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CONCEPTUALIZING THE LAW FROM A GENDER PERSPECTIVE:
CONCEPTIONS REGARDING VICTIM AND ACCUSED
I. INTRODUCTION ................................................................................ HI. CRITERIA FOR SELECTION IN CRIMINAL LAW ................................. Ill. THE INTERMEDIATION BETWEEN ACCUSED AND VICTIM IS IN THE HANDS OF THE STATE .................................................................. IV. WOMEN AS VICTIMS: CRIMES AGAINST SEXUAL LIBERTY .............. V. PROPOSALS FOR DEVELO NG A CRTCAL PERSPECTE OFTBE CRIMINAL LAW AS TO THE RELATIONSHIP BETWEEN ACCUSED AND VICTIM IN CRIMES AGAINST THE SEXUAL LIBERTY OF WOMEN ...........
Although operating in different legal systems, feminist legal critics in Latin America and the United States share a common concern regarding criminal law which should be brought into the classroom, as criminal law expresses much of the symbolic and coercive force of the law. The following ideas are inspired by the legal methodology for gender analysis developed by Alda Facio' and by the efforts of women attorneys and activists who have sought for decades to democratize the law from the starting point of a profound respect for human rights. To speak of victims and the accused places us at the center of criminal law. Classic doctrine does not distinguish between men and women with respect to their place in criminal procedure. The assumption of non-distinction derives from the centrality of the principle of equality before the law as the basis ofjustice. However, in practice, criminal law is laden with important gender-based* Instituto Latinoamericano de Servicios Legales Altemativos (ILSA)
1. ALDA FAcio MoN' o, CuANDo EL G.NmRo SUENA CAMBIOS TRAE (UNA METODOLOGA
PARAELANk.ISISDEGNEODELFEN6MENOLEGAL) (2nd ed. 1996).
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connotations, many of which stem from its most basic conceptions of criminal law, while the most important ones are imported from the social order. The ideas presented in this essay are inspired by experiences and analyses of a specific type of relationship-that established between the accused and the victim in the context of proceedings in which the sexual liberty or integrity of women is treated. In such crimes, women are for the most part positioned as victims and men are in the role of the accused; the opposite situation is an exception to which we will allude below. We will move from this specific field to more general hypotheses regarding criminal law. To understand the substantial, as well as subtle, nature of the distinctions made by criminal law between women and men in their status as victim and accused, one must take a few steps outside the logic of criminal law. Legal sociology is very helpful in addressing the polemic. The concepts used in this debate are derived from the intellectual issues regarding the law posed by feminist theory, which has often been incorporated into legal sociology. Much of the research on criminal practice has had recourse to the methodology of legal sociology, inspired by feminist theory. This "contact with reality" has made clear the limitations of the law when it comes to responding to social issues that stem from the systematic discrimination that affects the lives of women. In the opinion of Carol Smart,2 the encounter between feminist theory and the law has faced numerous problems. I will summarize some of the problems she raises. The first is the explicit or implicit rejection of theoretical analysis as a method of studying the law. This point focuses on the greater or lesser importance attributed in the law school classrooms to conceptual discussion, especially when there is a predominant belief that the students need to know, first and foremost, the "black letter law." The second problem is the direct resistance to feminist theory in law school classrooms. In the eyes of many, the law is inherendyjust, and therefore the problem of discrimination has already been resolved. Smart identifies this as a "liberal" position. The third problem is that certain positions within feminism see theoretical work as a masculine activity, and steer away from such discussion, focusing their concerns on the practical and the concrete. These problems will continue to arise in the relationship between law and feminist theory. It should be noted that the rejection of theoretical analysis, due either to devotion to the letter of the law or to a pragmatic radicalism, leads to
2. Carol Smart, La Mujer del DicuisoJm (Elena Larrauri ed., 1994).
o, in MjEREs, DERHO PENAL YCPJM!NOLOGlA
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One of these challenges relates to the various conceptions of the law." and "alternative use of the law" have won followers in the region. U. who had hitherto been confined to the domestic comer of society.. and many feminists who find themselves in the field of law are fostering initiatives in all possible settings." In my years at the Latin American Institute for Alternative Legal Services (ILSA).7 Am. because they respond to the aspirations of broad popular sectors that find little understanding of their needs in state policies. other challenges are presented. From the standpoint of feminist theory of legal sociology. in NACIONALE EINTERNAcIONALES (RebeccaJ. In addition.1998-1999] CONCEPTIONS OFVIciM AND AccusED an impasse in the process of learning that should be avoided in the academic training of law students. Both movements are of interest for constructing the notion of genderjustice. Cooked. we feminist attorneys are also facing the challenge of "using" and/or "transforming" the law by introducing new theoretical perspectives that originate in the historical. 1997). In Latin America. 3. with voices muddled by male authority in the public and private spheres. taken up by diverse women's groups inspired by feminist theory. a major movement is under way that calls into question the operation of the legal system. from an all-encompassing perspective. HeinOnline -. DERECHOS HUMANOS DE LA MUJER: PERSPECTIVES de Una Luz aliFinalTunekLa ." "alternative law. while others teach law or work with the law in interdisciplinary fields. These concepts are part of a "critical theory of the law" that seeks to elaborate a legal discourse with the objective of social transformation (Wolkmer 1994). one finds the arguments of a different origin. others litigate. J. Gladys Acosta Vargas. social. neither of these positions is to be found in pure form. Pol'y & L. The notions of "legal pluralism. it would appear that the arrival of feminism to the law in a more or less organized fashion (many women became attorneys and discovered that they could play a role in advancing the status of women in their work as attorneys). Many of the tasks taken on by legal services have been aimed atserving the urgent demand forjustice put forth by women. which do not always directly correspond to economic exploitation.justida Genero. The articulation of these arguments has brought pressure to bear on the state for the purpose of gaining access to certain legal products to solve immediate problems that cannot await the transformation of the justice system as a whole. has turned the law into a "field of struggle" and not just an "instrument of struggle." I believe that one could read in these expressions the difference between those who seek "to make alternative use of the law" and those who set out to produce an "alternative law. and personal experience of women." or the production of what has been called "alternative law. Following Smart's interesting logic." In practice. still others have entered thejudiciary or state office. Gender Soc. The tension between the two points of view is inevitable. It is important to bear in mind developments regarding the "alternative use of the law. for the critical legal studies theorists have focused more on the overall economic aspects of exploitation. I have had the opportunity to meet many critical legal studies theoreticians and activists who moved between both of those fields! In some way. as we approach the end of the 20th century. This movement postulates that the state is not the only lawmaker. 321 1998-1999 . They have paid less attention to critiques that call into question the oppression and subordination pointed out by women. Some arejurists.
JOURNAL OF GENDER, SOCmL POLICY& THE LAW [Vol.
We have undertaken to study the law as such, discovering its
inconsistencies and internal weaknesses, but also gauging the power of legal reasoning. The goal is to determine whether the law can be pushed forward within its own potential, or whether a transformation is required on such a scale that the lawwould cease to be what it is today. Evidently, our view is from a perspective external to the law. In our opinion, the law as a dosed system does not have the capacity to resolve the social problems that arise in women's experiences. The law has been constructed by "others." In other words, the law has been constructed by men from Western culture interested in maintaining the order they themselves have created.4 However, it is inadequate to say that it is male per se. In the process of its development, the law has become a complex historical product and does not always act in favor of men and against women. It is more accurate to recognize that the law has a gender, and that it has the capacity to create gender categories. The detailed analysis of laws, legal doctrine, legal culture, and legal practice have led us to discover the existence of contradictions between diverse interests within the law. It is, then, a question of finding the most adequate way to have an impact on all the components of the law so that we women, as well as other subjects of the law who have suffered discrimination, may find solutions to specific controversies that limit our lives. This struggle explains the presence of a significant feminist movement that seeks legal reform, despite the not very encouraging results of the socio-legal analyses that have been conducted regarding the contribution of the law in improving women's quality of life. The central debate regarding our interaction with the law is characterized by an open, unfinished perspective. The approach is also one of dialogue with reality and reaffirmation of experiences and social practices that transform. This should be transmitted to those who are beginning their legal education. There is nothing worse for the law itself than absolutism as to its content.
II. CRIERIA FOR SELECION IN CRIMINAL LAW
The starting point for a critical assessment of criminal law lies in the relationship between society and the law. The criminal system continuously selects those it will place on trial and those it will protect.
4. Latin American law has followed the steps of European Law with slight adaptations. It is essential to develop the historical perspective on the law to understand the normative tanfformations. 5. It is important to recognize that the law is only relevant in relation to the protection of specific legal interests, and that its breadth and scope should be the result of a democratic debate within each society.
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CoNCEPTIONS OF VICTIM AND ACCUSED
This operation is highly complex. The difficulty in attaining consistency betveen the definition of criminal conduct and the enforcement of such measures leads to a situation favorable for the proliferation of discrimination beyond that established in the law. Many Latin American criminal law experts have undertaken to analyze the role of law in society. Ifwe follow the reasoning of Eugenio Zaffaroni in his influential Criminal Law Manual of 1986, there exists an interest in developing an analytical and global view of the function of criminal law. From his point of view, Latin American legal thinking on criminal law has been inspired by foreign ideas that have been adapted to the region. These ideas include the theory of "retributionism" (the penalty as retribution based on the principle of culpability, with a strong tendency to technocratism); the theory of "danger" (those who attack the system should be given harsh treatment-ideal for dictatorships or strong-man regimes); the theory of "criminal law for the security of the citizenry" (explains problems based on the fear of communism and sees internal enemies everyvhere); and finally, "Latin American critical criminal law studies" (a new theory, including several theoreticians of "alternative law" as adherents). Each theory includes positions with respect to how legal interests should be ordered, and each theory develops its own approach to the definitions of crimes in the criminal codes, and ways of impacting them. However, it seems that "critical Latin American criminal law studies" has shown the most potential for analyzing the treatment of women, despite inevitable tensions that arise from the scant or nonexistent gender-sensitivity of many of its spokespersons.6 It is not possible to imagine a fair criminal justice system amidst 'political systems that are democratic merely in form; and this is a serious problem in Latin America. We suffer from a lack of interaction between society and the system that controls and regulates social life. This gap allows selectively coercive criminaljustice systems to develop in light of what is considered "social and political order," quite distant from what real people (women and men from different co-existing cultures) need. The priority of such a system is not to answer to human needs, but rather to maintain an "order." Criminal law is a product of society and politics and corresponds to
6. It is surprising to read Chilean treatise writerjuan Bustos Ramfrez when he refers to the definition of the crime of rape in the Spanish Criminal Code. He states that"itwould appear fair to encourage a narrow interpretation, considering the seriousness of the penalty for rape, which is the same as for homidde. Most of the situations that may arise could be left to the category of dishonest abuses (abusos deshonestos), a crime that carries at most a light prison sentence." JUAN Busros
lAMiREZ MANUAL DE DERECiHO PENAL PAKI ESPECIAL (1986). This type of relativism is found in R
much of the legal reasoning ofjudges, who are reluctant to impose severe sentences and, in effect, fosterwidespread impunity for the crime ofrape.
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the specific circumstances in each country. Nothing could be further
from the claimed "objectivity" which is sought. For example, analysis reveals that changes needed with respect to crimes that affect the lives of women only occur under certain conditions, and require welldesigned political negotiations if they are to be successful. Even then, there is always a lingering doubt as to the efficacy of the criminal law provision in question because of the way it will be distorted in practice.
III. THE INTERMEDIATION BETWEEN THE ACCUSED AND THE VICTIM IS
IN THE HANDS OF THE STATE
The most important issue to fully understand is the degree to which criminal law can adequately treat people. In this connection, I would like to note that if human rights were truly respected, women would enjoy more effective guarantees in their treatment by the criminal justice system. Yet the system has not been designed to respect human rights. Rather, it has been designed as a mechanism for conflict resolution that generally liquidates the powerless, but which offers certain negotiable privileges that are transferred into the system from the social power base available to certain individuals outside of the system. To illustrate this point, one could consider the difference between the treatment accorded a criminal offender with economic power and one who has no such power, or the treatment accorded an accused who is a member of the police or armed forces. It is also interesting to note how an indigenous person who has committed a crime is treated. In summary, accused persons are treated differently, subtly or openly, depending on their social or economic background. The same holds for women, but the panorama is different depending on who is on the other side of the dispute. In addition to racial, social, and economic privileges that affect the system, other factors come into play, such as the devaluing of what happens to women and the sexist prejudices prevalent among the decision-makers in the process. When those factors are considered, the state loses its intermediating role, and simply "tips the scale" against women.7 The case of women who have suffered sexual abuse is paradigmatic, and will continue to be the subject of concern for those of us who call for categorical respect for human rights. Treatment of such cases is
7. I share the opinion of Brazilian attorney Leila Linhares in this connection. Referring to the situation in Brazil, she states that the judiciary expresses traditional social values that discriminate against women. The results of research done by CEPIA show astonishingly little distance between commonly- held opinions (among non-lawyers) and the opinions ofjudges in this context.
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ABRAmuiiSu. The injuries that Angela displayed were interpreted as resulting from her resistance when being detained by the policeman after he alleged that she was a terrorist. J. Instead. U. some persons gathered around the vehicle. The driver strayed from the route and tried to rape her. Resolution: Acquittal for the accused. HeinOnline -. For the authors of the book. On appeal. The Prosecutor. and nothing compromising was found in her home). The Correctional Court (the court of last resort for cases such as this one) accepted the argument of the Prosecutor and upheld the acquittal. the Superior Prosecutor focused on attributing responsibility to Angela for having provoked the situation (she was inebriated). 325 1998-1999 . and relied on the opinion of a witness (a work colleague of Angelas) who stated that when she was intoxicated. Investigation: The police took up the investigation of the case in response to the complaint that the assailant lodged regarding her alleged status as a terrorist and reached the conclusion thatAngela was not a terrorist (there was no evidence that she had handled explosives. nor even on enforcement of the law. she threatened him to hand over the car. The Judge: As there was no other evidence of attempted rape beyond Angelas statement.sVALLEjos.7 Am. the judge found that there was no attempted rape. and at that moment the assailant pulled out his weapon and accused her of being a terrorist. inebriated. The prosecutor believes that Angela's innocence with respect to the crime of terrorism had been proven. but on the idea of "social order. he called into question Angelas conduct. but did not engage in further scrutiny of the version of the accused. The relationship between victim and accused is not based on the infraction itself. CoNELSoLoDICHODEiAAGRAVIADA (1995). and practically fell asleep during the drive. As she resisted. Angela's version: She took a taxi. Pol'y & L. During the drive. she was very aggressive. saying that if he refused she would set off a bomb in the car." I would like to draw on a Peruvian example-! CASE (from thejudicial archives of Lima) Angela denounces an attempted rape by a midshipman from the Peruvian Navy. yet gave no legal justification.1998-1999] CONCEPTIONS OF VICTIM AND AccusED based on an extra-legal value judgment that could be called into question. and proposed a lesser penalty for the accused than that indicated by law for attempted rape. Gender Soc. The version of the accused: He picked her up in the street because she needed help. this is a typical case of discrimination 8.
It is especially notable that the law is deprived of much of its authority or power. the category of "single mother" reveals the content ofwhat it means to be a "bad mother. for the law assigns social roles. At no point was it suggested that he improperly distracted the attention of the courts with a false accusation. It is treated as inappropriate for a woman to become inebriated and also demand respect. so that it might cease to have such attributes." However. albeit recent. If we focus on the attitude of the accused (a member of the Navy). Carol Smart has studied the genesis of the legal concept of "single mother.ADA. have received insufficient attention. SOCIAL POLICY & THE LAW [Vol. gender differentiation also springs from the law. If we analyze it from the standpoint of the relationship between victim and accused. Mackinnon with respect to the "objective and neutral" constructs. In this connection." which sets forth case law on rape cases from 1930 to 1990. it is more complicated than that." HeinOnline -. 10. but it is important to begin to develop new frameworks in Latin America to allow continued study of the law with a critical perspective. SILVIA CHEJTER. Pol'y & L. we perceive that the state is not even interested in punishing him for having mobilized the police. the word of the accused has no value. because the important thing is to understand the interplay of numerous factors that leads to discrimination each time women enter into contact with the criminal law system."'" based on the historical experience of England and the development of theories regarding the subjects of the law which took place during the 19th century. 7:319 against an adult woman and a display of how a policy of impunity with respect to the crime of rape operates. we see the inability of the state to provide an adequate solution to the conflict through the prosecutor and thejudges. one could 0 begin a reform process. Anything we may say here is still hypothetical and exploratory. Gender Soc.VIOLACI6NYVYERISMO (1990).326 JOURNAL OF GENDER. LAVOZTnrl. whereas the woman's word was quickly dismissed with the argument that she was inebriated. U.7 Am. and also to review the bountiful. literature on studies of cases in which women are the accused. with respect for the laws in the respective instances. In reality. without cause. The case might then present a good pedagogical device for teaching law students what not to do.9 It would be interesting to explore ideas that have been expressed on law and the victimization of women. Moreover. Yet it does not suffice to study each element in dissociation from the others. In Latin America. by accusing the victim of terrorism. J. the contributions of C. His story was relevant. which undergird the male vision ofthe law. The example she presents 9. To what extent do cultural and arbitrary considerations come into play in enforcing the criminal law? The case could be reevaluated based on a proper weighing of the evidence. If the law were merely sexist or dominated by male figures. 326 1998-1999 . It is enlightening to read the chapter "Dentro de la ley todo. 11.
The most important arguments against such a legal remedy relied on the assertion that the legal interest at issue was sexual integrity. One position holds that these crimes should be "public." and therefore.1998-19991 CONCEPnONS OF VICTIM AND ACCUSED demonstrates the social importance of the standards developed by the law. increasing suffering rather than offering mechanisms for reparation.This element is less polemical than the previous one. from within feminism. 327 1998-1999 . In such a situation. Pardon by the offended party. Yet if the conceptual corpus of the crimes related to sexual liberty is analyzed. This solution offered by the law was anachronistic and easily rejected. the woman should be allowed to choose. This position considers the key problem to be the failure of the criminal procedure to attend to the person injured. rather than abandoning the criminal justice system altogether. departed from the realm of the law and situated itself in the realm of social prejudice. Pol'y & L. not the loss of opportunity to contract marriage resulting from the loss of one's virginity. This position makes dear that comprehensive measures must be developed to address this larger problem in order to argue for the classification of crimes against women as public. Gender Soc. U. These are examples of issues relating to sexual crimes and the victim/accused relationship that form part of a democratic debate to vindicate the capacity of citizens to take "legislative initiative": Their nature as "private" crimes: This is an important aspect that is currently the subject of much debate. as Elena Landaurri notes. It should be noted that the discussion of this point touches upon a major issue in criminal law-the diversity of criminal penalties. WOMEN AS VICTIMS: CRIMES AGAINST SEXUAL LIBERTY Earlier we used an example to illustrate how the justice system. IV. suggests that the entire process "victimizes" the person affected. It is HeinOnline -. There are two major types of arguments. we can find elements that are most useful to the legal discussion on the relationship between the victim and the accused in critical terms.7 Am. for the only form of pardon that traditionally appeared in the criminal codes of Latin America was granted upon the marriage of the victim to the rapist. Another position. to an increase in the prevalence of other types of penalties. a pardon by the offended party could be translated into economic compensation from the aggressor. We are seeing the focus change from deprivation of liberty as an effective means of punishing and transforming conduct. In this context. or to one of the rapists (in the case of a gang rape). the procedural impetus to investigate them should come from the state (on its own initiative) and not the party affected. in operation. J.
so long as he or she is guaranteed the real freedom needed to make this decision. and in need of special treatment. Hence. stripping them of any standing" to argue (one's word is worth nothing if not accompanied by reliable evidence) and placing the burden of proof upon them. making punishment minimally 6 consistent in the various criminal codes1 and facilitating the prosecution of the accused by well-trained police conscientious of their role. as well as byjudges sensitive to gender issues. For example. Elena Landaurri." such as adultery and seduction. HeinOnline -. 16.. in MUJERES. it will be necessary to develop a criminal system that guarantees. SOC. paraphrasing MacKinnon. we must understand why women are so distrustful of the protection afforded them through criminal law. 15. the debates are focused on improving and expanding the definition of criminal conduct.7 Am. DERECHO PENALY CRIMINOLOGIA (1994). the discussions of the relationship between victim and accused require the adoption of a position on what it is we are demanding of the criminal law in the name of women. these are 12. We must explain why criminal law offers so much resistance to finding solutions to conduct that represents an attack on the integrity and liberty of women. because the central nature of the constitutional prindple of presumption of innocence creates an obstacle to shifting the burden of proof in the case of sex crimes. the restrictions in Ecuador and Bolivia on lodging criminal complaints against members of one's nuclear family. it is necessary to make a break with criminal law policy that victimizes women. 5 Taking a position requires a more careful study of how criminal law treats women. This is a idely-debated point in the legal community.Y el Derecho Penal de las Mujeres. 13. J.. If we call for equality in criminal law. Attacks on the sexual liberty and integrity of women have such a destabilizing effect on individuals and on society that they merit and urge us to take short-term actions with a view to achieving immediate results. in the words of Landaurri. Control FormaL-. U. we emphasize that women are different." To the contrary. the right of victims to have all the technical assistance and support needed to be able to make their way through the criminal justice system without falling victim to new aggressions. from the outset. Pol'y & L. In this connection. 7:319 important that the reparation be based on the decision of the person affected. It is important to recall the discussions on neo-criminalizing trends (increasing sentences) and tendencies to minimize the intervention of the criminal justice system. especially in the area of infractions known as "offenses to sexual morality. Gender Soc.g. The empowerment of the victims is an important element in the effective transformation of the operation of criminal law. In broader terms.ALPOLIGY&T-E LAW [Vol. vengeful equality). we run the risk that the law will be used to the detriment of women (e.328 JOURNAL OF GENDER. 328 1998-1999 . 14. In general. In addition. If we pressure for a criminal law of difference.
need to be evaluated in greater depth. ESPANCAMENTO EHOMICIDXO (1987). 329 1998-1999 . opening the way to much needed reforms of domestic laws. and serves as a filter for interpreting laws at every level of the judiciary. Even if we have a good definition of what constitutes rape. V. CONSELHO NACIONALDOSD P-ETOSDAMULHER. The requirements of legitimate self-defense are generally interpreted in such a manner as to bar the possibility of a defense for the woman. Punishment and Eradication of Violence Against Women. we must be mindful of the attitude of'judges in those cases in which the woman becomes the accused by virtue of acts of legitimate self-defense brought on by prior acts of violence. despite the absence of any provision calling for such an approach. Gender Soc. Although we have been looking at the situation of women harmed (victims) by assailants (the accused). This aspect should also be studied to prevent manipulation and discrimination of the criminal justice system in relation to women. Pol'y & L. This frustration is not limited only to the administration ofjustice. Rather. with scant overall impact. understood as their diminished 17. almost all Latin American countries have signed and ratified the InterAmerican Convention on the Prevention. Yet the larger problem is the operation of the system. The defenselessness of women. The advances in the criminal law. and the means of attack (proportionality of the defense). if the word of the accused is accorded more evidentiary weight than the word of the victim. relegating them to "women's" spaces. we will not have advanced much. the capacity of criminal law to support respect for the human rights of women. ANALISE HeinOnline -. PROPOSALS FOR DEVELOPING A CRITICAL PERSPECIVE OF THE CRIMINAL LAW AS TO THE RELATIONSHIP BETWEEN ACCUSED AND VICTIM IN CRIMES AGAINST TIlE SEXUAL LIBERTY OF WOMEN The legal system's loss of legitimacy for women who become aware of the limitations on their rights and of the impunity that prevails when they demand respect for those rights poses serious problems of societal frustration that require top priority political attention.1998-1999] CONCEPTIONS OFVICIM AND ACCUSED feasible goals with the appropriate strategies. QUANDO AVrIIMAEMUL-E DEJULGAMENTOS DE CR1MES DEESTUPRO. As a successful example. However.7 Am. J. Focus is placed on the present existence of the assault (immediate defense). enjoy the support of progressive jurists and legislators.'7 The same holds when the sexual morality ofjudges is introduced into the courts. for the improvement of the treatment of crimes that affect women's sexual integrity and liberty. U. and specifically for the right to a life free from violence. the entire political institutional system systematically treats women's demands as marginal.
