Queering the History of Sex Discrimination

In my employment discrimination course, I use Diaz v. Pan American Airlines (5th Cir. 1971), overturning Pan Am’s ban on male flight attendants, to illustrate how airlines and other employers tried and failed to exploit Title VII’s bona fide occupational qualification (BFOQ) exception in the years after the Civil Rights Act’s enactment. Pan Am defended its female-only policy as necessary to satisfy the “psychological needs” of its mostly male passengers, who “overwhelmingly” preferred to be served by “young girls.” In Diaz, the court ruled that the “essence” of an airline’s business was not to titillate male travelers, nor to offer maternal comfort to anxious fliers, but rather to keep passengers safe from harm. Excluding men, therefore, could not be “reasonably necessary to the normal operation” of an airline.

Phil Tiemeyer’s Plane Queer reveals that Pan Am’s defense of the male steward ban was even more insidious than previously understood. The airline argued that male flight attendants performing traditionally female ministrations, such as tucking blankets around dozing passengers, would repulse their (assumedly) male, heterosexual, and homophobic customers. Tiemeyer argues persuasively that Diaz and the other early challenges to airlines’ sex BFOQs are properly seen as queer equality cases, belying conventional assumptions that gay employment rights advocacy merely piggybacked on, or at least postdated, movements for racial justice and women’s rights. Continue reading "Queering the History of Sex Discrimination"

 
 

Theorising Global Justice

Frank J. Garcia, Global Justice and International Economic Law: Three Takes, Cambridge University Press (2013).

In a letter to the semi-pagan Nectarius (Epistle 91, §4), Saint Augustine sets forth one of the most fundamental problems of political life: political philosophers who have sought and ‘indeed described’ justice in private discussion have utterly failed to secure justice for the earthly city. The problem could not be clearer: true justice is not an utter mystery to human beings. It can be made present to thought and speech. But even amongst those who have bothered to obtain a rational image of it, this justice is absent from their activities and their communities. Justice in the earthly community is only ever a relative and internal justice, an ‘ordered agreement of mind with mind’ (De Citivate Dei XIX.13) that is limited to ‘the establishment of a kind of compromise between human wills…’ (IV.4) Even the laws of the most civilised society of Augustine’s time (Rome) represented but the distorted form of justice one finds in a criminal organisation.

The subject of justice in the earthly civitas (i.e. the human world) is examined at length in Frank Garcia’s impressive book, under the modern title of ‘global justice.’ The scope of the book is determined by two factors: (1) it is concerned with the specific dimension of global justice which applies to international economic activity; (2) it analyses the subject according to ‘three takes’ which have dominated recent Western political thought (Rawlsian liberalism, communitarianism, and consent theory) (P. 3.) My focus here is upon the second of these delimiting factors. It is given the following explanation:

There are of course many more theories of justice within Western political theory, and a comprehensive approach to the ethical foundations of global justice would need to engage in a comparative study of justice in normative traditions both within and beyond the West.

Of interest in this passage is its juxtaposition of two critical ideas: on the one hand, the identification of global justice as being, in the last end, an ethical problem; and on the other hand, the belief that the resolution of the ethical problem would come about through a comparative (i.e. empirical) investigation of normative traditions. The underlying implication is (I believe) not that ethical questions can be dissolved by, or exposed as, empirical concerns, but that some form of comparative study represents the realistic limit of what can be achieved by way of progress in the face of so much entrenched division. If so, this reflects the more pessimistic implication of Augustine’s letter: justice in the worldly community is not genuine justice but is forever limited to a kind of compromise between human wills. Continue reading "Theorising Global Justice"

 
 

Internet Payment Blockades: SOPA and PIPA in Disguise? Or Worse?

Annemarie Bridy, Internet Payment Blockades, Fla. L. Rev (forthcoming), available at SSRN.

The law of intermediary liability in intellectual property reflects a constant struggle for balance. On the one hand, rights owners frustrated by the game of whack-a-mole have good reason to look for more efficient ways to stanch the flow of infringement. While this concern is not a new one, the global reach and decentralization of the Internet have exacerbated it. On the flipside, consumers, technology developers, and others fret about the impact of broad liability: it can impede speech, limit competition, and impose a drag on economic sectors with only a peripheral relationship to infringement. As the Supreme Court put it thirty years ago in the seminal Sony case, the law must seek a “balance between a [rights] holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce.”

For the most part, the battle of these competing interests has played out in litigation, legislation, and deals involving online intermediaries whose services are used to infringe. The Digital Millennium Copyright Act’s notice-and-takedown procedures, the peer-to-peer copyright battles, keyword advertising suits, and lawsuits against websites like eBay are giving shape to the relative rights and responsibilities of IP owners and intermediaries. Continue reading "Internet Payment Blockades: SOPA and PIPA in Disguise? Or Worse?"

