hope that the First Amendment could become the repository of this commitment.

I haven’t yet found an open-access source for the full text, but the article is available on Westlaw.

-Bridget Crawford

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US News Schools 23-100 by Recent SSRN Downloads

Paul Caron & Bernard Black (here) and Brian Leiter (here) have laid out the arguments for and against using SSRN downloads as a measure of faculty scholarship.  I don’t have anything new to add, but I did prepare a list of U.S. News schools #23-100, by recent SSRN downloads. I followed the methodology used Brian Leiter here.

The category’s 20 most downloaded are below.  Full list after the jump. UPDATED 7/5/09:  For anyone who is interested, the data file is available  here in CSV format and  here as an Excel spreadsheet.

-Bridget Crawford

US News 2009 Rank Law School Recent Downloads (Last 12 Months) (rounded to nearest 10)

Rank by Recent Downloads

Three Most Downloaded Faculty (rounded to nearest 10) % of Total Accounted for by Top 3

(rounded to nearest tenth)

28 GWU 59430

1

Solove (21,490)

54.80%

Kerr (7510)
Cunningham (3560)
23 U of IL – Urbana Champaign 30430

2

Solum (4730)

42.30%

Ribstein (4260)
Morriss (3870)
61 U of San Diego 25210

3

Partnoy (8710)

52.50%

Alexander (2620)
Burke (1900)
41 George Mason 23740

4

Wright (2747)

31.40%

Zywicki (2360)
Somin (2340)
87 St. John’s 19310

5

Lebovits (8010)

72.80%

Tamanaha (5200)
Rubinstein (840)
45 American U (Washington College of Law) 15380

6

Ventry (3210)

46.30%

Baker, J. (2100)
Anderson (1810)
65 Temple (Beasley) 15110

7

Burris (1610)

27.50%

Mandel (1530)
Huang (1020)
59 U of Tennessee – Knoxville 14700

8

Reynolds (6270)

70.50%

Long (2470)
Stukke (1620)
52 Florida State 14300

9

Rossi (1440)

27.00%

Ruhl (1310)
Craig (1110)
35 Ohio State (Moritz) 14190

10

Davidoff (5470)

64.20%

Fairman (2500)
Rose (1140)
49 Cardozo 14080

11

Brickman (1920)

28.00%

Rosenfeld, M (1010)
Pan (1010)
30 Fordham 13930

12

Griffith (1105)

21%

Dickinson (1020)
DeBurca (800)
43 U of Arizona (Rogers) 12900

13

Sjostrom (3480)

53.10%

Chin (2468)
Orbach (900)
23 Indiana U –Bloomington (Maurer) 12250

14

Henderson (4010)

46.90%

Lederman (890)
Dau-Schmidt (850)
26 U of Iowa 11310

15

Hovenkamp (4670)

61.90%

Porter (1350)
Sale (980)
87 Loyola Los Angeles (Marymount) 11170

16

Hasen (1270)

29.70%

Seto (1160)
Pratt (890)
35 U of CA (Davis) 10960

17

Ventry (3210)

51.70%

Hunt (1680)
Sunder (780)
52 U of Connecticut 10930

18

Davidoff (5470)

74.00%

Mason (1630)
McCoy (980)
55 Case Western 10310

19

Dorchack (2970)

52.90%

Jensen (1350)
Adler (1130)
61 Brooklyn 10090

20

Bambauer (1220)

31.60%

Reiss (1020)
Karmel (950)
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Posted in Academia, Law Schools | 1 Comment

Krawiec on Law Schools and Institutional Goals

“‘We all contribute in our own ways’ is not a valid institutional goal.”  That’s the title of Feminist Law Prof Kim Krawiec’s post here at the Faculty Lounge.    “It’s an excuse for poor management,” she says.  Here is an excerpt from the post:

In the end, no school can escape the difficult and unpleasant task of defining what it aspires to be as an institution without incurring long-term costs.   The disagreement is bound to emerge somewhere over time: in hiring or tenure decisions, in curriculum-oriented debates, or in the seemingly-out-of-nowhere heated argument about replacing the faculty lounge coffee maker.  As I noted in response to a comment on my prior post on this topic, it’s always been my belief that the refusal to engage foundational issues about institutional identity is part of the reason that a faculty will spend three hours arguing over whether to eliminate minus grades and then hire someone for lifetime employment with no discussion at all.

I think Kim nailed it.  Ouch.

-Bridget Crawford

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Robson on India High Court’s Invalidation of Sodomy Law

Feminist Law Prof Ruthann Robson (CUNY) posted  here at  Constitutional Law Profs on the declaration by the Dehli High Court that India’s criminal prohibition on sodomy is unconstitutional.  Here is an excerpt of her post:

The Court also quoted Justice  Michael Kirby‘s recent speech, Homosexual Law Reform: An Ongoing Blind Spot of the Commonwealth of Nations, for rationales supporting the conclusion that the anti-sodomy laws derived from the imperial rules of the British crown are “wrong.”   (paragraph 85).

In terms of judicial power, the Court stressed that in a democratic society it is the role of the judiciary to protect fundamental rights (paragraph 125), but noted that Parliament could choose to amend the law to be consistent with the recommendation of the Law Commission (and presumably the Court’s Judgment) (paragraph 132).   The Court clarified that the judgment was not retroactive.

Robson’s comments illuminate the anti-colonial aspects of the ruling and its simultaneous reliance fundamental rights.  The full post along with the case are worth a read.

-Bridget Crawford

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Adrienne Suarez’s Code of Ethics for Female Attorneys

Ms. JD reports (here) on Adrienne Suarez’s “Code of Ethics for Female Attorneys.”

1.      I pledge to respect the female attorneys who came before me, because their paths were steeper, rougher, and unfamiliar.   I pledge to respect the female attorneys who come after me, even though their paths may be gentler, smoother, and well worn.   We are all traveling down the same path.