The process as a public act must be highlighted. In general. proper judicial weighing of the evidence. immediate changes are needed in the meantime. What transpires between women and men in the context of criminal procedure is related to what occurs in society. they relate to the lack of a conception of justice that incorporates sensitivity to women's loss of rights resulting from the dynamics of violence in family or affective relationships. Gender Soc. supra note 3. There are many possibilities for immediate change. It is essential to develop and teach feminist theory as it relates to legal sociology. cannot be solved by a simplistic interpretation of access to the mechanisms of the These are not just issues of legal administration of justice. The great transformation which is needed involves regaining equilibrium in the accused-victim relationship so that the criminal law guarantees for the protection of the accused against abuse by penal institutions do not become tools for an attack on the rights of the victims. greater procedural weight granted to women's testimony. andjudges) regarding gender justice. professionals in law-related fields. U. Some examples are technical assistance and support to the victim from the beginning of the process. demanding specific measures with capacity to change this situation. 330 1998-1999 .7 Am. 7:319 possibilities for defense against the loss of their rights. The criminal law system as a whole requires major transformations. representation or reforms to the procedural law. SOCIAL POLICY & THE LAW [Vol. Vargas. HeinOnline -.330 JOURNAL OF GENDER. More empirical sociological studies should be undertaken to identify the key problematic situations. but it cannot be evaluated solely from the legal perspective. and therefore criminal procedure should not be treated as autonomous. 18. so as to grasp the influence of cultural stereotypes and to bring about changes in the mentality of the users of the legal system (litigating attorneys. and greater decision-making capacity for the victims. As a democratic debate on criminal law and its social function unfolds. J. and it would be most helpful if the debates on substantive issues also had an impact on procedural law. the whole evidentiary system should be reviewed looking not only at the rights of the accused but also at the rights of the victim. ' The relationship between the victim and the accused is defined by the substantive level of criminal law. Pol'y & L. Rather. because it reflects the conscience of society in a microcosm. The imbalance in the treatment afforded men and women as victim or accused has led to policies of impunity that pose serious risks to democratic governance. and those losses of rights that stem from discrimination.
and with diverse notions of conflict and reparations. also called "law for social tolerance. Gender Soc. and into all other institutions that impact social life. 331 1998-1999 . This perspective.7 Am. close to the everyday experience of persons. J. at the same time. One must address the close link between feminist critiques of the law and the consolidation of women as citizens with the ability to make decisions regarding the rules of society and the state. revealed for what it is. 20. MERCEDESCARRERASAPROXRMCIONAIAJURISPRUDENCIAFEMINISTA (1995). U. 1993).20 So. The effort will only be successfii ifposed as a coordinated effort. a response must be formulated to the underlying question: to what point can the legal apparatus. the goal is not simply to build a system that incorporates the voice of women. Pol'y & L. Changing institutional norms entails recognizing that there is no single way to resolve the contradictions and tensions generated by women's demands (Jelin. be used as a means or tool for women's liberation? The urgent need for a response on the issue of the relationship between victim and the accused is crucial in this regard. The process of eliminating subordination of women requires integrating justice into the rules and procedures of the legal system." is integral and assumes the challenge of serving both parties to the conflict.1998-1999] CONCEPTIONS OFVICrIM AND ACCUSED We seek new ways of constructing justice in a manner consistent with human rights. 19. but rather to build one that allows for a democratic interrelationship that results in a form ofjustice that provides the means for reconciliation among all human beings." The debate is open for discussion of the various positions. and the law school classrooms to provide an especially appropriate place to carry out this task. This is a task that calls for the development of critical awareness. recognizing the contributions of the feminist community and of the institutional framework that seeks to give impetus to development processes in such disadvantageous conditions. The legal method we use for women must be valid for everyone and should free the process from discrimination on any other basis. HeinOnline -. This link makes clear that the analysis as to the real nature of the legal substratum should be maintained and.
7 Am.HeinOnline -. J. U. 332 1998-1999 . Pol'y & L. Gender Soc.
.. U......COMMENT ON THE PAPER BY GLADYS ACOSTA MARTN D........... II.... If the laws that discriminate against women meet certain requirements.. Legal positivism is a theory that makes it possible to describe the law without recurring to moral concepts. After identifying a provision as law.... how does this prejudice the feminist cause? Feminists know that there are legal provisions. Gender Soc...... CONSTLTUTIONAL PROTEMrONS .. 333 334 334 I will merely mention three aspects of the paper by Gladys Acosta with which I disagree....... Pol'y & L.... Yet..... also legal. Let us suppose that the positivist identifies a provision that discriminates against women as a legal provision. without referring to the many arguments with which I do agree.. What distinguishes it from natural law theory is that positivism evaluates the norm after identifying it as a legal rule.... J.... I................. the conservative positivist may approve of it.. or a rule of law.. I do not agree at all with this assessment. TBE PHILOSOPHY OF PUNISHMENT .. but I believe that polemic is academically more useful than praise.... 333 1998-1999 ... HeinOnline -............ and what they seek is to replace them by other provisions......... of course positivism will consider them provisions of law. positivism evaluates legal rules from a moral standpoint..... THE FAULT OF LEGAL POsrriviM ... but will object to its content on the basis of moral reasoning. Contrary to what some imagine. however.............. The liberal positivist.... will first identify it as a rule oflaw..... and hence the style that I have chosen. Perhaps this will make my comment excessively critical... FARRELL I........ THE FAULT OF LEGAL POSrIVISM Many partisans of feminism blame legal positivism for the current situation women face in many countries....7 Am.. In addition to identifying it as a rule of law.... III.. but with a different content. much remains to be done...........
Bentham was not Latin American either. for example. Yet liberals are also concerned with respect for constitutional guarantees. jeopardizing the constitutional protection of the presumption of innocence. it is not because they are foreign to the Latin American context. HeinOnline -. The task of feminism should not be to seek justifications of the penalty that reflects the supposed idiosyncracy of some continent. but ideological positivism. feminists and non-feminists agree in repudiating sex crimes. The problem with the retributive conception of punishment. I cannot help but feel alarmed at the proposal to shift the burden of proof in sex crimes. All the theories forjustifying punishment claim to be universal. and the partisans of feminism should share this concern. no agreement on the best theory of moral justification. U. Taking Mill as a model. Therefore. Gender Soc. The Millian principle of harm suffices to justify this condemnation for liberals. but the deterrent conception of punishment seems more convincing. My suggestion is to study the utilitarian conception of punishment in greater depth. 334 1998-1999 . Pol'y & L. but for the legal positivist this is far from being the case. J. any attack is useless. It stems from the difficulties that theories of ethical duty have in accounting for the function of punishment. of course. since I don't know of any serious author who supports this theory. Yet one should not distrust the liberalism of Mill.7:333 Perhaps what certain branches of feminism wish to attack is not legal positivism. and there is. SOCIAL POLICY & THE LAW [Vol.7 Am. each in good company. I. does not arise from the circumstance that Kant was not Latin American. moral evaluation is superfluous. but to seek the best justification of the penalty. feminism and liberalism have a long way to go together. If the target is ideological positivism. III. THE PHILOSOPHY OF PUNISHMENT The issue of the moral justification of punishment is extremely important.334 JOURNAL OF GENDER. For the ideological positivist. Feminists may distrust the liberal theory of Rawls and argue that justice in the distribution of resources stops at the door to one's home. a firm partisan of women's rights his whole life. Though some theories may be deficient. CONsTrTUTIONAL PROTECTIONS Of course. which holds that a rule should be obeyed simply because it is a legal rule.
........ Pol'y & L........ 335 1998-1999 . This law guarantees the participation of at least thirty percent women on the lists of candidates for national 1... pursuant to the 1994 constitutional reform... (1995)....... of the Convention on the Elimination of All Forms of Discrimination Against Women... INTRODUCTION .... GERMAN BIDART CAMPOS.. is especially notable. equal rights for children born out ofwedlock and civil marriage.. J..... in TRATADO ELnw.. These include laws regarding joint custody.... 337 LI.NTALDEDEpciosH Nos555.......... La Reforma Constitudonal de 1994...... 1983 also represented its definitive incorporation into the international systems for the protection of human rights... CONCLUSION .. La Igualdad Real de Oportunidades. 2... 335 II............"2 Several legislative measures were adopted for the implementation of this convention. 23. acquired constitutional rank. HeinOnline -. The treaty thus became part of what Bidart Campos calls "the bloc of federal constitutional law..... THE CONSITUTION OF THE CITY OF BUENOS ARES ... which represented significant progress. due in large part to the active participation of women's groups..... along with other human rights instruments. Tomo V..7 Am...... This treaty......" Law No.179.WOMEN'S HUMAN RIGHTS IN THE FRAMEWORK OF ARGENTINE DOMESTIC LAW: TREATMENT SINCE THE RETURN TO DEMOCRACY MAPA TERE A FLORs I... as provided in Article 75(22) of the Constitution... of special significance is the crucial decision that resulted in the ratification.. INVESflGAR.... in 1985 by Law No. 340 I... INTRODUCHON Argentina's return to constitutional rule on December 10... 24.012. Gender Soc. The so-called "quota law....... May 1997....... U... On issues specifically relating to women. This issue is developed in Maria Teresa Flores..........
As noted above. among them. Pol'y & L. the law of Mendoza states: "The relevant provision on the percentage of women on the lists shall apply to the six elections following the promulgation of the present law. such as those incorporated through Article 37.747... and Mendoza. 3. SOCIAL POLICY & THE LAW [Vol. 24. "at least one-third shall be women. 11. Law No. through Law No. J.7 Am." Paragraph two of Article 27 states: "real equality of opportunities between men and women in access to elective office and party positions will be guaranteed by affirmative actions in the regulation of the political parties and in the electoral regime. A list that does not meet these requirements will not be made official. 5. that in any list of candidates submitted by the political parties. and the full enjoyment and exercise of the rights recognized by th[e] Constitution and the international human rights treaties in force." The province of Santa F6 provides.336 JOURNAL OF GENDER. which is entitled "New Rights and Guarantees. and the need for their active participation in democratic processes.. Gender Soc. affirmative actions. These provisions also prescribe that the lists of candidates "must contain at least 30% women candidates for the elected offices and in proportions such that there is a possibility of being elected. the Convention on the Elimination of All Forms of Discrimination Against Women. in an interspersed or successive manner. require that society in general become aware of the political rights of women. by Law 10. Law No. to "legislate and promote affirmative actions and measures that guarantee effective equal opportunity and treatment. incorporated into Chapter 2 of the Argentine Constitution. i. U. Although in most cases the duration of the law that prescribes the "affirmative action" is undetermined." In addition to recognizing quotas." The international legal instrument.888. Evidently. established in Article 75(23) of the reformed Constitution. women .. several Argentine provinces have already issued similar statutory provisions..e. states that special measures of this type will cease "when the objectives of HeinOnline -. their responsibilities. Chaco.802/92. in " particular with respect to. In Argentina.733." Adhering to this system. 7:335 elective offices." It ties this concept to the power of Congress.012 replaced Article 60 of the National Electoral Code and provides: "The lists submitted shall contain at least thirty percent women candidates for the elected offices and in proportions such that there is a possibility of being elected.. the province of Buenos Aires. Law No. the constitutional reform of 1994 has been quite important The reform included important language in Article 37. 336 1998-1999 . also guarantees at least thirty percent participation of women in government.
Since the Buenos Aires Constitution is the most recent Argentine constitutional text. THE CONSTIrUTION OF THE CiY OF BUENOS AIRES In conformity with the provisions of Article 129 of the Constitution of Argentina reformed in 1994. Evaluating the overall situation of women in our time is complex given that contradictory elements co-exist.7 Am. The preamble sets forth as the priority objective of the Constitution for the City of Buenos Aires: ". it is valuable to analyze whether its provisions display a gender perspective. Artide 4. in addition to the struggle of the large marginalized sectors. have not been translated into a greater access to decision-making positions or a real increase in political space within the government. Hayde6 Birgin. 1979. intelligence. 4 sociocultural standards have yet to be permanently modified. and solidarity.1998-1999] WOMEN'S HUMAN RIGHTS IN ARGENTINA 337 equality of opportunity and treatment have been achieved. we also should recall that many women suffer dual discrimination based on gender and poverty. Gender Soc. Women still encounter enormous difficulties gaining access to leadership positions and continue to earn lower real wages than men. In this context. it fails to take a position on the issue. At the present time in Argentina. however. Single women supporting households have difficulty obtaining loans to purchase homes and displaced persons or refugees must deal with even greater inconveniences as they place themselves or their children in a new environment. to the contrary. 3.. HeinOnline -. although a statutory framework exists that recognizes the equality of human beings and includes antidiscriminatory principles. or Organizational Statute. J. 1996. December 18. A/RES/34/180. to promote human development in a democracy founded on freedom. I. 337 1998-1999 . Ciudadan~ayJttdd Nuevos Reasos eInstrumentpara IaAcd5n Ciudana. For example. the city of Buenos Aires adopted its own Constitution. and their importance in the processes of return to democracy. equality. all of the work carried out and lessons learned from women's participation in the social and political movements in the Americas during the 1980s. Pol'y & L. U."' Measures such as those mentioned above are important achievements for women. and whether it encourages the full enjoyment of women's rights or whether. inMUJERESEN LOS'90 67-90. that the path ahead Will require all the more strength. 4. This Constitution was endorsed by the city's Constituent Convention on October 1.. there have been so many centuries of such harsh discrimination. Convention on the Elimination of All Forms of Discrimination AginstWomen.
justice. 6. opinion. exclusion. and 5." includes a guideline that the local legislature must follow in approving "Basic Health Law. This possibility. economic. in order to guarantee the dignity and further the prosperity of its inhabitants and of the women and men who wish to enjoy its hospitality." by placing "at the disposition of the people: education. puerperium. gender. Gender Soc. entitled "Rights. 338 1998-1999 . The concept is reinforced by the second paragraph of Article 14. Guarantees. ethnic group.338 JOuNAL OF GENDER. entitled "Health. restriction or impairment. Pol'y & L." The law must also guarantee "comprehensive attention to pregnancy. physical characteristics. ideology. SOCIAL POLicY & THE LAW (Vol. nationality. These organizations will undoubtedly be able to 6 perform a leading role in this respect. age. religion.. or any circumstance that implies difference. J. . accepting not only submissions by affected women. and human rights. which includes "the right to be different. 7:335 solidarity. restriction." Thus. psychological or physical condition. methods. Birgin." Article 11 of the first Title provides for equality and "identical dignity" for all people. Article 21 (4)-(5) requires that this law "promote responsible maternity and paternity." Putting aside the argument that the above does not include all possible discriminatory circumstances. supra note 3. U. will allow defense associations to initiate legal actions.7 Am. Imprenta del Gobiemo de ]a Ciudad de Buenos Aires. in which it is anticipated that when one is faced with "some form of discrimination. November 1996. at 84. either out of ignorance or fear. Chapter two of the second Title in Book One. given the customary reluctance of many women to act individually in initiating court proceedings." is developed under two titles: "Rights and Guarantees" and "Special Policies. the provision represents a clear advance by directly linking the concept of discrimination with any "distinction. or reduction" of rights as required by the Convention on the Elimination of All Forms of Discrimination Against Women. social. recognizing identity in plurality.." This is a remedy that the Buenos Aires Constitution makes available to anyone affected by discrimination. childbirth. HeinOnline -. and services that guarantee their reproductive rights. sexual orientation. without tolerance for discrimination that tends to produce segregation based on or upon the pretext of race. Constitution for the City of Buenos Aires. exclusion.5 Book One of the Constitution for the City of Buenos Aires. but also by women's associations or organizations. and Special Policies." an amparo action can be filed by "any inhabitant and/or the legal counsel of the collective rights or interests.
." It is structured as follows: Article 36 guarantees "in the public sphere and promotes in the private sphere the real equality of opportunities and treatment between men and women in access to and the enjoyment of all civil.. establishes in Article 24 that the city of Buenos Aires assumes non-transferable responsibility for "ensuring and financing education that is public. as basic human rights. . especially in making responsible decisions on procreation." This education must consider "gender perspectives" and incorporate "programs on human rights and sex education issues. and cultural rights.LoP -ado Tambi enPoMico. of a plan for equality between men and women. and free of charge. ElimsCarca. J." This inclusion of a gender perspective. economic. Article 37 recognizes "reproductive and sexual rights. the number of children." promoting "the integral protection of the family... auspicious from the outset." This article also provides that the legislature may not agree to the formation of committees or other units made up of three or more members that do not respect the foregoing quota. expressly dedicated to "Equality between males and females. 339 1998-1999 ... should be framed in a general context that promotes development with equality so as to adequately 'guarantee the basic right to education of females and males." Article 38 requires "the incorporation of the gender perspective in the design and implementation of public policies and the elaboration. The third chapter of Title II. political. and the interval between their births.. The second Title of Book One includes Chapter 9. HeinOnline -. free of coercion and violence." This article formulates a complete framework of 7. Gender Soc. Pol'y & L. inMuJERES EN LOS '90155-169.. on education.." nor will they be able "to include three people of the same sex in a consecutive order. with broad participation. provided by the state. non-religious. through positive " actions . social." It also guarantees "the equality of rights and responsibilities of women and men as progenitors. It also mandates that the political parties are to guarantee "effective access to leadership positions and financial management . U." A constitutional plan that prescribes that future health regulations must guarantee "reproductive rights" is clearly a remarkable advance 7 for Argentine legislation.7 Am. S2audP1Rductiva:.1998-1999] WOMEN'S HUMAN RIGHTS iN ARGENTINA 339 childhood until the firstyear of life." It further provides that the lists of candidates to elective positions may not "include more than the seventy percent of persons of the same sex with probabilities of being elected.
HeinOnline -. Gender Soc. CONCLUSION In the arduous and slow path towards broad recognition and effective observance of women's human rights in our Latin American countries. and organizations." The article also guarantees "to women supporting households." In addition.. human rights.9 We will continue the task.340 JOURNAL OF GENDER. . J. Title Three (relating to the legislative branch) of Book Two.8 The active participation of diverse social actors is also essential. it requires the promotion of and "the participation of non-governmental organizations dedicated to women's issues in the design of public policies. Gladys Acosta. persuaded that by extending our rights and becoming aware of our potential. the Constitution for the City of Buenos Aires is an important step forward that will be consolidated at the end of 1997. since "the real force of constitutional texts is not in the letter of law. hierarchical levels." to "the total integration of women into productive activities. the state and the law must become instruments of change. and in their capacity to surmount situations that constitute transgressions of the constitutional norms.7 Am." Subsection 30 of that same article establishes the authority to organize "advisory councils to advise him on matters such as childhood." shelter of pregnant children and adolescents and "the prevention of physical violence. providing a full government to this federal district." Finally. in MUJERESDE LOS '90 115." but in the routine daily life of the people. when the local legislature is finally constituted. 340 1998-1999 ." establishes among the powers of the city legislature the prerogative to legislate and to promote "affirmative action measures guaranteeing the real equality of opportunities and treatment between men and women. in Title Four of Book Two indicates as powers of the head of government the authority to adopt "measures that guarantee effective equality between men and women in all the areas. which is titled "Government of the City." Article 104(28). for as Elisa Carri6 says. Elisa Carri6. U. we will contribute significantly 8. access to housing. which is dedicated to the local executive branch. and credit. youth. LosDeahos de Is Mujfres en Las CoutitudonesPoti!as. JERARCAS. PATRONESYOTRosVARONES 203 (1993). in SOBRE PATRIARCAS. 9. 7:335 objectives and actions that range from the "modification of stereotyped sociocultural patterns. employment." MI[. It is a great step. Article 80(7).LegistadnyAdninistrad6n dejustida. and retirement age. SOCIAL POLICY & THE LAW [Vol. Pol'y & L. in the accessibility to mechanisms for filing complaints in case of violations of their rights.
and international legal norms on this issue. Gender Soc. J. U.1998-1999] WOMEN'S HUMAN RIGHTS INARGENTINA 341 to design and implement local. national. 341 1998-1999 . Pol'y & L. HeinOnline -.7 Am.
U. 342 1998-1999 . J. Pol'y & L.7 Am. Gender Soc.HeinOnline -.
............... Pol'y & L..... and sometimes conspicuously slow pace relative to social events........ As societies become more complex.. U........... racist. INTRODUCTION The law is an instrument of the State used to organize and regulate the functioning of society............... HeinOnline -.... superimposed over the private domain.............. the law tends to follow a parallel course.....FAMILYVIOLENCE ..... 347 IV.......... or patriarchal structures...... usually at a reduced... 352 I..... 343 11. one that is in fact.. precisely because beyond merely categorizing spheres of movement and activities...... It likewise signifies an acknowledgment of the public domain as a superior construct..................... Researcher with the Interdisdplinary Women's Studies Program at El Colegio de Mexico..... 2.. The law's failure to keep pace with events has been frequently criticized and has been characterized as an obstacle to social change.... but also in broader social terms. CRIMINAL REFORMS IN THE AREA OF INTRA....... CONCLUSION ...... The public-private dichotomy is one of feminism's longstanding concerns......... not only from the strictly legal standpoint....... EDUARDo NOVOA........ 344 III.... THE ME cAN LEGAL SYFTM .................... 343 1998-1999 .... The latter point is particularly significant to an analysis of women's status........ the regulation of social relationships often carries with it the validation or legitimization of classist..................... Gender Soc...... 351 V....GENDER AND LAW: MEXICAN LEGISLATION ON DOMESTIC VIOLENCE MARTA TORRES FALC6N' I........................ J. it assigns hierarchies of functions and tasks. and relegates women to the private 1..... INTRODUCTION ......... LAW FOR THE ASSISTANCE AND PREVENTION OF INTRA-FAMILY VIOLENCE ..........2 In effect.....7 Am.................... ELDERECHO CoMO OBSTACULOALCAMBIO SocIAL (1983)....................
particularly in relation to the procedures it sets forth. militancy. HeinOnline -. academia. and to the justice system itself. SOCIAL POLiCY& THE LAW [Vol. Examples abound of laws that penalize female adultery more severely and that restrict women's access to the workplace. not to mention laws restricting access to procedures for reporting rape and sexual abuse. ESTRATEGIAS DE LAS MUJERES DEL TERCER MuNDo (1987). MARGARET SCHUI ER.7 Am. 7:343 domain.F. J. This article analyzes the regulation of domestic violence in the Mexican legal system beginning with recent legislative reforms. PODER Y DERECiO. U. This law was the first on the subject to be el enacted in Mexico.) that sanction conduct. to productive resources. federal laws. etc. decrees. codes. Gender Soc. 344 1998-1999 . THE MEXICAN LEGAL SYSTEM The structure and substance of any legal system is inherently complex and difficult to understand. I. feminism has consolidated itself to a degree that has enabled it to petition the State with concrete demands and to design international strategies that have begun to bear important fruit in Latin America. Working from a variety of perspectives.]. The presence of feminism has been central to this process. including both substantive and procedural areas. The first of these is the legislative component. agreements. regulations. A second section addresses the Law for the Assistance and Prevention of Intra-family Violence for Mexico City [Ley de Asistmcia y Prevenci6n de la Violencia Intrafamiliarpara D. some conclusions are presented. and the media. The third section discusses reforms to the criminal code and criminal procedures that were recently approved by the House of Representatives. We have recently observed the other side of the coin in the enactment of legislation that condemns this structure of discrimination and establishes guidelines for arriving at appropriate solutions. Margaret Schuller proposes a model that facilitates understanding of the complexity of legal relationships based on the integration of three closely related components. which includes all law. local laws. The law has been used to perpetuate the subordination of women or to impose on them important identifying' characteristics. This 3. The first section offers a general overview of the legal system and the diverse array of existing norms and principles. that is the totality of norms (political constitution. Pol'y & L. Finally. The law is administrative in nature and has certain limitations.344 JOURNAL OF GENDER.
and so forth. the administration ofjustice. which in turn are superior to the laws of each federal entity. This hierarchy of norms is based on two criteria: the subject being regulated and the territorial reach of each law. cortes] and. There exists a clear defined relationship between these first two components.7 Am. 345 1998-1999 . tribunales. Beyond this theoretical construct. Jurisprudence or precedent is created when five consecutive cases are resolved in the same manner. J. it has generated a number of contradictory rules of law. U. atS (emphasis in original). inter alia. This includes the court system [juzgados. is included in the second (structural) sphere. Pol'y & L. but also how the personal opinions of judges and other authorities permeate judicial decisions and 4. The authority of the federal appellate courts to emitjurisprudence has been widely criticized because. in general. The second component is what the author refers to as structure and includes the agencies responsible for the administration of justice. facilitates an understanding of the differences. In relation to this point. 5.1998-1999] MEXICANDOME cVIOLENCE LEGISLATION 345 component thus includes the content of the law as well as the manner in which it should be applied. there is a precise hierarchy that places the political constitution above federal laws. regulations. all public offices whose function it is to apply the law. supranote 3. Jurisprudence. it is important to clarify that not all laws are similar in scope. In order for these agencies to apply the law. In Mexico. ScHULE. Culture encompasses the attitudes and behaviors of society toward specific norms. which focus instead on the weight of the law and. Nonetheless. the law must first exist. to a lesser degree. however.I. particularly in criminal cases that are confidential. the Supreme Court ofJustice and the federal appellate courts (Tribunaks C0/ adas) (both federal institutions) are the bodies that emit jurisprudence or precedents. salas. the second depends on the first. the analytical separation of the law as an abstract entity from the specific structure established for its application.! This last cultural element rarely appears in law school texts. and even contradictions between the theoretical conception of a particular conduct and the application of the corresponding legal principle to a concrete case. Margaret Schuller's contribution. which is the interpretation of the law provided by certain judicial bodies. is essential to understanding not only the disparities between the norms and their application. In fact. an analysis ofjurisprudence is very useful for understanding the positions of the judges and the arguments of defense attorneys. Gender Soc. The structure depends on the legislation.4 Culture is the third component. HeinOnline -. These attitudes may include "the conscious acceptance of these oppressive laws and practices or women's lack of understanding and awareness about legal objectives andprocedures". ambiguities.
it should be mentioned that there is a deep distrust of the authorities. enacted a law on the subject of domestic violence. makes an analytical overview of their functions and tasks virtually impossible. This understanding in turn. which continue to be seen as peripheral and offering little chance of success. is more difficult for women. has instead produced a genuine legislative jungle. If this model is applied to the Mexican legal system. another initiative was introduced to legislate on domestic violence in the criminal sphere. the first component will be found to be completely saturated. It should also be noted that there exists no formal judicial career in Mexico. district courts. federal appellate courts. This disenchantment is experienced perhaps more frequently by women than by men. allows for awareness of why women do not approach these institutions and why. There is a political constitution for the entire Republic. although the latter cannot contradict or supersede the federal constitution. several states followed suit shortly thereafter using the law adopted in the capital as a blueprint and virtually copying it. J. Numerous incidents of corruption have played a significant role in public disenchantment with the administration of justice. civil procedure codes. the number of laws grows exorbitantly. Pol'y & L. In effect. The same holds true for civil codes. Gender Soc. With respect to the cultural component.7 Am. 7:343 sentences. the Federal District. etc. 346 1998-1999 . 32 criminal codes and so forth. and each sub-unit of the Federation has its own constitution. when Mexico City.346 JOURNAL OF GENDER. This proliferation of legal norms has its counterpart in the judicial structure. HeinOnline -. but also to the fact that few lawyers are willing to defend women's interests. As soon as the law entered into force and bureaucratic institutions were established for its application. This means that in all of the Republic. Even in a new area such as this one. etc. there are a total of 32 constitutions. The sheer number of courts of first instance. so a large number of people are always in the training process without actually becoming specialized. judicial authorities in particular. far from organizing and systematizing the regulation of social life. 32 civil codes. they almost never achieve the expected result. criminal procedure codes. There exists an excess of norms that. because of all its corruption and iiefficiency. U. This means that judges and other members of the leadership of these institutions frequently change. This difficulty of access should be attributed in part to cost. SOCIAL POLICY & THE LAW [Vol. access to the system itself. an excess of disperse norms lacking any systematic order has emerged. when they do. appeals courts. For example. If regulations and other administrative provisions are also considered.