 
 

Can the Supportive State be Non-intrusive?

Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty, and Support, 25 Yale J.L. & Feminism 317 (2014).

Two truths that feminists hold to be self-evident are: (1) that this society requires a more pro-active, supportive state that recognizes the fact of dependency and assumes some responsibility for the needs that dependency creates; and (2) that when the state intervenes in the lives of poor, minority women, it discriminates against and penalizes those most in need of its support. Advocates of each proposition generally also adhere to the other as if the two propositions were completely compatible: Those making the case for a supportive state adopt as a principal goal the reduction of society’s profound inequalities,1 while critics of the state’s discriminatory intrusions into the lives of the poor take for granted the necessity for state interventions to address dependency.2

Wendy Bach’s article advances both propositions sympathetically—so sympathetically that the reader initially might understand the article to be primarily a celebration of the convergences in feminist insight. But read on. The work is, above all else, a caution. The case for a supportive state is a powerful one, she argues; yet current institutional realities mean that state-sponsored programs typically make women more vulnerable, not less. This is not inevitable, she argues, but to avoid it, reformers need to pay more attention to the specificity of the mechanisms the state employs. Otherwise, Bach argues, calls for a more supportive state may yield measures making it easier for middle-class women to work and raise children, but they won’t dismantle the punitive mechanisms that so acutely affect poor women and minorities. (P. 329). Continue reading "Can the Supportive State be Non-intrusive?"

 
 

Interdependent Legalities

The first thing I liked about Kirsten Anker’s book was its title.1 The idea of a declaration of interdependence is extremely evocative, and multilayered. It foregrounds values of connection and interdependence as basic to legal relations, within and between cultures, and also between human societies and our ecologies and environments. At the same time, it constitutes an ironic reflection on non-Indigenous histories, with their insistence on independence. Assertions of independence have been vital to shaping the nation-state world we currently live in, and which forms the legal and philosophical backdrop to this book. Declarations of independence may still have a defensible role in a world which oppresses marginalized groups and fails sufficiently to promote the self-determination of colonized peoples. But interdependence goes further, and acknowledges interconnection between peoples and their worlds – it reasserts that there are relations of dependence between groups, and relations between their laws. It also, and this is the real depth of this particular book, shows how the very act of defining and understanding any law in this context brings into play multivocal exercises of recognition, translation, and negotiation.

Throughout the book, Anker emphasizes that she seriously regards all sides of a relation as ‘dependent’ on the others (as well as, to a lesser degree, ‘independent’). In the context of Anker’s study, which primarily concerns legal relations between Indigenous and non-Indigenous people in Australia, the ‘sides’ of the relation are primarily two. When the two sides come together to negotiate or determine their legal relations, each is dependent on the other. This is not to deny the existence of state dominance or, on the other hand, to say that there can be no self-determination or autonomy for Aboriginal people. Rather it conveys the way that ‘decisions and their consequences will always be taking shape in relation to other communities and governments, at different scales.’ (P. 194). In order for there to be any real encounter between different legalities, they each have to be open to the other, and in particular to the process of being reconstituted by the other. Anker argues this mutual dependence by reference to philosophical tradition. In particular she points out that approaches to recognition and translation will be extremely problematic if understood or practiced simply in terms of one (sovereign) side having all of the power to recognize the other, or being permitted to assume that their own conceptual tools are sufficient to render the other’s world intelligible. For recognition and translation to work and for justice to be a plausible goal, the interpretive and conceptual horizons of both sides must shift. Even more importantly, Anker also argues this case inductively from detailed readings of significant native title cases, and through an analysis of the nature of negotiated settlements. At their most positive, even within the decision-making framework of state law, these sources show people coming together in a jurisgenerative space, in which ‘law’ appears as a dialogue rather than being given from above. (P. 103). At the same time, the opportunities for state law to misrecognize and mistranslate Aboriginal law, because of doctrinal dogmatism, ideology, or other limitations, remain considerable. The detail provided by Anker to illustrate these points is extraordinary, and quite impossible to do justice to in a short review. Continue reading "Interdependent Legalities"

 
 

Decriminalization and Its Discontents

Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. ___ (forthcoming 2015), available at SSRN.

Have we reached a turning point in criminal justice? Political leaders, criminal justice actors and even the general public have come to agree that our criminal justice system is broken. It delivers a product that is long on punishment, but short on justice, mercy, efficiency, cost-effectiveness and rationality. Consequently, states are moving to shorten some drug sentences, to decrease overall imprisonment rates, and to legalize or decriminalize marijuana possession. We are even witnessing manifestations of leniency from the public: witness the California voters’ 2014 roll-back of that state’s notorious “three-strikes” law.

