Monthly Archives: June 2014

Scientists Can Wear Lip Gloss

People are excited about a new Verizon commercial, “Inspire Her Mind,” calling it “powerful,” “important,” and “refreshing.” The ad is meant to raise awareness about the subtle ways that people — specifically, parents — discourage girls from pursuing careers in math and science. Amanda Marcotte describes it as follows:

In the ad, we watch a girl grow from toddlerhood to adolescence, and we see the various ways her parents squelch her curiosity, by instructing her not to get her dress dirty, seeing her “icky” interests as disturbing, and treating her like she’s more delicate than her brother. The punch line? The girl walks up to a bulletin board advertising a science fair, but instead of reading the flier, uses the bulletin board’s glass as a mirror to apply lipstick.

Throughout the commercial, we hear the girl’s parents make comments ranging from “Don’t get your dress dirty” to “Be careful with that [referring to a power drill]. Why don’t you hand that to your brother?”

I completely agree that we should remove barriers to women pursuing STEM careers, and that parents, teachers, and society at large too frequently send signals that discourage women from these goals. Without question, the commercial admirably communicates this message and encourages people to examine their own behavior. Continue reading

After Utah, What’s Next for Same-Sex Marriage?

Yesterday the Tenth Circuit released its opinion in Kitchen v. Herbert, which considered the constitutionality of Utah’s same-sex marriage ban. In an opinion by Judge Carlos Lucero, the court invalidated the ban, holding that marriage is a fundamental right and cannot be withheld on the basis of sex. In doing so, the Tenth Circuit became the first federal appellate court to invalidate a state same-sex marriage ban.

Consistent with my prediction after the argument, Judge Jerome Holmes (a George W. Bush appointee) joined Lucero’s opinion. Judge Paul Kelly dissented. As I noted both after the argument and more recently, I thought it was possible but far from certain that Judge Kelly might join the majority opinion, despite his apparent skepticism during oral argument, in part because some of his past decisions have revealed an openness to civil rights claims relating to discrimination on the basis of other characteristics, such as gender and disability. But in the end the court was divided. I previously wrote in more detail about the three judges on the panel here.

The 65-page majority opinion and 21-page dissent each offer fertile ground for analysis. Ilya Somin and Ruthann Robson, among others, have useful provided commentary on the substantive aspects of the decision. But the question that many people are asking is simply: what’s next? Here, I answer some common questions and consider a few of the many ways the litigation could progress. Continue reading

Rich on “Elective Race”

Camille Gear Rich (USC) has a fascinating, nuanced recent article in the Georgetown Law Journal called “Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification.” The project acknowledges a distinction that both courts, commentators, and the public at large too frequently ignore: the distinction between individual racial identification (how a person identifies herself) and social racial identification (how others identify that person). More importantly, it considers the practical significance of that  Here is an excerpt from the abstract:

My primary goal is to help courts and scholars understand the basic tenets and tensions that are likely to be present in plaintiffs’ elective-race claims. Although some scholars have trivialized racial self-identification interests or represented them as a threat to antidiscrimination law, my project is to show that racial self-identification decisions matter in concrete ways because they can trigger serious race-based social sanctions that are a core antidiscrimination law concern. Indeed, as we will see, voluntary racial-affiliation decisions can and do trigger race-based resentment, rejection, and social sanction when race-based resentment, rejection, and social sanction when they do not match certain expected or established American understandings about the boundaries of racial categories.

Rich identifies several categories people for whom individual racial identification — “elective race” — can actually provoke animus and race discrimination: multiracial people, people with racially ambiguous features, people who reject the concept of race altogether. The individual racial identity that each of these categories of people adopt can prompt various kinds of resentment and discrimination as the result of a range of attitudes. Continue reading

The New Asian Americans

I somehow missed this story until just yesterday. The newly-formed “Asian Republican Coalition” has adopted an extremely broad definition of the “Asian American Community.” ARC’s (white) Vice Chair Thomas Britt had the following to say:

“We have a very broad definition of what constitutes the Asian American community. The Asian Republican Coalition is open to all Americans, including Asian Americans and those of us like me who are not ethnically Asian but have spent twenty years living in Hong Kong.”

So per this and other comments to the media, apparently ARC is meant to include people who have lived in Asian countries, people who like Asian culture, people who are married to or dating Asian people, people who are studying an Asian language, people who have a son or daughter serving in the military in an Asian country, and people who are doing business in Asian countries. In other words, pretty much everyone. Continue reading

Animal Crush Porn, Revenge Porn, and Secondary Effects

A few days ago, the Fifth Circuit issued an opinion in United States v. Richards upholding the Animal Crush Video Protection Act (ACVPA) of 2010.  At Constitutional Law Prof Blog, Ruthann Robson has a comprehensive analysis of the opinion. Here, I want to offer a few preliminary thoughts about the possible implications of a particular piece of the court’s analysis.

In Richards, the Fifth Circuit ruled that depictions of animals tortured and killed for sexual gratification are not a protected form of speech, thereby reinstating the criminal convictions of a couple who videotaped the deaths of animals. As the Fifth Circuit summarized, the videos depicted defendant Ashley Nicole Richards

binding animals (a kitten, a puppy, and a rooster), sticking the heels of her shoes into them, chopping off their limbs with a cleaver, removing their innards, ripping off their heads, and urinating on them. Richards is scantily clad and talks to both the animals and the camera, making panting noises and using phrases such as “you like that?” and “now that’s how you f*** a pussy real good.”