Uruguay reformed its criminal code in order to classify intra-family violence as a crime. J. reflects a collection of competing ideologies.7 Am. the criminal code and code of criminal procedure were reformed to classify domestic violence as a crime. In fact. This situation in and of itself.1998-1999] MEXICAN DOMESTIC VIOLENCE LEGISLATION 347 The three components interact in such a way that the law is not carried out on a single plane. contains a measure ofviolence. We could also include in the cultural component the analyses of legislation formulated from the feminist perspective. as well as. 1996. the almost perpetually conflictive relationship between the three components makes the law seem to be a human undertaking rather than an external imposition removed from social life. among others. the initiatives that have emerged from these analyses. the Inter-American Convention to Prevent. given its complexity. Chile. III. The law is an expression of the dominant ideology and often. A clear example of this process is laws on the subject of domestic violence which have been enacted in different Latin American countries. among others. Colima and Nuevo Le6n. Bolivia. and Eradicate Violence Against Women was signed in Belem Do Par-. meaning that it can only enact laws on certain subjects and only for Mexico City. Gender Soc. the House of Representatives for Mexico City approved the Law for the Assistance and Prevention of Intra-family Violence. and entered into force on August 8. 347 1998-1999 . The House of Representatives is a local legislative body. which only has effect in the capital. Traditionally the needs of women have been ignored by the law. In 1994. Most recently. To the contrary. HeinOnline -. Similar laws were subsequently enacted in the states of Quer~tero and Coahuila and draft legislation is pending in the states of Morelos. The situation in Mexico has varied somewhat from that in other Latin American countries. and Peru. The Puerto Rican law predates the Convention and was the first to be enacted in Latin America. Costa Rica. U. 1996. LAW FOR T=E ASSISTANCE AND PREVENTION OF INTRA-FAMILY VIOLENCE The Law for the Assistance and Prevention of Intra-Family Violence is a law that was approved by the House of Representatives for Mexico City on April 26. Several months before the ratification of the Belem Do Pari Convention. Sanction. El Salvador. Argentina. relegating them to the realm of the uncontemplated. Pol'y & L. have laws on domestic violence. Several countries in the region subsequently enacted special laws on intrafamily violence and reformed existing codes.
psycho-emotionally or sexually. Common law unions are included. since de facto unions do not appear at all in any other law. however. by a civil relationship. which seems to be a euphemism that introduces ambiguity into the violent relationship. physically. By not defining them. subjugating. but rather to "generators" and "receivers" of intra-family violence. however." Although the emphasis is on prevention. which also surfaces in other Latin American laws. and cyclical act aimed at dominating. the family is defined as persons united by a blood relationship. were inevitable. or assaulting. For the effects of the law. is it necessary to allude to intent when sanctioning violence? Can one conceive of something being generated without previous intent? Can there be an act "aimed at dominating. Gender Soc. it is very important that the law be sufficiently clear so that it may be applied appropriately and with precision. In fact.348 JOURNAL OF GENDER. Can there be a recurrent act that is not cyclical or vice versa? Moreover. 7:343 For example. without restriction in terms of degree. not defined. unrelated acts. verbally. The euphemisms and ambiguities. The Assembly only had the authority to legislate on administrative matters and to regulate special procedures." Herein lies the problem. clearly manifest in the law. controlling or assaulting" that is not intentional but rather accidental? Even though on the surface these questions may be unnecessary and even pointless. as if generation and reception were distinct. intentional. Violence (that abstraction that someone generates and someone else receives) is defined as "a recurrent. This omission is unfortunate. and mechanisms for appeal which go beyond the exclusively preventive character of the law and are more inclined toward case resolution. aggressors in cases of domestic violence often allege as a defense. 348 1998-1999 . but they are only mentioned. What should be understood by "recurrent" and "cyclical" ? These terms appear as concurrent elements and not as synonyms. SOCIAL POLICY & THE LAW [Vol. that the injuries in question were produced as the result of HeinOnline -. Pol'y & L. U. subjugating. marriage or by a relationship of concubinage. The law on intra-family violence is the only one that refers to these unions. it does not have the authority to reform the civil or criminal codes.7 Am. sanctions. controlling. were not inevitable. J. since they include a federal component. These restrictions. Article 1 states that the purpose of the law is to "create rules and procedures for assistance for the prevention of intra-family violence in Mexico City. There is no reference to aggressors and victims. the law itself establishes procedures. their mention becomes virtually meaningless.
arises in transferring the principle to the concrete case. which are dependencies under the executive branch (of the government of Mexico City). It would be more appropriate for the law to state that the intention of the generator." If there is conciliation. The first option is conciliation. it would be worthwhile to preclude the possibility of this defense in the text of the law. where the conduct must conform precisely to the definition. amicable settlement in the law refers to an arbitration process. abuse is defined as denying "sexual-affective needs. By dissecting abuse into physical. For this reason. Otherwise. The law stipulates two procedures: conciliation and amicable settlement. inducing undesired practices. informing them of the consequences should the conflict persist. In Mexico City. U. The language must be clear and free of ambiguity. For this purpose. an agreement is signed. except in cases where there is an explicit confession. exhorting them to conciliate. The problem with broad definitions. In the case of sexual abuse. Both procedures take place in special units established to give attention to intra-family violence. this territorial unit falls within the competence of the political delegations." "reiterative. Including this element in the definition is somewhat dangerous. is irrelevant in cases of physical injury. Although the terms appear to be synonymous. each of which have their own political authorities. Each state of the Republic is territorially divided into municipalities. 349 1998-1999 . The leaders of the political delegations are not elected by the citizens. Gender Soc. These units are administrative agencies that6fall under thejurisdiction of the political delegations for Mexico City. Pol'y & L. and unnecessary. if the conduct in question can be classified as criminal. which might provide quite illustrative language." and "aimed at subjugation and control" to be covered. and using jealousy to control. The agreement is obviously administrative in 6. How can intent be evaluated when it is something so personal and subjective? Proving the intent of an act is virtually impossible.7 Am. psycho-emotional. and offering them all possible alternatives. HeinOnline -.1998-1999] MExICAN DoMEsTIc VIOLENCE LEGISLATION 349 an accident. J." This last definition introduces an innovative element that alludes to a combination of sexual and psychological abuse not usually registered in legal proceedings. and sexual elements. Article 20 stipulates that the "conciliator" (who is an undefined functionary of the delegation distinct from the arbitrator) will proceed to "seek compromise between the parties. the law emphasizes the fact that the acts or omissions must be "repetitive. the law refers the case to the criminal code. manipulate or dominate the partner.
Gender Soc. J. Its principal attribute is that it assigns concrete responsibilities to diverse institutions of the Mexico City public administration to carry out large-scale prevention campaigns. In practice. If one of the parties. which would only have legal effect upon ratification before a family courtjudge. oral arguments and a decision. nor much of an arbitrator. The injured woman in that case will have no other options except those available under ordinary civil or criminal law. HeinOnline -. Large gaps still remain which should be bridged with appropriate measures. is called a friendly adjuster (amigable componedor). 7:343 nature and. It is possible that he or she will be neither all that amicable. the parties must expressly request the intervention of an arbiter to settle the intra-family conflict. etc. this term should probably be considered more a proper noun than a precise description. Paradoxically. a new route was subsequently attempted in the criminal field. The arbiter.350 JOURNAL OF GENDER. presumably the aggressor. This arbitration process is an extremely weak link in the law. does not accept arbitration by the Delegation. The sanctions consist of a fine of 30 to 180 days of minimum wage and up to thirty-six hours of administrative detention.7 Am. instead of continuing forward on this road already begun. Even more. The promulgation of this law constitutes progress in the area of legal attention for abused women. consequently. and genuine protection mechanisms for the victims. It is an instrument of coordination and cooperation among government offices in the capital. U. The law establishes sanctions for those who fail to appear when summoned or fail to comply with the agreement or final decision. The law under discussion will then be ineffective. If there is no conciliation. the procedure for amicable settlement or arbitration may or may not follow. Pol'y & L. conciliation can only mean reconciliation. The arbitration procedure includes the presentation of evidence (except confessions. it cannot be imposed. because the procedure is administrative rather than legal. SOCIAL POLICY & THELAW [Vol. This means that the procedure can only be applied to persons who voluntarily submit to it. Although. 350 1998-1999 . efficient procedures. the guardianship and custody of minor children. In December 1997. a series of reforms was approved to classify intrafamily violence as a crime. the parties could voluntarily agree to initiate legal divorce proceedings. in the law's best euphemistic style. the separation of spouses. making the intent of the acts even more difficult to demonstrate). cannot address issues such as the marital status of the individuals. Thus.
the President of Mexico endorsed a reform initiative in the area of intra-family violence the most important elements of which are the following: a) Physical or psychological violence perpetrated within the family is considered a crime punishable by six months to six years ofjail. J. even supposing that a complaint lodged by a woman is processed. But there is more. In the majority of cases of complaints of injuries perpetrated by a husband or partner. the authorities question the veracity of the woman's story and. not to mention the difficulty of proving it.1998-1999] MEXIcAN DOMESTIC VIOLENCE LEGISLATION IV. they pressure the woman to forgive the aggressor and to avoid trial. the creation of this crime is bound to cause numerous complications. The central issue of debate has to do with the viability and effectiveness of this measure. the most likely outcome is that within three days he will be released after having paid a bond with money that could have been used for family expenses.7 Am. Gender Soc. Moreover. is this the solution? Will temporary imprisonment be effective in stopping the violence? Besides this.FAMILYVIOLENCE 351 In November 1997. Wherever there is physical or sexual violence there is also emotional harm. HeinOnline -. 351 1998-1999 . Nonetheless. The term is not defined. The latter can also occur independently. b) It is expressly stipulated that rape is a crime that can occur in the context of a marriage. in cases where the complaint successfifly goes forward. the time in detention will be very short because it is a crime that is bond-eligible. The inclusion of domestic violence in the criminal code has been strongly debated. CRIMINAL REFORMS IN ThE AREA OF INTRA. domestic violence as a crime provides a clear example of the interaction between the three components in 7. Psychological violence is hard to identify. as well as to define. To summarize. Pol'y & L. that her version of events is believed7 and that the aggressor is arrested. The law simply mentions acts that "attack the psychic integrity" of another family member. Arrest and detention for such a short time may even provoke further violence. Another issue worth mentioning is the inclusion of psychological violence in the definition of the crime. Psychological violence is always present in abusive relationships. U. The application of this norm could entail a risk in this sense. In other words. Are abused women going to report offenses that may send their husbands or partners to prison? Do they really want their husbands punished or do they only want an end to the violence? Moreover. This fact alone is enough to question the viability of the criminal option. there is a generalized belief (or prejudice) that those who inflict psychological violence are mainly women.
These difficulties derive mainly from the concept of psychological violence. but in any event. Any sexual act should be a space in which two autonomous wills concur. Gender Soc.352 JOURNAL OF GENDER. The other important aspect of criminal law reform is the inclusion of rape. it could be said that criminal reforms in the area of intra-family violence show little promise due to their broad definitions and the scant effectiveness of criminal proceedings. it was not necessary to modify the text of the law since it did not exclude marital rape. In this case. in the context of matrimony. U. SOCIAL POLICY &THE LAW [Vol. which contains a mix of beliefs and prejudices that continue to blame the woman (cultural component).8 and one with bond eligibility. particularly women's organizations. that seeks to respond with maximum severity to violent behaviors. V. CONCLUSION As in other Latin American countries. With respect to marital rape. In effect. The punishment for rape is eight to fourteen years ofprison. that deficiency has now been corrected. Pol'y & L. 352 1998-1999 . 7:343 Margaret Schuller's model. The decision was made to reform the code precisely to avoid misinterpretations. Although difficulties remain in relation to reporting and proving the crime." a crime with a significantly lower penalty. the feminist movement in Mexico has achieved a degree of consolidation that has enabled it to formulate concrete demands of the government in terms of 8. On the one hand. the inclusion of marital rape in the substantive text is undeniably correct. difficulties can already be foreseen in the interpretation and application of the norm (structural component).7 Am. while the punishment for wrongful exercise of a right is approximately one year. However. To summarize. On the other. there is a norm in the criminal code (legislative component) that is broad and vague. as a crime. some cases of marital rape were considered by the Supreme Court to be acts in "wrongful exercise of a right. A very ambitious idea. it is a shame that the code had to be modified in order to avoid erroneous interpretations. In the strictest sense. may turn out to be a white elephant due to its ineffectiveness. to continue to talk of a husband's right and a woman's obligation is tantamount to denying her free will. HeinOnline -. The problem is not so much the punishment as the way rape and the sexual relationship in marriage is conceptualized. Supreme Court interpretations of the law had sparked indignation among different sectors of the population. J. the law can serve to bind interpretations to a standard of equity between spouses.
U. The family unit is emphasized and the individual rights of each family member. The criminal reforms are so forceful in terms of the severity of sanctions and procedural rigidity that their ineffectiveness can already be predicted. Pol'y & L. it is worthwhile to point out some difficulties and limitations. 353 1998-1999 . Recent legislative changes in the area of domestic violence serve as an example. Gender Soc. setting aside restrictive and oppressive abstractions derived from a romantic notion of family unity. The Law for the Assistance and Prevention of Intra-Family Violence. family legislation must be thoroughly reviewed and protective measures that preserve people's physical and psychological integrity must be adopted.7 Am. holistic attention to the victims and the aggressors. J. and socially useful punishments. First. HeinOnline -. such as community service or administrative detention. are subsumed by this abstraction which in practice becomes dearly oppressive. To accomplish this. which is administrative in nature.1998-1999] MEXICAN DoMESrIcVIOLENCE LEGISLATION 353 responding to women who suffer from violence. this gender perspective is diluted in the legal text. It would have been more useful to impose alternative penalties. although the introductions to both the Law for the Assistance and Prevention of Intra-Family Violence and the criminal reform initiatives dearly state that the main victims of domestic violence are women. An appropriate solution must begin with a series of comprehensive measures that offer legal certainty to the victims. is a useful instrument for conciliation processes but offers few options for resolving conflicts. Despite the undeniable importance that the incorporation of this topic into the legal system represents. particularly the woman.
Gender Soc.7 Am. J. 354 1998-1999 .HeinOnline -. U. Pol'y & L.
......... Pol'y & L........ 371 F... The course was called "Introduction to the Study of Law" and the exam consisted of a single question: "Is the law an art or a science?" I was fascinated by the question.............. 368 E... The Structural Component.................... Step 3 ...... Step 2 ..................... through my response............ This was why I was so pleased with the question....... Step 5 . my studies in Modem Literature trained me to critically analyze literary texts while learning to develop my own ideas through weekly essays........ 361 III...... How wrong I was! I had good reasons to trust my ability..... Gender Soc....... Step 4 ........... 369 1......... 362 A....................... The Formal/NormativeComponent....... I was certain that I could synthesize the professor's lectures and the texts we had read during the first weeks of the semester. 364 B....... REVEALING THE SECRETS FORA NEW PARADIGM ............... MYINTIATION INTO THE ART OF NOT THINKING AND THE SCIENCE OF MEMORIZATION I still have the notebook I used for my first exam as a law student......... I could demonstrate not only that I had read more than the recommended texts........ I..... 355 1998-1999 ............................ 358 I.. 371 3...... Step I ....... J......... 367 D ........................ and HeinOnline -. THE BODY OF LAW AND OTHER INJURIES TO THE BODY ................ U......... analyze them.............................................................THE LAW: AN ART OR A SCIENCE? ALDA FACIo I......... 366 C... MY INrIATION INTO THE ART OF NOT THINKING AND THE SCIENCE 355 OF MEMORIZATION ......... but also that I could develop my own ideas on the subject..................... Prior to attending law school... I was convinced that............................... The CulturalComponent ..........7 Am.................................... 370 2..... Step 6 ..... I thought that I would definitely do well on the exam and I congratulated myself on my good fortune.....................................................
As a matter of fact. or rather. the professor himself had not achieved this highly coveted goal-possibly because his last name was not among those that decorated the doors of those firms-but this did not stop him from believing himself to be an authority on the qualities needed to be a good professional in the legal field. It would be interesting to investigate whether there is a direct correlation between how much students of a particular discipline or school are allowed to think and how much power they wield upon graduation. U. The professor informed us that since some students did an excellentjob on the exam. At last the day arrived for our exams to be returned. and a whole series of other issues that led us to understand that fellow students who were not from the "correct" social class. 7:355 then express my own views on the law. SOCIALPOLicY& THEIAW [Vol. compared to the other students. and all women regardless of our social class. One can imagine my surprise when I heard my name among the worst exams. and how hard it would be for us to learn to be good lawyers since we did not have what it took to become partners in one of the "prestigious" law firms in the country. membership in a country club. J. There was no explanation or comment on my synthesis of the ideas of the studied authors. he was unable to use a curve that would improve the standing of the more mediocre exams. or lack thereof. I remember thinking that even if law courses were totally boring compared to the stimulating classes on English. on my exam notebook. Gender Soc. Still disbelieving. I retrieved my notebook and there was the grade. 356 1998-1999 . not to mention gastritis. Pol'y & L. and other somatic illnesses. But what I had the most difficulty believing was what the professor had written.' Although many weeks passed before our notebooks were returned to us. only three large red Xs on the three 1. the ability to behave like a gentleman at all times. I remember that despite the professor's comments. Featured on his list of requirements was the ability to choose the proper tie for each occasion. having a "dignified" hair cut. were a priori ineligible to join the best law firms. not written. how unprepared we were. at least the exams were interesting. and Russian literature I had taken in what already seemed like another life.7 Am. He obliquely led us to see the exam as a test of our intellectual ability. A five on a ten-point scale. rather than simply a measure of what we had learned. It was the first time in my life I had received such a bad grade. HeinOnline -. each day the professor began class with a monologue about how disappointed he was in us. Greek.356 JOURNAL OF GENDER. I remained fairly confident that I had done well on the exam. More than six weeks had passed during which time the anxiety of each student had approached ulcer-producing proportions.
lose their desire for justice.7 Am. "if you had just left it at your magnificent synthesis of the studied authors. which is the one dictated by your professor. You will listen passively in classes erroneously termed 2 "magisterial" [nagistrales] and will reproduce the material in exams. 7. 9. Gender Soc. what 2. You will renounce the law as an instrument of social change. J. Most classes that I attended in law school were devoid of magisterial qualities. You will study the norm without regard for social context. HeinOnline -. 10. 3. You will assume a position of neutrality and you will commit yourself to objectivity. 2." he also had to teach me to respect the unvritten rules of our profession. He reiterated to me that despite the fact that I was a woman. ifI first learned a little humility. I gradually became aware of many other messages that made many leftist colleagues. he answered that although he felt that my analysis was excellent." He explained to me in a fatherly way that since it was his duty to teach me to be a "good professional. I went to find him the next day to ask for an explanation. You will forget ethics and justice and you will adhere to the norm above all else. I would have given you a ten. With the authority of knowing himself to be right. she had to educate herself first. 6. I could become a good lawyer. You will memorize rather than make any attempt at analysis. men and women. You will read and repeat the one valid doctrine. 5. "It's a shame. 357 1998-1999 . You will renounce all that is personal. replacing it with their unconscious acceptance of other values. or questioning. perhaps in the area of family or labor law. research. The following five years served to reinforce what this first professor taught us: 1. 8. You will accept the law as a science. You will employ reason as the only method of understanding reality. U. The dictionary defines "magistral"as that which is accomplished with mastery or skill [maestrfa]. Pol'y & L. also in red: "no one asked for your opinion. At the bottom of the last page there was a terse comment. I had to understand that a first year student could not express opinions.1998-1999] THE LAW: AN ART ORA SCIENCE? pages where I had developed my thesis that the law was neither a science nor an art. I understood that even though I had been advised from the beginning that I must wait to learn more before expressing my opinions. 4." After crying bitterly all night." he told me.
is only a step away. According to her dichotomous understanding of things. hierarchical. II. and behaviors placed in the natural setting. but men are situated in the former context while women are 'relegated' to the undervalued natural setting. facts. 4. 7:355 was really required was a willingness to pretend not to see what was really being taught and to accept facts that were absolutely or relatively false. 358 1998-1999 ." And. it was not for the money but rather for the challenge posed by difficult cases."4 According to Olsen. J. which holds that the world is divided into things. Gender Soc. not only are the things. as clearly stated by Frances Olsen. SOCIAL POLICY &THE LAW [Vol. I must add here that a classic example of dichotomous thought was given by Professor Rocio Villanueva who countered vigorously my critique of legal education based solely on the teaching of positive law. admiration for lawyers who win difficult cases. The Sex of Law. Pol'y & L. was far more intellectually stimulating than defending families that had been evicted from a property. one could convince herself that if she chose to work at the service of the powerful. THE BODYOF LAWAND OTHER INJURIES TO THE BODY My involvement with a feminist group most helped me to preserve Gender-based analysis helped me to my critical judgement.' "that Western thought is a dichotomous structure composed of two opposing. and sexist/sexualized poles. HeinOnline -. Unofficial translation of Frances Olsen. understand.358 JOURNAL OF GENDER. The message was aimed at making us believe that a trial between two big companies. "that of culture/nature. I think that it is possible to teach positive law and think ethically. facts. by placing men in the cultural setting. Strategies like this forge in the student an From there." we can demonstrate that "for the patriarchal value system.7 Am. I should remain silent until I had internalized the metadiscourse and values that are taught subliminally in most law schools to this day. in THE POLiTICS OF LAW 453 (1990). of course. and behaviors placed in the cultural setting or things. My critique absolutely did not imply a return to natural law. admiration for lawyers who earn lots of money S. but rather. The truth was not that I should refrain from expressing ideas until I had more legal training in the final years of law school. In this way. U. Years later I would realize that comments that I considered to be trivial or innocuous were laying the foundations for a professional identity based on mutual distrust and competition. if we take one of these dichotomies as an example. for example. and behaviors situated in the cultural setting more important than those in the natural setting. as truths. At no time did I advocate this. facts. they become the parameter that defines humankind. my critique was not only a critique of positivism but also included the proposal to eliminate the teaching of positive law.