Clearly, we are at an inflection point. But is this a true turning point? Or are we witnessing another historical moment in which harsh and unequal criminal justice systems demonstrate the uncanny ability to achieve preservation through transformation in the face of widespread criticism? In her article Misdemeanor Decriminalization, Sasha Natapoff helps her readers to wrestle with this question. The answer may not be as encouraging as we might have hoped. Continue reading "Decriminalization and Its Discontents"

 
 

Typecastes: Big Data’s Social Stratifications

Recently, Scott Peppet, Dan Solove, and Paul Ohm appeared in a great Al Jazeera comic on big data and privacy, called “Terms of Service.” The comic covered the growth of data-driven companies from scrappy startups to the behemoths we know and fear today. It’s also a good introduction to the problem of discrimination by data and algorithm. For those who want to continue the conversation, Nathan Newman‘s article is an excellent guide to the issues.

Newman has already made several important interventions into the scholarly debate over the effects of big data. Marketing industry leaders have argued that data-driven marketing increases the accuracy of ad targeting. Critics have contended that the opacity and complexity of data flows makes it impossible for the average citizen to understand how they are being rated, ranked and judged. The White House Big Data Report from 2014 was a major validation for critics, compiling numerous problems in the big data economy and taking seriously threats on the horizon. Continue reading "Typecastes: Big Data’s Social Stratifications"

 
 

The Settler-in-Chief

Adam Zimmerman, Presidential Settlements, 163 U. Pa. L. Rev. __ (forthcoming 2015), available at SSRN.

In his famous, unfinished article The Forms and Limits of Adjudication, Lon Fuller posited that certain types of claims—he called them “polycentric” disputes— were incapable of resolution through adjudication. In these disputes the number of interested parties is so large and the potential ramifications of the dispute so vast that it is impossible for each person affected by the decision to participate in the decision-making process through proofs and reasoned arguments—participation which, Fuller argued, was the sine qua non of adjudication. According to Fuller, the binary nature of a second decision-making mechanism—voting—also made elections a poor means for resolving mass disputes, with their multifaceted nuances. Therefore, the only legitimate mechanisms to resolve polycentric disputes were negotiation or managerial direction. One type of dispute that Fuller held out as an exemplar of polycentrism was a labor dispute over wages in a centralized economy: the way in which different levels of increase in wages would have ripple effects across the economy made it unimaginable that a judge or a voter could determine the question of a proper wage.

Of course, Fuller’s claim is contestable, both theoretically and factually. In particular, the rise of complex litigation, which emerged as a significant legal phenomenon after Fuller drafted his article in 1957, has tested the assumption that large-scale disputes cannot be resolved through proofs and reasoned arguments. But the course of complex litigation over the past sixty years has also given Fuller’s thesis some support. Consider, for example, the aggregation techniques that courts in complex disputes have employed: class actions that limit participation rights in return for the promise of adequate representation and MDL proceedings whose bellwether trials are designed to channel most cases into settlement and whose settlement structures take their inspiration from administrative agencies and insurance companies. In each of these, the right of each affected individual to participate through proofs and arguments falls by the wayside. Likewise, some of the “best practices” for resolving aggregate litigation—for instance, providing separate representation for each interest group to prevent conflicts of interest within groups and using statistical sampling to ensure that issues of liability and damages are determined accurately on a macro scale—highlight the difficulty of guaranteeing the individual participation and the individualized assessment of claims that lie at the heart of Fuller’s adjudicatory paradigm.

Fuller’s paradigm casts a long shadow over complex litigation. In recent years courts have seemed especially reluctant to stray too far from the traditional understanding of adjudication that Fuller describes. Courts have declined to head down adventurous doctrinal paths that would facilitate the aggregation of large numbers of cases: think, for instance, of the many cases narrowly construing Federal Rule 23, Wal-Mart’s rejection of the use of trial by statistics, and the increasing judicial resistance to cy pres relief. Whatever the merits of these decisions (and some of them seem to me more defensible than others), convincing a present-day court to use its adjudicatory powers to resolve “polycentric” claims in a single, comprehensive lawsuit is an uphill climb. Yet even if courts are reluctant to adjudicate mass disputes, the disputes themselves continue to proliferate. Predictably, substitute mechanisms have stepped into the breach.