Defendant Brent Justice recorded these activities on video. Both Richards and Justice were charged under the ACVPA as well as various other criminal statutes. Continue reading

Just Out: Symposium on Asian Pacific American Identity

A while back I had the pleasure of participating in a symposium at UC Irvine called “Reigniting Community: Strengthening Asian Pacific American Identity. The collection of essays by symposium participants, dealing with many intersections between APA identity and the law,  is now publicly available. My contribution, Half/Full, discusses the way that mixed-race APA identity is both valued and commodified, and the implications for mixed-race APA status under current anti-discrimination doctrine.

What I Read Last Week

Here are a few things I read and liked or found interesting from the past week:

  • Dexter Thomas, Elliot Rodger Wasn’t Interested in Women: “Misogyny, or sexism in general, rarely has anything to do with women as people. . . . Elliot was only able to understand women as status symbols. His obsessive quest to lose his virginity had less to do with a desire for pleasure and more to do with a need to show other men that he was a white man, or as good as one. . . . Elliot’s main problem was that he was not white.”
  • Brishen Rogers (Temple), The Uber Wars or: Why We Need a New Politics of Distribution: The time is past when people can ignore Uber, even if they wanted to. Rogers’ interesting post asks hard questions about how Uber should function in the emerging, technologically-driven, sharing economy. “What set of rules would balance consumer welfare, equity in services, and fairness to drivers?” And I agree with Rogers that this won’t be unique to Uber: “these issues will become far more visible and acute as technology disrupts more and more existing work relationships.”

Continue reading

Why Are (Almost All of) the Most Cited Legal Academics White Men?

Yesterday Brian Leiter posted a list of the ten most-cited law professors (actually eleven, due to a tie for tenth place) for the period from 2009 through 2013, with the promise of more statistics to come. The list consists of eleven men, of whom ten are white. With absolutely no disrespect to the outstanding scholars on the list, such a striking disparity merits some thought about its underlying causes.

One possibility is the area of specialization: clearly some specialties will be cited more than others simply because there are more people writing about them and citing one another. The most accomplished scholar of admiralty law will never receive as many citations as the most accomplished scholar of constitutional law. If men are more likely to specialize in heavily-written areas, this might provide a partial explanation. But a cursory inspection of the academy does not seem to bear this out. Many women and people of color specialize in highly-written areas such as constitutional law, criminal procedure, and so on (Heather Gerken, Pam Karlan, and Lani Guinier come immediately to my mind, and I can think of many others). That is, there must be some other explanation in addition to chosen specialty. Continue reading

Labels, or, Why It is Not Helpful to Call Someone a Racist

In both the media and public discourse, the question of whether a particular public figure “is a racist” is an extremely common one. Is Justin Bieber a racist? Is Donald Sterling a racist? Is George W. Bush a racist? Is Barack Obama a racist? Is Paula Deen a racist? Is Cliven Bundy a racist? Is George Zimmerman a racist? Is Miley Cyrus a racist?

For several reasons, I do not think this is a helpful question.

One reason is that — in at least one sense of the term — pretty much everyone is a racist. By this I mean that, inadvertently or otherwise, people often treat other people differently because of race. Consider a few examples of research from the past few months. One study found that law firm partners who were asked to evaluate a writing sample gave it significantly higher ratings when they thought the author was white than when they thought the author was black, even though the resume attached to the writing sample was identical in both instances. Another study of 6500 professors at 259 different colleges and universities found that professors respond more frequently and more positively to requests for mentorship from male students with white-sounding names than they do to identically-phrased requests from female students and students with non-white-identified names. Still another study found that twice as many drivers failed to yield for black pedestrians at crosswalks versus white pedestrians, and that black pedestrians waited on average 1/3 longer to cross the street at crosswalks.

Again, these are just a few examples from the past few months. I could list literally thousands more, but I won’t because this is a blog post. And while some people might devote effort to poking holes in any individual study, at some point the most straightforward explanation — Occam’s razor, if you will — is simply that implicit racial bias exists and that it affects most, and perhaps all, people in at least some situations. Continue reading

Editorial Discretion and Private Lives

Recent events have caused me to think about the ethics of editorial discretion. In particular, how should authors, editors, and publishers take into account the harm caused by publicizing information about other people’s private lives?

Over the weekend, an online magazine made a very poor editorial choice. A writer for the magazine wrote a piece about the proper use of the term “bro.” The piece included the sentence: “And I just don’t think the diminutive label of ‘bro’ should be to describe more insidious sexism, let alone violent aggression like rape threats.” The words “rape threats” were hyperlinked to a single tweet by a female journalist.* The tweet was addressed directly to another person on Twitter, in which the journalist had used a variant of the word “bro” in briefly alluding to rape threats she had received. (For non-Twitter-users: when a tweet begins with the “@” symbol and the username of another person on Twitter, only the sender and recipient of the tweet, and any people who happen to follow both users, will see the tweet. Other people can then find the tweet, which is technically public, but doing so requires a specific search.)

When the magazine published the piece, the female journalist objected, understandably, on several grounds: (1) the piece suggested that she had talked about her own rape threats the “wrong way”; (2) the piece gratuitously drew attention to those rape threats in a way that would likely provoke more threats; (3) the piece alluded to her rape threats casually, like any other material that might be thrown into a piece to make a point; and (4) the piece made an example of something that she had chosen to keep mostly private and that was undoubtedly disturbing to her. Continue reading