Pol'y & L. or sociology of law. 5. however." And what is this power strategy that would enable us to understand the structural causes of these problems? It is only from a genderbased perspective that we can discern power relationships based on the male domination of the female. ILANUD. Evaluations of Latin American law schools since the 1950s reveal that the education offered does not prepare students to litigate upon graduation. and that knowledge of positive law is what makes a good lawyer. it is not enough to identify problems-as this critical discourse does-without clearly identifying the power strategy that appears to have created them as such since. Humberto Pefia Taylor. This is the case even though there is no reliable research on the professional aspirations of those entering law schools nor on the supposition that the best lawyers are those with the best understanding of positive law. education is based on positive law because of the dual belief that those studying law are going to become litigators. Gender Soc. AN ART ORA SCIENCE? In most law schools. as well as other relationships of domination/subordination associated with gender. from the standpoint of perpetuating that strategy. These reforms.1998-1999] THE LAW. Collection of diagnostics on legal education in Colombian. sexist/sexualized. 6. the structural causes of the situations identified as problems by this discourse are not explored in any depth. problems. in fact. PORTAVOZJuly. at 26. U. It is said that courses on the history. As Humberto Pefia Taylor said. 6 they are not. traditionalistic legalism. and the lack of a defined legal criteria. and even human rights. and Panamanian schools. or legal specialists. HeinOnline -. Guatemalan. and hierarchical way. The vast majority of law schools have undergone curricular reform and have introduced new pedagogical methods as a response to negative studies. 1995. have not eliminated the problems identified by the studies.7 Am. Costa Rican. Clearly the strategy is determined by the patriarchal rationality that conditions us to view and understand the world in a dichotomized. philosophy. 1991. the proposed reforms have only a tangential effect on the teaching of law.! As a result. "it is worth pointing out that. a view of norms outside of their original context. administrators of justice. 359 1998-1999 . Although the discourse that identifies problems with legal education attempts to implement proposals to address them. Hacla una Transformad6nde la Peaspectiva CitcaSobre elDereho. J. are peripheral to professional training and only serve to make future lawyers more well-rounded. Ecuadorean. in any event. such as unethical legal professionals. dogmatism.
that destroys nature in the name of progress. contextualized. supra note 3. Pol'y & L. and based on principles. I want to say that I do not believe the answer lies in importing the legal education model used in the United States. Gender Soc. values. poorly-designed curricula.360 JOURNAL OF GENDER. then. abstract. and in the control of emotions. The law is conceived as rational." And even if it did.the masculine side of the duality. Unofficial translation of Olsen. some might think that the problems identified by the studies are attributable to poor planning. as men say that women are. as most of the diagnostics and the majority of people who have attended law school point out. 360 1998-1999 . or personalized. HeinOnline -. lack of vision. I have at least two reasons for this. and the law cannot be irrational. learning to litigate should not be the central feature of a legal education. are not taught in the classroom how to practice law. 7:355 And why is it important to refer explicitly to the patriarchal rationality? Because if we can see that among the facts. which is currently so much in vogue. that they are taught. The first is that the legal education in the United States only appears to have a more practical focus. What is it. even weapons. the Law is masculine. both male and female. we realize that overvaluing the masculine not only harms women but is the root of almost all problems we are facing today. through an ostensibly de-politicized and neutral study of existing norms. In this system. J. U. and behaviors that are overvalued in our patriarchal societies are the production of objects. even if through the use of carcinogenic chemicals. which is how men describe themselves. From a gender-based perspective we can see how. in TmE PoLrnics OF LAi 38-58. values and behaviors associated with males. deficient 7. and to what ends? Before answering this question. The second reason is that the professionals produced by United States law schools are not necessarily the model that people interested injustice would want to emulate. the student is familiarized with the categories and concepts of a given law and with a method by which to identify the norms applicable to a given problem. What is taught is an overvaluation of the facts. For further reading on this subject. but according to the prevailing patriarchal ideology. LegalEducation as Trainingfor HierarcAy. As Olsen 7 states. it may be that "Justice" is represented by a woman. Moreover. Returning to the question of what is actually taught in law school and what purpose is accomplished by this education. SOCIAL POLICY & THE LAW [Vol. objective. the legal field and the laws themselves are identified with a superior hierarchy . 1990.7 Am. see Duncan Kennedy. not feminine. subjective. students. 8.
1998-1999] THE LAW: ANART ORA SCIENCE? pedagogy. These objectives must be met in order to maintain patriarchal power. although inexplicit. although there is some truth to all of these reasons. and (3) maintain the idea that success in this profession is due primarily to personal effort. one logic. only the cognitive power of rationality is valued. (2) maintain the erroneous belief that law is confined to the norna agendi. neutral. However. however. I want to reiterate that this logic dichotomizes. and not the only way of understanding and the only logic. It is a pedagogy that compels the student to (1) place subjects in a hierarchy and accord the corresponding degree of prestige to those who specialize in different branches of law. But of course. our senses and our feelings. It is structured in such a way that only those who are willing and able to uphold the system will have power in the legal field. objectives. It requires using our brains. perpetuating the idea that law is apolitical. A profound reflection about the type of education actually given to future lawyers is essential to truly reform legal education. J. In Latin American culture. Gender Soc. It is more complicated still when it must be accomplished in a formal education system where methods HeinOnline -. But more importantly. I think that there is a pedagogy in place with precise.7 Am. I want to emphasize this logic because this way of conceiving and understanding reality is so dominant that we have virtually lost the ability to realize that it is one way of understanding. or even lack of faculty hours since professors in Latin American countries generally cannot dedicate much time to teaching. III. 361 1998-1999 . neutral. This obscures the fact that the legal profession caters to the political authority and may even be the political authority. I am convinced that introducing the gender perspective into law schools would enable this reflection process to occur and. which is precisely one of the objectives of the law: to create. sexualizes. U. REVEALING THE SECRETS FORA NEW PARADIGM Incorporating the gender perspective means eliminating the androcentric perspective that permeates all human activities. and rational. It is not easy to do this. this cannot be stated openly because it would be impossible to sustain one of the most important myths about the law: that it is objective. In addition. an honest and critical reflection about the law itself is needed. would resolve many of the problems that have been identified. because the very concept of gender is dynamic and multifaceted. and objective. consequently. and creates a hierarchy of thought. maintain. and perpetuate power relations in our societies. Pol'y & L.
7:355 of acquiring knowledge other than through reasoning are rarely taken into account. It should be aimed at making students wary of all patriarchally-created and imposed structures and institutions. political experience of oppression.7 Am. It enables men to realize that many situations they accept as natural are privileges emanating from a complex system of male domination. Consciousness-raising is also gratifying in that it expands the possibilities of vital experiences. etc. Step 1 Become aware of the female gender's subordination to the male gender in one's personal experience. which is where gender is experienced. These exercises enable women to realize that their individual and personal experience of submission is actually a collective. In the classroom. labor. although the last five are really intellectual and rational aids to the process of becoming aware. To develop this first step. This is essential to understanding that the discrimination women face and the subordination of women not only affects women but dehumanizes men and is destroying the world. a professor may select from a number of exercises developed by feminists to raise awareness about how we have internalized sexism. It requires looking at that "something. professors should encourage their male and female students to begin with their own concrete experiences in the area under discussion in order to reflect later on the collective experience and arrive at the generalizations and abstractions needed to begin to theorize. This wariness will raise doubts in their minds about the supposed neutrality of these institutions and facilitate their understanding of power relationships. The gender perspective implies learning how to acquire knowledge a different way and the first step in this method is increased awareness. Gender Soc. even when it hurts. J.362 JOURNAL OF GENDER. This consciousness-raising process includes the disarticulation of masculine discourse in order to rearticulate the meaning of our experience as beings actively involved in the construction or deconstruction of society. criminal. honestly. Pol'y & L. It is only when HeinOnline -. SOCIAL POLICY &THE LAW [Vol. 362 1998-1999 . The process of becoming aware can begin in any law course whether administrative. U. Raising awareness is a subjective process of opening up to something previously unknown." and at ourselves. I will outline six steps that help to incorporate the gender perspective into a legal text or context. Increased awareness about sexism means understanding it rationally and emotionally in addition to feeling it inside one's body. A.
through this process. and ethnic groups. rather than natural. And in the case of gender relations. it is due to the fact that these generic laws. 363 1998-1999 . and that even when they are aware of them. most importantly. one gender has far more power 9. apply to all human beings. as Elizabeth Schneider says. or characteristics. meaning that it is premised on the male perspective and uses the male of the species as the parameter for what is human. Pol'y & L. are actually gender-specific. as with relations between classes. Therefore. 103 Harv. a price women and the world also pay. This means that gender must be understood as a social category because the relationships between the sexes. and that gender is male. The first introductory classes must foster an awareness of the law as androcentric. Rev. Gender Soc. but rather are derived from the male gender. potential. Katherine T. The laws themselves are androcentric and. have generally not reflected women's needs. They are also attributable to the laws that do not exist. they do not enjoy the same access to the justice system. L. The legal problems women experience are not wholly due to the fact that legal officials and police discriminate against them when applying generic laws. new meaning and form to theory based on experience and experience based on theory. "feminist awareness groups start from personal. are socially constructed. 864 (1990) (citing Elizabeth Schneider). as with everything generic in a patriarchal society. concrete experience and insert that experience into a theory. one's sex is relevant because it determines whether one will have more or less power in a society. and the "price" they pay for these services."9 Of course. male needs and interests as representative of the species as a whole. assigning. "generic" laws. Bartlett. Moreover. and affect both sexes equally. totally contrary to what is stated in the legal field. ultimately. But. professors should promote the organization of feminist awareness groups since. of the services they receive from women. are not gender neutral. races. to all the institutions that have not been created. occurrences. HeinOnline -. The process of becoming aware must lead male and female students to understand that. J. U.7 Am. and to the lack of a legal doctrine based on the perspective of women as a subordinated gender. men can embark on this process by becoming aware of their privileges. those that supposedly emanate from the needs of all men and women.1998-1999] THE LAW: AN ART ORA SCIENCE? 363 power relationships are exposed that strategies can be developed to eliminate them and replace them with egalitarian relationships. Feminist Legal Methods. Building awareness will help the students see that women are less familiar with their rights.
the handicapped. or subordinate women. legal principles and fundamentals-and the investigations upon which these principles and doctrines are based. or by enumerating the terrible suffering of women in a specific situation. or concerns of the dominant male gender. It is necessary to address these issues in depth because sexism is so broad and generalized that it is manifested in many different ways. (6) sexual dichotomism. NONSEXIsr RESARCH METHODS (1988). 7:355 and privilege than the other.7 Am. MargritEichler. Research performed on the female population. and especially in law schools. Androcentrism is perhaps the most widespread of these manifestations. relates only to the needs. that exclude. Step 2 This step requires deepening understanding of sexism and its manifestations-identifying and questioning aspects of legal doctrine. analysis. J. (5) gender-appropriate behavior. The former is total repudiation of the feminine. experiences. Gender Soc. Androcentrism may take two extreme forms: misogyny and gynopia. physically unfettered. It occurs when a study. as the only relevant one. B. Androcentrism. and (7) family-ism. HeinOnline -. 364 1998-1999 . heterosexual male-a property owner of the dominant religion. is commonly found in university courses. U. and with interests and experiences comparable to the dominant population-to the legal system. It cannot be resolved by eliminating legal "protections" without replacing them with corrective remedies based on the true needs of women. and the latter. These institutions introduce the white. the elderly.364 JOURNAL OF GENDER. presenting the point of view of a token woman. or research project is conducted from the masculine perspective and presents masculine experience as the central human experience and. Pol'y & L. since this is precisely the field in which power relationships are regulated. the 10. (3) insensitivity to gender. Margrit Eichler 0 identifies seven ways that sexism is reproduced: (1) androcentrism. (4) the double standard. When women. This cannot be irrelevant in the legal sphere. hide. SocIAL POLICY & THE LAW [Vol. This form of sexism is not solved by adding a chapter or article about women to a particular code or law. For example. children. the inability to perceive the feminine perspective or making the feminine experience invisible. (2) over-generalization and/or overspecification. when it is carried out. with its two extreme forms. ultimately.
1998-1999] THE LAW: AN ART ORA SCIENCE? 365 poor. sociology. etc. in reality. the different use of HeinOnline -. or the breaking of a law. medicine. Androcentrism can be solved by analyzing facts from the gender perspective. It is important to emphasize that this form of sexism cannot be addressed by the use of generic terms alone." Sometimes these groups are not studied at all. but instead speak in generic terms-supposedly gender-inclusive language-in such a way that it is impossible to discern if there are differences between the sexes with respect to the use of a law. etc. The feminine gender must also be present in the paradigm. Gender Soc. or adopting language that includes both sexes when both are included. J. Over-generalization is frequently found in the latest legal texts which no longer speak in masculine terms to avoid over-specification. Insensitivity occurs in nearly all studies of the effects of specific laws or policies.7 Am. Insensitivity is also reflected in the failure to include the idea that the sexes have a gender and. U. 365 1998-1999 . need. the continued use of the masculine terms would have been better because the paradigm continues to be masculine. perceptions ultimately emerge that take into account the needs and experiences of both sexes. are studied. and facts are not analyzed from a gender perspective. when. anthropology. If sexual roles. Over-generalization occurs when a study that analyzes only the behavior of the masculine sex presents the results as valid for both sexes. the value of each gender. or interest that is universal is attributed to only one sex. how they have resisted it. Pol'y & L. or similar ones. This means analyzing them by asking what implications or effects the fact has on each sex and on the other forms of domination and subordination. for example. etc. Insensitivity to gender is present when the gender variable is ignored as a socially significant or valid variable. they are approached as problematic "sectors" of "general law. criminology. Overspecification is the flip-side of over-generalization. ultimately. when the needs of a group of male workers are analyzed and then presented as valid for the entire working class. the effects of any act are experienced differently by each sex. When we ask how women and men have experienced this fact. This form of sexism occurs. In these cases the authors forget that men have been the paradigm for the human experience and androcentrism results. It occurs when a quality. The premise for this practice is that men and women are equal and both are included under the gdneric term. This type of sexism can be resolved by specifying which sex was used as a model for the study. and what relationship exists between both experiences. distorting such important disciplines as history. This method has been used systematically by researchers.
7:355 time and space by each sex. based on the premise that certain behaviors or human characteristics are more appropriate for one sex than for the other. For example. For example. To accomplish HeinOnline -. This step begins with i the premise that androcentrism is present in the conception and explanation of any human act and women must be brought to the center of the discussion of the human experience. Pol'y & L. bills that increase maternity leave without taking additional measures to avoid negatively affecting access for women to the labor market are gender-insensitive. but in doing so. based solely on sexual dichotomism or gender-appropriate behaviors. Sexual dichotomism is treating each sex as diametrically opposed and without common characteristics. and gender-appropriate behaviors are manifestations of sexism that are closely related to the process of patriarchal socialization in which dichotomized traits are assigned to each sex.7 Am. it is obvious that a law cannot have the same effect on both sexes. identical situation or human characteristic is valued differently for each sex. and androcentrism are taken into account in the creation and application of laws. Insensitivity frequently occurs in legislative matters when the existence of women is disregarded in the promulgation of "generic" laws. sexual dichotomism. while men are described as aggressive. Although the legislation grants women a muchneeded right. women are often characterized as passive. But insensitivity also occurs when laws are promulgated that take women into account or grant them a right. gender structures.366 JOURNAL OF GENDER. rational. The double standard. by failing to consider the gender structure of the labor market. as its name indicates. 366 1998-1999 . the female sex's lesser power. it is impossible to identify the problems of one sex because the information is simply not there. and dependent. C. J. Expectations of behavior for each sex are based on this duality. When the gender variable is not accounted for.. emotional. U. Gender appropriate behavior is manifested by establishing appropriate behavior for each sex. SOCIAL POLICY &THE LAW [Vol. Gender Soc. it also causes women harm by impairing their access to employment. Attributes are placed on a spectrum with those on the masculine side considered socially superior. etc. The double standard problem is similar to what many of us know as dual morality. and independent. This occurs when the same behavior. non-paradigmatic men are also made visible. Step 3 The purpose of this step is to make women visible.
races.7 Am. it is necessary to be aware of the ideological difference between corrective measures based on the fact that women should enjoy certain legal privileges that compensate for social HeinOnline -. etc. therefore. ages. of power because they belong to different classes. an adolescent. For this reason. Many women fear legislating in favor of women because "protections" for the woman-mother. or the needs of the man. sexual orientations. or abilities. class. sexual orientations. a female head of household. 367 1998-1999 . we must identify what concept of woman the law contemplates as "the other" in the masculine paradigm of human beings and analyze its effects on women of different sectors. Women have varying degrees. an indigenous woman. or the woman-family have been confused with protections or laws for the woman-person. of the right of a married woman to use her husband's name preceded by "de. U. visible handicaps. Men and women are equally human and equally different. Gender Soc. This is the case. The identification of the woman person with the woman-family is precisely one of the manifestations of sexism that we discussed in Step 2: "family-ism. which are privileged or disadvantaged. that women are more closely tied to the family than men. the woman-reproducer. ability and also defines these same factors. All women are not equal. The awareness that women are unequal among themselves leads us to ask the following questions of legal texts. even though they may be similar. Which women are excluded by the text? Which women are favored by it? How does this text affect a visibly handicapped woman. a widow. D. there are rights accorded to some women that discriminate against other women. We know that gender is a status that is defined by race." Among other things. age groups. we must identify the concept or stereotype of "woman" presented to society in order to find practical solutions to exclusion. to address the problems and needs of women. races. J. ethnic groups. for example. Pol'y & L. although unnatural. However. creeds. Family and woman are not synonyms. We cannot. Step 4 In this step. this "right" allows for ongoing discrimination against single women. and to promote any image of women that does not institutionalize inequality. be content with a genderbased analysis that does no more than inquire into the genderneutrality of a law or principle or how it affects the woman. this does not mean that a woman does not have needs as a person that differ from the needs of the family.? Bear in mind." It may be true. etc.1998-1999] THE LAW: ANART ORA SCIENCE? 367 this.
SOCIALPOLIGY &THELAW [Vol. These components are dialectically inter-related in such a way that one component is constantly influenced. legislation includes a gender-perspective because it recognizes that men and women may have different needs. structural. or defined by the others at the same time that it influences. step 5 Teach law as a legal system or phenomefion that is much broader than the norma agendi and is comprised of three components: formalnormative. In this case. meaning formallypromulgated laws. administrative offices. The norma agendiincludes parts of constitutional law. and administrative justice officials attribute to the rules and principles found in the formal-normative HeinOnline -. the legislation is androcentric because it is based on the man as the standard for humanity. or defines the others. limiting the human rights of women because they are the biological reproducers of the human species. it does not favor the needs of one sex over those of the other and does not use men's needs as the standard for human needs since it is based on the notion that women and men are equal and different. Gender Soc. decrees. neither of which represents the whole of humanity. Pol'y & L. legal principle. regulations. or legal doctrine without taking into account all three components." "the other" who requires special protection (as defined by men). discrimination. while the woman is "the different one. 7:355 inequality because they have experienced exclusion. J. limited. each is seen as one of two sexes that comprise the human species. one must be clear about the ideological difference between legislating to "protect" a weak being and legislating in response to needs that only women feel as full-fledged members of humanity. This relationship occurs to such a degree that it is impossible to understand the content and effects of a specific law. substantive or procedural law. The formal-normative component of the law is synonymous with what legal scholars call the norma agendi. In the first case of this second point. and collective agreements. E. neither sex is the paradigm for humankind. and political-cultural. One must also clearly examine how the law treats real biological differences between men and women in order not to confuse the need to treat each sex differently. and protective measures based on the belief that women are biologically different from men and should therefore be treated as inferior beings. police. international treaties. The structural component of the law is the content that courts. 368 1998-1999 . Furthermore.7 Am. limits. In the second case.368 JOURNAL OF GENDER. U. In other words. rather. and inequality.
the structural component includes unwritten laws that have not been promulgated by any legislative assembly or formally created in a negotiation process. In this sense. traditions. In this step. be aware of how it has permeated the formal-normative component and how it influences the structural component. we do not find a sexist bias at first glance then we must ask all of these questions. more importantly. however. we find that the article is biased toward the male gender. If. besides being obeyed by the majority of people. these laws are more effective than those written in society's legal codes. as well as others. This component includes the way people use existing laws. but which. The CulturalComponent The following questions are relevant to our discussion. and interpreting them. Thus. this cultural component contains unwritten laws that have not been formally promulgated. The cultural component of law is the content that people attribute to the law through legal doctrine. this component has to do with the unwritten laws that the majority obey. U. Let's say. the cultural component. the analysis of the text in question must take into account the other two components. attitudes. If. customs. Pol'y & L. We will take into account all aspects of the three components in order to present an idea of the content that people and the courts attribute to this particular text. but which are taken into account by those who administerjustice. how many women participated. 1. J. and unwritten laws produced by the relationship between written laws and customs. after having answered only some of these questions. revoked laws that continue to have effect in daily life. in order to be totally convinced that the end result of the text will not discriminate against women. With respect to those who drafted the law.1998-1999] THE IAW: ANART ORASCIENCE? 369 component when selecting. Remember. 369 1998-1999 . But. we must ask who drafted it. the formal-normative component. If it is a legal doctrine. that the class is analyzing certain articles of Code X. begin with the premise that sexism exists and is present in all human activities so that the task is to identify and eliminate it wherever possible. should examine its effects on the cultural and structural components. it will not be necessary to answer all of the questions. are formally reinforced by laws in the formalnormative component In some cases. To accomplish this.7 Am. ask some of the following questions. and their own understanding of the law. applying. beginning with those easiest to ansver. were women or men present who were HeinOnline -. Gender Soc. An analysis of proposed legislation.
how do men and women differ in this regard. what are their attitudes toward sexism. and speak as equals to public officials. what does current legal doctrine say on the subject. religious. religious. Gender Soc. and does it take into account the consequences a woman might suffer even if she is able to gain access to the justice system? HeinOnline -. we ask ourselves: does the text of this article or law contemplate the difficulties that women face when dealing with the justice system. which are modified. J. U. Pol'y & L. and does the proposed legislation refer to these social. do they believe that sexism affects the way that justice is administered or do they see it as an isolated phenomenon. The StructuralComponent For those who are going to interpret and apply the law in question. and which privileges are retained. and are there contradictions between the different ideas expressed? Laws found in the cultural component which have not been formally promulgated must be scrutinized by the following questions: how do most people feel about the conduct that the law intends to regulate. does it take into account that women don't have the same opportunities men have to travel to population centers. we ask ourselves: who are they. or traditional rules that regulate this conduct. and which are eliminated? With respect to the legal doctrine that could serve to support or block the law the following questions should be raised: what has been written about the conduct that this law intends to regulate. is this text worthwhile? With respect to women's access to the justice system.7 Am. what material conditions exist for its application and enforcement. 370 1998-1999 . for example. does it take into account how little value is placed on women's words. and if none exist.370 JOURNAL OF GENDER. their difficulty expressing themselves. what people or things did they want to protect. what did the male drafters of the law think about inequality between men and women." and their low self-esteem compared to men. what were their objectives in wanting to change the status quo. how have they acted in the past regarding the conduct that is to be regulated. are there social. upon what myths is the conduct based. do decision makers really know what women think about this conduct or is the masculine voice the only one that has been heard and registered. traditional rules? 2. 7:355 committed to eliminating discrimination against women. what procedures exist for interpreting this law. approach the police. SOCIAL POLICY & THE LAW [Vol. their reduced access to providing "overwhelming evidence.
group. oftentimes these men have a pro-woman attitude on the surface. and is it truly gender-neutral? F. we must ask ourselves: is what is being granted truly a right. that he is aware of his companion's different emotional or sexual needs.7 Am. Step 6 Make the analysis a collective process. Careful attention must be paid to the issue of men who may be in solidarity. but. This consciousnessraising process is the step that must precede any analysis of a legal text. Without a prior understanding that women are subordinated and discriminated against because of their sex. Gender Soc. The Formal/NormativeComponmt With respect to the language of the article or law. so that not only women and enlightened men from different sectors can enrich it at the same time that they use it for popular legal education. with different groups of women and men who are in solidarity and aware of their privileges. 371 1998-1999 . This step can be carried out in a formally organized workshop seminar. or informally. it is impossible to embark on a process of questioning the legal system from the gender perspective. to continue building awareness. does this law contemplate the differences between men and women and the differences between women. or men in solidarity. Making the analysis a collective process." For example. As with the law. It can also be accomplished by being alert to the views expressed by women belonging to groups or classes other than the group of women.1998-1999] THE LAW: AN ART ORA SCIENCE? 3. profession. will increase the chances that the text will not exclude a certain sector. or that he is truly aware of the privileges and services he receives from other HeinOnline -. J. more importantly. or as the person she is. or class of women. who developed the original analysis. over a cup of coffee. why is it only being granted to women. if it is a right. while deep down they continue to see themselves as the paradigm of humankind or believe that their privileges are "natural. does this law confuse women with families. who is the model or paradigm for the subject of the rights or obligations contemplated in this law. even a cursory examination of his behavior at home reveals that this "support" does not mean that this man shoulders his share of the domestic chores or the care of the children. Nonetheless. what other laws regulate the same or similar conducts and are there contradictions. what stereotypes does this "right" reinforce. Pol'y & L. many men proudly state that they completely "support" their female partner and are happy that she is "fulfilled" in her job. U.
the latter is the first and final step of any feminist methodology. U. But they are also experiences that must be articulated outside the original group in order to resume the process of collectively sharing and theorizing about these experiences so that the resulting theory can be used to reevaluate and modify past experiences. theories. Since broadening perspectives and theorizing about experiences is a consciousness-raising process. It is the first step for the reasons already stated.7 Am. in a certain sense. HeinOnline -. 7:355 women by virtue ofbelonging to what is considered the superior sex. SOCIAL POLICY &THE LAW [Vol. Gender Soc.372 JOURNAL OF GENDER. Pol'y & L. It is the final step because analyses are. 372 1998-1999 . J.