2.      I pledge to continue to make the way even smoother for future female attorneys.   While women make up 51% of the United States population, we constitute 47% of law students, 32% of lawyers in the legal profession, 18% of partners in private firms and general counsel for Fortune 500 companies, and this figure has remained static since the mid-1990s.   (Statistics drawn from reports published here).   Clearly, we still have work to do.

3.      As a woman, I will not judge other female attorneys who have come before me or who will come after me for (1) getting married; (2) not getting married; (3) having children; (4) not having children; (5) or making any other major life decisions because of, or in spite of, balancing a legal career.

4.      Given the choice of being a mentor or a tormentor to a younger, less experienced female attorney, I actively choose to be a mentor.   When a younger, less experienced female attorney comes to me with a question or for advice, I will not revel in how much more I know than she; I will share that knowledge and experience.

5.      There are no”dues”that a younger, less experienced female attorney needs to pay to me.   I will not waste my time minding tollbooths when I have a ways down the path yet to go myself.

6.      In the game of law, I will help younger, less experienced female attorneys as though we were playing leapfrog, not red rover.

7.      I recognize that even though we may be of the same sex, I will not like every female attorney I meet.   I pledge, however, not to call her a”bitch,”or any other name powerful because of its misogynist origins.

8.      If my voice is louder or carries more weight, then I will speak up for my fellow female attorneys’ needs, like a flexible schedule, even if those are not my personal needs at the moment.

9.      I pledge to reach out, through pro bono service, to the women in my community who need a lawyer’s help, who admire that that lawyer is another woman, and who appreciate how that woman may understand their problems and resolve them justly.

10.      I pledge to be me.   There is a younger female attorney out there who sees herself in me.   I pledge to succeed for her.

H/T Karen Hernandez.

Suarez gets it right in her embrace of mutuality of respect and the importance of mentoring.  I don’t think I fully understand the leap frog vs. red rover analogy, though.  Is it that the former is a collaborative game in which we alternate serving as the “base” or the one who advances?  The latter is an antagonistic test to see if the invitee can break our ranks?  (Ok, maybe I do get it.)

The part of the Suarez Code that inspires mixed thoughts are not judging other women (and presumably men) for “making any other major life decisions because of, or in spite of, balancing a legal career.”  At a deep emotional level, this makes sense to me.  Each person makes her own choice.  I can’t judge another because I don’t walk in her shoes.  “The personal is political” is an exhausting standard that none of us can ever meet.  So instead, let’s focus on the core of feminism.  Feminism is all about choice, right?  On an intellectual level, I wonder if emptying choice of its social, cultural, and sometimes political content renders choice nothing but a fetish.  (Nod to Linda Hirschman here.) In other words, if each of us is making the right choice for us personally, does that preclude critical examination of the implications of the aggregate choices?  It may be a great idea for Ms. A to make X career choice, but if most women make X career choice, it will have Y negative ramifications for the legal profession.  If we give up critiquing the implications of aggregate choices, then we give up the ability to evaluate women’s and men’s relative positions in law and society.

Suarez’s point more accurately may be that we need to de-personalize our judgments of other women — i.e.,  if Ms. A wants to do X, then Ms. B should not judge Ms. A as a good/bad person. We should understand that Ms. A’s choices are made in a professional world where many jobs are still designed for men with no children (or at least wives at home to take care of them).

-Bridget Crawford

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Posted in Legal Profession | 1 Comment

How to Have Better Faculty Meetings

Over at Slate, Gretchen Rubin describes her “Fourteen Tips for Running a Better Meeting” (here).  One of her tips is, “If some people hesitate to jump in, find a way to draw them out.”  I must admit that I immediately thought of the Mars-Venus spin: “Hey, guys!  If you close your mouths, women will participate.”

I recently attended a “brown bag” faculty discussion where the topic was a complex and potentially controversial curricular proposal that had been announced recently. Instead of the usual raise-your-hand or keep-a-cue methods of participation, the moderator deployed one of those “let’s go around the room” strategies.  It had a groovier vibe than most faculty meetings, which isn’t to everyone’s taste, but the technique did elicit participation from faculty members who don’t otherwise participate in battles for air-time.  Are those faculty members always women, whether at my school or at other schools?  Of course not, but I am interested in the possibility that women — even highly-educated, well-trained lawyers — might participate more actively if we used a modified version of this technique for other faculty discussions.

-Bridget Crawford

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Posted in Academia | 1 Comment

Wall Street Bias Alleged in Two Class Action Suits

The investment banking and brokerage industry, historically a white male bastion, has been subject to numerous prominent employment discrimination suits over the years. Now the industry may be facing a new wave of litigation by women and people of color who continue to face disparate treatment even as the Wall Street work force gradually diversifies.

Two class action suits:one on behalf of African-American brokers, the other on behalf of female brokers:have been filed against Bank of America, alleging that the financial giant systematially offered smaller retention bonuses to women and African-Americans formerly employed by Merrill Lynch, which BoA acquired last year in the wake of the financial crisis. The plaintiffs contend that Merrill favored white male brokers with more lucrative work. Since broker pay and retention bonuses are performance-based (though events in the past year raise serious doubts about the meaning of”performance”on Wall Street), women and African-Americans received less than their white male colleagues.

Bank of America disputes the plaintiffs’ allegations, touting its”strong track record of hiring and developing associates”and”success in creating and supporting a diverse and inclusive workforce”. However, the brokerage industry’s track record in the area of equal employment has been clouded by several major suits over hiring and pay disparities, rampant sexual harassment, and other discriminatory practices. Among those cases was a suit against Merrill Lynch by female brokers alleging discriminatory treatment, which settled in 1999 for $100 million.

