Wednesday, May 31, 2006

One Stop Ceballos Shop

In lieu of one of my long-winded original posts, here's a run down (edited, believe it or not) of other blawgs and news sources on the Supreme Court's Garcetti v. Ceballos opinion concerning the free speech rights of public employees (see how interesting employment law and constitutional law is?):

From Marty Lederman of SCOTUSBlog:

The looming question in the case was not so much the outcome but the Court's rationale -- and, in particular, the question whether the Court would hold that a government employee's speech in her "official capacity" is entitled to no constitutional protection -- not even of the modest Pickering/Connick/Waters variety. The Solicitor General urged the Court to hold that "the First Amendment has nothing to say about actions based on [a] public employee's performance of his duties."

Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development. Or perhaps not quite. In order to issue such a holding, the Court would have had to distinguish or overrule Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979), which provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices. Citing Givhan, Justice Kennedy writes that "[t]he First Amendment protects some expressions related to the speaker’s job," even when made within the workplace. But, he argues, "[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.".

So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers. Does today's decision therefore give employees an incentive to go outside the established channels -- to take their concerns to the newspapers, instead of up the established chain to their supervisors? Justice Kennedy has two responses to this perceived "doctrinal anomoly":

And what does this decision protend for the constitutional rights of teachers in their classroom speech and in their scholarship? The answer is not yet clear. Here's Justice Kennedy again: "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."


From Jack Balkin of Balkinzation:

In the original decision in this line of cases, Pickering, the Court suggested that one reason for protecting employee speech is that employees, by their position and expertise, might have information and perspectives that would be particularly valuable contributions to the public in deliberation about public issues. Not all employees would, of course, but enough would that protecting employee speech would leverage their knowledge and expertise. (At the same time, the Court was worried that employees would use their assumed expertise to make false statements of fact that would be difficult for employers to rebut). Thus, we can see Pickering as a case about *information policy*; i.e., a set of decisions about how government should promote the creation and dissemination of valuable information throughout society. The Pickering test, as originally conceived, sought to promote the spread and diffusion of valuable information from people who would have reason to know about government policies and whether they made sense or were inefficient, unwise, corrupt, or illegal.

The problem with this vision was that it ran headlong into the government's interest in preserving workplace harmony and managerial efficiency. No employer likes an employee who makes him or her look bad, and this almost always causes strife within the workplace, since the employee who complains is almost always suggesting that someone else did a bad job, was corrupt, or in Ceballos's case, acted illegally.

Instead, the Court has retreated to a vision of employee speech cases where employees are protected only where they are least likely to be in a position to know what they are talking about, as in the case of Rankin v. McPherson.

After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer's internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, whatever they do, they are pretty much screwed. So the effect of the Court's decision is to create very strong incentives against whistleblowing of any kind. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don't have to reveal their sources).

I am sympathetic to the Court's desire to reduce the burden of ad hoc balancing by creating a bright line rule of no protection. But in this case, the Court's decision doesn't really create a bright line rule, because the boundaries of what is within an employee's job description may turn out to be quite contestable, and will be contested in future cases. Perhaps more important, the Court resolves the original tension in its doctrine by creating a rule that completely undermines the doctrine's information policy goals. All the doctrine does now is protect people like the dispatcher in Rankin v. McPherson, who is contributing nothing to information about the government's operations, but is just blowing off steam. Perhaps the dispatcher does deserve First Amendment protection, but the doctrine shouldn't be organized around her.


Finally, from Paul Secunda of Workplace Prof Blog, a "does he call it, or does he call it!" bit of prophetic writing from March 2006:

As some of you might know, the Supreme Court yesterday heard reargument in the public employee case of Garcetti v. Ceballos . To refresh, Ceballos concerns a case in which:

Ceballos wrote a highly critical memorandum to his supervisors after he determined the sheriff's deputy had lied in the affidavit.

When his supervisors rejected his recommendation to drop the case, Ceballos told the defense attorney about what he thought were the deputy's lies and testified for the defendant at trial.One of the more interesting aspects of this reargument was to see what types of questions Justice Alito would ask of the litigants and whether those questions would give any indication about how far he believes courts should go in interjecting themselves into public employment free speech disputes.

Here's what Alito had to say during the oral argument according to the Associated Press:Alito actively questioned all lawyers in the case, wondering whether employers would have to specify every job duty an employee has to avoid lawsuits like the one Ceballos filed.When Alito suggested employers want to know about problems, [the employee's attorney] said there is "much evidence" that supervisors don't always like receiving "bad news."

Kind of like reading tarot cards from these sparse remarks, but my best guess would be that Justice Alito is skeptical of the employee's position that his First Amendment rights in such situations should trump the government's right to maintain an efficient workplace. In short, I think Alito will side with the majority for the proposition that even if Ceballos' speech may involve a "matter of public concern" under Connick, under the Pickering balancing of interests, the government's efficiency interests in such cases should prevail.Alternatively (and to give myself some wiggle room), the Court might find (with Justice Alito signing on to the opinion) that the threshold "matter of public concern" test has not been met because Ceballos is not talking in his role as a citizen, but in his role as an employee of the government. Under such circumstances, the Pickering balance would not even have to be reached.

Either way, look for a non-employee friendly outcome.

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By Way of Explanation...

It doesn't seem possible to get this sick so often, but you have to remember I am around 8 children (the 9th is on the way, this is what happens when you have 5 older siblings). I watch them 4-5 days a week. I haven't been this sick so often since....I was a professional daycare worker. Which, I remember, is why I quit that job and took on a cushier, better paying grading papers job at my university (Reader: $10.50/hr. for approx. 45 hrs. per quarter. Daycare worker: $5.50/hr, at that time above minimum wage, to help watch 16 children for 8 hrs./day, 3 days/week, and change diapers, and clean the toilets (remember, the training ones that are just plastic chamberpots) 3 times a day).

So my sleeping hours are odd, prone to fitful naps rather than actual rem cycles since I have this fever/chill alternating pattern going on. Why? My tonsils, those useless evolutionary throwbacks, are inflamed. They, like the appendix that also went nutso and burst on me 12 years ago, appear to exist only to get inflamed and hurt you. It's like "we're useless organs! but here's a reminder that we're here! Nyah nyah!"

So that's my explanation for these past few days and potentially light blogging for the week.

Oh, and another explanation: one more month till I have graduate health insurance again--it takes me and my non-doctor dentist siblings longer to figure out what exactly I'm suffering from and how to treat it (go ahead, go self-diagnose yourself at WebMD!). We always guess "a cold" and end up with "strep throat" and lose a bit of time in the process. I remember when I had appendicitis (fortunately, we had state-provided health care during those darker, poorer days), we guessed "food poisoning" and the next morning, after calling the doctor, we realized "not food poisoning" and my appendix ruptured not because of our delay, but because of the surgeon's delay. Go fig.

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Friday, May 26, 2006

What Is Pregnancy Discrimination?

(Will be cross-posted at Feminist Law Professors)


Elizabeth Vargas' departure from World News Tonight smacks of being pregnancy-related--in that she either decided to quit for the health and welfare of her family, or ABC decided to "make her quit" for the health and welfare of their ratings. So what exactly is pregnancy discrimination? Was Elizabeth Vargas discriminated against and unlawfully demoted on the basis of her pregnancy?

Everyone seems to think so. I think she was discriminated against, albeit unofficially and in not so many words, but I really want to interrogate the "unlawfully" part. But first let's take a look at some of the reactions/analysis by the media critics:

From The Columbia Journalism Daily Review Blog, a collection of reactions across the blogosphere (including my own):

Communicators Anonymous, who was inspired by Vargas to start her own career, is infuriated, writing that "women should be furious. Just when we think we are starting to make some headway in the communications business, one of our own gets slammed. Punished for wanting to have a family and a career too, women seem to be viewed as not being able to succeed at both ... especially in a place of power."

At BuzzMachine, Jeff Jarvis posts a "fired-up email" from network news observer Andrew Tyndall about the "terrible message" ABC's move sends to its viewers. "The demotion of Vargas and her replacement by a pre-baby boomer not only makes ABC News' long-term strategy incoherent. It displays a woeful tin ear towards the very demographic ABC News was purportedly courting," Tyndall writes. The "worst workplace nightmare the pregnant employee faces," Tyndall adds, "is the fear that her employer will find some way not to guarantee her job back on return from maternity leave."

And from Dahlia Lithwick, in her article "Pregnant Pause: What's the real story behind Elizabeth Vargas' departure from World News Tonight?" (which also cites me!):

What everyone is talking around are some of the same issues we didn't talk about last year during the brief national flip-out over the dearth of women columnists in major newspapers. Somewhere between the insanity of the assertion that a pregnant woman asked to be benched permanently from a major news show (for her second child but not her first), the bland media assertions that the pregnancy was a convenient smoke screen for legitimate business decisions, and the overreaction from advocates and feminists who see this as brazen discrimination, there may even be some snippets of truth.

At the core of all this chatter is also an interesting and unspoken problem about pregnancy and maternity—and the ways in which women who are fully competent to do any job, at any other time—may nevertheless falter or choose to rejigger their priorities for a few years. There were days during my pregnancies when I couldn't even rinse and spit, much less cover a major news story. When do you think I'll be allowed to write that without setting back the feminist cause?

Everyone is turning Elizabeth Vargas' pregnancy into a referendum on pregnant women in the workplace, and particularly in the media, because it's happening on a big screen in front of us, but also in our homes and our book groups. Vargas isn't just carrying the extra weight of her unborn baby here; she's carrying the weight of a whole nation of people who still see gender in absolute and defining terms. Maybe the reason we can't quite stomach a hugely pregnant news anchor is that we can't even manage to talk coherently about all the ways in which they somehow freak us out.