......... self-executing system of rules... 3.... Gender Soc.. 376 II.. and receiving a harsh F with the comment 'WVho asked your opinion?" This story raises two important questions for Latin American lawyers committed to the perspective of gender..... Rocio Villanueva Flores notes that judges have been reluctant to apply that law on the grounds that it is a vague statute and does not include an adequate definition of family This explains the urgency of Alda Facio's sense that violence need to undermine the traditional notion that law is a feminists neutral.. WHICH ANALYSIS OF GENDERAND POWER? ...." (A 1...... Notas sobre interpretaionjuridica p"ositode 14 ley 26260y la violenciafamiliar). If the goal is to challenge this vision of law.. I.... Authors such asJoseph William Singer and James Boyle argued that law is "indeterminate....... 1. The second concerns their analysis of gender and power.... U..... J. The Playerand the Cards:Nihilism and Legal Theory....... one possible resource is the so-called "indeterminacy critique" developed in critical legal studies in the United States during the 1980s..... 379 Ill. 94YAxE L J.Joseph William Singer.inVIOLENCIACONTRALA MUJER: REnFXIONES DESDEELDERECHO (1996). CONCLUSION ............. 133 373 HeinOnline -. 2.. Rodo Villanueva Flores... The Politicsof Reason: CiticalLegal TheMy and Local Social Thought...... SeeJames Boyle. I begin from Aldo Facio's wonderful................ IS LAW OBJECTIVE? . 373 1998-1999 .. Pol'y & L.IS LAW AN ART OR A SCIENCE?: COMMENTS ON OBJECTIVITY..........9 (1984) (stating that the law is a description of the arguments and theories that are currently used byjudges and scholars tojustify outcomes and rules). AND POWER JoAN WILLIAMS 378 I. FEMINISM. The first concerns whether they should make assault on objectivity an integral part of their agenda... Is LAW OBJECTIVE? In her insightful analysis of the jurisprudence surrounding Peru's Law on Family Violence. awful story of writing an exam question on whether law is an art or a science.........7 Am.......... Se.....
L. L. 195 (1987). L. the indeterminacy critique drew upon a tradition already well-established within American law. SOCIAL POLICY & THE LAW [Vol. 374 1998-1999 . Murdering the SpiriL Racism. Pol'y & L. The potential exposure is even greater for another reason. Peter Gabel. REV. REV. but my impression is that Latin American countries generally lack a tradition similar to legal realism. Rights & Commerce. 25 (1980). L. drawing upon a still older tradition ofjurisprudence dating to Oliver Wendell Holmes My understanding of Latin American jurisprudence remains sketchy. Robert W. 7:373 Others. having read both the indeterminacy literature and the Villanueva article. 8. with constant charges that the objectivity-critiquers were "nihilists" whose only interest was in trashing.7 Am. Within American jurisprudence it proved bitter and divisive. The Path of the Law. pits feminists squarely against other progressive forces whose identities have been forged by U. but several notes of caution are in order. a critique of objectivity will place feminists in a much more exposed position than critical legal scholars in the United States. THOMAS REED. REv. 7. IN L. See Mark Kelman. 90 MICH. Unfretzing Legal Realty: CriticalApproaches to Law. 4 Robert Gordon showed how existing patterns of argumentation served to "freeze social reality" and make alternative visions seem implausible 5 This critique often focused on rights. Trashing 36 STAN. L. and that in many ways. AMERICAN LEcAL REAUSM (1993). it seems to me that Villanueva knows most of what was said within critical legal studies in the 1980s. discovers that they are "foolish" and then looks externally for some order in the internal chaos). PA.7 It is nice to know one does not have to reinvent the wheel. in the Latin American context. Holmes. In the United States. If this is true. 6. 293 (1984) (defining "trashing" as the theory which takes specific arguments in their own terms.374 JOURNAL OF GENDER. 1771 (1992). MORTON J. 4. J. The final session of the Pan American Conference suggests that a critique of objectivity. REv. she says it better. 15 RA. which were attacked on the grounds that they alienated people from authentic expressions6 or that they blinded people to utopian possibilities. The very considerable costs of this battle are heightened in Latin America for two reasons. HORWITE. 779 (1985) (arguing that the law is somewhat indeterminate shaped by social subjectivism and structural strands). Gender Soc. HeinOnline -. 457 (1897) (arguing that the legal system is inconsistent in its objectivity). FISHER II. First. REV. such as Mark Kelman deconstructed legal arguments by "trashing" legal arguments' claims to objectivity. The legal realists attacked the idea that law is neutral and objective in the 1920s. U. OliverW. ST. See WHInIAM W. Gordon. 5. U. 10 HARV. A second question is whether this is a battle feminists want to fight. 685. & SOc. Reification in Legal Reasoning S RES. Robin West.
7 Am. Is this wise? It seems to me that. in a tnachisaculture. stressing what law is. or should be.John Stick. Although in my writings outside of feminism I am best known as a critic of objectivity. is that certainty represents a statement about the role a tenet plays in one's form of life. Incommensurability. REV. The language of human rights rests heavily on notions of universality of the type that the critique of objectivity targets. from a pragmatist perspective. 62 N. Anscombe trans. self-executing system of rules. Pol'y & L. Human rights advocates.. law is part of language. 12. J. and Law: Abortion.M.77 CORNELLL. See LUDWIG WITGENSTEIN. so that one's feminist credos are quoted back as evidence of self-contradiction. 1651 (1989) (critiquing absolutes and a persisting focus on the way viewpoints may affect perceptions).1998-1999] COMMENTS ONLAWASANART ORScEENCE 375 advocacy of human rights and the rule of law. a feminism focused on the jurisprudential issue of whether objectivity is possible pits feminists' claims for legitimacy against those of other progressive forces in Latin America. on what truth claims mean. 375 1998-1999 11. Can Nrhilism be Pagmatic.g. U. Do any alternatives exist? Two deserve consideration. REV.. Se4 e. CiticalLegal Studies: The Death of Transcendence and the Rise of the New Langdels. 332 (1986) (arguing that practical legal reasoning and process demonstrates how the indeterminate argumentfails). 1968) (stating that the definition of the law is dependent upon the society over which it governs). SeeJoan Williams. rather than what it is not. L. it is not totally indeterminate either. best left for conversations on philosophy. Williams. Sympasium: MidhaelJ Penyr's Morality. One is to argue in a pragmatist vein. . Politics. Gender Soc. not a statement about some ultimate truth with which agreement of all rational beings is. 429. L. andJurisprudence 63 TUL L. 10. generally have rested their claims for authority and legitimacy on the charge that existing authorities have violated universal norms. the perspective of gender is threatening enough without burdening it with this additional fight. 254 (1992) (questioning the viability of feminism during postmodern critique of reason)." Yet even this formulation presents difficulties. These are technical issues. 588 (1987) (stating that both arguments are premised upon an "either/or" approach). Postmodemism/FeminismlLaw. Dennis Patterson. HeinOnline -. I do not carry that intellectual agenda into my writings on gender. 3d ed. REV.E. with a claim that truth claims are incoherent.9 The processes by which language generates meaning are related less to logic than to the form of life of which the language is a part. SeeJoan C. people often confuse objectivity critiques with the belief that nothing is true. REV. 100 HARV.U. Conversations on gender 9. For one thing. While law is not a neutral. Thus. who have forged their identities through fights against repression and dictatorship.Y. automatic. PHILOSOPHICAL INVESTIGATIONS (G.12 This is silly: it mistakes a conversation on epistemology. '° The key point.
ALDAFAcIO. 1987) [hereinafter 14. MacKinnon's sustained analysis of the ways our sexuality eroticizes dominance and submission is an important and enduring contribution. the key problem is that even conceding that objectivity is possible. in ways that only began to clear up when I read Alda Facio's subtle and astute Cuando el Genero Suena. From the perspective of gender. De. But the key point for feminists is that. we may disagree. II. 13. and the ways they are interpreted. WHICH ANALYSIS OF GENDER AND POWER? My second brief comment concerns gender and power. Thus.ire and Power. Ten years of work in feminist jurisprudence in the United States has informed me about the relationship between gender and power. for example in the influential Desire and Power4 and has developed it into a full-blown theory of gender. Her theory picked up a theme that has been around since the early years of second-wave feminism. and in entertainment (pornography). courts and legislatures fail to live up to their own stated standards of objectivity in their treatment of women. LIFEAND LAW 46 (Catherine Stimpson ed. Cambios Trae s Feminist jurisprudence in the United States often elides the question of whether feminists need an analysis of gender and power. or argue that its objectivity means something much more complex and contingent than they assume. Let human rights advocates argue that law can be neutral and objective.. 7:37S are already too fraught with difficulties to allow these issues to enter and confuse. One does not have to engage in philosophical discussions to mark this as inappropriate and unfair. the home (domestic violence law). in FEMINISM UNMODIFIED: DISCOURSE ON FEMINISM UNMODIFIED]. HeinOnline -. SOCIALPOICy & THE LAW [Vol. the laws we object to are not. Pol'y & L. MacKinnon. CUANDoELGENERoSUENACAMBIOSTRAE (1996). In the context of gender. Catherine A. Catherine MacKinnon's analysis of gender as dominance has many strengths. U. the Peruvian Law on Family Violence is not enforced on the grounds that it is too vague. whereas other equally vague laws are enforced without comment. But it has also confused me. all we need to show is that current laws. An alternative approach is to entirely evade profound questions concerning objectivity. Gender Soc. do not live up to their own claims to objectivity. bracketing the question of whether law is ever objective. J.7 Am. and has been accompanied by movements designed to separate power from desire in the workplace (sexual harassment law).376 JOURNAL OF GENDER. 376 1998-1999 .
Harris. 377 1998-1999 . andLaborSpvedz. ' Agency and anti-essentialism critiques often pinpoint analytical failures of MacKinnon's analysis of gender and power. REV. they feel oppressed by race. class. and believe that feminists' descriptions make them sound like losers. Se.. or other social forces.' 6 This kind of talk is useful for achieving one of the key goals of feminism: women bonding in anger against men (consciousness-raising). Kathryn Abrams. 42 STAN. ag. Race andEssentialism in FeministLegal Theory.1998-1999] COMMENTS ONLAWASANART OR SCIENCE Far more controversial is MacKinnon's claim that the linkage of power and desire is the chief engine of gender. 304 (1995) (discussing the way women view themselves and are viewed by others). In fact. This not only posits the controversial and divisive claim that a single engine drives the extremely complex phenomenon of a gendered world. This is one important way MacKinnon's analysis needs to be reassessed. "[O]n the first day that matters. 17. Se= Equality. They don't feel like victims. Angela P.J. 581 (1990) (eluding to the point that gender is not the only variable in the way women are treated). MacKinnon's analysis attributes to power an on-off quality that links men with power and women with powerlessness. BERK. 95 COLUM. 82 GEO.m sm UNMODMIEID. they don't feel privileged. But the important point is that these analytical failures undercut the ability of MacKinnon's language to persuade a broad range of audiences. it also glosses over the tradition of socialist feminism. feminists in Latin America are developing a 15. Because of their extensive experience with gender trainings and popular education. probably by force. Many women are repulsed by the notion that they are men's victims.7 Am. L. 18. U. Betwen Feminism and Unionism: Working Class Women. particularly men of color called the agency critiques and working dass men."'5 Gender can usefully be linked both to the structure of sexuality and to the structure of work and family. Sex Wars Redux Agency and Coercion in Feminist LeAL Theory. become outraged when they are described as privileged. THE GENDER FACrORY: THE APPORTIONMENT OFWORK IN AMERICAN HOUSEHOLDS (1985). dictatorship. Gender Soc. Sat. ag. supra note 14. Working class women and women of color often agree. F . Pol'y & L.. See SARAH F. L. Marion Crain. HeinOnline -. The critiques that make these points are often called the anti-essentialism critiques. dominance was achieved. 1903 (1994) (discussing the "hierarchy" in the home and the workplace). 16. The second is even more basic. The critiques of MacKinnon that illustrate this point are often Many men. at 40. and point out ways that their experience of gender differs due to their different class and race contexts. L. J. It is far less effective at building successful coalitions for gender change. REv. which points to the structure of work and family as a key engine in the "gender factory.
JOURNAL OF GENDER, SOCIAL POLGY & THE LAW [Vol. 7:373
language of gender and power with the ability to overcome the Alda Facio's drawbacks of MacKinnon's dominance feminism. analysis of stereotypes points the way. The brilliantly simple "When He Works/When She Works," which Alda Facio adopts from what appears to be a popular education bulletin, sets up two columns: He Works: He has a photo of his family on his desk. He's a solid family man, conscious of his responsibilities. He speaks with his colleagues. He must be discussing his latest deal. He's not in his office. He's meeting with the delegates. He lunches with the General Manager. Surely he's going to get a raise. She Works: She has a photo of her family on her desk. Her family will alwas come before her career. She speaks with her colleagues. She's gossiping. She's not in her office. She took off to go shopping. She lunches with the General Manager. They must be lovers. This stunningly concrete example gives a graphic picture of gender power at work, in a way that invites laughter, and in my experience, gets it, even in audiences not receptive to the gender perspective. It is an approachable way to talk that presents gender power as something that happens, quite innocently, in an everyday way to transform our societies into what MacKinnon has called "an affirmative action plan for white men."' 9 In the United States, this is useful because it graphically illustrates the limitations of our discrimination laws, which are interpreted to limit actionable discrimination to that which is conscious and intentional. It also demonstrates the limitations of an affirmative action jurisprudence that often assumes that the purpose of affirmative action is to remedy past discrimination. 2 The He Works/She Works analysis shows that much of the most damaging discrimination, far from being intentional, is not even conscious. It also shows that affirmative
19. FEbINSM UNMODIFIED, supranote14, at 36. 20. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racinm, 39 STAN. L. REV. 317 (1987) (arguing that equal protection laws should
protect against unconscious racial discrimination).
HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 378 1998-1999
COMMENTS ONLAWASANART ORSCENCE
action is important not to remedy past discrimination by people long dead, but to remedy the disadvantage created by these and other stereotypes in the present and subconscious default modes within which we all normally function. What's needed is a new metaphor that crystallizes these insights. The central metaphor of MacKinnon's dominance feminism, taken from Angelina Grimke, is of men's boot on our neck.2' This functions well as a language of bonding in anger against men, but less well as a language of persuasion. An alternative is the metaphor of gender as a force field, pulling men and women back towards conventional gender patterns, and perpetuating power differentials through destructive stereotypes that still serve today to undercut the credibility of women and bolster that of men. '
In conclusion, although I remain deeply indebted to MacKinnon for her brilliant analysis of how our culture eroticizes dominance, my experiences in Latin America convince me that North American theorists have much to learn from Alda Facio and others. Their experience can help guide North American feminists as we move out of our comfortable but marginalized conversations among ourselves, and begin to engage in some popular education of our own. United States feminism began in the popular sphere, and needs to be revitalized there. I speak as a theorist committed to the continuation of theoretical discourse. But I am convinced that we must look south for a feminist experienced in talking about gender in ways capable of reaching a broad popular audience.
21. See Catherine A. MacKinnon, Feminist Discourse, Moral Values, and the Law-A Conversation, 34 BuFF. L. REV. 11 (1985) (suggesting that women's actions are controlled by
men). 22. JOAN C. WILLIAMS, RECONSTRUCTING GENDR: WORK, FAMILY, AND GENDERTALK IN THE 21" CENTURY (forthcoming 1998). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 379 1998-1999
HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 380 1998-1999
purity. buena fama y honestidad]. 381 1998-1999 . U. as Augusto Bebel so aptly put it. is penalized to a lesser degree when it is committed "to conceal the woman's dishono" (Art." Statutory rape [estupro] HeinOnline -. There are various terms that are applied to women throughout More Latin American law which carry a specific meaning. specifically. therefore. Its influence is particularly important in the area of law since.LANGUAGE AND THE LAW YADMA CALVO Language is an issue that cannot be overlooked when analyzing any discipline from a gender perspective. and the Penal Code currently in force in the various countries. Moreover. Language. This can be observed in our Penal Code in which the concepts of honor. we as women are a repressed sex and find our "corresponding position in the law of a country. the Labor Code. as applied to women. Based on these premises. dishonormeans"the loss of purity. the Family Code. the Political Constitution of Costa Rica. including the Civil Codes of Latin American countries through the middle of this century. J. good reputation. language also helps perpetuate negative perceptions of women. Pol'y & L." Together. and decency in the woman. I will examine critically the language used in laws. language and law can intensify the degradation and repression experienced by women. subparagraph 3). the primary definition of the word honor is esteem and respect for ones dignity. a murder committed by a "mother of good reputationwho kills her child within three days of birth in order to conceal her dishono-' is categorized as "homicide with extenuating circumstances" (Article 113. have a fundamental sexual connotation. As a vehicle for sexism in our culture. and purity [honra. as an intermediary in our relationship with the world. In Spanish. An abortion. Gender Soc. 120).7 Am. certain words that are charged with highly sexist content include the notion of virtuous feminine conduct with respect to sexuality. the fourth definition listed is "modesty. I have tried to isolate some of the linguistic phenomena that have repercussions in the law in order to better understand them. enables us to form opinions as well as to express ideas." In the Code.
" (Art." and intercourse. This alone means that the law punishes more harshly the sexual conduct 1. The first term applies to the woman. even with her consent" (Penal Code art. On other occasions. the use of terms with respect to women in the Code equates personal worth with sexual virtue. is defined as "carnal relations with a pure woman [mujer honest=] between the ages of twelve and fifteen. Gender Soc. and the second to the man. 112). They imply. or both of the partners is married. these terms and their ideological underpinnings reflect a view of female sexuality that is subordinate to. Translator's note: Masculine form of mancebam HeinOnline -. perpetuating a vision held by sixteenth and seventeenth century Spaniards.382 JOURNAL OF GENDER." In other words." concubine [concubina] is used synonymously with "mistress" or a woman who lives or cohabitates with a man as if he were her husband. SOCIAL POLICY & THE LAW [Vol. J. "Mancebo"' means a "youth" or of the combination man. The word-pair described above is linguistically asymmetrical. with her consent. a moralistic conception that reinforces the idea of the illicitness of relationships and denigrates the female role through the use of asymmetrical terminology to describe such a situation." The first definition of pure is "modest and decent. when one concubinage."' Therefore. Pol'y & L. 7:381 (punishable by a prison term of one to four years).7 Am. however. Mistress [manceba] is described in Spanish as a "woman with whom a male [uno] engages in continuous illicit commerce. according to Latin American Civil Codes that were in force until the Adultery is defined as "illicit carnal middle of this century. implies cohabitation [convivencia]. the law furnishes the asymmetry. mistress/concubinarian word-pair of the true is This [manceba/concubinario]which appears in the section on homicide in the Costa Rican Penal Code as a crime [delito calificado] if the couple has children and has been married "for at least two years prior to the perpetration of the act. moreover. 382 1998-1999 . in other cases. discrimination is manifested in asymmetrical terms representing those that acquire different meanings based on gender and which tend to be degrading in their feminine usage. male sexuality. U." the second is Therefore. by definition." "decent and decorous. "unmarried an "mistress/mancebd' and "concubine/ concubina" is "concubinarian/concubinario" defined as "he who has a concubine. This is the case with the terms adultery/concubinage as grounds for divorce. and a function of. 159) and abduction for indecent purposes [rapto impropio] is defined as the abduction for lewd purposes of a "pure woman between the ages of twelve and fifteen.
it only designates those who are called upon to exercise political rights. HeinOnline -. El Salvador. and costarricensesare interpreted in the narrow sense." Unfortunately.7 Am. and Haiti). A lexical artifice.1998-1999] LANGUAGE AND THE LAW of women. as well as in English and French. J. Lanjuinais' reasoning regarding the term "citizen" [ciudadano-masculine form] during the drafting of the French Constitution of 1791 clearly demonstrates this issue. Venezuela. But this was compounded by appending to the term concubinage the adjectives "scandalous" and "notorious" (in Costa Rica. denote both the masculine and generic form of the term. the mentally retarded. the law resorts to these kinds of expressions with great frequency. the words discussed assume certain behaviors to be appropriate or reproachable." "In current language usage. But there are other far more dangerous terms whose versatility leaves room for countless manipulations. and the nation. In the broadest sense. women. as they appear in Spanish. Pol'y & L. "children. So far. they only include people (and animals) of the male sex. and those condemned to corporal or degrading punishment. Colombia. to vote in public assemblies. therefore. These are terms which are based on the deplorable tendency to use the masculine in a universal manner and can be used indiscriminately in a broad or narrow sense. these terms encompass all people. while in the narrow sense. therefore. allowed the sexual conduct of women to be penalized much more severely than men." The generic terms todos." In a strict interpretation. "any expression which should be generic but is formulated so as to exclude or disregard the woman is a sexist expression. It is well known that in Spanish. "this term is employed to designate all those belonging to the social body. prior to their total rehabilitation." he continues. and those who can elect officials and be elected to public office. As Garcfa Meseguer points out. naturales. cannot be considered citizens. naturalizados. minors. Gender Soc. U. 383 1998-1999 . masculine terms coincide with generic terms due to an ancestral identification of the human being as the male. according to Lanjuinais." This malicious language can be observed not only in France during the Revolution. Therefore. but also in Costa Rica during the suffragettes' struggle for the right to vote despite the existence of a law that 2 defined "Costa Rican citizens" [ciudadanoscostarricenses] as "all [todos los] natives [naturaes] of the Republic or those naturalized [naturalizados]in it. civil society. He asserted that the general idea evoked by the term is that of "a member of the city. meaning that 2. depending on gender. Translator's note: The italidzed words in these two paragraphs. Nicaragua.
is the use of deceptive terms. and despite the fact that the terms used are supposedly inclusive. I. the term citizenship had to be redefined as "the entirety of political duties and responsibilities corresponding to Costa Ricans of both sexes. reinforced by culture. for instance. derived in part from that described above. When the Political Constitution of Costa Rica establishes that "all men are free in the Republic" (Tide IV. such as disclosure of institutional records or proceedings: "He who should divulge records or proceedings. In order to constitutionally establish women's suffrage in 1949.. Pol'y & L. in which el pueblo exercised sovereignty. universal suffrage was referred to in our countries long before women could vote. A problem in the language of the law. 1. Deception can occur because. or "executive power is exercised by the President [elPresidente] of the Republic and the Government Ministers [Ministros]" (Ch. J. art 130). art. The word pueblo. Gender Soc. is defined as "a group of people in a place. 7:381 they included only males. In our Penal Code. The way that the interpretation of such terms functioned historically demonstrates the ongoing danger of an interpretation that excludes women. the laws. . in the absence of feminine terminology. U." He who supports himself by means of an individual practicing prostitution is engaging in "pimping" [rmfianeda]. these terms are used interchangeably for crimes that can be committed by men or women without distinction. or the pronoun form "he who" [el que] which is used as a substitute for the noun." and for crimes which by definition only can be committed by males. The term "man" [hombre] as masculine/universal. 183). are found in the wording of our laws and result in ambiguity. Art. the reference to the pueblo in this case is misleading. interpret such terms in ways that exclude women. The deceptiveness of a term can consist of a legal usage that differs HeinOnline -." Nonetheless." The presence of generic terms in our laws continues to produce ambiguity. the use of these terms car project a masculine image of the beneficiaries of the rights and positions described. or country. such as sodomy and abduction for indecent purposes: "sodomy" is committed by he who has carnal relations with a minor between the ages of twelve and seventeen. Because only aristocratic males were admitted to the public assemblies. or "the Accounting Office [contralorf] is directed by a Comptroller [contralor]and a deputy Comptroller" (Ch. SOCIAL POLIcY &THE LAW [Vol." We have always been given the example of Pericles' Athens.384 JOURNAL OF GENDER.7 Am. region. Something similar occurs with the adjective universa which is defined as "that which comprises or is common to all members of a species without exception. 20). 384 1998-1999 ..