-Eric Fink

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Where are the Women? Northwestern Law Review Edition

Current Issue: Special Issue 2009: Vol. 103, Issue 2

SYMPOSIUM: ORIGINAL IDEAS ON ORIGINALISM

Foreword: Original Ideas on Originalism Brian A. Lichter &  David P. Baltmanis
Constitutional Ambiguities and Originalism: Lessons from the Spending Power Lynn A. Baker
Framework Originalism and the Living Constitution Jack M. Balkin
The Misconceived Assumption About Constitutional Assumptions Randy E. Barnett
Two Cheers for Professor Balkin’s Originalism Steven G. Calabresi & Livia Fine
Original Intention and Public Meaning in Constitutional Interpretation Richard S. Kay
Phony Originalism and the Establishment Clause Andrew Koppelman
Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction John O. McGinnis & Michael B. Rappaport
Reconciling Originalism and Precedent John O. McGinnis & Michael B. Rappaport
Does the Constitution Prescribe Rules for Its Own Interpretation? Michael Stokes Paulsen
District of Columbia v. Heller and Originalism Lawrence B. Solum
Against Textualism William MichaelTreanor

Two out of fourteen is pathetic (two out of sixteen if you count the “double-dip” of Professors McGinniss and Rappaport).  But kudos to Steven Calabresi for co-authoring with a student.

Were the students at Northwestern really so unresourceful that they could only drum up one female Con Law scholar in the entire United States?  Or did they not care?  Are the law reviews’ faculty advisors totally uninterested and uninvolved?

If you shout out for “all the ladies in the house” and hear the echo of your own voice, that’s not a good sign for gender equality.

-Bridget Crawford

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Posted in Law Schools, The Underrepresentation of Women | 1 Comment

The Underrepresentation of Women Here and Here

Scanning my daily web feed this morning, I noted two items about the underrepresentation of women in different settings, both of which should be of interest to readers of this blog.

The first is an American Lawyer story about the negligible presence of women among the elite corps of international arbitrators:

Just two women arbitrators appeared in our first survey of large arbitrations in 2003, as we pointed out in a cover story the following year [See “Madame La Présidente,” Summer 2004]. Six years after that first scorecard, those two women, Gabrielle Kaufmann-Kohler and Brigitte Stern, have risen to become the second- and third-busiest arbitrators in our survey, with 20 or more cases apiece. But while the highest echelon of the club has clearly been integrated, women have a precarious foothold in our high-stakes survey. Only 10 women arbitrators appeared, representing 4 percent of about 250 arbitrators. “Of course progress is being made,” says Stern, a professor at the Université Paris I–Panthéon-Sorbonne, “but the progress is quite slow.”

The story cites a proposal for opening up the process of selecting arbitrators to enhance the inclusion of those who don’t fit the “older white male” profile that has dominated the field:

Catherine Rogers, a professor at The Pennsylvania State University’s Dickinson School of Law, has an idea that would promote diversity. Rogers envisions an online directory — she calls it the Arbitrator Information Resource — that would assemble the writings, experience and awards of every arbitrator, as well as client feedback. Such a tool would make arbitral selection both more transparent and more democratic. “It’s difficult now to build a reputation as a superb arbitrator,” argues Rogers. “It’s not only women who have trouble breaking in.”

The second item (not specifically legal in its focus, but involving a respected organization that will certainly be familiar to anyone interested in Environmental or Administrative Law) concerns a an overview of the “Clean Energy Economy” on the Natural Resources Defense Council website. Noting the economic benefits accruing from investment in alternative energy sources, the NRDC site includes profiles of twelve individuals working in “clean energy” jobs around the U.S. It is a worthy subject, and something that interests me greatly as both an environmentalist and labor advocate.

However, as Mik Moore at jspot.org notes (and any visitor to the NRDC site can readily observe), of the 12 featured “clean energy” workers, all but one are men. The lone woman also appears to be the sole person of color. This narrow selection (which I don’t doubt resulted from oversight, not malice) has the unfortunate effect of reinforcing perceptions of the green movement as a predominantly white affair, and of manufacturing and construction jobs as a male preserve.

In contrast, Moore points to the first graduating class from Oakland’s Green Jobs Corps. Unlike the lone woman on the NRDC site, news reports on the Green Job Corps highlighted several women among the 42 graduates (who, reflecting the demographics in Oakland, are predominantly people of color).

-Eric Fink

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Note to Jelena Jankovic: A Period is a Punctuation Mark, Not an Excuse for Bad Tennis

Former No. 1 women’s tennis player Jelena Jankovic lost at Wimbeldon earlier this week to Melanie Oudin,  a relatively unknown 17-year old American from Atlanta, Georgia.  Jankovic she did not lose gracefully or have any words of congratulations for her opponent. According to the New York Times (here):

Jankovic’s excuse was that she was wobbly from the heat – she required two medical timeouts – and the cyclical nature of “some woman problems.”

Jankovic said that Oudin “doesn’t have any weapons, you know, from what I have seen.

To blame biology is to play into the old stereotype that women are so hobbled by our menstrual cycles that we couldn’t possibly ________ [fill in the blank].  Maybe Jankovic had cramps.  But unless she takes to her bed each month, a world-class athlete probably has played (well) with cramps before.  More likely, Jankovic is making excuses for her poor performance and thought she’d get a “pass” from the mostly male sportswriters.

-Bridget Crawford

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Request for Signatories to Amicus Brief in Inter-American Court of Human Rights Case

Feminist Law Prof Caroline Bettinger-López, Deputy Director of the Human Rights Institute at Columbia Law School, seeks signatories to an amicus brief to be filed in the Inter-American Court of Human Rights in a case against Mexico involving the disappearance and murder of 3 young women in Ciudad Juarez, Mexico in 2001.   Professor Bettinger-López writes in an email (reprinted with permission):

The case is representative of a larger pattern of disappearances and murders of young (often migrant) women in Juarez and northern Mexico that has occurred over the past 15 years. It is the first case to come before the Court that squarely deals with gender-based violence and discrimination. The amicus brief sets forth the due diligence standard in international human rights law for responding to gender based violence, and urges the Court to adopt broad remedies in the case that are in line with the American Convention on Human Rights and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (Convention Belem do Para).