I don't like the signal ABC is sending out to working women. I don't condone pregnancy discrimination under the pretext that it is for some other bona fide business occupational qualification (BFOQ) or legitimate non-discriminatory reason (LNR) like "ratings, co-anchor chemistry" or "format." But I dont' want to off the cuff accuse them illegal pregnancy discrimination without really considering the issues. It's a curious thing in our legal world that you can be discriminated against, and everyone believes that you are treated unfairly and in ways a person who is not ____ would be treated--but you may still have no legal claim. Unless you're extremely popular and well liked by everyone, I'm sure you all have experienced the feeling of being disliked or unfairly treated or burdened by someone--an employer, teacher, the sales clerk--but having no concrete proof that you are being unfairly treated. You have to talk about salaries and promotions to know whether you're really being stiffed compared to someone of equal rank and qualification. And how do you know they're equal to you? There are always variables of seniority, performance reviews, and what being "qualified" means.

Sometimes you know a person doesn't like you as much as they like another person--but you can't say why, and you don't know how you know--you just know. And you can't document the ways in which you are treated less well than others--but you have reason to believe that they're being treated better. It's harder to prove employment discrimination than you think. The plaintiff has a burden of showing a prima facie case of discrimination on the basis of _____. Then the employer has all sorts of defenses--the aforementioned BFOQ and LNR to say that it wasn't discrimination. Then the plaintiff has the burden of showing that the employers' proferred LNR or BFOQ was pretextual, and merely a smokescreen for discrimination, which they can prove with actual evidence of discrimination (documented incidents or statistics). There are many employers stupid enough to openly refer to their minority or female employees by derogatory names and otherwise degrade them, blatantly give them less pay or assign them to the worst, most menial or dangerous jobs, or have a statistical showing of disparate hiring and promotion practices. But many by now have wised up, shut up, and put up a system of protections to give themselves deniability.

So what is pregnancy discrimination? Well, believe it or not, it wasn't unlawful until 1978, when Congress passed The Pregnancy Discrimination Act, which overruled an appaling Supreme Court decision that said that pregnancy discrimination was not discrimination on the basis of sex (one of the few protected categories). You know, even though women are the only ones who can give birth. The Supreme Court, in its infinite stupidity, reasoned that the classes of persons to analyze was not the treatment of women as compared to men, but rather "pregnant women and non-pregnant persons"--the latter class including members of both sexes--non-pregnant women and non-pregnant men who can never get pregnant. This is so dumb, it's embarassing. But fortunately, the PDA passed, and stated that " 'Because of sex' includes discrimination because of pregnancy, childbirth, related medical conditions, and women affected by pregnancy or childbirth shall be treated the same for all employment-related purposes. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations." That means you can't be fired because you got pregnant. When you come back from your maternity (or paternity) leave, you should still have your job. This is a great law, but applies only to employers with more than 15 employees (so as not to punish small business owners who may suffer debilitating financial burdens if forced to accommodate pregnant employees--many employment discrimination laws are thus limited in this manner).

Although it troubles many, you can view pregnancy discrimination as being related to disability discrimination. That's the whole bit about "similar abilities or limitations"--the pregnant woman should be accommodated in the same manner a person who is unable to ____ would be treated. For 9 months, and 6 months after, like a similarly physically limited coworker, you may have less capacity to perform your job--lift heavy objects, travel, and you may have to take off time because of your "condition." Others think pregnancy is akin to disability because men can be taken out temporarily (broken leg) or permanently impaired by sudden accidents and no one suggests that they are less committed to their work. Keep in mind, these are not like classes in the legal sense--just a way to think about how employment culture treats macho guys playing rugby versus fragile women who get knocked up.

A few cases are salient in a discussion of whether Elizabeth Vargas was discriminated against on the basis of her pregnancy. In Troupe v. May Dept. Stores, a woman was placed on probation for repeated tardiness due to severe morning sickness. She was fired, and her supervisor told her that the company discharged her because she was not expected to return to work after she had the baby. I can't imagine that kind of employer language being deployed now, but whatever. The 7th Cir. said that the woman was not a victim of pregnancy discrimination, because the timing of the discharge suggests that it was her tardiness that was the reason for her termination--she was an unsatisfactory worker. This is interesting because ABC has strong arguments that Vargas sucked as a sole-anchor after Woodruff's injury. Without that "chemistry" of the two anchors, ratings plummeted. She couldn't report from the field. She was not expected to until about a year from now, after her maternity leave. Keep in mind, ABC fired Woodruff too--and Troupe says that employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees for the same unsatisfactory work.

Vargas is not only protected by the PDA, but also the Family and Medical Leave Act (FMLA), which guarantees up to 12 weeks of unpaid leave for the birth or adoption of a child (but you must have worked ther for at least 12 months and it applies only to employers with 50+ employees). It applies to child bearing but not child rearing, so don't expect employers to stay flexible after you come back from your leave. So an instructive case here is Back v. Hastings, in which a school psychologist was denied tenure after she came back from pregnancy leave. The employer thoguht she couldn't be committed to her job if she also wanted to be a "good mother." This is sex-stereotyping, but still the employers argued that the woman had no case because fathers similarly situated weren't treated differently. Again, it's about the legal classes to compare--is this a case of the employer discriminating between men and women or "parents and non-parents"? Stereotyping about the qualities of mothers is a form of gender discrimination. The 2d. Cir. ruled that it was sex stereotyping and discrimination to expect that women will divert from work now or in the future simply because they become mothers. Again, this is interesting if you think about the Vargas case--no one questions Bob Woodruff's committment to his job after he recovers from his injuries--we all "assume" that once he heals, he'll be back, slightly scarred, on the big screen. But we expect (and Vargas' recent comments suggest) that Vargas will be less committed. She won't want to go to Iraq or Iran with a new baby. She'll want to cut back on hours. She'll want to take care of her kids and be a "good mother." This type of sex stereotyping is much more interesting and relevant to Vargas' case. But I doubt it was that blatant.

For a big corporation like ABC, I doubt you'll find that kind of "smoking gun" of a producer telling Vargas, "Gee, it's a shame you got pregnant now, with May Sweeps coming up. You couldn't have picked a worse time! Did the condom break or something? That's the catch with being female I guess, you never know when your body will do something that screws with your job duties. Well anyway, what's done is done. Not that I'm not happy for you! It's always great when a woman is blessed with a child! Just take it easy, Charlie will take over for you, cause it's not like you can fly to the warzone or even fit behind the anchor chair now, right? Heh heh. And when (ahem) you come back, we'll talk about your future here."

I'll bet there was a lot of mention of "chemistry" and "format' and "ratings" when they talked Elizabeth Vargas down from her job. It's a lot less blatant and painful than the words "you're being fired from your new, more senior position, and demoted back to your old position because you got pregnant." I'll bet what they said was, "You know, we always thought of you and Bob as being a team, a dynamic duo! You know, to capture a younger audience and the female demographic. But with Bob injured, and your joyous pregnancy, well, things just haven't been the same here. Not that any of this is yours or Bob's fault. Neither of you could have planned the disruptions to the broadcasting schedule! But you know, for the sake of stability, and because ratings have been plummeting, we've decided to go back to the single anchor format viewers are more comfortable with. We gave the co-anchor thing a good shot, but viewers just didn't respond. And the co-anchor format depends so much on the chemistry of the anchors--it's a volatile structure that we've decided to abandon. So we're going with Charles Gibson--the viewers know him, are comfortable with him, and trust him. We love what you've done for ABC--we just think you're better suited to a different news program and format. And don't worry--when you come back from maternity leave, you'll have a prominent position at your old job with 20/20."

That sounds a lot better, doesn't it?

In the end, I don't know whether Vargas was discriminated against on the basis of her pregnancy. Everyone is taking care to say that it was for all these other reasons--mainly, ratings--and because Elizabeth needs to take it easy and has changed her mind about how she wants to spend her new motherhood. Dahlia is right--there is a lot of hyperbole out there about this, and a lot of desire to make Elizabeth the martyr for working mothers. But whether ratings are a smokescreen, and whether or not there's a smoking gun, where there's smoke, there's some fire. There probably is some truth to the speculation that the pregnancy played a role in ABC's decision. But absent some other proof, like statements by ABC or evidence of disparate treatment, I can't say it was pregnancy discrimiantion per se. But I can say that there are plenty of genderized stereotypes about female workers, pregnant, potentially-pregnant, or already mothers--and that if anything, this Vargas brouhaha should make us talk about that and dispel such stereotypes. But most of all, this should make us think about and reevaluate our family leave policies and healthcare system, so that we don't think of women as having to make a choice between a having a kid or having a career.

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Thursday, May 25, 2006

Did I Just Hit The Mainstream Blogosphere?

As many of my posts squealing in delight over Sitemeter spikes attest to, I harbor no delusions about my importance in the blogosphere. I was ecstatic the day I grew from 10 to 25, and then to 50. So far, 50-70 is the new, much appreciated average after many high profile plugs from far superior blawggers like Dan Filler from Concurring Opinions, Larry Solum from Legal Theory Blog, and my original patron and Blogfather Ann Bartow--who has gone so far as to let me have guest stint over at Feminist Law Profs. But so far, this is within the smaller (albeit more meaningful to me) world of the "blawgosphere." But it's like that old song--if you can make it here, you can make it anywhere. Besides my old college friends and a some fellow disgruntled grad student bloggers I've come to identify with, I believe my readership (and indeed, my blog) has changed in the past 3 months to become more of a legal-minded group. I get a bunch of ISPs from schools and state attorney's offices, I'm on more blawgrolls than blogrolls, and I've grown comfortable here. So when my readership significantly spikes out of the 50-70 range, into hundreds I gotta wonder--who the heck is linking to me?

Well, today, the Columbia Journalism Review in a post entitled "Bloggers React to Anchor Shuffle With Dismay". And another link in one of my daily must-reads--Slate--by one of my fave legal analysts, Dahlia Lithwick in the article "Pregnant Pause." (OMG! Dahlia Lithwick said I wrote a "smart" post! Everyone should read Slate, it's basically run and edited by ex-lawyers--hence the column that gets my heart beating, Jurisprudence) I cannot tell you how weird these past five months have been, to go from a blog read by a few friends if they remember (and they never come by to check now), to a disgruntled grad student cohort thing, to become a part of the blawgosphere (which made me feel legitimately a scholar after a day spent changing diapers) and finally to being cited by a journalism blog as being a quotable commentator? Does this make me more creditable? Collecting links when you're a relatively unknown blogger (with a very young blog) is like padding a thin CV--when you have a rather small (but much appreciated) readership and about 20 links (I'm a slimy mollusc in the Truth Laid Bear ecosystem), every one counts.