When the law establishes. women could not waive it. heavy.." Frenchman Jean Bodin asserted in the sixteenth century that "the law defends women from all responsibilities and trades corresponding to men. U. or dangerous jobs (Ch. in a trade plied in the streets or in public places. Finally. as it did until the second half of this century. however. It would seem that the law defends women from any supposed physical. domestics.1998-1999] LANGUAGE AND THE LAW 385 from its common usage. who may work as many hours as are compatible with their physical. and the like." Although this was the sixteenth century. and other similar endeavors. Guatemala. Another form of deceptive terminology is the confusion of the terms rights and duties [derechos y deberes]. 161). but because virile actions are contrary to their sex. to feminine modesty and puity. candidacy for office. art. 552. When we recall that based on the Napoleonic Civil Code the husband's obligation to protect the woman was established (art. 7. Pol'y & L. It also prohibits women from working nighttime jobs "with the exception of those working as live-ins or with families."" [PatronatoNacional de la Infancia] for "the special protection of the HeinOnline -. "the right and duty" to supervise household tasks in some cases. 1951. J. In Costa Rica. such as judgeships.7 Am. Rights implies the ability to do or demand. since it was a duty. it did nothing more than tighten the noose of submission because a right that is a duty is more a duty than a right. Gender Soc.." and that of other [female] workers whose jobs do not extend past twelve midnight. the law protects women from themselves. today the Labor Code in Costa Rica establishes an "express prohibition" against contracting female labor for physically or morally unhealthy. for example. 99. mental. for example. and moral well-being. Article 90 prohibits single women under eighteen from working. not only because of their lack of prudence. there is a Center for the Development of Women and Family. This is the case with the words "protection" and "defense. Peru. then some women might have wished to waive it. Art. 215) as well as her obligation to obey her "protector. independently or for others. The chapter on Rights and Social Guarantees of the Political Constitution establishes "an autonomous institution called the "National Foundation for Young Children. social workers. it is interesting to highlight the phenomenon of the improper associations of terms that help to propagate the stereotypical identification of women with the family or children. nurses. 1953. Art. Our Labor Code regulates the "work of women and minors" in the same chapter. 87). If." we see clearly that "protect" has not had the same meaning in the legal field as the term would indicate. washing dishes had been a right. and personally do them in others (p. 385 1998-1999 . duty implies obligation. mental or moral weakness.
U. 386 1998-1999 .7 Am. physically and morally weak. and to the expedient exclusion of women. HeinOnline -. J.386 JOURNAL OF GENDER. Gender Soc. a critical examination of language as an instrument of expression of the Law is essential to eliminating gender discrimination and encouraging more balanced perceptions of all humans. It also can contribute to legal outcomes for the same phenomena that vary according to gender. The brief review offered here leads us to conclude that the vocabulary used in the law can contribute to the perception of women as mentally. non-autonomous. and associated with traditional ideas of sexual virtue. Pol'y & L. SOCIAL POLICy &THE LAW [Vol. Therefore. 7:381 mother and child. infantile." Since infancia is defined as "children from birth to seven years" it is apparent that including the mother under the protection of a Foundation for "young children" devalues women because even very young mothers do not give birth at that age.
President. These reflections provided a conceptual framework for Roman scholars. that is. the divine law. The laws of reason demand using a clear methodology to apply principles that lead to scientific knowledge. Thus the legal profession. privileges. combined with the objective of learning the truth regarding any given object. jus meant the science or department of learning. 387 1998-1999 . Pol'y & L. in order to open the doors to reason. 2. faculties. HeinOnline -. powers. Roman thought gave rise to the terms ju andfas. Gender Soc.V. was inaccessible to most other community members because these magistrates retained power over the rules through which the norms of custom were to be applied. or demands inherent in one person and incident upon another. Western thought emerged when the Greek culture developed the rules of logic that allow for scientific discourse.WOMEN AND JURISPRUDENCE MA. in its early stages. and interpret the law based on a concrete methodology. The early Roman period was managed by a federation of noblemen *Director of the Seminar on Philosophy of Law. U. The logos of the Roman scholar was interpreted by religious magistrates who possessed a monopoly on juridical activity. President of the Mexican Section for Philosophy of Law of the I. foundation was based on the canons of identity of the human being and the absence of contradiction.R. Association of Professors of the Philosophy of Law Section. Fasmeantright. who first sought to delimit their identities in order to establish their being. ELODIA ROBLES SOTOMAYOR" It is important to reflect on influence that cultural legacy and humanist influence on juridical analysis. This set up a body of rules identifying them as Roman in order to preserve the principle of unity. prescribe. The Logos of This Parmenides laid the first foundations for knowledge. define the institutions that continue to describe. These influences.7 Am.justice. UNAM. combined with Greco-Roman thought. 1. This process required setting aside one's beliefs and opinions as paths of reflection. J. In Roman law. UNAM. The term was also used to refer to rights.
This process climaxed in the creation of a body of magistrates. This placed pressure on the monarch to issue a series of legislative dispositions with the goal of harmonizing and unifying the population. and thereby regulating in a normative framework the rights and interests of the commoners. This archaic system changed when groups lacking the appropriate lineage challenged the existing law. which was used to protect the origin and dignity of Roman status.7 Am. the people attended the coronation of a new king. known as tribunes. The complaints of the commoners emphasized the need to satisfy the demands of their social class and to place limits on benefits that were exclusive to the upper class. This system provided advance notice to the population through public dissemination. The objective of these Tables was to firmly establish the law through a written system. 7:387 and families regulated by a monarchical and priestly authority. This social class still excluded the common people from otherjuridical. 388 1998-1999 . Gender Soc. This new system sought to preclude discrimination by doing away with laws that favored certain sectors. in order to avoid misapplication of the law. This framework led to a class struggle between the upper class and the commoners. This signaled the transition to a second phase of Roman Law where old and new noble groups constituted a new social class. SOCIAL POLICY & THE LAW [Vol. These new laws were woven into the basic Roman law set forth in the Laws of the Twelve Tables. thus broadening the cultural framework that determined the meaning of the law. interpretation and application of the law. These groups came to constitute a new class known as the common people (plebes). in which a classist State advanced the interests of one group to the detriment of others. in the law's emphasis on citizenry determined by bloodlines. for the first time. Peace and order were defined in terms of respect for principles of organization based on noble status and the family. U. the law acquired new meaning by including the lower class. with the aim of preserving peace and order. At this juncture. economic and social benefits through the monopoly of the upper class (patricians)on the creation. As a result. This resulted in the creation of HeinOnline -. for example.388 JOURNAL OF GENDER. J. political. who became the spokespersons of the common people and who were heard in the popular assembly. These principles are expressed. Pol'y & L. This system was based on a "voluntarist" theory that justified the theoretical juridical framework. They designed a system in which the interpreter established the parameters of behavior in the community.
HeinOnline -. these laws concealed the fallacy of having no actual validity. The Roman law's written traditions. different countries' legal systems developed in different ways. This paper will attempt to demonstrate the role that doctrine plays in resolving certain conflicts where women have been marginalized under the law. The criteria which form the basis for arguments to establish the law in any given case are established based on these basic premises. the judicial function . In countries with an Anglo-Saxon tradition. 389 1998-1999 . U. the terms Lex and Jus have diverse meanings. which symbolizes the ideology and exposes the true intentions of the written norms. filiation. women remained defenseless.7 Am.a loss or curtailment of a man's status or aggregate or legal attributes and qualifications. Gender Soc. even when. or abridgement of personality. and others adopted a Roman-Canonic tradition (second phase of Roman law). it is important to analyze the meaning of the premises accepted and utilized by the ministers and magistrates of the judiciaries in our countries. Today it is necessary to reflect on these intentions in order to find a new path toward juridical responsiveness to women's interests. inheritance. Today. as they were 3 viewed as being Capitis Diminutio with regard to 'freely defending their rights to patrimony. etc. Pol'y & L. from a constitutional point of view. This negative treatment had important implications for the future development of the law as is evidenced by the roman jus dvile being used as a model for private matters and jus gentium for public and international matters. Depending on which Roman approach was adopted. In Roman law. a diminution. which had been confined to custom and whose interpretation corresponded to the religious tribunals. J. For this reason. On our continent. The law prevents a lawyer from engaging in free administration ofjustice.1998-1999] WOMEN ANDJURISPRUDENCE 389 the civil law. some countries have adopted the Anglo-Saxon tradition (first phase of Roman Law). as subsequently adopted in France. The deliberations of these new functionaries had an important revolutionary impact. for example. This paper assumes that the lawyer is bound by the law. serve as a reference in circumscribing the arguments that give rise tojurisprudence. as he is limited by the norms established by the lawmaker. Under the new system. The commoner's struggle for their rights did not extend to women. The new emphasis gave rise to the secularization of the law and the possibility of developing a legal state through civil functionaries elected by the people.
as the result of an action for the protection of a constitutionally guaranteed right (amparo). in the state ofJalisco the rules for ownership of joint property provide that the right of legal representation resides in the husband. reflects the Roman tradition in Mexican legislation and the force of the French Civil Code from which these criteria are based. the husband is the full and exclusive legal representative of the legal unit for the purpose of protesting acts that affect marital property. The metalanguage of these techniques has given rise to a special terminology in Mexico. the law continued to leave women unprotected. Gender Soc. she is not protected. or 2) if he is absent or impeded. 7:387 has obtained greater breadth through the interpretive tools ofjus and mores. and even after the constitutional reforms of 1974 which recognized the equality of women. Even when women's assets are affected directly. With reference to joint property. through the Nomina jurs. U. she may act as set forth in articles 207 and 234 of the Civil Code of the State ofJalisco. Therefore. if the marriage predated the constitutional reforms. The rationale for this decision was that.390 JOURNAL OF GENDER. These are understood to be interpretative rules that establish a flexible tradition in which lawyers argue with greater freedom. the husband is granted the role of administrator. 1969 by unanimous vote in the Second Chamber. The law is also characterized. preventing a woman in this century from handling the administration of her own property even after she obtained the right to vote. invoking precedents established by past experience. as a result of these techniques. Almost ten years after the first decision. I will cite some examples based on the opinions and jurisprudence developed byjudicial institutions. because this would HeinOnline -.7 Am. at the time of contracting marriage. as does the defense of those interests. The woman complainant thus lacks standing to exercise a constitutional action when it affects assets belonging to joint property. Pol'y & L. for example. As an illustration. It is necessary to reflect on these different legal traditions to determine the rationale behind certain problem-solving techniques. by an emphasis on the deductive methodological approach over the experiential. J. The wife can only fill this role in exceptional cases: 1) with the consent of her husband. enacted on January 24. in September 1978. 390 1998-1999 . Similarly. This role cannot be repudiated without applying the law retroactively. and only in exceptional cases in the wife. it was resolved that disputed assets that constitute joint property belong to the husband. This law. SOCIAL POLICY & THE LAW [Vol. The written legal order had greater weight than experience in writing this law.
This holding establishes that there is no abduction. Gender Soc. even where the aggressor takes the woman to a specific place. leading to a less severe sanction. even when sexual acts are performed. the crime is considered to be that of the lesser crime of abduction (rapto) rather than kidnapping (secuestro). through physical violence. The criminal intent or psychological element thus consists of the awareness and will of the offender to illegally deprive another of personal liberty with the purpose of asking for ransom or causing injury. wrote an opinion. on the grounds that it cannot be argued. the First Chamber of the Supreme Court ofJustice established that the difference in the legal definition of abduction for sexual purposes-(rapto) and kidnapping (secuestro) lies in the fact that the second is understood as the external limitation of a person's right to maneuver or move. Meanwhile. U. It contravenes article fourteen of the constitution which stipulates that no law will be applied retroactively so as to cause harm to someone. This interpretation was approved by unanimous vote in the seventh session. J. The above doctrinal criteria contain contradictory arguments in that they establish that kidnapping (secuestro) is reduced to a deprivation of liberty with the aim of demanding ransom or causing injury. seized a woman but did not remove her from the manner in which she ordinarily conducts her life. as long as this occurs in a short time frame and on a public route. 391 1998-1999 .1998-1999] WOMEN ANDJURISPRUDENCE require applying the law retroactively. Manuel Rivera Silva. Taken together with the other opinion that establishes that there is no abduction of a woman when she is removed from her ordinary routine and taken by a public route for a short time. which held that an abduction (rapto) did not occur where the accused.7 Am. In the State of Hidalgo it was decided. the vagueness in defining the levels of dangerousness can be observed. while the aim of abduction (rapto) is not deprivation of liberty. This doctrine is contradictory. which means in "contrario sensu" that it is possible to apply a new law retroactively to someone's benefit. on the basis of a Supreme HeinOnline -. as well as how the facts can lead to a determination that a lesser crime was committed. If there is no aim of depriving the person of liberty. that his actions have isolated her from her environment. With respect to criminal law. adopted by unanimous vote. under these circumstances. in 1961 the same reporting judge. even when sexual acts are performed. because the concept that sexual acts can be considered to cause injury and deprivation of liberty is necessary in order to perform sexual acts against a person's will. Pol'y & L.
As to property acquired during marriage. With reference to support arrangements. in relation to the law in the State HeinOnline -. during that period considered in the first case. The case law holds that an allegation regarding the aggravating factor of advantage in the context of the superiority of physical force between men and women may only be seen as an attempt to apply a provision applicable in specific cases to a general truth. a federal appellate court established legal doctrine holding. Gender Soc. J. or. b) that the woman has been legally authorized to contract with her husband. in the case of aggravating factors for homicide. Meanwhile. U. 7:387 Court opinion. that even though doncelez was not the equivalent of virgin. even though the tribunal itself recognized that the term is not necessarily synonymous with virgin. it was more important to apply the Hidalgo Criminal Code than to take into account the affected party's appeal forjustice. it is understood that the woman does not have an obligation to contribute to paying household expenses. This opinion was reached by unanimous vote in the eighth session of jurisprudence. the court unanimously held that the difference in physical strength did not apply to benefit women. that status as a virgin is a required element for the crime of statutory rape. Another example of the negative impact on women is seen in the aggravating factor of "advantage" in homicide cases. The above examples make it clear that the Court and its members believe that. With respect to patrimony. The judges' opinion.7 Am. the State of Guanajuato has established that contracts for the sale of goods between spouses are valid under only two conditions: a) that the couple is married under a separation of estates system. The Supreme Court held that status as a proper young lady (estatus de doncele) should be understood as the condition of virginity. Pol'y & L. Since the condition of doncellez is a requirement in Hidalgo's Criminal Code. The opinion thus holds that it would be a legal aberration to include the aggravating factors in every case perpetrated by the man against a woman victim. a 1989 opinion by the federal appellate court for the sixth circuit stated that the woman manages the conjugal household and educates the children. Despite the fact that the principal of equality between men and wonlen before the law has been elevated to the constitutional level. because most Mexican women dedicate themselves to household chores. 392 1998-1999 .392 JOURNAL OF GENDER. although favorable to women. SOCIALPOLICY& TMELAW [Vol. presumes that the woman is incompetent. it was held that the crime of statutory rape only exists if the element of virginity has been shown.
with the aim of understanding trends in doctrine. that are gender-neutral. measures should be taken to increase student awareness of the research being carried out by researchers and professors. with the aim of establishing legal definitions. women HeinOnline -. to reexamine the jurisdictional task through critical analysis. J. along with the written law. In this respect. Pol'y & L. Moreover. inheritance. To do this. it is important to continue to collect legal materials through the use of the computer. will have the necessary tools to respond to their history. upon assuming responsibilities in the institutions. I think that it is important to promote new frameworks for legal development at the University. This will enable us to flag errors and seek new horizons for the equal treatment of women. bequest. U. which serves as an interpretative tool in the administration and application of justice. the federal justice system should open its doors to women professionals. I want to demonstrate the importance of the interpreter's role in the development of jurisprudence. In this manner. in the administration ofjustice. In both cases. Because the Law School at the Universidad Nacional Aut6noma de Mexico is the largest academic center in Mexico. was excluded from joint property as it was not the result of conjugal effort. The ideological and cultural perspectives of the participants in the system play a fundamental role. 393 1998-1999 . The objective will be to produce better educated lawyers with a greater gender awareness. With the above examples. therefore.1998-1999] WOMEN ANDJURISPRUDENCE 393 of Zacatecas. The objective should be to create a new awareness that makes organic and non-organic doctrine more operative.7 Am. I think that the work of universities will play an important role in the future. The Supreme Court of Justice of the Nation currently has only one female justice to ten males. in order to subsequently carry out the pertinent studies regarding the language used by the interpretive bodies. or any other unpaid transfer of title or good fortune. Gender Soc. It is essential that programs of study include practical fieldwork combined with research on the arguments used as the basis for resolutions. In this sense. that property acquired by one of the parties through donation. women continue to be regulated by cultural parameters handed down from Roman Law. It is necessary. as well as that conducted by lawyers responsible for deciding cases and creating law. and it contains a female student population that surpasses the male population. These new attorneys. restrictions are placed on the enjoyment or on the negotiation of sales with respect to the patrimony acquired during marriage.
7 Am. At the same time. U. 7:387 account for no more than ten percent of judges in the federal appellate courts. in society. provide a route toward greater flexibility which will open doors to new reflection. women are responsible for the greatest amount of work in mid-level positions. and in economic life. practice.394 JOURNAL OF GENDER. these various sources will make law a science and an art that responds to reality. Together. it is worthwhile to point out that indigenous women do not figure in Supreme Court doctrine. whose rigidity does not allow it to stray from certain legal frameworks. 394 1998-1999 . bringing together experience and legal guiding principles to provide unity and coherence to the creation of jurisprudence in favor of women and justice. HeinOnline -. They are excluded at three levels: within their own culture. SOCIALPOLICY&THELAW [Vol. Mexico lives in the Roman stage of written law. This reflection will show that written legal norms can coexist with other normative sources such as custom. and general principles of law. decisions on actions for protection of constitutionally guaranteed rights (amparo). Gender Soc. Pol'y & L. These women constitute the most excluded segment in the legal structure. Nonetheless. J. In terms of other spheres of women's activity.
......... 403 li1.......... F......... 428 Feminists who are not libertarians may not like the vocabulary............. Ph.... CHI.......Arrospide .. INTRODUCTION ..at217.....1989 U.. 2.. Mark Glick...7 Am. I believe that it has much to offer women-if only a warning to consider carefully the indirect effects of policies ostensibly favoring women-and that it deserves greater voice in the feminist chorus. Posner.. Richard A............. LEGAL. and Anupam Tyagi for their insightful comments and criticism..... 407 B..194.... The author would like to thank the participants of that workshop for their comments. THE LAW & ECONOMICS THEORY OF CONTRACT .............. The views expressed in this article are not purported to reflect those of the U........ J........ 1995.. HeinOnline -....... but if they refuse to consider the economic consequences of policies affecting women they may end up hurting rather than helping women.. APPLICATION OF LAW & ECONOMICS TO UNCONSCONABILITY CASES ... Department of'Justice.... 1997. Jones v.......... University of Utah. 1998. ConsevativeFeminism........ 396 II..... An Overview of the Economic Theory ofContracts... Economics......S. Walker-Thomas FurnitureCompany.... Williams v..... 414 E.. methods..2 Trial Attorney..... Sarah Wilhelm.. U................CAUGHT BETWEEN SCYLLA AND CHARYBDIS: JAW & ECONOMICS AS A USEFUL TOOL FOR FEMINIST LEGAL THEORISTS DARREN BUSH I............. 395 1998-1999 .... Antitrust Division........... Carboniv.... Pol'y & L....... 407 A.. J................... 408 C.. 191.. 398 B.. PotentialFeminist Objectionsto Law & EconomicsAndlysis ..................... 411 D........... 1.. The author would also like to thank Debora ThreedyJohn Flynn........ 398 A............... A previous version of this paper was presented at the "Feminism Confronts Economic Theory" Workshop on December 13....... POLICY IMPLICATIONS FORIFEMINIST LEGAL THEORISTS: A CONCLUSION. Star Credit Corporation . Id.. 417 IV....D....D..... Gender Soc......... and assumptions of economics...... at Columbia University.....' [While] conservative feminism takes a more cautious stance on issues of concern to women than radical or liberal feminism. Department ofJustice or of the people who have commented on this article... The Role of Unconscionabilityin Perfect Contracts.. A FeministDilemma in theRealm of Contracts.
INTRODUCIMON The school of thought known as Economic Analysis of Law (Law & Economics) uses economic principles to determine whether a legal outcome is efficient for society as a whole The increasing popularity of this movement stems from its logical neatness and its broad applicability to general legal issues. and criminal law issues). Posner assumes that using the tools of economic analysis will lead feminists to policies that will benefit women in general. 76 J. however. ECONOMIC ANALVSIS OF LAW 19 (4th ed. 8 Additionally. 4. U. Economic analysis. is not limited to contracts. believes that feminist legal theorists can benefit from using the Law & Economics model According to Posner. Pol'y & L. SOCIAL PoLicY & THE LAW [Vol. 1992) [hereinafter ECONOMIC ANALYSIS OF LAW] (applying an economic analysis to property. by focusing feminist attention on relevant market indicia. Specifically. J. will lead feminists to conclusions with which they would agree. POSNER. Becker. OVERCOMING LAW 329 (1995) (discussing the connection between biology and economics and refuting radical feminists' criticisms of his theories about that connection). THE ECONOMICS OF CONTRACT LAW 1 (1979) (noting that Law & Economics "may be able to tell us why people make contracts and how contract law can facilitate the operation of markets"). the model would focus feminist attention on the long-term impact of the social policies they advocate. 1975) (advocating a change in the structure ofproperty law courses to recognize the importance of economics). 169 (1968) (advocating the use of economic principles to determine the efficient combination of resources and punishment to deter crime). Ikat336-37. ECON.7 Am.7 Posner assumes. antitrust. eg. one of the founders of the Law & Economics movement. LAW& ECONOMICS 3 (2d ed. see also RICHARD A. constitutional. it 3. POSNER. POSNER. Id. For Posner. Economics is able to explain and predict the behavioral changes of individuals as a result of changes in the law.. "[i ] t is difficult to see why there should be any conflict" between liberalism and feminism.• 396 JOURNAL OF GENDER. 9. Id. tort. economics found a vacant niche in the 'intellectual ecology' of the law and rapidly filled it. Gender Soc. 7."Like the rabbit in Australia. WHIUAM L LANDES & RICHARD A. KRONMAN & RICHARD A. Se RICHARD A. Gary S. 7:395 I. 1997). THE ECONOMIC STRUCTURE OFTORT LAW (1987) (describing the underlying economic rationale of various tort concepts). common law. Pot. at 329 (discussing how economic progress has powered the emancipation of women). 396 1998-1999 .. Se. POSNER. at 329. 5. 9 This article examines whether Law & Economics can provide a starting point for feminists seeking policy guidance. Ctime and Punishment: An Economic Approach. however.4 Judge Richard Posner. that Law & Economics and its classical liberal prescriptions. I&dat329-34 8. THE ECONOMIC FOUNDATIONS OF PROPERTY LAw vii-xi (Bruce Ackerman ed. the result may place women in a worse position than if the policies had not been carried out." ROBERT COOTER & THOMAS ULEN. SeeANTHONYT. HeinOnline -. 6. 6 When feminists advocate policies without scrutinizing the long-term impact.