If you would like to sign onto this amicus brief, please send your statement of interest as soon as possible:no later than close of business on Monday, June 30.

Counsel for Petitioner in the case have emphasized to us the importance of having a significant show of support from U.S. civil society and academics in this amicus brief.   Thus, we would welcome your support for the brief.

Anyone — law prof or not — interested in signing on to the brief should contact both Professor Bettinger-López (c.lopez@law.columbia.edu) and pro bono counsel M.C. Sungalia, Esq. at Horvitz & Levy LLP (msungaila@horvitzlevy.com).   They will send a working draft of the brief for your review.

-Bridget Crawford

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Estate Tax Disaster Looms for Michael Jackson’s Estate

The right of publicity is descendible in California.  This means that a person may transfer by will the right to exploit his or her name, likeness, image, etc., just as one might transfer, say, an heirloom piece of jewelry.

In Postmortem Rights of Publicity: The Federal Estate Tax Consequences of  New State-Law Property Rights, published in the Yale Pocket Part,    I have argued, together with  Mitchell Gans and  Jonathan Blattmachr, that  a descendible right of publicity likely is included in a  decedent’s gross estate for federal estate tax purposes. In the Jackson estate, the estate tax value of Mr. Jackson’s rights of publicity very easily could exceed his estate’s liquid assets available to pay taxes.

In short: big estate tax problems loom on the horizon for Mr. Jackson’s estate.

What do the particulars of the taxation of Mr. Jackson’s estate have to do with feminist legal theory?  Nothing.  But the economics of inheritance, family rights and wealth transfer taxation most certainly should interest those who study the ways that law constitutes and complicates family relations.

-Bridget Crawford

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Posted in Feminism and Law | 1 Comment

The Women’s Orchestra in Auschwitz

Liane Curtis asked me to post this for her; she can be contacted at
lcurtis@brandeis.edu
Article: The Women’s Orchestra in Auschwitz
Hello, Some years ago, I worked with a student in translating a 1996 article by Gabrielle Knapp from German into English.  Now the website of the original publication, Feministische Studien, has published our translation on their website.  Links below, the article is 10 pages long; Knapp drew from her book (dissertation) on the subject.  I hope that this will be of interest to some; please forward this notice as appropriate.
Gabriele Knapp: “Music as a Means of Survival: The Women’s Orchestra in Auschwitz”
First published: “Musizieren als Überlebenshilfe. Das Frauenorchester in Auschwitz” in: Feministische Studien, Heft 1, 1996, S. 26-35.
Translated by Katherine Deeg, Anette Bauer, and Liane Curtis, with support from the Student-Scholar Partnership of the Women’s Studies Research Center at Brandeis University
http://www.feministische-studien.de/index.php?id=10
and the pdf is here
http://www.feministische-studien.de/fileadmin/download/pdf/fem96_Translation_Knapp1.pdf

Gabrielle Knapp’s article, Musizieren als Überlebenshilfe. Das Frauenorchester in Auschwitz (“Music as a Means of Survival: The Women’s Orchestra in Auschwitz“), originally published in  Feministische Studien, Heft 1, 1996, S. 26-35, is available in English translation here.

This short article may interest legal history scholars and others.  The orchestra’s history is a  fascinating one — it inspired a  21st century opera, too.

Pictured at left is Anita Lasker Wallfisch, the orchestra’s cellist.

-Bridget Crawford

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May the Female Force Be With You

Caroline Kennedy and Barbara Walters are the new stars of two “biography comics” in the “Female Force” series published by Bluewater Productions.

From the Bluewater website (here):

Female Force offers a broad examination of influential women from a variety of backgrounds and viewpoints. Past issues include Hillary Clinton, Michelle Obama, Sarah Palin, Oprah Winfrey, Condoleeza Rice and Princess Diana.

Also in stores on Wednesday is the new covers for the 3rd printings of “Female Force” Sarah Palin, Hillary Clinton and 2nd printing of Michelle Obama called “Night at the White House.”

These probably won’t be at the top of my summer reading list, but it’s cool to know this series exists.   Surely some lawyer-turned-cartoon-artist will create a spin-off series — “Female Force: Deans’ Edition” featuring Martha Minow.

-Bridget Crawford

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Seven Inches of Sexualized Sandwiches

“Fill your desire for something long, juicy and flame-grilled with the New BK Super Seven Incher.  Yearn for more after you taste the mind-blowing burger that comes with a single beef patty, topped with American chees, crispy onions and the A.1.(R) Thick & Hearty Steak Sauce.”  That’s the text from the Burger King ad above.

Blow 7 inches?  It’s so subtle.  What’s next? Special sauce on her cheek?  Contests at the local Burger King to see who can fit the sandwich down her throat?

For the gay press, is there a different version where a man opens wide?

For the manly man audience, will the ads feature conversations like, “Mine’s seven inches.  How long is yours?”

H/T shakesville and my vegetarian colleague David Cassuto at the Animal Blawg.

-Bridget Crawford

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Posted in Sexism in the Media, Yep, sarcasm. | 1 Comment

Gendered Qualification for Public Office

Should Middle-Aged Men Hold Public Office?

That’s the title of an engaging essay by Barbara O’Brien over at salon.com here. O’Brien not only answers those who have wondered aloud about Sotomayor’s qualifications given possibilities such as menstruation and menopause, but turns the question of qualifications toward public officials such as South Carolina Governor Sanford (and others too numerous to mention).

It’s worth a read.