Glenn Reynolds, watch your back! All I can say is, I owe this all to Ann Bartow, The Blogfather.

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Wednesday, May 24, 2006

It's Hard Being A Pregnant, Working Mom--Even if You're Elizabeth Vargas

Cross-posted at Feminist Law Professors.

Charles Gibson is the "new" sole anchor of ABC nightly news, replacing the co-anchor team of the injured Bob Woodruff and the pregnant Elizabeth Vargas:


Less than six months after naming Elizabeth Vargas and Bob Woodruff over Charles Gibson as the successors to the late Peter Jennings on "World News Tonight" on ABC, the network announced yesterday that it was scrapping its dual-host experiment and installing Mr. Gibson as the sole anchor.

ABC's move comes after Mr. Woodruff was seriously injured by a roadside bomb in Iraq in late January, sustaining head wounds that have since kept him from appearing on television, and after Ms. Vargas announced in February that she was due to give birth to her second child in mid-August.


So far, I'm not that surprised--ABC has needed stability in its nightly news program since Peter Jennings' death, and with the injury of Woodruff a few weeks in and Vargas' pregnancy it just makes sense to go to the reliable standby. Gibson subbed for Jennings during his illness, and I thought the job was his until ABC announced the co-anchor thing in an attempt to get a younger audience.

But what surprises me are the oblique references to the complicated nature of Vargas' position within ABC after she announced her second pregnancy:


But in the end, Mr. Gibson not only got the job he sought last year, but he also got it alone, as Ms. Vargas was shunted to the sidelines. When she returns from her maternity leave in the fall, it will not be to "World News Tonight," but to the prime-time news program "20/20."

Earlier in the conversation, he had spoken with modesty of his elevation to the anchor desk, saying: "I am to some extent a creature of circumstance to horrendous events, Peter's illness and Bob's injury, and to a joyous event, but nonetheless one that affected all of us, which is the pregnancy for Elizabeth."

Ms. Vargas said in an interview yesterday that she felt "an enormous amount of sadness" that a job to which she had aspired for sometime had slipped from her grasp.

Ms. Vargas, 44, said that her doctors had been hounding her to cut back on her work or risk being confined to "bed rest," and that their admonitions influenced her decision to begin her maternity leave later this month. When she returns to work in the fall, she said, she will limit herself to her other job at ABC, as co-host of "20/20."

Ms. Vargas said she had ruled out returning to "World News" as a co-anchor following her maternity leave because of the stresses of raising two young children.
"I don't think it's fair to a new baby to have a new mom who's off in Iraq or Iran all the time," she said. "I certainly intend to be doing that in a few years. But right now it's not realistic for me." (In February Ms. Vargas was quoted as telling The Philadelphia Inquirer that she expected to return to Iraq soon after her baby was born.)

Okay, not to write another post on the alleged "Mommy Wars," and I do concede that is difficult to raise your children if you're in Iraq--but does it seem like Elizabeth Vargas amended her career plans and parenting philosophy only very recently? I wonder if she changed her mind (which she is entitled to do of course) or whether ABC effectively changed it for her. That is, did she tell them "I won't be coming back to "World News" after my maternity leave" or did ABC say "You won't be coming back to "World News" after your maternity leave? Pronouns make a difference. The language of the article is peculiar--Vargas is "shunted to the sidelines," suggesting that she wasn't the one who wanted to quit the position, and she says that she feels "an enormous amount of sadness" over a job that "slipped from her grasp"--a job, in other words, that she didn't want to let go of.

I'm not alleging pregnancy discrimination per se here--Vargas wasn't really "fired," she will still have a job at ABC when she returns--but it won't be the same job. And the reasons for letting her go from the position don't appear on the surface to be gender or pregnancy related. (It was about "chemistry" and "format") But still, it's a very public reminder of how difficult it is being a working mom is, and how much pregnancy can disrupt your career plans. It's not Vargas' fault that this is the case, and I'm not saying "don't get pregnant or you won't get that promotion/tenure/anchor position." But as Vargas' case indicates, being a new mother trying to balance work and family (whether it means long hours at the firm or going to Iran) is difficult, and sometimes causes the employer to assume that the new mother will be less devoted to her job than a new father would be. And no, this is not fair.

By the way, did you notice that the circumstances around Bob Woodruff's dismissal due to his injuries sustained in Iraq didn't appear to be as controversial? They weren't even discussed in the article. It just seemed a forgone conclusion that there wasn't much to this story--a hero gets injured, is recovering, and can't do much till he heals, poor guy. But he'll be back on his feet running soon enough--unlike the the new mother, who will be burdened with babies in her arms.

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How Do You Take Your News? Depends On Your Age, Education Level, and Gender

Cross-posted at Feminist Law Professors.

I have to admit to not watching much nightly news--when I'm not sick or suffering from grad student ennui (during which times I can consume many hours of classic movies, bad syndicated sitcoms, and hours of Star Trek: The Next Generation) I limit my TV watching till after 9 pm or so. In general, I don't get my news from TV (and I avoid cable news punditry or "where is that missing white girl" watch in general)--I'm more of an NPR/print media/Internet media kind of girl, which allows me to check about 3 newspapers (LA Times, NY Times, and the Washington Post) a day, in addition to several literary and political magazines a few times a week. I suppose it would be more efficient to just watch a half hour a day. But I wonder how many people my age (25) actually sit down to do so. The reason I get most of my news from the online editions is because I can scan RSS feeds as I type up footnotes or check email. I can take "breaks" from my paper on race conscious pedagogy and gender dynamics and read about, say, the long-awaited legislative resistance to assertions of executive power. I can also check the RSS feeds of at least ten law blogs throughout the day. My productivity probably suffers, and this contributes to my short attention span and strange compulsion to multitask everything--but it's a good way to stay informed throughout the day and it relieves the tedium of writing "Id." or "Cf." over and over again.

But once in a while I'll catch some major news network broadcast, and admire Brian William's permatan. I'll watch Jim Lehrer and wonder why I forget to watch PBS more. I'll catch my nightly local freakout news and find out about bobcats wandering around the suburbia that encroached upon their environment, pedophiles that probably live down the street, and dangerous sex games that my nephew is probably playing. Then there will be the requisite "awww" story about some girlscout, lost-and-found puppy, or heartwarming tale of courtly love, Orange County style. I watch both these shows, and I wonder--what the heck is the demographic each show is targeting?

In fact, according to the Pew Research Center, here are the demographic breakdowns per medium of news consumption and by time of day:
  • Network news audience "are an aging group. A majority (56%) of those age 65 and older say they regularly watch nightly network news; less than a third as many Americans under age 30 (18%) regularly watch these news programs"
  • "The cable news audience is slightly more affluent and well-educated than the network news audience. It also is more Republican: 46% of Republicans regularly watch cable news compared with 31% who watch network news. "
  • "The online news audience is young, affluent and well-educated. More men than women go online to get news, but the gender gap has narrowed in recent years. The increase in online news use since 2002 has been particularly sharp among racial and ethnic minority groups."
  • "While conservatives and liberals seek out different news sources, men and women also have their own distinct preferences. Men are more oriented toward newspapers, radio news, cable television news, and online news. Women are more loyal to the major TV networks, as they are far more likely than men to watch network morning shows like the Today Show and the networks' news magazines, such as 60 Minutes and Dateline. In addition, a higher percentage of women than men now watch a nightly network newscast on CBS, ABC or NBC. There was no gender gap on network news viewership in 2002 and only a slight gap in 2000. "
It feels a bit strange to feel, well, less like a woman simply because I take my news differently. It's like taking your coffee black and strong, because "Shoooot, I'ma Man!" instead of with cream and sugar. But it bothers me that demographics have so much to do with content. I don't watch The Today Show, Good Morning America, or my local news shows because they annoy me so much. I really don't like that conversational, 'round the coffee table conviviality first thing in the morning. Maybe because I'm a nightowl, and tend to stumble bleary-eyed towards my laptop at an hour I do not wish to be awak at and read the headlines with my cup of tea in curmudgeonly silence. I definitely hate the fear segments on my local broadcast, and the silly waste of resources the show spent on some cat with cancer instead of covering some local politics. And don't get me started on my crappy local paper. So all these preferences seem to indicate that I like my news like my coffee--straight up. I don't like bells and whistles, frills, fluff or any of those genderized terms for "extra crap." So does that mean that if you like to read about politics, international relations, and business you're more like a man than woman--or rather, you're more likely to be a man than a woman? Does this suggest that men, in their viewing and reading choices, are more intelligent consumers of news than women? (They don't waste their time on cats) Is this why female-targeted news shows and segments are so dumb and crappy? Do producers assume that women like stupid fluff and thus the quality of the news program is commensurate to that level of taste?

I don't mean to be glib. I am honestly wondering what came first--the crappy taste of the targeted demographic or the crappy news show that promotes such crap. I wonder if all the recent discussion about whether Katie Couric has the sufficient gravitas to be the sole anchor of a nightly news (the flip will be that her fluffy demeanor will attract women viewers). It's great that she'll be the single anchor, voice of God type distiller of news--maybe then producers will finally realize that you do not have to report on crap just because you're a woman, and you don't have to like it just because you're a woman. But I've been hoping for this for a very long time, and even though I am young, I haven't seen as much change as I'd like. I know that Barbara Walters was the first female co-anchor--and then I see commercials for her vapid yearly "Most Interesting People" show. What happened to you, Barbara? Is probing Whitney Houston and getting "Crack is Wack" as a response really journalism to you? Do you honestly think The View is quality television?I watch Diane Sawyer gossip with movie stars. I watch all these smart journalists--Campbell Brown, Meredith Viera (another View victim), Ann Curry--and I think, you are so much more than coffee table chatterboxes. I wish there were more Christiane Amanpours, Nina Totenbergs, Linda Greenhouses, Sylvia Poggiolis, Paula Zahns, Gwen Ifils, and Linda Gradsteins. I wish there was no Natalie Holloway "she's still missing" obsessed Greta Van Susteren, or husky voiced Rita Cosby.