L. while feminists may favor the doctrine of unconscionability because it protects disempowered individuals from the throes of the market. See Lori Andrews. 221 (1995) (arguing for inclusion of contractlaw in postmodern feminist thought). But see Clare Dalton.A Guide to the Literature. 37-39 (1993) (discussing the major trends in the emerging legal doctrine of sexual harassment).. REv. &g. 60 VA. 19. L. Mary Becker. Part I presents a broad overview of Law & Economics. 16 LAW MED.'5 Third. WoMEN & L. although others have effectively done so. 451-53 (1974) (criticizing the circular reasoning of Law & HeinOnline -. Kellye Y.392-93 (1981) (condemning the indeterminateness of efficiency). feminists have not addressed unconscionability" or contracts to any great degree.. Is Wealth A Value?. "Unconscionability" is a nebulous legal term. 304 (1993) (advocating the scrutiny of systemic conditions that give men power relative to women. L. 3 TFMP. Muriel Morisey Spence. WitingAbout Sexual Harassment. Martha Chamallas. An Unlikely Resurrection. This article will not criticize the Law & Economics theory perse.19-21 (1995) (discussing how the law creates and incorporates stigma in the structure of divorce). including political power and economic resources).90 NW. REV. its long term effects may render these individuals worse off than they would be without the doctrine. objective/subjective.7 Am. J. 13. POL & Civ. 9J. 1 Whf.. 33 STAN.18 HARV. FMINISM UNMODIFIED: DISCOuRsEs ON LIFE AND LAW 103 (1987) (describing the advent of sexual harassment law).. Arthur Leff: Economic Analysis of Law: Some Realism About Nominalism. supranote 3. Dowd. U. 90 (1994) (discussing how Williams reinforces stereotypes regarding women and people of color). CATHERINE MACKINNON. Telling StoriesAbout Women and WorkJudicialInterpretationsof Sex Segregation in the Workplace in Title VI Cases RaisingtheLack ofInterestArgument. Symposium:Divorce andFeministLegal Theoy. Vicki Schultz. Walker-Thomas Furniture Co. see infra Part II.1757 (1990) (contending that judges have the power to change the sexual composition of job classifications and to help women fight against their marginalization and segregation into low status and low payingjobs). 2 except in the analysis of surrogate motherhood. 82 GEO. Beverly Horsburgh. eg. 4 and employment. An Essay in the Deconstructionof ContractDoctrine. it would seem that economics should have something useful to say to students of contract law.B. For possible definitions. 69 CHI-KENT L. divorce and property rhetoric." KRoNMN & POsNER.1998-1999] SCYLIAAND CHARYBDIS 397 focuses on unconscionability0 in contracts. RE . REV. 303. REV. Reflections on Openingthe ContractsDiscourse to Include Ouuide.'3 marriage. 11. REV. Decent andIndecentProposalsin the Law. 77 IOWA L.2120-26 (1994) (including perspectives on the modernization of marital status law. 37. and alimony and race). 55. LEGAL STUD. FourFeministTheoreticalApproaches and the DoubleBind of Sunogay. 89. It does so for three reasons. 14. 16.. 15. 5661 (1991) (discussing the gendered nature of law school curriculum and contract doctrine). 17. Gender Soc. RTS. Duncan'Kennedy. 387. WOMEN'S L. REV. L. 1000-02 (1985) (exploring an inconsistency/indeterminacy distinction in contract law through deconstruction of public/private. and unconscionability applies to exchange transactions. See. 997. Teaching Williams v. 451. First. Cost-Benefit Analysis ofEntitlementProblems:A Citique. 73 (1988) (discussing the rationale behind banning surrogacy). See. and forn/substance dualisms). 94 YALE LJ. Ronald Dworkin. Surrogate Motherhood The Challenge for Feminists. & MAUJ. StigmatizingSinglaParents. 1749. "Since buying and selling . L.J. alimony and efficiency. 191. Pol'y & L. 219. 4 UCLA WOMEN'S LJ. 194-95 (1980) (disagreeing with efficiency as an ethical first principle). LJ. SeeinfraPartIlL 12. 2119. See generallyNancy E. The Gendeied Curriculunu Of Contracts and Caree. Law & Economics is strongest on those issues most closely related to exchange. at 1. Milton C. are quintessentially economic activities. Testy." Second. Marjorie Maguire Schultz. 397 1998-1999 . 57. 61 (1994) (calling for a sweeping reform of law school curriculum to incorporate diversity). & HEALTH CARE 72. 7 discussing 10. 103 HIARv. Regan. U.
KRONMAN & POSNER. any assignment a court makes as to liability is efficient. The goal of the principle is to insure that the "pie" of wealth increases. J. Resources are in the hands of those who value them the most. at 12. supra note 3. for example. LEGAL EDUC. HeinOnline -. at 2. regardless of the distribution. regardless of initial distribution). A and B need not actually compensate any third parties as long as the benefits of the exchange exceed the costs. the transaction creates a total benefit of $7 (at a price of $10. 8J. Gender Soc. 549 (1939) (discussing the relevance of the status of interpersonal comparisons of utility to "welfhre economics"). A considers himself $5 better off and B considers himself$2 better off). 18. TheProblemof Social Cost. SeeRonald Coase. at 2. 1. 12-13 (1960) (stating that where transaction costs equal zero. thereby maximizing the wealth to society. 20. II. 33 J. then it is an efficient transaction. 3J. 8 Any rule is efficient when the "winner" can potentially compenqate the "loser" and remain better off. 201 (1983) (criticizing the movement's narrow focus). 21. 2 Economics). supra note 3. 19.'9 Social wealth is maximized through the application of this principle. In a setting where transactions are costless. 698 (1939) (synthesizing the basic theories behind "welfare economics"). Legal Scholarship. Hicks. supranote 3. J. Part IV provides insight as to why these outcomes would or would not be acceptable to feminists. Nicholas Kaldor.7 Am. See also John R. Welfare Propositionsof Economicsand InterpersonalComparisons of Utility. 398 1998-1999 . and Legal Theoy. bargaining will result in resources floivng to their most valued use. Pol'y & L. U. Under the theory. L. THE LAW & ECONOMICs THEORY OF CONTRACT A." KRONMAN & POSNER. ECONOMIcANALYSIS OF LAW." This principle may be applied to the courts to determine efficient outcomes. Part II uses Law & Economics to examine particularly (in)famous unconscionability cases to determine the socially efficient outcome. "The existence of a market-a locus of opportunities for mutually advantageous exchanges-facilitates the allocation of the good or service in question to the use in which it is most valuable. Economics. Posner.J. a court must place the entitlement in the hands of the user who values it most. Frank I. An Overview of The Economic Theory of Contracts Law & Economics looks at the world through the lens of efficiency. The Foundations of Welfare Economics. Part III questions whether these efficient outcomes would be acceptable to feminist legal theorists. "[IThe wealth-maximization principle requires the initial vesting of rights in those who are likely to value them most.2' In realistic settings where transaction costs exist. Id. as determined by that person's willingness and ability to pay for them. 197. 49 ECON. In other words. 22. SOCIAL POLICY & THE LAW [Vol." Richard A. so that at a sale price of $10 (indeed at any price between $5 and $12).398 JOURNAL OF GENDER. provided that the harm (if any) done to third parties (minus any benefit to them) does not exceed $7. Posner's example illustrates this principle: [I]fA values the wood carving at $5 and B at $12. Utilitarianism. Reflections on ProfessionalEducation. the benefits of the transaction must exceed the costs. 7:395 contracts in general and unconscionability in particular. 696. Michelman. & ECON. 49 ECON. and the Law-and-Economics Movement.
24 that the contract does not result in adverse third-party effects. REv. supranote 4. 24. and no future gains from exchange are possible. See ECONoMic ANALYSis OF LAW. 64TuiL L. Androcentric Bias in Neoclkmscal Assumptions. supra note 4. CooT.. at 187 (stating that if the parties have a perfect contract then the contract has no gaps. supranote 4.125 (1979)..2 In the court's power to enforce such a contract is unnecessary because both instance of ambiguity. 30. 667 (1990). Our inquiry therefore becomes indirect-we turn to objective evidence of the party's subjective intent. 37-38 (Marianne A. in BEYOND ECONOMIC MAN: FEMINIST THEORY AND ECONOMICS 37. at 186-87. Because a party's preferences are not directly known." Robin L. and thus a court is not needed to provide default terms). See Paula England. 27. the judge must use "some sort of knowable. subjective quality she is obligated to promote.1998-1999] SCYLLAAND CHARYBDIS To see why this occurs. TakingPreferenesSe' Clare Dalton is skeptical of a court's ability to determine subjective intent from objective factors: We cannot directly know or ascertain the subjective intent of the disfavored party. on the other party's behavior and the terms of the resulting deal. however. at 186. supra note 4. See COOTER & ULEN. each resource is with the party who values it the most. a parties are better off if the contract is enforced on its strictest terms. supra note 3. is to reduce transaction costs by providing efficient background rules over which the parties will no longer be forced to 28 negotiate. U. J. at 233. 103. behavioral 'proxy' for the unknowable. Nelson eds. 1993) (criticizing the rationality assumption as male-centered and thus inappropriate in market analysis). and focusing instead. supra note 12. 25. this proxy-type role... 659.H and that transaction costs are zero. COOTER & ULEN. supranote 4. in this realm of the perfect contract. A perfect contract is one in which: all contingencies are accounted for and efficiently allocated between the parties. Gender Soc. See CooTER & ULEN. Would anyone have voluntarily agreed to that deal? Dalton. But in our search for objective evidence we find ourselves abandoning our initial focus. at 186-87 (noting that contracts can contain terms that require revision over time). 28. at 1025-26 (discussing the problem of "power" and "the power of the HeinOnline -.. all relevant information has been communicated. Pol'y & L. COoTER & ULEN. Absent a perfect contract. contract fills iosly. supra note 4. Ferber & Julie A. at 187. 26. In the private sphere. 23.West.7 Am."' By using the model of the perfect contract. 29. COoTEt& ULEN. at 89-91 (stating that the fundamental purpose of contract law is to deter people from behaving opportunistically).27 The sole purpose of the common law. 399 1998-1999 . objective. & ULEN. a court's mission is clear-it should correct imperfect contracts by restructuring the terms as the parties would have wanted them. The Separative Self.2 In this world of perfect contracts. terms may be ambiguous or fail to account for a particular contingency that has arisen. we must imagine a world in which the perfect contract exists.2 The theory also assumes that individuals are rational. LEGALSTUD. each risk is allocated to the least cost bearer.
If the judge ought to maximize well-being. supra note 4. at 191-92 (providing a table that.N. They are the most reliable guide to what she is morally obligated to maximize-our subjective well-being. and we manifest those desires in our preferences. Richard Epstein.. 33. HeinOnline -. 293-94 (1975).400 JOURNAL OF GENDER. West.:A CiticalReappraial 18 J. So long as tort law protects the interests of strangers to the agreement. ought to respect our revealed preferences. in KRONMAN & POSNER. Pol'y & L. 400 1998-1999 . & ECON. See Gordon Tullock. First. supra note 30. COOTFR AND UL. The argument is simply that our revealed 'preferences' are generally rational. J. See Coo ER & ULEN. then two individuals who operate with those same constraints should have the same right with respect to their mutual affairs against the 4 rest of the world.L. First. supra note 4. its enforcement will tend to maximize the welfare of the parties to it. supranote 3. they should choose terms that the parties would have wanted if the contract were complete. then the judge. U. where courts must determine an outcome because the contract is ambiguous . The implications of the policy prescriptions stated above are twofold. The alternative defense is on libertarian grounds." These principles guide the economic theory of contracts because absent compulsion or irrationality. SOCIAL POLICY& THE LAW [Vol. 32. t Law & Economics leads judges to two policy prescriptions in contract cases. One of the first functions of the law is to guarantee to individuals a sphere of influence in which they will be able to operate. [w]e desire that which will increase our subjective well-being. courts attempting to put terms into the contract which were not agreed to (and would not have been agreed to at its state to control private arrangements and to evaluate private power relations" in the context of duress and unconscionability). Unconscionahili. the contract's terms should be strictly enforced if the promisor and promisee both wanted the contract to be enforceable when it was made 2 Second. 293. both parties perceived themselves to be better off by entering into the contract: [The] general regime of freedom of contract can be defended from two points of view. at 167..and disputed. at 666. A commentator has described the argument this way. Gender Soc.links the leading doctrines for regulating contracts with the marketfailure they attempt to correct).7 Am. One defense is utilitarian. without having tojustify themselves to the state or to third parties: if one individual is entitled to do within the confines of the tort law what he pleases with what he owns. and therefore the good of society as a whole. thus reducing the time necessary for successful contractual negotiation). The Logic of the Law. and if our preferences are rational. 31. at 23-25 (stating that the law also reduces transaction costs by providing background rules. 34. like any other moral actor. 7:395 courts can identify the imperfections and prescribe corrective remedies for an efficient resul.
HeinOnline -. Third parties can also induce duress. at 234-35 (explaining the defense of incompetence as a status or inability to make sound decisions for one's own best interest or efficiency).4 35. 41. 36. supranote 4. impossibility.at § 175(2). COoTER& ULEN. no one is worse off if the contract is strictly enforced according to its explicit terms.7 Am. U. 38." COOTE & UL. The law. the larger the mandate for a judge to interfere with its terms and conditions The individual rationality imperfections come from incompetence. the threat to walk away from a deal may induce the party to sign. Gender Soc. or duress.4 ' In economic terms. contracts that evidence market failures may require a judge to substantively interfere with or possibly void the contract. society is guaranteed to be better off because both parties perceived themselves as better off at the time they entered into the c6ntract's6 In addition. From an economics point of view.. supranote 3. supra note 4. J. supranote 4. at 189. " In contrast. supranote 3. at 85-88. 5 Second.! Duress and impossibility arise when the constraints placed upon the promisor are not imposed by either the promisor's budget or preferences. at 235. ECONOMIcANALYSIsOFLAW. at 101. Duress and impossibility destroy one party's freedom of choice. Economists distinguish between threats that attempt to extract promises that create value and threats which extract promises that destroy value. at 237. at79-81. and this might be perceived as duress-from a legal standpoint if the threat is from a large corporation and the recipient of the threat is a disempowered individual. a thief's threat to kill a homeowner unless she signs over her house would destroy value. that is. should be enforced. 43. however. ECONOMIcANALYsISOFLAW. incompetency means that the promisor does not have stable preferences and thus cannot rationally maximize his or her utility.1998-1999] SCYLtAAND CHARYBDIS formation) will reduce the efficiency of the contract. offered on a take-itor-leave-it basis. insofar as she is conveying value to the thief absent value-creating exchange. are the contract. the promisor's freedom to choose is eliminated. supra note 3. supra note 4. supra note 4. if no third party is injured by the contract. at 187-93.N. COOTR & ULEN. CooTrE & ULEN. makes no distinction between value-destroying threats and value-creating threats. 39. Economists believe that duress should be limited in definition to "promise[s] extracted by a threat to destroy." ECONoMiOCANALVSLS OFLAW. value is destroyed insofar as the homeowner prefers the house to the yo-yo and the thief lacks insuffident funds to entice the homeowner to sell. See Coo-ran & ULEN. if entered into. Pol'y & L. REsTATEMENT (SEcoND) OFCONTRACTs § 175(1) (1979)." These contract imperfections may come from a variety of sources that can be classified into individual rationality imperfections and market imperfections! 9 The further away a contract is from being the perfect contract. at 114. 40. CooTm & ULaN. supra note 4. 42.. COOTER& ULEN. supranote 3. at 186-87. Even if the thief offers to exchange a yo-yo for the house. rd. 401 1998-1999 . For example. supra note 4. at 186-87. ECONOMIC ANALYSIS OFLAW. If the party's manifestation ofassent was induced by improper threat by the other party and leaves the victim no reasonable alternative. leaving the promisor in a dire constraint. In contrast. "Many contracts . 37. the contract is voidable by the victim. Economists generally have a more limited view of duress than lawyers.
it is reasonable to assume that he is in a better position than the other party to prevent his own error. and thus. supranote 4. supra note 4. 49. Id. 46. supranote 4. 8 or externalities4 9 (i. LEGAL STUD. Kronman.! Similarly. provides recourse for these market imperfections. 54. 7 J. at 188-89. attempts to monopolize. See COOTEa. & UL. and mutual mistake.44 These performance excuses and defenses provide avenues through which courts may hold inefficient contracts unenforceable. 51. The Sherman Act in part prohibits contracts. at 187-91. Similarly.e. 48. supranote 4. "where only one party is mistaken. Pol'y & L. the duty to read provides incentive for parties to acquire sufficient information. at 188 n. 52.S. However. the law provides two remedies: 1) antitrust laws.EN. and conspiracies "in restraint of trade or commerce. § 1 (1998). § 15. 402 1998-1999 . 53. Note that unilateral mistake has no place in Law & Economics. The law. Disclosure. High transaction costs created by lack of information. See COOTER & ULEN.5s Second. Gender Soc. if the party raising the excuse is the least-cost avoider of an unforeseen contingency that arose. CooT-R & ULEN. U. First. failure to disclose. 5 (1978). at 234-57 (describing formation defenses and performance excuses through various examples).. COOTER &ULEN. See infra note 196 and accompanying text. informational impediments to wealth maximization are minimized through the contract principles of fraud. SOCIAL POLicY & THE LAW [Vol. 45. 47. Information. See COOTER & ULEN. Thus. and the Law of Contracts.402 JOURNAL OF GENDER. frustration of purpose. The Clayton Act amended the Sherman Act to allow private plaintiffs who are injured by anticompetitive actions to sue the offending party. It also prohibits monopolization. 7:395 The presence of any of these imperfections may eliminate the value of the contract to one or both parties. If two parties are in error.52 and 2) the common s law defenses of adhesion and procedural The third category of imperfections or externalities is not addressed under contract law. 47 monopoly. rescission returns the parties to their initial endowment which may be a superior position to the flawed transaction.. Id." 15 U. 50. supra note 4. Note that it may be efficient to enforce a contract even if impossibility is raised as an excuse." Anthony T. the legal and economic environment or the parties' circumstances may impede the formation of a perfect contract. supra note 4. however. Mistake. at 251-57 (discussing monopoly). § 2. 1. CooTE& ULEN. at 241-42.. at 189-90. combinations. J. supra note 4.. SeeCOOTER & ULEN. COOTER& ULEN. at 250-51 (describing how monopoly produces inefficiencies). supranote 4. third-party effects) all impede the parties' ability to form a perfect contract. CooT & ULEN. enforcement may not maximize wealth. the factual inquiry as to who is the least-cost avoider of the mistake may be prohibitive.C. barriers created by monopoly may increase transaction costs' In unconscionability these instances. supra note 4.17 (elaborating on the duties arising to HeinOnline -.54 Since the goal of contract law is to protect the parties 44. or conspiracies to monopolize any part of trade or commerce.7 Am. at 191-93. except in the case of third-party beneficiaries.
nor even because the inequality results in an allocation of risks to the weaker party. condition for a finding of unconscionability. at 189.1998-1999] SCYLLA AND CHARYBDIS 403 5 involved in the contract. 59. Calarnad and Perillo suggest that one element might be a "lack of meaningful choice. "if reading. supra note 4. for denying specific performance.C.e. CooTER &-ULEN. CONTRACrS § 128 (1963). together with terms unreasonably favorable to the stronger party. supra note 4. CA.C. § 2-302. COOTER& ULEN. at 189. a lack of meaningful choice seems like a surrogate for monopoly power. PERILLO. and 2) some ambiguous.. additional element is met Since every third parties under contracts). Pol'y & L. provides other remedies to third parties injured by the contract. But gross inequality of bargaining power. property law.C.57 remedies Environmental law. Corbin does not answer whether an industry's practices can be unconscionable even if followed as a standard business practice. "one-sidedness") is an insufficient. it is probably difficult to distinguish between oppression and allocation of risks because an allocation of risk may not seem bargained for in an adhesion contract. COOTER & ULE. The Restatement also states that: [a] bargain is not unconscionable merely because the parties to it are unequal in bargaining position. 58.. Nevertheless. In practice. as one commentator has suggested. 56.. CONTRACTS 407 (3d ed." 1 ARTHuR CoRniN.C. J.C. 403 1998-1999 .): [t]he basic test is whether. at 189. supra note 4.AMARI &JOSEPH M. and not of disturbance of allocation of risks because of superior bargaining power. parties injured by pollution caused by a contract to produce a commodity may seek recourse through a nuisance claim. and tort law provide additional recourse for third parties. Corbin's test for unconscionability looks at whether the terms are "so extreme as to appear unconscionable according to the mores and business practices of the time and place. at 189. 1 (1978). To an economist. COOTFR& ULEN. U.. 60. c (1981). the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. other legal protect society from contracts that decrease social welfare!' B. Gender Soc." JOHN D. 55. According to the Uniform Commercial Code (U... The principle is one of the prevention of oppression and unfair surprise. while superior bargaining power (i. the additional elements are not particularly clear. 57." Leff. although necessary.7 Am.. without more. or may show that the HeinOnline -. Indeed.. supra note 4.. § 2-302 cmt. The Role of Unconsdonabilityin Pefect Contracts Unconscionability refers to a situation where 1) one party has extreme levels of bargaining power compared to the opposing party. Similarly. 5 The law. third-party effects are not addressed.. However.' for negative third-party effects Thus. may confirm indications that the transaction involved elements of deception or compulsion. at 487. supra note 17. 5 For example." RESTATEMENT (SECOND) OF CONTRACTS § 208 cmt. [§ 2-302] makes anything clear it is that reading [the] section alone makes nothing clear about 'unconscionability' except perhaps that it is pejorative. U. supra note 4." excessive "disparity in the values exchanged may be an important factor in a determination that a contract is unconscionable and may be sufficient ground. however. at 188. but this is not clear in reading U. CooTER & ULEN. 1987).C. The Restatement's comments suggest thatwhile "[i]nadequacy of consideration does not by itself invalidate a bargain.
Ct.C. This is a result of the vagueness of the test for unconscionability. she may refuse to enforce the unconscionable portion or may deny enforcement of the entire contract. are unhelpful. Factors which may contribute to a finding of unconsdonability in the bargaining process include the following: belief by the stronger party that there is no reasonable probability that the weaker party will fully perform the contract. d. the unconscionable term. knowledge of the stronger party that the weaker party is unable reasonably to protect his interests by reason of physical or mental infirmities. or may cause the judge to reform the contract. it is difficult to distinguish cases where the combination of unequal bargaining power and other bargaining disparities rises to the level of unconscionability. Unconscionabilty and the Code-The Emperors New Clause. why should A be required to discern whether B is illiterate? What if B. 115 U. a person in poverty. or may enforce the remainder of the contract without the unconscionable term. REV. 64. supranote 4. imconscionability might be applied in an efficient fashion in cases like Wiliams v. A finding ofunconscionability may void the contract. From Gasp to GambL A Prmposed Testfor Uncosscionatliy.C."2 At first glance. such a requirement runs contrary to the duty to read and the need to create incentives for people to try to gain as much information as possible.C.C.404 JOURNAL OF GENDER. or may so limit the application of any unconscionable term as to avoid any unconscionable result. Walher-ThonwsFurniture. Pol'y & L.25 U. 61 Nonetheless. 1964). illiteracy or inability to understand the language of the agreement." Procedural unconscionability has a greater likelihood of withstanding Law & Economics scrutiny than substantive unconscionability. tells A that he fully understands the terms of the contract? Should A require B to pass a reading test? The Restatement seems to want A to act as an arms-length negotiator while simultaneously wanting A to protect B. L.Co.C. See also U. § 208 cmt. how could A possibly know which benefits B will receive from the contract? For example. one might be surprised that unconscionability plays no role in the above discussion of contract imperfections. if a court required "proof that the buyer understood the add-on clause as a condition for enforcing it. 7:395 transaction is fraught with unequal bargaining power. The distinction between procedural and substantive unconscid6nability can be traced to Arthur Leff.. where a judge finds a contract unconscionable." RES'TATEMENT (SECOND) OF CONTRACTS § 208 (1981). DAVIS L. knowledge of the stronger party that the weaker party will be unable to receive substantial benefits from the contract. unconscionability is a valid rationale for refusing to enforce a contract only in limited instances. 198 A. ignorance. Why should A calculate the probability that B should fl to perform? What if B is a risk-taker and thus perceives the likelihood of success to be higher than A would calculate? Similarly. These factors. 485. "Ifa contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract.C. § 2-302 (1978) (setting forth remedial steps a court may take to strike or reform an unconscionable agreement). however. while the factor describing mental infirmities mirrors incompetence protection. language. she will unlikely be able to discern what value a clock radio has to B. 202-04 (1991) (noting the vagueness of unconscionability standard and lack ofguidance provided in caselaw). ashamed of his illiteracy. See infranote 190.2d 914 (D. It hinges upon whether the unconscionability is procedural or substantive. U. REV 187. at 255. PA. 61. SOCIAL POLICY & THE LAW [Vol. Similarly. Gender Soc. no real alternative. App. According to some commentators. HeinOnline -. 487 (1967).s6 For economists. while less ambiguous than the U. 404 1998-1999 . J. or did not in fact assent or appear to assent to the unfair terms. See Asifa Quraishi." COO"a & ULEN. 62. 63. if A is a millionaire.7 Am. According to Cooter & Ulen. Professor Richard Epstein suggests that weaker party had no meaningful choice. I&. or similar factors.