–   Ruthann Robson

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Rihanna and the (Un?)Constitutionality of the Mutual Stay Away Order

Can anyone out there explain the constitutionality of the Chris Brown plea deal? Brown pleaded guilty to one count of felony assault based upon his attack of Rihanna, and he got five years of probation and community labor. The judge also entered a no-contact/stay away order against Brown under which he is to stay at least 50 yards away from Rihanna and not have contact with her for five years  (unless the two are at the same industry function, in which case he is to stay at least 10 yards away). But here’s the weird part: The judge also “told Rihanna that the order is ‘really two-ways,’ meaning that Rihanna must stay away from Brown just as he must stay away from her.”  

How can the judge do this? Judges in California can issue no-contact or stay away orders in criminal cases pursuant to California Penal Code Section 1203.1(a), which states in relevant part that

The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine.  See, e.g., People v. Gaytan, 2009 WL 1349196 (Cal.App. 3 Dist. 2009).

Under this Section, we can clearly see how the judge could impose a stay away order against Brown. But, how could she impose it against Rihanna, who was neither a party in the criminal action against Brown, nor, obviously, someone whom the judge was giving probation?

After doing research, I found some family law cases where there have been mutual stay away orders, but in those cases, both of the individuals involved were parties subject to the court’s orders, which were governed by California’s Family Code, not its Penal Code. See, e.g., People v. Gaytan, 2009 WL 1349196 (Cal.App. 3 Dist. 2009).

But does anyone know the authority for imposing the stay away order against Rihanna? And while I see how it makes some sense on a practical level, does anyone else find it disturbing that Rihanna is being punished (at least on some level) for being attacked, with (I’m guessing) the prospect of criminal penalties being imposed against her if she comes close to Brown?

UPDATE (6/26/09; 8:13 P.M. CDT): I just spoke with Rihanna’s attorney, Donald Etra, and it seems as if, as some of you speculated in the comments, this is another case of the media being way off on the reporting of a legal story. Etra told me that the court had no jurisdiction over Rihanna, so it was simply the judge deciding to admonish her to honor the stay away order, even though it does not legally bind her

-Colin Miller

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Posted in Acts of Violence, Courts and the Judiciary | 11 Comments

NYSBA Rejects “Separate But Equal” Approach to Equality for Same-Sex Couples

The New York State Bar Association officially supports marriage as the exclusive means for achieving equality for same-sex couples.  Here is one of the resolutions passed today by the organization’s House of Delegates:  

RESOLVED that the Association hereby endorses and supports the introduction  and enactment of legislation that amends the Domestic Relations Law to allow same-sex  couples to marry and to recognize marriages if contracted elsewhere as the Association  believes only marriage can grant full equality to same-sex couples and their families, and  that such legislation shall exempt clergy from the obligation to perform any marriage to  which they object….

(emphasis added).  The full set of related resolutions and introductory material is here.  (I, for one, enjoy a good “WHEREAS” clause.)

The NYSBA resolution changes the organization’s 2003 position endorsing non-marriage “equivalents” for lesbian and gay couples.

The New York Law Journal has more coverage  here.  The NYSBA press release is here.

Now New Yorkers need the State Senators to stop behaving badly and come together to do their jobs.  

-Bridget Crawford

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Nixon Supported Abortions to Prevent Racial Mixing

Whoa.  The New York Times reports here on the contents of the Nixon-Whitehouse tapes released yesterday by the National Archives.  One recording (audio file here) captured Nixon’s reflections on  Roe v. Wade on January 22, 1973, the day the Supreme Court decided the case.  The NYT article calls Nixon’s reaction ambivalent:  

Nixon worried that greater access to abortions would foster”permissiveness,”and said that”it breaks the family.”But he also saw a need for abortion in some cases, such as interracial pregnancies.

“There are times when an abortion is necessary. I know that. When you have a black and a white,”he  told an aide, before adding:”Or a rape.”  

Interracial intercourse equated to rape?  Nixon’s deployment of this historic canard is yet another blot on his presidency.

Audio files with all of the White House tapes from January, 1973 are available online here, courtesy of the National Archives.  The site includes a good historical timeline, too.

-Bridget Crawford

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Posted in Feminist Legal History, Race and Racism, Reproductive Rights | 1 Comment

Candlelight Vigils in Honor of Peaceful Protesters in Iran

GreenAcross the nation, people are organizing candlelight vigils to honor the peaceful  protests of the Iranian people.  Here are a few upcoming vigils:

  • New York City:  Wednesday, June 24, 2009.  7:00-10:00 p.m. in Union Square
  • Baton Rouge, LA: Wednesday, June 24, 2009. 8:00-9:00 p.m.  On LSU campus in front of Student Union.
  • West Lafayette, IN: Wednesday, June 24, 2009. 9:00-9:30 p.m.  Memorial Mall, Purdue University (State Street).
  • Indianapolis, IN: Wednesday, June 24, 2009. 8:30-10:00 p.m. White River State Park – Celebration Plaza. 801 W. Washington St.
  • Montclair, NJ: Wednesday, June 24, 2009. 8:15-10:15 p.m.  Church Street and South Fullerton.
  • College Station, TX: Friday, June 26, 2009.  8:30pm – 9:00 p.m. Texas A&M campus (no further details available).

I remember the very different vigils people held in the U.S. during the awful period of November 4, 1979 to January 20, 1981.  

For Christine Ahmanpour’s take on women’s unique contributions to Iranian political history, her interview with Lesley Stahl is here.

-Bridget Crawford

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Legal History Research Resources: Stonewall Edition

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OutHistory.org, is a website produced by produced by The Center for Lesbian and Gay Studies (CLAGS), located at the City University of New York Graduate Center.  All of the content is provided by volunteers.  

A new on-line exhibit (here) commemorates the upcoming 40th anniversary of the Stonewall Riots and includes 9 newly-released police reports obtained through NY FOIA requests.  This site might be an interesting addition to a potential source list for researchers working in LGBT legal history.