I wish for a lot of things. And I wish Katie Couric luck in her transition from morning to night. I won't be "following" her, since I never started with her in the morning--but I will check her out.

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Tuesday, May 23, 2006

From the NY Times: Changing a Feminist Mind

(Cross-Posted at Feminist Law Professors)

From the NY Times, "Changing My Feminist Mind, One Man At a Time":


FOR the past decade, I have struggled with two competing images of the opposite sex: oppressor, and dream date.

[W]ith my working mother as a role model and an influential teacher as my guide, I started to identify as a feminist. I read, re-read, and underlined "Backlash," "The Beauty Myth" and "The Feminine Mystique." I grew enraged by what I learned. Enraged, and utterly confused. Who was keeping women down? Men. But who were just so cute that I couldn't sleep at night for thinking and writing and obsessing about them? You guessed it, the self-same.

Then I went off to an all-women's college, Smith, where I didn't see a whole lot of men. I joined the campus women's group and studied up on gender issues. My rage toward men in general grew ever stronger, as did my desire to meet that one specific man who could make my dreams come true.

Friends wondered why I couldn't leave my politics at the door and just go on a date for goodness sake. My uncles joked that perhaps I'd be happy if I could find a nice Irish girl to settle down with.

All of my relationships, or lack thereof, began to take the same shape. I would meet a man, and our first date would consist of that lovely unraveling of mundane details. Then would come the second date. With our vital stats out of the way, we'd begin to discuss other, seemingly benign, topics. But somehow, every road led to sexism. Soon I began to recognize a familiar look on the faces of the men I went out with, the physical incarnation of Check, please. I knew that I could be too harsh, too quick to judge and probably guilty of the very sexism I railed against. But I couldn't back down.

I couldn't because the stakes are too high, and the large-scale issues of sexual inequality remain: Women still don't make equal money for equal work; we are still the victims of rape and domestic violence; we are, for the most part, still solely responsible for child-rearing and cooking and cleaning, no matter what our career choices.

And now I have fallen for a man who understands and respects my feminist beliefs, and who also takes me to dinner, holds the door, calls me Babydoll in a slow Southern drawl. Embracing those contradictions has led me to discover a world between the harsh reality of sexism and the airy wishes of my love-drenched fantasies.

It's true what my Smith professor said about progress depending upon one individual changing another for the better. What she didn't say was that, inevitably, the change goes both ways.


An article entitled "Changing My Feminist Mind, One Man At a Time" is not something I would normally expect to like--but I kind of did, at least the end. Mainly because it seems similar to, and then wildly diverges from my own complicated views about love, marriage, and feminism. Maybe it's because author and I are so different. For one thing, I didn't have a working mom (although she definitely is a role model), and I didn't have very strong female role models growing up. My father is as authoritarian and, well, just plain mean with my mother as he is with us kids. It's not easy being an Asian American feminist, particularly if you were raised in a very traditional and restrictive household.

But somehow I too became a feminist, read those books, and joined all-women organizations at my co-ed large state university. But I didn't become particularly enraged at men per se. It's not like I meet men and think "you sperm-wielding oppressors!" I became angry at the system of patriarchy that keeps women in second class citizen status--the wage discrepancies, the failure of the ERA, the failure of comparable worth theory, the de minimis family leave policies, the late-coming to the equal vote party (and the pregnancy discrimination act party), the culture war over women's sexuality, bodies, and reproduction--just a lot to be angry at and hate. But it's hard to explain how I can be angry at this amorphous concept of The System and disaggregate that from any animus I can feel towards the class of men in general, or a man in particular. It's the same way I believe that racism is real and deeply embedded into our legal system and social structure--I hate everything about that. But I don't hate all "white" people or think every white person I meet is consciously racist.

I guess this is why I wanted to be a lawyer–I see things in terms of laws and institutions that must be changed as much as individual minds. There really is so much at stake–and it is important to change minds, one mind at a time. But it is also important to recognize that it the individual is different (in size, power, workings) from the larger social structure in which the individual exists, and that both must be worked on to effect change. It’s not like you either change a mind or change a law–try both! Both efforts will yield different types of results, owing to the fact that the individual and the institution are two different types of things. Also, it is dangerous to always conflate an unknown individual with the despised meta-affliction plaguing society. I know that it is individuals with either conscious or unconscious bias who perpetuate the biases of the institutions and larger social structure–but when I’m meeting someone for the first time, whether a regular joe or a lawmaker, I try to disaggregate the resentment I feel towards the “system” and try to recognize the individual (and as yet unknown) humanity of the person.

In fact, I rather dislike the author's perpetuation of the stereotype of the man-hating feminazi. It is not wrong to hate patriarchy--but it is just as stereotypizing and close-minded to hate every man for his gender. Also, if you read the article, the author makes this bewildering generalization about men--she loves their "linear and decisive" thinking--what's up with that? I know lots of men who meander and I know lots of women (including myself) who are pretty quick decision makers. She also kind of describes men as cuddly, body warmth giving pets. I agree, many bonuses on a cold night, particularly if you want to save on your energy costs this winter--but it seems so strange to both hate men in general and like them for being aftershave-scented hug providers. Not that it doesn't make sense, I like aftershave scented hugs--but it's just a bit twisted to have so much animus and an almost condescending, objectifying affection. In a way, it's like the misogynistic tendency to disregard the intellectual and productive value of women, but like their cute asses and racks. When you think of members of the other gender as anything less than the whole person, when you start liking stereotypical abstractions ("domestic goddess," "madonna," "knight in shining armor") or break them down to body parts (boobs, muscular arms)--it smacks of being equal-opportunity sexism. So these are the differences between myself and the author. But in the end, we are both feminists, and we both can happily, proudly, and rightly call ourselves feminists. I am glad to read an article by a "feminist" and not a "post-feminist," or say, Caitlin Flanagan. And besides, what I liked most was the end of the article.

I too have had my share of bad dates, or boyfriends that would have been but for our disagreement over _____. So I felt a kind of kinship with the author over her description that dates that went bad over a discussion of ____. Those little date-breakers, like the time I found out a guy I liked was into guns and I'm all about gun-control (and no, I don't mean holding the gun with both hands). For her, all roads led to sexism. For me, it's usually a disagreement over welfare reform, affirmative action, and gay rights. That's just on the pre-dating stages or the first date though--I won't sleep with a guy who's not pro-choice, although I never know how to raise that subject delicately. I just figure that if a guy wants to touch my body, he should recognize that it's my body--and respect that. But back to dates that go bad--I liked that the article ended with a date and relationship that went well. One that taught both partners to compromise, have respectful disagreements, and recognize that each is more than the sum of his or her political beliefs.

In many ways, I've been lucky. Even though I've been raised in a very inhospitable environment for feminists, I've managed to become my own woman and find my own political beliefs--and hold on to them for this many years. And though I have a rather anti-feminist father, I've met many liberal and feminist men. I've met my share of anti-feminist men and women, believe me--particularly in my college "Biomedical Ethics" class, half of which was devoted to the subject of abortion and sexuality. But best of all, I have been able to have deep friendships, all the while respectfully disagreeing with, pro-choice, very conservative men and women--mainly because we've both been able to see past the immediate issue and consider each other in our full and diverse humanity. I haven't yet found "the one" yet, but this article, and this post about SUNY Dean Michelle Anderson's surprise at finding herself a happily married feminist gives me much hope for that.

(I probably will get some flak from casual readers or trolls for yet another post containing "bubblegum moralisms," ardent feminism, and prattlings about choice and sexuality--but in the end, this is my blog post, and there is no sense in self-censoring and bowing to the heckler's veto)

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Friday, May 19, 2006

Dan Filler on the Fourth Circuit's Decision Re Racist Speech in the Workplace

Dan Filler has a truly excellent post on Jordan v. Alternative Resources Corp., which I shamelessly crib here. Future law students should note the civil procedure issues (the case was dismissed under rule 12(b)(6), or failure to state a claim upon which relief can be granted. Thus, the case was dismissed before it could even go to a jury, since no factfinder could possibly find for the plaintiff. Employment discrimination law is a fascinating synthesis of civil procedure, contracts, torts, constitutional law, and remedies. And if this case ruffles your feathers, then do consider taking ED in law school. This case in particular will have consequences for determining what constitutes a hostile work environment, what constitutes adverse retaliatory action for the reporting of Title VII violations, and what is the threshold for a sufficient pleading. A rather scary decision in all respects.

Dan's post:


Full Court Press has a good post on a recent Fourth Circuit decision, Jordan v.
Alternative Resources Corp.
, in which a divided panel upheld the dismissal of a Title VII race discrimination suit. In particular, the plaintiff argued that he had been fired in retaliation for making a complaint to management about what he perceived as a racially hostile working environment. The post at Full Court Press offers many more details, but the core of the court's holding was that the employee was "unreasonable" in believing that his co-worker's comments created a hostile working environment.

What were these comments that no reasonable African-American man could possibly have seen creating a hostile work environment? While watching a news account of the arrest of the DC snipers, his co-worker exclaimed: "they should put those two black monkeys in a cage with black apes and let the apes fuck them." That according to the dissent. The majority redacted the text a bit, so that the gentlememan only suggested that the apes "f--k" them. In the aftermath of this incident, the plaintiff was told by colleagues that this offending speaker had used similar language in the past.

Two thoughts. First, it was interesting to see the majority turn what was clearly family-unfriendly language into, well, family-barely-friendly text. Apparently, for the majority, the "fuck" aspect of this comment was most offensive. Calling African-Americans monkeys - and thereby calling upon a rich
history of bigotry - was merely being accurate. (No doubt some will argue that the "fuck" was irrelevant to the claim here, since it was grounded on the monkey image. But that is clearly debatable, if only because the term amplified the speakers intensity of hate.) Judge King's dissent was very aggressive in terms of word choice. FIrst, he restated the facts, including the word "fuck." Then, when citing contrary authority, he explicitly noted in parentheticals that those cases involved the use of the term "nigger." We all know that the mere act of uttering this word is powerful and controversial. His point, presumably, was that any assessment of whether such abusive language could be reasonably viewed as creating a hostile environment cannot occur when the majority is perfuming these statements. Racist language must be addressed squarely, because the mere softening of terminology in a recitation of facts serves to retell a false narrative, one that the plaintiff never experienced. (In some ways, the panel's decision to obscure the actual language - characterizing it rather than providing a precise image - brings to mind Eugene Volokh's argument that you can't discuss the cartoons spoofing Mohammed without seeing the precise images that are under discussion.)