Adam Zimmerman has explored many non-judicial dispute-resolution mechanisms. His latest article turns to another one: presidential settlements, which are deals brokered by the White House that extinguish the legal rights of claimants in favor of an executive-branch compensation system, without judicial involvement or imprimatur. The BP oil spill settlement is perhaps the largest and most recent example. As Zimmerman recognizes, however, presidents have been hammering out similar deals since the earliest days of the Republic. In the past four decades alone, President Carter negotiated, and President Reagan implemented, the Algiers Accords, providing a compensation mechanism for claims arising from the Iranian Revolution; President Clinton engineered a settlement between Holocaust victims and banks that had confiscated Jewish bank accounts; and President George W. Bush brokered a deal between the government of Libya and the victims of the Lockerbie bombing. Over the years presidents have also intervened to resolve labor disputes—a role that calls to mind Fuller’s argument that such disputes are classically polycentric and therefore beyond the legitimate reach of adjudication. Continue reading "The Settler-in-Chief"

 
 

Privacy and the New Press

In The First Amendment Bubble, Professor Amy Gajda comprehensively examines privacy threats posed by digital media and “quasi-journalists” and demonstrates how their intrusive practices threaten existing press freedoms. The law Gajda addresses is mainly tort law and First Amendment law. Through a wide-ranging survey of reported cases, she documents trial court judges’ growing reluctance to interpret First Amendment precedent to protect journalists who are sued for invasions of privacy, intentional infliction of emotional distress, or other torts. She attributes this judicial reluctance to perceived and real changes within the media itself, including the rise of “quasi-journalists” unmoored by journalistic ethics or a sense of social responsibility, the growing use of invasive newsgathering technology, a tell-all culture enabled by social media, and competitive pressures to both sensationalize the news and present it to the public without benefit of editorial judgment.

Gajda warns that journalists have “pushed the envelope” of First Amendment freedoms so far that the First Amendment bubble may be about to burst. She documents the judicial backlash against journalists’ broad claims of constitutional protection by presenting hundreds of examples gleaned (mostly) from trial courts around the country. She argues convincingly that a legal strategy of pushing every First Amendment argument to its outer limits may backfire on journalists and news organizations, since courts increasingly lump legacy media with internet scandal mongers such as TheDirty.com, and become skeptical of media claims that they provide the public with newsworthy information. Continue reading "Privacy and the New Press"

 
 

Human Rights for Corporate Persons?

Turkuler Isiksel, The Rights of Man and the Rights of the Man-Made: Corporations and Human Rights (January 7, 2015), available at SSRN.

The Citizens United and Hobby Lobby decisions have drawn heavy fire from critics of the Supreme Court’s ascription of constitutional and statutory rights to corporations. According to Professor Turkuler Isiksel, a political scientist at Columbia, things may be even worse than those critics appreciate. In the paper referenced above, Isiksel illuminates and offers a trenchant critique of disturbing developments in the transnational arena that may be unknown to specialists in U.S. corporate law. Multinational corporations are claiming that, as legal persons, they are entitled to the rights of human persons under international human rights law.

These assertions seek to shield corporations from domestic regulations imposed by host countries in which they do business. Isiksel’s primary focus is the international investment regime, consisting of a large web of bilateral investment treaties and regional free trade agreements. These are designed to promote foreign investment by guaranteeing protection from expropriation and excessively costly regulations for corporations that have invested in countries that are parties to these agreements. When disputes arise between a corporation and the host state, they are typically resolved through arbitration. Arbitral tribunals are supposed to apply the terms of the particular investment agreement but “they increasingly also make use of human rights law to assess state behavior toward foreign investors.” (P. 38.) Isiksel notes that “[i]nternational human rights law is congenial to firms looking to challenge state measures because it offers a framework for contesting the treatment of private actors by states.” (P. 40.) Continue reading "Human Rights for Corporate Persons?"

 
 

New Wine, Old Bottles, and a Do-Nothing Congress

Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1 (2014).

The Rivers and Harbors Act of 1899 was adopted to protect against hazards to and interference with navigation. It prohibited “creation of any obstruction to the navigable capacity of any of the waters of the United States” or altering or filling navigable waters (§10) and also made it unlawful “to throw, discharge, or deposit . . . any refuse matter” into navigable waters “whereby navigation shall or may be impeded or obstructed,” although the Corps of Engineers could permit such a discharge if “anchorage and navigation will not be injured thereby” (§13). For two-thirds of a century, those provisions operated as one would expect. Then came the modern environmental movement, and in short order the courts and the executive branch turned these provisions about obstruction to navigation into a water-pollution control regime. As President Nixon drily put it in issuing an executive order that created a sweeping new pollution permit program under §13, the Act’s “potential for water pollution control has only recently been recognized.” Richard Nixon, Statement on Signing Executive Order Establishing a Water Quality Enforcement Program (Dec. 23, 1970).

This striking repurposing of a 19th century statute to solve 20th century problems is not unique. EPA’s current reliance on the Clean Air Act to regulate greenhouse gases can be seen as another example, this time using a 20th century statute to solve a 21st century problem (though the gap between the original conception of the statute and its repurposing is much less dramatic in this later instance). Jody Freeman and David Spence have now provided a valuable, and quite sympathetic, analysis of the technique of using “old statutes” to address “new problems.” Continue reading "New Wine, Old Bottles, and a Do-Nothing Congress"