-Bridget Crawford

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Posted in Feminist Legal History, LGBT Rights | Comments Off on Legal History Research Resources: Stonewall Edition

When We Grow Old, Let Us Bowl You and Me

This story from Grand Rapids, Michigan made me smile:

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Two great-grandmothers from Grand Rapids have become state bowling champions. The women are 86-year-old Emma Dausman and 69-year-old Judy Conner. They won a Division 2 doubles title at the U.S. Bowling Congress’ Women’s Bowling Association state tournament.

Dausman carried a 125 average but the octogenarian rolled games of 192, 189 and 173 for a personal-best 554 series in the tournament, which ended last month.

Conner had games of 178, 203 and 176 for a 557 series. She carries a 161 average.

With their combined handicap of 496 pins, they won by 32 pins with a total score of 1,607.

Dausman told The Grand Rapids Press that Conner made her feel very relaxed by always encouraging her.

I hope I want to go bowling when I’m their ages.  I’ll probably still need the lane bumpers, though.

-Bridget Crawford

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Reading Writing on Writing Instead of Writing

From Flashlight Worthy, a list of “10 Great Books on Writing” (here):  

Plus four others that seemed more appropriate for fiction writers than us law profs laboring mightily with summer research and writing.

I haven’t read any of these books other than Lamott’s, but if my “writer within” could be “freed” sooner rather than later, my draft might progress faster.  

-Bridget Crawford

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Posted in Academia | 2 Comments

Ho-hum … NOW Elects a New President

Yesterday the National Organization for Women elected a new President.  Ho-hum.  Here’s a portion of  the NOW press release:

This weekend members of the National Organization for Women (NOW) cast their votes for a new team of leaders to direct the largest grassroots feminist organization in the country over the next four years. NOW delegates elected Terry O’Neill, who served as the group’s membership vice president from 2001 to 2005, to succeed President Kim Gandy.

Gandy will retire from her office on July 20 due to the organization’s term limits; she has been a leader in NOW for 36 years, with 22 years of service at the national level, including the last eight as president.

“NOW is the organization that fights for the rights of all women no matter the circumstances of their birth, their race or sexual orientation, no matter if they live in poverty or are trying to escape violence,” said NOW President-Elect Terry

 O’Neill. “My experience with domestic violence, as an abused wife left me humiliated and embarrassed. I only began to talk about this publically five years ago as I realized that to keep quiet was to continue the abuse. I want to empower women and telling my story does just that. Women are fed up with persistent inequality and are ready for change. I am honored and eager to lead NOW in making that change.” ***

I wish NOW every success.  The group has an informative website (here).  The group has an illustrious past.  But of all the many women I know, I can’t name five who are members of NOW.  Or if I do know five NOW members, their affiliation has never come up in conversation.  Why is that?  Is it because NOW is still dominated by feminists over 50?  Is it because NOW isn’t visible in my part of the country?  (I live in New York City.)  Is it because NOW’s advocacy is more “high-level” than grassroots, so NOW’s work is not as visible as some other groups’ work?

Has NOW lost its relevance?  Has institutional advocacy and legal advocacy lost their relevance?  It seems to me that this advocacy (and thus, NOW?) holds less promise than it once did as a vehicle for changing the status quo of gender relations.  

-Bridget Crawford

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“… 2,000 people from some of South Carolina’s most depressed counties … flocked to a job fair this week to hear more about new jobs cleaning up dangerous waste at [a] former bomb-making complex, the Savannah River Site.”

Story here.

–Ann Bartow

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Posted in Feminism and the Workplace, South Carolina | Comments Off on “… 2,000 people from some of South Carolina’s most depressed counties … flocked to a job fair this week to hear more about new jobs cleaning up dangerous waste at [a] former bomb-making complex, the Savannah River Site.”

“… a Justice Department lawyer actually argued to a federal district court judge that there should be an exemption from Freedom of Information Act disclosure rules for documents that would subject senior administration officials to embarrassment — as in on late-night television.”

From Dan Froomkin:

… Yes, a Justice Department lawyer actually argued to a federal district court judge that there should be an exemption from Freedom of Information Act disclosure rules for documents that would subject senior administration officials to embarrassment — as in on late-night television.

This is not just wrong, it’s perversely wrong. By contrast, a good rule of thumb would be: The more embarrassing, the more we need to know. The Justice Department and the White House should be forced to renounce this assertion immediately.

And if this wasn’t bizarre enough, consider the irony that in the case at hand, the Obama Justice Department is fighting the release of a transcript of former vice president Dick Cheney’s testimony to special prosecutor Patrick Fitzgerald about his role in the outing of Valerie Plame as a CIA agent.

And guess what else? The Obama team relied extensively on a legal opinion (via Emptywheel) authored by Stephen Bradbury, the utterly discredited head of the Office of Legal Counsel whose other writings included memos outrageously asserting that torture was legal — and that Karl Rove had absolute immunity from congressional oversight. …

If any more Obamabots respond to objections to this kind of sell-out by asserting “Hillary would have done worse” in my presence I am going to pinch them, hard. Obama won my support by making claims he is not living up to in a number of contexts, and he deserves to be called on it.

–Ann Bartow

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Where are the women blast from the recent past: In the “Demisesquicentennial” issue of the University of Chicago Law Review, fourteen out of fourteen authors are dudes, and for bonus points, the secondary authors noted are male too!

5 UNIVERSITY OF CHICAGO LAW REVIEW, NO. 2, SPRING, 2008.

Demisesquicentennial. 75 U. Chi. L. Rev. 603-883 (2008).

Nagareda, Richard A. Class actions in the administrative state: Kalven and Rosenfield revisited. 75 U. Chi. L. Rev. 603-648 (2008).