Keep in mind that this case isn't about the merits. The question is not whether these statements actually created a hostile environment. It's not about whether the co-worker ever made these statements. It simply about having a day in court to let a factfinder decide these things. The Fourth Circuit concluded that NO reasonable African-American man, having heard these comments in the workplace, could ever have concluded he was experiencing a hostile environment. Thus, the case cannot proceed to trial. That just doesn't seem right to me.


It doesn't seem right to me either.

Update: It seems that the one time I lapse in my daily reading of Workplace Prof Blog, I missed that there is a distinction between the legal issue of retaliation for reporting discrimination and that of a worker's protected activity for which they were improperly dismissed. Paul Secunda makes this clear:

Unlike the case pending before the Supreme Court now, the question is not whether adverse action has been taken against Jordan, but whether he engaged in protected activity. This is the plaintiff's burden in a so-called opposition retaliation case, as opposed to a participation case where the alleged retaliation has occurred because the plaintiff has filed a charge of discrimination with the EEOC or participated in an investigation or other EEOC proceeding.

Courts have found in the past that engaging in boycotts to protest a store's racially discriminatoy hiring and promotion policies is protected activity (Payne), so it is less than clear why reporting an ugly epithet like this employee did, consistent with eradicating racial discrimination and harassment from the workplace, would not qualify.

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The Racial Politics of America's Next Top Model

When I wrote the blog post The Racial Stereotypes and Voting Politics of Dancing With the Stars, I thought to myself, "blog power! no self-respecting journalist or respectable publication would take the time to dissect something so banal as the racial constructs in reality television!" But apparently I'm not the only freakshow who writes these kinds of things! J.E. Dahl, writing for Slate, has this to say about Tyra Banks possible internalized racism:

Though she illustrates her allegiance to the sisterhood by making loving references to her booty, for the past few cycles Tyra has been discouraging any behavior that could be considered "too black."

Reality television has not been kind to black women, who are often portrayed as bitchy (see Alicia from Survivor: Australian Outback), crazy (see Stacy J. from The Apprentice II) or both (see Omarosa from the first Apprentice). So, on some level, Tyra may be working to counteract the efforts of producers who cast self-described "strong black women" hoping for a bit of drama. When casting Cycle 3, Tyra made her diva disdain known:

"I don't want another black bitch," said Tyra to potential contestant Eva Pigford, confronting what had long remained subtext on reality TV.

Tyra seemed unable to bear the fact that Danielle had regional inflection in her voice. Even more to the point, Nnenna, the recently booted stunner from Nigeria, also spoke with a thick accent, which Tyra and the rest of the judges found fetching. Evidently, an African accent is fine, but not an African-American one. At last week's judging, Tyra told Danielle the judges "didn't trust her when she opened her mouth." But the truth is that the other judges loved Danielle, especially when she spoke, because she was articulate, modest, and hugely charismatic.

On last night's show, when Tyra was evaluating finalists Joanie, Danielle, and Jade on their Cover Girl commercials (the girls had to recite a few lines about mascara), she singled Danielle out, imitating her delivery and demonstrating the difference between an acceptable black Southern accent, and an unacceptable one. Tyra's deft imitations of the cadences of black speech were impressive, if somewhat broad, and suggest that she too may have learned to modify her speech. Perhaps Tyra was simply trying to toughen Danielle up: The fashion industry is run by white people, many of whom may think "black" or "country" accents are uncouth, a mark of poor upbringing. But shouldn't Tyra be using her clout to challenge this stereotype?

On camera, many of the black ANTM contestants talk about how thrilled they are to be in Tyra's presence; how her success as a black supermodel inspired them, helping them see themselves as beautiful for the first time. But how does she repay their adoration? By trying to eradicate ethnic idiosyncrasies in their personality and appearance. Tyra tells the aspiring models that they need to develop a thick skin. But she seems to think dark skin should be tougher than light.

To be honest, I don't watch this show much. I don't watch much reality television, not with the nightly offerings of crime dramas and Star Trek in syndication. Dahl's points are illuminating though--I've always thought of ANTM as being a variation on any other competition show--you know, the dance off, the cook off, the be-a-corporate-bastard-off. I just thought of Tyra Banks as another Donald Trump, Martha Stewart, that Japanese Liberace guy from the original Iron Chef--appropriately bossy, sarcastic, demeaning to others, and above all necessarily melodramatic. As if all the corporate plattitudes really mattered, as if all the requirements for being a model were intrinsic or naught (if so, why do they pluck 14 year old girls from Romania?), and as if losing this cooking battle means you have lost your honor and must perform harakiri. This is why the shows become tedious--eventually you stop wanting to hear about leadership and "synergy," what model attitude is all about, and "whose cuisine will reign supreme."

But this article has brought a whole new dimension to Tyra Banks. I can no longer hate her for being just another generic reality TV host. She is not just another generic reality TV host. I have something else to dislike, as well as pity--her possible internalized racism. And to a certain degree I can sympathize. She's been through the business, since she was a teenager chosen to walk the catwalk for Chanel--she probably knows better than any of us what an "African American accent" can do to harm your career. She probably has spent a lifetime trying to downplay her "afro-centrism." This is what Kenji Yoshino talks about in Covering--when we are required to assimilate in order to achieve success, there is as much lost as there is gained. Maybe it shouldn't be up to Tyra to change the entire industry. She probably believes her very presence achieves that goal. Maybe she is just trying to prepare young aspiring black models for the worst in the industry, rather than papering over that reality with false optimism. I can't blame her for doing this. I am not happy that she is doing this, or believes she has to--but I can't blame her for it. Maybe by toughening up the skins of black models to the realities of the industry (although I disagree with her being so mean in the delivery) she is merely stating a reality of our social order--that in order to succeed, we must "cover" our ethnic identities as we aspire to be a melting pot. I don't like it--but I don't put the burden on just Tyra Banks to change this.

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Thursday, May 18, 2006

Restrictive Covenants in the "Modern" Era

Those who live in communities with Homeowner's Associations know that there are all sorts of restrictions on what you can do with your property. Those who study property law know that there are all sorts of "covenants" that run with the land at the time of purchase and possession--e.g., things you just have to do, no matter who owns the land. Covenants are a nonpossessory interest in land in the form of an agreement between adjoining landowners to do or not do something with relation to the land that they respectively occupy, like keeping the front lawn well cared for, maintaining fences, or refraining from certain destructive behavior. The covenants "run with the land," and are thus effective even if the land changes owners. But when is a covenant unconstitutional?

In Shelly v. Kraemer, a black family purchased a house in St. Louis, Missouri. At the time of purchase, they were not aware that there was a restrictive covenant barring blacks and Asians from owning the property. Their friendly neighbors sued to restrain the Shelleys from taking possession of the property, and the Supreme Court of Missouri held that the covenant was enforceable against the purchasers because the covenant was a purely private agreement between the original parties, which "ran with the land" and was enforceable against subsequent owners. The problem was that in order to enforce the terms of the covenant--the ejectment of the Shelleys, the resolution of the proper ownership (because the Shellys could not be owners) of the land, the powers of the state had to be invoked. The police power to evict the Shellys, and the court power to interpret and adjudicate the terms of the covenant. Thus, in 1948, the Supreme Court held that it is unconstitutional under the Fourteenth Amendment for the government to enforce such a restrictive covenant--judicial action is sufficient state action to invoke the protections of the 14th Amendment.

This is the "state action " doctrine, the protection against the "slippery slope," that is the center of so many 1L Con Law exams. There is no constitutional protection against private discrimination. You can hate me as much as you want and refuse to give me cookies, the time of day, or a kind word (but stop at actually hitting me, because that's a separate tort and a possible hate crime). But the government can't lawfully discriminate against me on the basis of the following: race, national origin, religion, or sex. The first three "suspect classes" are analyzed under the "strict scrutiny" test, which is also used when a "fundamental constitutional right" is infringed (like free speech). That is, if the government or agent of the government denies me a job or admission to a public school on the basis of race, national origin, or religion, they better have a really, really good reason for it--a "compelling governmental interest" to be exact. And to serve this interest, the rule discriminating against a person must be "narrowly tailored" to achieve that goal, and the rule must use the least restrictive means to achieve that goal. Thus, certain restrictions on national origin (for example, certain jobs are restricted to naturally born Americans, jand obs that have certain religious requirements (for example, Episcopalian priest job listings) are OK. Most horribly, the internment of the Japanese was held to be OK to serve the compelling governmental interest of national security, a matter which the court defers its judgement to the Executive. (history repeats itself) But this is the strict scrutiny test. For gender discrimination, the test is "intermediate scrutiny," where the governmental interest must only be "important," and furthered by "substantially related" means. This test has less bite, but makes important allowances and distinctions--females should accepted into formerly all-male military academies, but certain height/weight/strength requirements excluding most women (e.g., for prison guards) are constitutionally permissable. For all other forms of discrimination, e.g. laws that treat people differently based on any other classification (including homosexuality), the test is whether the law is rationally a means to an end that may be legitimately pursued by government.

Which brings me to the question of the day. Is a restrictive covenant barring ownership by more than three unmarried persons (i.e., parents living in sin makin' babies) unconstitutional? Via Broadsheet:


Remember the Shelltrack-Lovings? They're the Missouri family -- a loaded word in this context -- who were denied a home occupancy permit because the parents, partners of 13 years, are not married. Why the denial? Because the city of Black Jack, where they'd found a dream home for their three kids, has -- and enforces -- a city ordinance prohibiting more than three unrelated people from living together. As Broadsheet reported last March, the Planning and Zoning Commission was reviewingthe ordinance and would make a recommendation to the City Council for a subsequent vote.


Well, vote the council did, just last night. Despite enormous public outcry, pressure by the ACLU, a possible investigation by the Department of Housing and Urban Development -- and the zoning commission's recommendation that "two unrelated individuals having a child or children related by blood, adoption or foster care relationship to both such individuals" be allowed to live together -- the City Council voted 5-3 against adjusting the ordinance to make room for the family.


"I'm just shocked," Olivia Shelltrack told the St. Louis Post-Dispatch. "I really thought this would all be over, and we could go on with our lives. She added: "It's a shame that ... people can sit up there and judge you." (Not that it should matter, but the couple is engaged; they chose to save for their home in Black Jack before saving for a wedding.) City residents interviewed said assorted silly things, such as: "As a woman, I'm not going to let a man have babies by me and not marry me. I think it was a fair decision" and (to USA Today) "They've gotten into a situation and it doesn't fit them. So their solution is, change the situation. That's not an adult approach."


Black Jack Mayor Norman McCourt issued the following statement: "The purpose of these occupancy permit laws generally is to avoid overcrowding by non-related parties, assure the lifelong maintenance of the city's housing stock, prevent new buyers from being obligated to repair residences that were not kept up to code, preserve the character of the neighborhoods and the city, and to protect the general safety and welfare of the city's residents." Mm-hmm. Also, did we mention that it appears that Shelltrack is white and Loving is black? I don't know how common mixed-race families are in Black Jack. If they're not common, I'm guessing -- honestly, just guessing -- that that didn't help the couple's case either. No word yet on whether the family, and I do mean family, will be evicted from their home.

Either way, what is the legitimate governmental purpose here? And really, what's the point--to enforce some archaic moral code of "thou shalt marry and not live in sin even though we're in the 21st century?" Protecting the "character of the neighborhoods"--sounds awful lot like the language used to prevent Blacks, Latinos and Asians from moving in. It's like that "there goes the neighborhood" joke. I mean, we're not talking about a house full of 10 druggies operating a meth lab. We're talking about a family with two parents and three kids. And what about the disparate impact on homosexuals, who cannot legally marry and are hopefully unrelated to their partner and have adopted a baby? This justfication for this law is full of holes and disparately impacts racial and sexual orientation minorities. It just isn't right.

Absent a showing of discriminatory enforcement (were white unmarried couples allowed to move in?) or racially disparate impact (but don't rely on that), or unless this is preempted under Federal housing laws (why HUD is investigating?), does this fall under the rational basis test? Discriminating between married and unmarried persons happens all the time--just check the tax code. But wait--didn't Loving v. Virginia proclaim the right to marry, and choose who you marry a fundamental constitutional right? But does that then follow for the converse, the right not to marry? Marriage is a hotbed of controversy these days--who is allowed to get married, the marriage tax penalty, the tax benefit of filing joint claims, how stay at home moms are penalized by said tax code--but what of the right not to marry? Is there similarly a constitutionally protected right? If Skinner v. Oklahoma held that there was a right to procreate (holding unconstitutional a law that compelled sterilization of felons), and Griswold v. Connecticut held that there was conversely a right not to procreate (holding unconstitutional, under the theory of "privacy" laws banning the use of contraception)--is there a similar argument for the converse here? Is the argument that this covenant is unconstitutional best argued under Loving or Shelly--maybe both? Is there a fundamental right at issue (the right not to marry)or is it a case of a classifcation (between married and unmarried persons) that should be analyzed under at least intermediate scrutiny? Is the argument that this is unconstitutional because it disparately impacts racial and sexual orientation minorities weak or strong? I honestly don't know, but I do think that this law can and should be challenged--and if so challenged, I believe that under any of the above theories (or all of them) the covenant should be held to be unconstitutional. Note to professors: this is a good Con Law hypo or seminar paper topic.

Interesting that one of the parents is named Loving--reminds me of Loving v. Virginia. You know, that Supreme Court case from 1967 that held that "anti-miscegenation laws," or laws banning interracial marriage, were unconstitutional. Yes, states used to ban that kind of race pollution and dilution. Not too long ago too. in fact, all the way into the second half of the 20th century. How times have changed though--it seems so long ago that bizarre restrictive covenants based on suspect and archaic moral justifications existed. Welcome to the Modern Era.

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Hop Over to the Co-Op!

Concurring Opinions is on a roll lately, with some of my favorite bloggers and guest bloggers blogging up a storm! So belatedly, I offer you a smorgasboard of samples:

Dave Hoffman on why lawyers wear purple robes during commencement (hint: not because it's flattering)

Dan Filler on the sophistication of lawyers in Supreme Court criminal litigation

Miriam Cherry posits a hypo on who owns Trover, the dog (this is what law school exams can be like)

Miriam Cherry asks whether discrimination law is "going to the dogs" after Jason Mazzone reported that pigs can really fly (if they're seeing eye pigs). It's actually about disability law, very interesting!

Dave Hoffman compares student-edited journals to peer-edited journals

Dan Filler has a moving post about saying goodbye to his 1Ls. It made me quite nostalgic, ready to write my Profs another sappy thank you letter (I am the type who wrote 3, sent expensive Levenger Christmas presents, all for the letters of rec that got me into Liberal College Town Law School). But I remembered that Profs are grading finals and so maybe I'll wait until June to update them on my life.

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Wednesday, May 17, 2006

The Need for a New Declaration of Independence

Although I do not meet the qualifications of being a "hipster," in general, I am a fan of all things independent. I like "indie" movies like All the Real Girls, although it is increasingly difficult to determine what an independently financed, produced, and distributed film is. Particularly when studios like Miramax are bought by Disney, when even Warner Bros. has a "Warner Independents" label, and well, there is no longer a big studio system to not be a part of. Just a bunch of big corporations and subsidiaries, which makes me think a knowledge of Corporations law would be useful in determining what is an indie movie exactly. Independently financed films may still be picked up by bigger production studios, and it's kind of that problem of knowing exactly what's "Made in the USA" when the parts were manufactured in Indonesia--at what point does an indie pic lose its independence? I have the same problem with music. Although my tastes in recent years have veered back to classic rock, old school R&B and jazz, at one time I identified with the "adult alternative rock" demographic. You know, at the age of 15, rockin' out to Paul Westerberg and Warren Zevon. But then there was this "indie music" thing--supposedly, I was still mainstream, man, and needed to listen to sub-pop and emo, not that corporate stuff. Postal Service, Death Cab for Cutie, Rilo Kiley, this one band that is a combination of characters and digits that I can't remember--but are they all indie? I read that Rilo Kiley signed with a major label--I think it was Atlantic.

So what does it mean to be independent? Is there no Declaration for this new age? Does independence signify financial independence from the blood money of corporate America? If so, man, do teenagers have a lot to learn about corporations, parent-subsidiaries, and underwriting. Unless you're burning CDs off your laptop and selling them for $7 on the street corner (and as long as your father, employed at Merck didn't pay for said laptop)--I wonder if anyone can honestly say that their work is purged of corporate taint. I don't mean to make fun of earnest, anti-label, anti-industry artists. But I just wonder how much their beliefs track the reality of how things work, how they are made, and how they are paid for. You might shop at Target rather than Walmart (as I do), but it's not like I naively believe that my $10 sweater was made by well-treated, well-compensated workers. It may be that it is so. But I don't take the pains to investigate the labor practices behind every garment I buy. It's that whole ignorance is bliss thing. I'm not proud of it. But it's a psychic cost I've internalized, since the alternative of buying more expensive, but guaranteed sweatshop-free clothing (e.g. American Apparel) is an economic choice beyond my means.

I have several liberal friends, far more liberal than I, who do investigate the labor practices behind each corporation they choose to support with their consumption. It's not always easy to be so vigilant. I have caught them wearing school sweatshirts, which were screenprinted who knows where on sweatshirts originally made who knows how. My point is, with every price saved, there is a certain cost internalized in the transaction. Whether you are really rich and conservative buying those over-priced bookends from The Bombay Company to lend your library an exotic flavor, or a poor graduate student buying a shirt on sale at Old Navy, there are things you just wouldn't rather know, and don't ask when you buy these things. The rich guy doesn't ask if these bookends, made of resin to look like ivory, are worth $5 rather than $75. He shops at this rather pricey specialty boutique. He figures, "I like the look, I like the theme of the store, I like shopping here"--so he'll pay what the store asks, no questions asked. Similarly, the cash-strapped student will say "I can't afford to buy American Apparel, I don't know how to make my own clothes, I'm stuck in the Midwest and I need some polar fleece"--and off he will go to Old Navy. What we internalize when we save or spend to obtain some benefit (elegant colonial style decor, warmth) is the cost of our own blessed ignorance.

And that's a cost I make every month, to the tune of about $25-100. I read a lot. A lot of the stuff I read is free (well, if you have access to a school supplied Westlaw account) via Findlaw or SSRN, but a lot of it isn't. Some months I am lucky and the only things I want to buy are cheap paperbacks. Most of the time, I am not so lucky. I don't order $100 casebooks by the truck load, but I do order books by legal scholars, which typically run $25-45. It's not even shopping to me. It's just a monthly bill, like my student loans. You can't even find these books at your average bookstore--I mean, who reads "The Price of Federalism" for fun? They're not even at campus bookstores. So I go online. Straight to Amazon and sometimes to Powell's. And sometimes, I save up to 30%. When I buy stuff you can find at your local bookstore, like Jhumpa Lahiri's The Namesake or Jane Austen's Northanger Abbey, I can sometimes save up to 40%! I get free shipping on orders over $25, no tax, and books in the mail. It's pretty awesome. If you're a bibliophile, it's like unwrapping a present each month.

And the cost internalized in that transaction is my blessed ignorance about whether I have helped to contribute to the death of yet another independent bookstore. (and the cost of privacy, with all the cookies and such) But I wonder--is that necessarily a bad thing? Tyler Cowen, writing for Slate, refuses to mourn for dying breed of independent bookstores:

Ever since the rise of the book superstore in the 1990s, we have been flooded with lamentations for the rapidly disappearing independent booksellers—cool hang-outs where the staff knows something about literature, the owners select each title with care, and bearded patrons sit at crowded coffee tables, talking about Jack Kerouac or the latest translation of Tolstoy. Thanks to the indies, it is thought, high-quality but inaccessible books can slowly build their reputations through reader word-of-mouth and eventually take the literary world by storm. This is what people fear is disappearing forever; just last week the famed Cody's of Berkeley announced it is shutting down because of Internet and superstore competition. But does this idealized vision ring true? What exactly are we losing with the passing of the independent bookstore?