Rothstein, Jesse and Albert H. Yoon. Affirmative action in law school admissions: what do racial preferences do? 75 U. Chi. L. Rev. 649-714 (2008).

Schanzenbach, Max M. and Emerson H. Tiller. Reviewing the Sentencing Guidelines: judicial politics, empirical evidence, and reform. 75 U. Chi. L. Rev. 715-760 (2008).

Miles, Thomas J. and Cass R. Sunstein. The real world of arbitrariness review. 75 U. Chi. L. Rev. 761-814 (2008).

Strauss, Peter L. Overseers or “the deciders”–the courts in administrative law. 75 U. Chi. L. Rev. 815-829 (2008).

Miles, Thomas J. and Cass R. Sunstein. The new legal realism. 75 U. Chi. L. Rev. 831-851 (2008).

Posner, Eric A. Does political bias in the judiciary matter?: implications of judicial bias studies for legal and constitutional reform. 75 U. Chi. L. Rev. 853-883 (2008).

Linford, Jake. Comment. The right ones for the job: divining the correct standard of review for curtilage determinations in the aftermath of Ornelas v. United States. 75 U. Chi. L. Rev. 885-910 (2008).

Yoo, David S. Comment. Rule 33(a)’s interrogatory limitation: by party or by side? 75 U. Chi. L. Rev. 911-940 (2008).

Cuellar, Mariano-Florentino. The political economies of criminal justice. (Reviewing Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear.) 75 U. Chi. L. Rev. 941-983 (2008).

–Ann Bartow

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Posted in Academia, Law Schools, The Underrepresentation of Women | 1 Comment

Landmark Domestic Violence Judgment by European Court of Human Rights

In a landmark decision, the European Court of Human Rights has unanimously found that a state violated the human rights of the applicant and her mother in failing to protect them against domestic violence. In Opuz v Turkey, the applicant alleged that the state bore responsibility under the European Convention on Human Rights for its failure to take action against her violent husband who repeatedly attacked her and killed her mother.  

The European Court had previously found state responsibility in a domestic violence case in Bevacqua v. Bulgaria (2008), grounding its decision in article 8 (right to respect for family life) of the European Convention. In Opuz v Turkey, however, the Court found state responsibility for violations of the right to life (art. 2), the prohibition of torture (art. 3), and — significantly — the right to non-discrimination on the basis of sex (art. 14).

Regarding the latter, Court found that “the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women.”     I have posted more  about the case, as well as   links to the Court’s judgment and to a video of the Court’s hearing,  over on IntLawGrrls,  here.

– Stephanie Farrior

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More on the Baby Daddy (Or, No Way Kin You Be)

I was e-chatting (some of my best relationships are maintained via e-chat:brief but warm and informative electronic messages traded with friends) with Feminist Law Professors’ Bridget Crawford earlier today about her recent blog post  “White People’s Baby Daddy.”  Bridget invited me to weigh in via blog. Never one to pass up a chance to ruminate in the blogosphere (especially since of late I have been consumed with several other projects), I thought I’d give it a whirl. Her post begins:

When speakers use the phrases “baby daddy” and “baby mama” in non-colloquial contexts, do they mock African-Americans or do they embrace one way that the American vocabulary has been enriched by the contributions of African-Americans?  Both?  Neither?

This is a topic that I’ve toyed with off and on ever since I saw Amy Poehler of “Saturday Night Live” fame in the film  Baby Mama  a few months ago via cable (most of the time I’m too cheap to ante up for the movie theater, what can I say?). “Baby mama” (or the male variant, Baby daddy) is, as the blog post explains, an African-American (or African Caribbean) term denoting the mother or father of one’s child who is not one’s wife or husband (or even necessarily one’s girlfriend or boyfriend.) It usually indicates a clear bifurcation of the biological functions of parenting from the social functions of parenting or intimate partnering. Increasingly bandied about in popular culture, these phrases are sometimes used to symbolize an immense social emancipation from the norms of domesticity: why keep the man (or the woman) when all you really want is the baby (and sometimes you don’t want that, but that’s another story)?  Baby mama and baby daddy are also, however, widely perceived as being emblematic of the eroding family in black communities.  

Bridget Crawford ponders whether the use of these phrases by white people “crosses into twenty-first century blackface minstrelsy.” My answer? Maybe. There is, all too often, a thin line between cultural appropriation (incorporation of “outsider” cultural artifacts without acknowledgement of the source) and cultural broadening (incorporation of “outsider” norms without acknowledgement because the “outsiders” come with the artifacts, that is, they are perceived as part of the polity and thus are able to continually participate in shaping the nature of the cultural capital that is incorporated.) We are not yet to the point where mainstream white society can assume that any adoption of black cultural norms is more exemplary of broadening than of appropriation. Some words and phrases stand as much as they ever did for white-racist inspired black oppression. These words still pack a punch for black people no matter how often repeated in white mainstream settings. “Ghetto,” for example, is the new  and  the old black. The blog  Bourgie, Interrupted  seems to agree on this point. Nonetheless, while we still have a ways to go in sorting out black-white relations, we are, if not post-racial, certainly post-racist. By this I mean that it is definitely uncool to intentionally employ racist cant, and when it is employed unintentionally, right-thinking white people usually clean that …stuff… up pretty quickly. Or, if not clean it up, wrap it up, sometimes sending racism so far under wraps that it becomes both profoundly obscure and obscurely profound.  