Our attachment to independent bookshops is, in part, affectation—a self-conscious desire to belong a particular community (or to seem to). Patronizing indies helps us think we are more literary or more offbeat than is often the case. There are similar phenomena in the world of indie music fans ("Top 40 has to be bad") and indie cinema, which rebels against stars and big-budget special effects. In each case the indie label is a deliberate marketing ploy to segregate, often artificially, one part of the market from the rest. But when it comes to providing simple access to the products you want, the superstores often do a better job of it than the small stores do: Borders and Barnes & Noble negotiate bigger discounts from publishers and have superior computer-driven inventory systems. The superstores' scale allows them to carry many more titles, usually several times more, than do most of the independents; so if you're looking for Arabic poetry you have a better chance of finding it at Barnes & Noble than at your local community bookstore.

But bolstering the indies will not reverse any of these trends, nor are the chain stores to blame for their spread. The indies themselves aren't always paragons of cultural virtue, either. One indie owner quoted in Reluctant Capitalists notes that he keeps book prices high "not from greed but as a way of reflecting what he sees as their worth as cultural artifacts." (On that basis, how can he possibly sell a paperback volume of Proust for $15.00?) Many of the smaller indies have financed themselves by selling, in a separate part of the store, pornography; indie stores are not all intellectual powerhouses like Powell's in Portland, considered by many to be the best bookstore in the United States. For better or worse, they are commercial entities just like the superstores. In this case, being David to the superstores' Goliath doesn't always mean that they ought to win out.


This battle between the big chain and the little shop around the corner was dramatized in the deplorable romantic comedy You've Got Mail (if you've seen the original The Shop Around the Corner, you'd agree). While I do lament the loss of iconic Cody's on Telegraph (fond memories of a road trip there), it's kind of hard to mourn for the tiny bookshops in the tourist cities bordering (or 15 miles away from) my own city. It's not a big city in Orange County, CA--a typical sleepy suburb of about 75,000. Not big at all, but not so small either. Before Barnes and Noble came to town, there were two main bookstores that serviced the area: a tiny Crown books and a slighty bigger Bookstar. Barnes and Noble shut those stores down within the year--but I don't really miss those stores. I hung out in the library a lot as a kid. I would just go there and get a box of books, or sat and read the encyclopedia. And although I still see a lot of kids hang out at the public library, I see that a lot hang out at the Barnes and Noble too. Mostly doing homework, but I can't help but hope that being around all those books is good for them. I'm glad that there are chairs and tables for kids to hang out right next to the Dostoevsky.

The cache about indie bookstores is that you get the weird clerk who introduces you to Rainier Maria Rilke and David Sedaris. But there are plenty of ways to get that feeling of cultural superiority of being "in the know," hip, widely read, etc. Cowen encourages those iconoclastic readers to stop looking at the obvious stands and start going to different sections, climbing up on footstools, and combing discard piles by other readers. Go to the library, he says. That's all good advice. I've done well enough without the quirky clerk--I read a lot of book reviews from several sources--The NY Times, the Washington Post, the LA Times, Slate, The New Republic, The New Yorker, Harper's Monthly....I read more reviews than I do books per month, but I keep a notebook of titles and authors I want to read. I'll eventually get to some of them before I die. I read weird literary magazines like n+1 or The Believer. I listen to NPR. I hang out at campus bookstores when I'm on a campus and go to the "Friends of the Library" sales at public libraries. Thus, even when much of my bookbrowsing is virtual and sedentary, I still manage to get by, stay knowledgeable, and get my 30% discount and free shipping with no tax.

If an economist like Tyler Cowen says that it's not such a big deal to lose an independent bookstore, and that it makes more economic sense to shop at the superstore, what's the big deal? Again, I reiterate: that damned independent streak that afflicts so many bourgeois Americans who have not really interrogated what being independent actually means. I don't claim to be immune to this. It is an elitist affectation, a desire for cultural and intellectual superiority. It is almost a moral issue--because what we consume, and where consume it really matters in this well, consumeristic society. Personally, I have never felt that good buying something for full (not to mention sometimes marked up!) price at an indie bookstore. Knowing just a bit about how publishing companies give advances, farm from book packagers, and who owns said publishing companies makes me believe that no matter where I buy my book, some corporate blood money is in the transaction.

So what I propose is that we need a new declaration of independence for independently minded people in this globalized, interconnected, corporate world. I'm not the one to write it. I'm just not independent enough, being enslaved to my discounts, my blessed ignorance, and my general cynicism about it all.

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Tuesday, May 16, 2006

Back to the Blog

Apologies for not posting for the last, um, week. At first it was just blog block and then it was blog weariness. I have been getting strange comments and emails lately, decrying me as being either a commie pinko leftist whore or a "statist control phreak pretending to be a liberal." These criticisms baffle me, since they can't both really be true. Also, I wonder about the spelling/grammar abilities of my detractors. But nevermind. I don't have it as bad as this guy (i.e., no rape/death threats). I do not mind having reasoned, principled disagreements with others, and generally do not not shy away from debate. But having little experience with the blogger phenomena of trolls of sorrow, it's a little off-putting. For a few days. And it gave me time to catch up on some non-digital reading, like Orhan Pamuk's Snow and a stack of law review articles. Still, back to the blog. No reason not to.

First in a flurry of blog posts today and for the next few days, I begin with yet another public service to aspiring law students. Here is the "Optional Summer Reading List" as suggested by my Liberal College Town Law School:

Optional Summer Reading

Summer Reading Suggestions for Entering Law Students: Law students sometimes ask if there is anything they should read in advance of enrolling at Liberal College Town Law School. To answer that question, the Liberal College Town Law School faculty compiled the following bibliography to occupy your insouciant summer hours. The books rangefrom the serious to the entertaining. They are not required.

I. The American Legal System: Fundamentals

Lawrence Meir Friedman, American Law: An Introduction
Lawrence Friedman's revised and updated edition of this accessible and comprehensive work offers a user-friendly road map through the bewildering complexity of the American legal system. Rich in anecdote and historical detail, it explains how laws—from the Constitution to decisions of local zoning boards—are made and administered by courts and administrative agencies. It also surveys the wide variety of law—antitrust, criminal justice, family law, torts, consumer protection and commercial law—and explores the relationship between law and society.

Ellen Greenberg, The Supreme Court Explained
Ellen Greenberg explains how the Supreme Court works, and how cases (such as those you will spend hundreds of hours reading) work their way up through the legal system. The book includes a helpful list of all present and past Supreme Court justices, indicating the president who appointed them, the party in the Senate majority when they were confirmed, and the relationship between court personnel and many of the court's most important cases.

Robert A. Katzmann, Courts and Congress (1997)

Cutting through the all-too-familiar political rhetoric, Katzmann's book explores the tensions between the federal courts and Congress. Covered terrain includes the troubling rise in the federal caseload, resource constraints, the accelerating federalization of the law, concerns about the judicial confirmation process and controversies regarding statutory interpretation.

Forrest McDonald, Novus Ordos Seclorum (1986)
This lively volume presents the Constitution from the perspective of those who believe it means what it says. Do not be afraid of the title, you will not have to learn Latin in law school. According to the New York Times Book Review the book is "a witty and energetic study of the ideas and passions of the Framers." It is still in print in paperback.

II. Basic Legal Methods

Edward Levi, Introduction to Legal Reasoning (1962)
Another classic, widely recommended for beginning law students. It helps give substance to the mysterious phrase, "thinking like a lawyer." This one is old but still a thing of beauty.

Berring and Edinger, The Legal Research Survival Manual (2002)
This book is written to prepare the first-year law student for the first semester. It is short, flip and written by a Boalt professor and a Boalt reference librarian. It is no substitute for a course in legal research, but if you are coming to law school without any legal background, it is designed for you.

Bryan A. Garner, The Red Book (2002)
Bryan Garner has become the king of legal writing. He is already the editor of Black's Law Dictionary, the standard work. He also teaches legal writing skills to lawyers all over the country. Now he has tried to create a Strunk and White for legal writing.

III. Legal Fiction and Legal Realities

Jonathan Harr, A Civil Action (1998)
A riveting portrait of a tort case stemming from the dumping of toxic chemicals by W.R. Grace and Beatrice Foods into the water supply in Woburn, Massachusetts. Everything here is complex. See what you think of the Jerome Facher character. Seeing the movie is not nearly the same.

Mellisa Fay Greene, Praying for Sheetrock: A Work of Nonfiction
Praying for Sheetrock tells the story of how an African-American union shop steward turned county commissioner, with the help of a group of legal services lawyers, worked profound social change in McIntosh County, Georgia. The book, written like a novel, has been described as a tale of how "large and important things happen in a very little place." Widely recommended.


Paula Sharp, Crows Over a Wheatfield (1998)

This is a beautifully written account of a woman judge who faces the challenge of overcoming her own past. This book explores issues of domestic violence, mental health, criminal law and the human spirit. Some truly memorable characters are there along the way. This is a great read.

Barry Werth, Damages: One Family's Legal Struggles in the World of Medicine (1998)
Damages tells the story of one family's experience with the world of medicalmalpractice litigation. This is what the New York Times book review had tosay about it: "Damages deserves to be read and thought about and discussed bypeople on all sides of the complex and often ugly collisions of law and medicine..."It comes highly recommended by torts and legal ethics teachers alike.

Gerald M. Stern, The Buffalo Creek Disaster (1977)
This book, used by many first-year civil procedure teachers, tells the story of how one coal mining town, devastated by a flood caused when a coal company dam failed, sued the company and won. It is an engaging and utterly painless way of getting a sense of how a complex tort case proceeds through the civil litigation process. Best read in conjunction with Kai Erikson's book, described immediately below.

Kai Erickson, Everything in Its Path (1978)
This book also deals with the Buffalo Creek disaster, but deals less with the litigation and more with the effect of the disaster on the victims' everyday lives. If you read the two books together, you will have an opportunity to see what part of lived experience can be reflected in and addressed by civil litigation, and what part can not. This discontinuity between legal relevance and lived relevance lies at the center of much current legal scholarship on the lawyering process. These two books, read together, would provide a good introduction to many of these issues.

Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1977)

Make No Law follows the progress of a 1960 libel suit against the New York
Times, filed by a Montgomery, Alabama, city official. A great read for anyone even vaguely interested in the First Amendment. Still available in paperback.

Peter Schuck, Agent Orange on Trial (1987)
A beautifully written treatment of complex tort litigation, this book tells the story of the Agent Orange litigation against Dow Chemical Company (and others) brought by Vietnam veterans who claimed injury for exposure to the herbicide. Highly, widely recommended.

David Lebedoff, Cleaning Up: The Story Behind the Biggest Legal Bonanza of Our Time (1997)
This book tells the story of the litigation surrounding the Exxon Valdez spill. Responsibly reported, the story is a fascinating behind-the-scenes look at how a relatively large firm in Minnesota became involved in mass tort litigation. The author describes the firm's trepidations as well as its somewhat awkward relationship with small firms and solo practitioners specializing in representing tort victims. The book also discusses the media coverage of the case and the jury deliberations about liability and damages. A complex story, and a slightly more difficult read than some other selections on this list, the book provides insight into how tort law works and why it is controversial in business and industrial circles.

Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (1986)
This long (823 pages) but fascinating book details the legal strategy painstakingly designed and implemented by Charles Hamilton Houston, Thurgood Marshall and others, culminating in the Supreme Court's 1954 school desegregation decision in Brown v. Board of Education. It is an inspiring and beautifully crafted retelling, reminding us that while law can be mobilized as an instrument of social change, the process is neither easy, linear, nor quick. This book is a classic.

IV. Biography

Michael D. Davis and Hunter R. Clark, Thurgood Marshall: Warrior at the Bar, Rebel on the Bench (1994)
Davis and Clark's biography of the Supreme Court's first African-American justice, described as "affectionate and engaging" by Kirkus Reviews, tells the story of Marshall's remarkable legal career. After graduating from Howard Law School in 1935, Marshall argued 32 cases before the U.S. Supreme Court, including Shelly v. Allwright (voting rights), Shelly v. Kraemer (racially restrictive real estate covenants) and Brown v. Board of Education. He won 29 of the 32, before being appointed as an associate justice of the U.S. Supreme Court.

Patricia Williams, The Alchemy of Race and Rights (1992)

Patricia Williams, an African-American law professor, wrote this largely autobiographical book that describes her experiences in the legal academy and in American society at large. In the process, she provides a powerful argument for continued struggle in achieving the still-illusive goal of racial justice in American society.

Ed Cray, Chief Justice: A Biography of Earl Warren (1997)
This book chronicles the career of Earl Warren, one of Boalt Hall's graduates. It begins with his childhood in Bakersfield and continues through his career as a district attorney, attorney general for California, governor of California and chief justice of the U.S. Supreme Court. There are references to some Boalt faculty (Max Radin, Adrian Kragen, Arthur Sherry) as well as other famous Californians. At over 500 pages, the book is long, but it's still a page turner.

V. Legal Theory, Critical Race Theory and Feminist Jurisprudence

Grant Gilmore, Ages of American Law (1979)
Gilmore was one of the major figures in 20th Century legal thinking and this short, readable book is a gem. It will explain much of what is going on beneath the surface of law school. It is a great introduction to legal theory.

Robin West, Caring for Justice (1997)
In this book, West synthesizes her various earlier works on feminist jurisprudence. Students in Professor Krieger's sex discrimination class frequently described this book as a kind of scholarly "sigh of relief," helping them articulate what they found missing in traditional approaches to law and lawyering, but couldn't quite get into words.

Richard Delgado, et al., eds., Critical Race Theory: The Cutting Edge(1995)
This is the compendium of critical race scholarship. Topical sections include: Essentialism and Anti-essentialism; Race, Sex, Class, and Their Intersections; Legal Institutions, Critical Pedagogy, Minorities in the Law; Critical Race Feminism; Critical White Studies; and Storytelling, Counter-storytelling, and Naming One's Own Reality, to mention a few.

D. Kelly Weisberg, ed., Feminist Legal Theory: Foundations (1993)
In this book, Weisberg has collected the foundational works in feminist legal theory. Topical categories include: Theories of Law; Equality and Difference; Elements of Feminist Legal Theory; Essentialism; and Feminist Legal Methods.

Daniel A. Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (1992)
This book represents the "anti-critical studies" perspective. Boalt Professor Dan Farber and Suzanna Sherry critique critical race and critical gender theory with relative restraint and patience, arguing that the critical legal studies assault on liberal legal models and methods is unproductive at best, dangerous at worst.

Henry Louis Gates, et al., Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights and Civil Liberties (1995)
Another counterpoint to critical race/critical gender theory, this one focusing on hate speech and First Amendment issues. The various constituent essays cover race theory and the First Amendment, the regulation of hate speech on campus, the hate speech debate from a lesbian and gay perspective, and more.

VI. Law School Guides and the Law School Experience

Lani Guinier, Michelle Fine, & Jane Balin, Becoming Gentlemen: Women, Law School & Institutional Change (1997)
A radically different take on the subject of legal education, this book describes and reflects upon a study of female law students at the University of Pennsylvania between 1987 and 1992. Guinier and her co-authors consider the effect of law school's emphasis on emotional detachment, the cultivation of verbal aggressiveness and legal pedagogical methods on the mental health and academic achievement of female law students.

Steven J. Frank, Learning the Law: Success in Law School and Beyond (1997)
This guide goes into detail on the nature and function of different legal institutions, reading cases and statutes, understanding the relationship between cases and statues, and, more generally, how to approach the study of law.

Stephen Gillers, Looking at Law School: A Student Guide from the Society of American Law School Teachers (1990)
This collection of essays by New York University legal ethics professor Stephen Gillers represents an alternative approach to the law school how-to genre. Written from a slightly more ideological perspective, this book includes essays on such subjects as: the classroom climate; issues of special concern to law students of color; issues of special concern to women and parents; and advice for lesbians and gay men. The book also includes selections on each of the common first-year courses, including torts, contracts, property, criminal law, constitutional law and legal writing. Law and economics, jurisprudence, and clinical legal education are also covered.



Boy, you can certainly tell which way a law school swings when half of its reading list is populated by CRT authors and the suggested biographies are of members of the Warren Court. I certainly don't have any disagreements with that, although I do vehemently disagree with their pick for a compendium of Critical Race Theory. I hate that Delgado book. In the interest of breadth (the "to mention a few" bit), the book consists of heavily redacted articles. As in, 3-5 pages of the introduction. If anyone has ever stayed up till 3 am editing cases and law review articles for a class (I have had this privilege, as well as the privilege of writing a syllabus, which takes about 2 weeks), they know this is not "editing." It is cutting and pasting. And the whole "cutting edge" bit--the book is about 10 years old, so it's not so cutting edge anymore. I would get it for the table of contents and then track down the original article. But I would not rely on that book. I would suggest reading the original Kimberle Crenshaw et al. book Critical Race Theory: the Key Writings That Formd The Movement, as well as Francisco Valdes et. al. Crossroads, Directions, and a New Critical Race Theory.

But otherwise, the list is pretty good. I think you need to read about the judicial/political system if you don't know anything about it (not that rare since law school has no prerequisites and not everyone can name the amendments in the Bill of Rights). Political Science majors are a dime a dozen in law school, but it's kind of surprising (and appalling) how some get by without having taken sufficient constitutional law, jurisprudence, or political theory classes. So if you're an English or Drama major whose family (like mine) asked "what are you going to do with that?" and decided to do law school, read up on those intro texts! Just so that you won't be going "huh?" when your con law professor starts talking about "checks and balances." And I would encourage everyone to read up on legal methods--I didn't, and no amount of poli sci knowledge really prepares you for how different law school is from college.

Also, my perspective on legal themed fiction is that it's best to wait for the movie version with Robert Deniro or Denzel Washington. Save your reading time for Phillip Roth or Ian McEwan. There's a frustrated creative writer or sell-out fine arts major lurking within many a lawyer. But I don't think these are the ones who write the bestsellers. I find legal themed fiction, like that of Dan Brown's, to be entirely too plot driven and fantastic--you know, fun airport reading, but it's not really necessary to read it for nuances of theme or characterization. I like the clever plot twists, but the writing is generally clunky--most paragraphs are 3-5 sentences, like some high school essay. If you watch the eventual movie version, it'll be all there, and probably more enjoyable. Then again, I am speaking only of the Grisham books I've flipped through--I haven't yet read Kermit Washington's novel In The Shadow of the Law. Kermit, besides having the best name ever, is a law prof at U Penn whose work I greatly admire--so maybe his foray into fiction will be just as good.

Generally, though, this list is pretty good--I particularly like the suggestions for Patricia Williams, Robin West, Steven Gillers, and Lani Guinier. Those are must reads for any law student, but should be of particular interest to female law students. It won't be your women's studies class--but it need not necessarily be hell either. I think the best way to prepare yourself for the change is to just learn about the ways in which it will be different.

But I offer my own little mini list of recommendations to complement this list of suggested summer reading. I spent my own "insouciant summer hours" between graduation in mid-June and orientation in mid-August sleeping, reading "fun" books and packing, but if you are an eager beaver then you can add these to your list:

  1. Eugene Volokh, Academic Legal Writing (if you want to get on law review, or just write a student note or seminar paper, read this!)
  2. Dorothy A. Brown, Critical Race Theory: Cases, Materials, and Problems (a sort of 1L mini casebook for those who have to wait until their second year to take electives)
  3. Gerald Gunther, Learned Hand: The Man and the Judge (sadly out of print)
  4. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (fascinating!)
  5. David O'Brien, Storm Center (it's like The Brethren, but more academic)
  6. William Rubenstein, Cases and Materials in Sexual Orientation and the Law (pretty much out of date since Lawrence v. Texas, but still very useful and interesting and there are online updates)

I won't bother recommending H.L.A. Hart or Joseph Raz, since they are rarely taught even in law school!

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