But more intriguing for me is not just the racial implications of the terms but the gendered implications, especially in the case of “baby mama”. This is what hit me when I saw the film  Baby Mama. As those of you who saw it know, the film uses the term with an ironic, postmodern, post-heteronormative spin:Amy Poehler’s character is the gestational surrogate for another character played by Tina  “bitch is the new black”  Fey, another SNL alum. Amy is Tina’s “baby mama.” There is plenty of “baby mama drama” in the film, but not the usual kind. (For the uninitiated, a man has “baby mama drama” when, for example, his baby mama shows up at his new girlfriend’s house and asks the new girlfriend for diaper and formula money since she has a job and is taking up time with the baby daddy. Another example is where, true story, the limousine carrying the baby daddy and his new wife intentionally drives by the baby mama’s house right after the wedding and blares the horn, and the baby mama comes out holding the baby and curses out the whole wedding party…oh, sorry, I digress…) The film explores the clash of class and cultural norms between the two women, painting them both in high relief in order to tell the tale. Tina Fey is the wealthy, cultured career woman who has put off childbearing in her early years only to find that she is having difficulty conceiving. Amy Poehler play the low life “white trash” woman with a trashy boyfriend to match who wants to make money from surrogating. Brilliant, I thought. What better way to explore the outer limits of divorcing the social and biological aspects of parenting than by mocking gestational surrogacy? Since the seminal  Baby M  case in 1986 that brought surrogacy to public light, surrogacy has become a much used, mostly legally sanctioned activity (it’s still forbidden in some places, and is stringently limited in others) that has made the joy of childbirth a reality for persons who in the past had little hope of creating families in this way. But at the end of the day, surrogacy remains very much a contractual, marketplace arrangement that is all too often (but certainly not always) entered into by less privileged women in our society. Commercial surrogacy, or  “reproductive outsourcing”  is a growth industry in some parts of the world. Poor women in India, for example enjoy surrogacy fees that equal two or three years’ salary.  

But what’s all this got to do with the price of diapers in Detroit? Plenty, I’d say. “Baby mama,” whether used in the black cultural context or to signify women as gestational surrogates, for me signifies an unquiet anomie that bubbles under society’s surface. It is a weird, circular wheel on which personal and relational autonomy, here, the right to separate parentage from other social relationships, runs head first into the oppression wrought when the bonds of kinship are not only broken but treated in some cases as if they never existed.

-Lolita Buckner Inniss

(cross post from Ain’t I a Feminist Legal Scholar, Too?)

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What Not To Wear, Religious Edition: Supreme Court of Michigan Adopts Rule Allowing Judges to Exercise “Reasonable Control Over the Appearance of Parties and Witnesses” Based Upon Niqab Case

Yesterday, by a 5-2 vote, the Supreme Court of Michigan  adopted an amendment to Michigan Rule of Evidence 611. This amendment created Michigan Rule of Evidence 611(b), which provides as follows:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.  

The amendment was crafted in response to a lawsuit brought by Muslim woman Ginnah Muhammad. Muhammad had gone to court to contest a $3,000 charge from a rental company to repair a vehicle that she said thieves had broken into. When Muhammad appeared in court, District Judge Paul Paruk ordered her to remove her niqab, or face covering, but she refused, ostensibly because “[s]ome Muslim leaders interpret the Quran to require that women wear a headscarf, veil or burqa in the presence of a man who is not their husband or close relative.”  

Continue reading

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Posted in Courts and the Judiciary, Feminism and Religion | 7 Comments

“Last week, Los Angeles County officials revealed that there have been at least 16 previously unreported cases of HIV among porn performers in the past five years.”

The title of this article at Salon is awful, but it does report the following:

Unfortunately, some sad news out of Porn Valley has made that particular feminist (and humanist) angle especially relevant: Last week, Los Angeles County officials revealed that there have been at least 16 previously unreported cases of HIV among porn performers in the past five years. That amounts to a total of 22 cases since 2004, when five porn stars tested positive. The explanation is simple: As anyone who has ever caught a glimpse of an X-rated film knows, condoms are entirely optional. Sure, there’s an industry standard requiring performers to get tested for STDs every 30 days, but it can take two weeks for signs of HIV infection to show. Just consider the 2004 outbreak: Porn star Darren James tested negative just a few days before going to work and transmitting it to three female costars.

The industry swears up and down that its voluntary monitoring is enough and that the number of infections is low considering the thousands of porn actors out there. (That is true when it comes to HIV, but it certainly isn’t when it comes to every other STD known to man.) Still, as Dr. Jonathan Fielding of the Los Angeles County Department of Health told the Los Angeles Times, “I don’t know of any other industry where people are subjected to that kind of risk.” There have been efforts in recent years to require condom use by law but, whaddaya know, lawmakers are apprehensive about having their name attached to legislation that protects porn stars. Newsflash: People who have sex for a living aren’t considered a sympathetic or family-friendly demographic. There’s no doubt that many sick and twisted people in this country believe X-rated stars are getting exactly what they deserve.

The author’s assertion that lack of health and safety regulations in porn production is because “lawmakers are apprehensive about having their name attached to legislation that protects porn stars” seems ridiculous to me. She is trying to blame prudishness for a problem that is clearly caused, and easily solved, by pornographers. The porn industry generates billions in profits for corporations like Google and Fox News. Any effort to regulate porn leads to massive lobbying and “education” campaigns about how requiring condoms compromises free speech, will eviscerate the First Amendment and play into the hands of censorious foreign terrorists, putting our very democracy at stake, etc. That’s why porn is the least regulated industry in the nation.

And as far as the author’s assertion that: “There’s no doubt that many sick and twisted people in this country believe X-rated stars are getting exactly what they deserve” she is absolutely right, and the vast majority of them are men who consume porn.

–Ann Bartow

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Posted in Coerced Sex, Feminism and Law | 6 Comments

Hong Kong and Guangzhou

Hong Kong
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Guangzhou
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I’m back in Hong Kong after a couple of days in Guangzhou at the South China University of Technology. One of the people in our party got detained at the China border because she had a fever and was held in a hospital for several days and subject to numerous tests. When she tested negative for H1N1 several successive times, she was finally released. That was terrifying. So, learning a lot on this trip, both good and bad. Hope everybody reading is well.

–Ann Bartow

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