" Instead.."). based on the quality of that bargain.35 (1990) ("The imposition of substantive fairness norms may then be defended for the efficiencies they serve.63 Procedural unconscionability. unconscionability takes a form equivalent to Justice Stewart's view of pornography. Thus. 67. supranote 22. 405 1998-1999 . See Quraishi.. compromised. 741. limits on a bargained for agreement. 748 (1982) (stating that in an imperfect market. 1. See Epstein. ajudge will likely define unconscionability based on his or her personal views. 95 HARV. Posner. fraud.. 496-97 (1993) (stating that doctrines such as unconscionability "givejudges discretion over private transactions"). Pol'y & L. because its definition is ambiguous 70 the "unconscionability" of a particular term or contract is highly subjective. 71. 70. supranote 3. the basic principle of encouraging market. Epstein. Conversely.65 It enables the defendant to raise the specter of fraud or duress without meeting the specific elements for each claim.").S. Seeinfranote 72. supranote 34. Substantive unconscionability has no such redeeming value. 197 (1964) ("1 shall not today attempt further to define the kinds of material to be embraced within that shorthand description and perhaps I could never succeed in intelligibly doing so. App. 38 (1995) ("Defining unconscionability is like defining obscenity. The position taken by Buckley and Eisenbergis contrary to standard Law and Economics thinking regardingunconscionability. SeeEpstein. 33. L.19 HOPSMAL REV. But I know it when I see it. if properly applied. at 294 (stating that the doctrine of unconscionability should not be used to set aside agreements whose substantive terms are found to be objectionable by courts). one knows it when one sees it. Ohio. Lacking any dear rule to follow. 81 CAL."). Substantive unconscionabifty has no clear specific elements because its form is nebulous and open to broad interpretation. supra note 34. two authors have argued that unconsdonability can be efficient. while the parol evidence rule prohibits use of oral evidence to contradict terms of integrated contract). is. are appropriate). Consequently he rejects usury laws. See A & M Produce Co. for Law & Economics.. U. supranote 34. G. at 104. serves the same purpose as the Statute of Frauds or the parol evidence rule. can be "piggybacked" upon formation issues that merit scrutiny because they tend to reduce social wealth. Epstein.1998-1999] SCYLLA AND CHARYBDIS unconscionability. at 202. L. monopoly. Gender Soc. J. The . Buckley. supranote 34. the expansive contemporary conception of unconscionability. procedural unconscionability does little more than allow the courts to increase their ability to police contract law. 68. at 302. duress. v.Bargain Princpleand its Limits. substantive unconscionability is indefensible. 28 CONN.. Richard Shell.6 This reduces the cost to defendants who have been harmedf In this light. and externality.H.7' forsaking the 65. However.. and the prohibition of contract penalty clauses.7 Am. FMC Corp. Contracts in the Modern Supree Court. at 302 (stating that the Statute of Frauds requires certain agreements to be in writing. 135 Cal. See F. and ContractLaw: From the Cottonfwed to the Courtroom.3d 473. REv.. transactions . 69. L. 486-87 (1982) (stating that there is no precise definition of substantive unconscionability). 184. HeinOnline -. 433. SeeJacobellis v. Three Theories ofSubstantiveFairness. see also Anthony Chase. 378 U. REV."). at 138 ("The economist recognizes no limitations on [freedom of contract] other than those of incapacity. 66. however. supra note 61. "If unconscionability means that a court may nullify a contract if it considers the consideration inadequate or the terms otherwise one-sided. REV." ECONOMIc ANALYSIS OF LAW. Race Culture. at 203 (noting that the unconscionability doctrine is criticized for the wide discretion it affords judges). Melvin Eisenberg.
wealth is not destroyed. in "economic duress" cases. even in cases where a party does exercise market power." Here."). REV. ECONOMICANALysis OFLAW. in exchange for nothing.. "[When the doctrine of unconscionability is used in its substantive dimension . supranote 3. 77. 7:395 preferences of the parties. Gender Soc. See Epstein. In true duress cases." Epstein. her car or herlife. COOTFa& ULEN. one cannot be better off merely because one has chosen to give up money rather than life. it serves only to undercut the private right of contract in a manner that is apt to do more social harm than good.. supra note 34. supra note 4. The argument that unconscionability is an economic mirror to duress7 without the "bad act" requirement and thus prevents s inefficient wealth transfers. Thus. See supranote 41 for a discussion of economists' view of duress. U. When one is forced into a contract.' Proponents of the unconscionability doctrine argue that the terms of a contract maximize social wealth only because the promisor is 3 forced into the contract.73 WASH. Blair & HeinOnline -. the promisee receives the promisor's car. 249. 76. at 295 ("Duress is an improper means of obtaining.7 Conversely. See Roger D. L. unconscionability prevents transactions that are the economic equivalent of "your car or your life" bargains brought about by the monopoly power of one of the contracting parties. 74. This refers to the economists' definition of duress. Pol'y & L. a wealth-maximizing contract may be stripped of its value by the removal of a particular term or by voiding the contract. Unconscionability proponents might argue that any contract between B and A is unconscionable because B has monopoly power over the commodity and thus can command a high price. But A has monopsony s power 72. Insofar as the promisor values both her car and her life more than the promisee does. masks the issue.262 (1998) ("The reason these contracts strike us as 'unfair' is not because the parties were forced into them . or her life.. 406 1998-1999 . the promisor is forced to choose between two of her entitlements.406 JOURNAL OF GENDER. A Unied Theamy ofJusticc.74 Therefore. but because the disparity in bargaining power resulted in the stronger party receiving almost all of the [value] created by the transaction. Thus. consent because it requires [one party] to abandon [one right] to protect the other'). unconscionability prevents inefficient wealth transfers brought about by the monopoly power of one of the parties. 73. supranote 34. Assume B's bike has no close substitutes and that A is the only person who seeks B's bike. at 101 (stating that threat of violence retards the movement of resources to their most valuable uses). the value of the car is destroyed.. The Integration ofFaimesslntoEffidenty.7 That is. at 315.7 Am. SeeMichael L Swygert & Katherine EarleYanes. SOCIAL POLICY &THE LAW [Vol.. at 252.. Consider the case where A values B's bike. the promisor must choose between giving up an entitlement in exchange for a good or service or forgoing the good or service. 75. 78. but nonetheless gives 5 up the car... J. Monopsony refers to a market in which there is a single buyer.
80. REv." a court will be eliminating the potential value created by upholding the contract. A bilateral monopoly occurs when the actors do not have other alternatives but to deal with each other. The various types of feminism will not be discussed. U. a court using unconscionability as its lens cannot determine whether a contract is wealth-maximizing. 1. supra note 3. 301 (1991) (stating that monopsony 'is the demand-side analog of the monopolist who is a single seller"). Insofar as a judge focuses on bargaining power. For better attempts at defining feminism.EYWOMEN'S L. Pol'y & L. Harrison. 0 Procedural unconscionability can be used in ways consistent with wealth-maximization insofar as it reduces a party's However. A FeministDilemma in the Realm of Contracts For feminists. theories or perspectives . Law & Economics theorists believe unconscionabiliy to be a misapplied rule. the judge may be led to an incorrect result that reduces social wealthY8' Might this inefficient result be advocated by feminists? 11. EcONOMIC-ANALYSIS OF LAW. Many contracts in society are set in a bilateral monopoly context If a court holds the contract voidable because B offers the price of $1. possibly for everybody. Gender Soc. IssuEs 647. and Clare Dalton. Ostas. Judges may not be focusing on market imperfections.. "Feminist" is defined in this article as an individual advocating policies that make women.. see ROSEMARIE TONG. HeinOnline -. See Epstein. 407 1998-1999 .1998-1999] SCMLAAND CHARYBDIS 407 because A is the sole purchaser. 297. if this were not the case.-Observations on the Situation ofFeminist Legal Thought. EcoN."). will the party claiming unconscionability be punished for her unequal bargaining power? If so. and people in poverty better off than they are under the current legal and economic regime. at54. then feminists Jeffrey L. 81. See Daniel T.. people of color. 3 BEREL.. but on issues of power and trust.. If the contract is enforced. 82. 652-53 (1993) (noting ajudicial concern with "personal power" or "trust" in reviewing contracts). but [Elach feminist theory or perspective attempts to describe many. Economics and the Law of Unconsdonability. and to prescribe strategies for women's liberation").000 and says "take it or leave it. Antitrust Polity andMonopsony.. certainly for women.27 J. is to believe that we belong to a society.7 Am.8 a tension exists in unconscionability cases. A court looking solely at the existence of bargaining power may not reach the proper result and thus reduce social wealth. APPLICATION OF LAW & ECONOMICS TO UNCONScIONABnIY CASES A... Where We Stand. 76 CoRNE. supranote 34. Discussion is limited to a general analysis of arguments that might be posited by feminists addressing contract issues. and that life would be better. J. 79.LL L. in which women are and have been subordinated by and to men. FEMINIST THOUGHT: A COMPREHENSIVE INTRODUCTON 1 (1989) ("[F]eminist theory is not one. at 315 (stating that unconscionability obstructs the freedom to contract). 2 (1987) ("To be a Feminist. substantive costs in proving duress or fraud. women's oppression. unconscionability leads to inefficient results because ajudge replaces the parties' preferences with his or her own. to explain its causes and consequences. Therefore.
2d 445 (D. 9 These items included beds. See ECONOMIC ANALYSIS OF LAW. 452 (1994) (advocating a greater role for courts in achieving compensatoryjustice). Walker-Thomas FurnitureCompany7 highlights this problem.at 1236-37 (stating that the problem for feminist contract scholars is whether it is possible to protect women from oppressive results of entering into contracts without divesting women of agency). is what frustrates feminists who strive for agency for women. remanded by350 F.8s Law & Economics might safely navigate feminists between their Scylla and Charybdis. a chest of drawers. is powerless to discuss initial distributions of income.408 JOURNAL OF GENDER.2d at916. a washing machine. rugs.! She also purchased sheets.8 The three unconscionability cases that follow highlight these dilemmas. REV." Id.7 Am. However. "The answer to the question ofwhether we should enforce a contract must. 1964).C. curtains. address the agent involved. 1820 (1994) (stating that unconscionability permits courts to intervene and modify an unfair contract). 7:395 might seek to utilize the doctrine of unconscionability where low- income groups are involved. U. Cir. PA. Some commentators view unconscionability as a "policing" mechanism to ensure that disempowered consumers obtain "fair" bargains. 87. 88. Walker -Thomas FurnitureCompany Voiding a contract to protect a member of a disadvantaged class may make the person one is seeking to protect worse off. and mattresses.30 Hous. Ora Lee Williams. she purchased various items from the Walker-Thomas furniture store in Washington. Hadfield. 90. 198 A. 1235.C. D.9' Williams signed fourteen contracts for the purchase of 83. 198 A. & MARYL. as a theory. 91."). 1819. utilizing Law & Economics policies in advocating freedom of contract for women might cost feminists the ability to speak about the initial distribution of bargaining power for those women because Law & Economics. Williams v.35 WM. 1253 (1998) (exploring contract logic in its "predominantly agent centered form. L. HeinOnline -. B. however. Pol'y & L.0 This paternalism. Personality. Gender Soc. Jeffrey Harrison. Unconsdonability and Price Fairness. J. See Gillian K. Williams v. Class. chairs. REV. 350 F. 84.2d at 447. supra note 3. 85. Contract. L. 86. See Frank P.C.84 Feminists simultaneously argue that women must be granted agency like men and that women should be protected in contracts in which they have unequal bargaining power. 445. 146 U.2d 914 (D. a single parent of seven children. 408 1998-1999 . Id. An Expressive Theoiy of Contract: From Feminist Dilemmas to a Reconceptualization of Rational Choice in Contract Law. was on public assistance receiving $218 a month88 For five years. at 13 (stating that economics does not address the issue of wealth distribution). 1965). within contract logic. 198 A. See id. and Unconscionabiliy. and a stereo set. REv. 89.2d at 915. SOCIAL POLICY & THE LAW [Vol. Darr.
U. which.915 (D. The contractprovided in part that: [t]he amount of each periodical installment payment to be made by (purchaser) to the Company under this present lease shall be inclusive of and not in addition to the amount of each installment payment to be made by (purchaser) under such prior leases. Williams v. the 95 store could repossess all of them until the deficiency Was paid off.21 (1988) (stating that the court of appeals in Waher-Thomas correctly referred to the contracts as puichases which 'purported' to be leases). DefiningUnfairness:Empathy andEconomic Analysis at the Federal Trade Commission. 1965). art. 1985) (defining adhesion contracts as "a standardized contract. L. Williams entered into these contracts prior to the enactment of the U. 350 F. 95.2d 914. The court looked longingly at the Maryland Retail Installment Sales Act. 409 1998-1999 ." Id.33 WILtjAbTr L.C. relegates to the subscribing party only the opportunity to adhere to the contract or rejectit) (citation omitted). 99. J.72 OR. 94. 67.98 It also found no DC statute barring such practices. Money StatusProper balances due.C. Id. 430 n.REv. 349. thus creating a security interest that continues until the customer has paid all Parity.7 Am. at 98. 350 F. 198 A.1998-1999] SCYJLAAND CHARYBDIS these items. Williams v. the parties actually intended the transaction to be a sale. 68 B.C.. her allegation that there was no "meeting of the minds" mustfail). 83 §§ 128-153 (1975) because ifitwere "in force in the District of Columbia. 447 (D.. we could grant appellant appropriate relief. 100. bills and accounts due the Company by (purchaser) at the time each such payment is made. and all payments now and hereafter made by (purchaser) shall be credited pro rata on all outstanding leases. Gender Soc. U. 702 P.. 93. however. The court wished that the furniture store had acted more paternalistically toward Williams by inquiring into her financial status prior to sale: "[W]ith full knowledge that HeinOnline -. Id." and that the contracts were against public policy.2d 445. 7 The District of Columbia Court of Appeals determined that Williams' consent was not obtained by fraud or misrepresentation. REV. which took place in 1963.? Thus. Perdue v. Walker-Thomas Furniture. bills or accounts. See 198 A. Note that while' the contract purported to "lease" the goods to Williams. imposed and drafted by the party of superior bargaining strength. Walker-Thomas Furniture. SeeJean Braucher. Crocker Nat'l Bank. Michael Hunter Schwartz. 511 (Cal.' 92. 916. L. Cir.2d 503. Co. See Russell A. 101. Pol'y & L.2 These contracts were adhesion contracts93 containing a cross-collateralization or "add-on" clause. the court upheld the contract. 97. The court was disturbed. REv.C. 1964). in the District of Columbia. by the "sharp practices" and "irresponsible business dealings" of WalkerThomas. Power Outrage: Amplifying the Anaysis of Power in Legal Relations (with Special Application to Unconscionabilityand Arbitration). Hakes.2dat448. Williams defaulted on her payments and Walker-Thomas repossessed all of the items!" Williams challenged the contract and asserted that there was no "meeting of the minds. AccordingPurchase 323. Id.94 This clause provided that if Williams missed a payment for any of the items she purchased.2d at 916 (stating that because Williams' assent was not obtained by fraud or misrepresentation. Co. 96. 123 (1997) (noting that there is no evidence that Williams believed the transaction was anything but a sale). A cross-collateralization clause secures one purchase with all previous purchases as collateral.349 (1993) (discussing an add-on clause mechanism).
350 F. Circuit. even if the goods are repossessed. tend to lose value at a rate faster than the rate at which they are paid off. finding that the lower court should have applied the 2 unconscionability doctrine to this contract. Here. 105. Walker-Thomas Furniture. Presumably. See Williams v. 103. 26J. Id. & ECON. 1965) (remanding the case for further findings on the possible unconscionability of the contracts). Epstein. Co. 7 appellant had to feed. 410 1998-1999 . 107. Hypothetically. Most states have statutes limiting the repossessor to recovery of the debt plus the cost of collection. 102. 7:395 Judge Skelly Wright. if Williams defaults on the loan. Walker-Thomas Furniture.11 Judge Skelly Wright made much of Williams' inability to understand the terms of the contract: [W]hen a party of little bargaining power. Cir. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.2d 445." 4 The add-on clause. 198 A. Id. supranote 34. or even an objective manifestation of his consent.2d 914. and thus. was ever given to all the terms. however. 106. This would have led to an inefficient result. at449-50 (citations omitted). L. U. EcONOMIcANALYSIs OF LAW. Thus.'6 In other words. additional security is needed.7 Am. the store would receive full compensation. Walker-Thomas intentionally inserted the dause into the contract for the purpose stated infranotes 96-97 and accompanying text. J.C. Co. The Enforceability of Security Interests in Consumer Goods. appellee sold her a $514 stereo set. Note that the store cannot be overcompensated because all excess proceeds would have to be returned to Williams. clothe and support both herself and seven children on this amount. remanded the case. at 307. in his opinion for the D. and hence little real choice... it is hardly likely that his consent. SOCIAL POLICY & THE LAW [Vol.C.' Both courts were concerned about the unequal bargaining power between Williams and Walker-Thomas. such as those purchased by Williams. at 116. 450 (D. it would have lost all demand for its products. Suppose Williams defaulted after purchasing the first item. 104. signs a commercially unreasonable contract with little or no knowledge of its terms. the court sought to have Walker-Thomas act irrationally. To fully compensate the store. 117 (1983) (noting that this limitation is a disincentive to the use of security as a HeinOnline -. Williams v. Each claimed that this unequal bargaining power manifested itself in the "sharp practice" of the add-on clause. supra note 3. may have a legitimate business purpose that increases the value of the contract to both parties.410 JOURNAL OF GENDER. SeeAlan Schwartz. Gender Soc. See supranotes 4146 and accompanying text (implying that the greater individual rationality imperfections.916 (D. Whether the store was fully compensated or under-compensated is a function of the time at which Williams defaulted. the larger thejudge's mandate to interfere with the contract). makes the transaction efficient. Had Walker-Thomas Furniture consistently engaged in this practice.C. Pol'y & L. if Williams defaulted on a mythical 113th item.' Consumer goods." Id. Walker-Thomas loses money. the store would be under-compensated because the item lost value at a rate faster than Williams paid it off. 1964).
Had Judge Skelly Wright asked the parties prior to breach whether the clause was important.. price does not escape unconscionability scrutiny. The question arises. as to whether any term or condition may be so extreme that the courts should step in to prevent enforcement of the contract. Not surprisingly. See Harrison. Without the clause. 108. will be addressed next.2d 264. will forsake selling to lowincome consumers. The classic example.800 worth of purchases she made). For Williams. the cost of the loan would increase or the consumer would not receive the loan at all. Pol'y & L. U. she made payments totaling $1. StarCredit Corporation The most fundamental contract term is the price to be paid for the good or service.2d 445. might make the poor people worse off in the future because they have no money for a down payment"). Id. 298 N.' 9 Thus. Williams and other low-income consumers would be unable to make 0 the down-payment associated with traditional transactions! 8 Absent a down-payment or other collateral. LJ." Jones v. Gender Soc. 109. C. in which the purchase price of the good exceeds the retail value. 111. 112. Harrison. J. See Louis E.266 (Sup. HeinOnline -. however. making both parties better off. Holding the add-on clause unconscionable has consequences for both parties. the answer would likely have been affirmative. supra note 83. striking the clause results in a decline in sales and profits. Star Credit Corp.. 'The Enchantress'and KarlPolanyi'pSocial Theny. and thus. Walker-Thomas Furniture. Ct. 1965) (demonstrating that Williams had an exemplary payment record by virtue of the fact that between 1957-1962. the seller will not be compensated for the risk. the consumer may be indifferent to the risks associated with the clause because of her expectation that she will not default. 250 F."' The add-on clause was a fumdamental provision of the contract. see also infra Part III. 447 (D. Co. 411 1998-1999 . 1969).. See Williams v.C. 110..400-nearly 80% of the $1. however. Furthermore. Cir. of unconscionability to price terms should again give pause to feminists risk reduction devise). 51 OHIO ST.1998-1999] SCLAAND CHARYBDIS The add-on clause may have value to the consumer as well. The application. Jones v."' For Walker-Thomas. 1243. The add-on clause compensates the seller for the risks associated with selling to a lowincome consumer. at 499 (stating that a popular argument supporting add-on clauses is that it allows merchants to operate in high risk areas). Wolcher. at 499 (discussing profits for merchants in low-income areas).E.Y. The provision rendered Walker-Thomas better off and Williams would be at the very least indifferent to the provision. the add-on clause may maximize wealth by reducing transaction costs. striking the add-on clause increases borrowing costs or prevents her from purchasing altogether.7 Am.S. supra note 83. 1278 (1990) ("striking down the [add-on] clause . "[N]o other provision of an agreement more intimately touches upon the question of unconscionability than does the term regarding price.
1 The court grantedjudgment modifying the contract total to reflect $619. 20 The court also relied on the fact that Jones had "very limited financial resources" and that this was "known to the sellers at the time of the sale. Id. 7:395 seeking to alter terms of contracts that lack elements of duress or Clifton Jones. Id 122. Gender Soc. Ct. neither of these accepted premises can clothe the sale of this freezer with respectability. 298 N. Similarly.234. Star Credit Corp. Indeed. the retail merchant selling on installment or extending credit is expected to establish a pricing factor which will afford a degree of protection commensurate with the risk of selling to those who might be default prone. carries the greatest weight. a caveat is warranted lest we reduce the import of [unconscionabilityl to a mathematical ratio formula. at 264-65. including welfare recipients. 117. HeinOnline -. Star Credit Corp."s Star Credit claimed that Jones had a remaining balance of approximately $800.1 3 The total price of the freezer with time credit charges. 298 N." Id at 267. life insurance. Jones v. who would be deprived of even the most basic conveniences without the use of these devices. the amount already paid by Jones. Id. J. 115. SOCIAL POLicY & THE LAW [Vol.Y. 116. 412 1998-1999 . U. 114. Id. Jones v. 1969). there are many. property insurance.114 Jones paid approximately $60O."' The court reasoned "9 that the disparity between the retail value of the freezer and the purchase price.Y.88. and sales tax was $1.at 265. The court stated: There is no question about the necessity and even the desirability of installment sales and the extension of credit. C. it"). 123..7 Am. Id.2d 264.S. 118. a welfare recipient..". just below this reasoning was a hint at what the contract price might entail. Inc. JOURNAL OF GENDER.2d 264."6 The freezer unit had a 7 maximum retail value of $300. However."'2 Yet. Id. 121.S. 11S."' Finally. 1969). 266 (Sup. at 264. purchased a home freezer for $900 from a sales representative of 'Your Shop At Home Service."Yet.80. 119.412 fraud. See id at 266 (conceding that "deciding the issue is substantially easier than explaining 120. Id. the court cited Williams for the proposition that "the meaningfulness of choice essential to the making of the contract can be negated by gross inequality of bargaining power.267 (Sup. Id. which "is exorbitant on its face. Pol'y & L.
949 (1986) (coining the term "implied unconscionability"). Thus. Judge Wachtler therefore erred by comparing the value of the freezer with the value of the freezer and the risk premium of selling the freezer on credit 126 These two commodities are incomparable. as in Williams v. Horowitz. 413 1998-1999 . the unjust price implied a failure in the bargaining process. Walker-Thomas Furniture Company. their ability to purchase appliances would decrease unless they saved sufficient funds to pay cash or buy on layaway. then Jones proves easier to decide than Williams.2d at267. sales to clients like Jones would be ruled out because the risk of default would go uncompensated. Jones certainly 2 would know the total price he paid for the freezer.YS. as sellers attempt to cover some of the 124. Jon.at 974. Unlike the add-on clause in Williams. Yet. 298 N. As with the add-on clause in Williams. at 267 (stating that Star Credit increased the price by the risk premium associated with buyers who were more prone to defaulting). supranote 124.Is Without the risk premium. Low-income customers. holding the contract unenforceable creates certain economic consequences. like Jones. HeinOnline -. Wachtler's opinion points out the difficulty presented in this case. The risk premium was necessarily higher because there was a higher risk of default for low-income customers.7 Am. In contrast. Moreover. Comment. This concern clearly caused Judge Wachtler's frustration because no evidence of fraud or other process concerns were present. at 116. although clearly the value of the former is less than the value of the latter. rd. 7 Efficiency demands that the courts enforce a contract which both parties entered into voluntarily. ' 2 Star Credit protected itself against default by Jones through the price of the product. economics provide a justification for a seemingly unjust price differential. At the very least. J. See Craig Horowitz. EcoNOMhCANALYsis OFLA. 24 Nonetheless. Gender Soc. Pol'y & L. 126. one imagines that this case is more defensible from a paternalistic position due to the image of shady and slick salesmen taking advantage of impoverished victims. Judge Wachtler also may have been concerned that Star Credit was "skirting" the state's usury laws through use of the creditsystem. at 948. U. Star Credit would be unable to protect itself against the risk of default. Intuitively.1998-1999] SCLLA AND CHARYBDIS Judge Sol M. consumers like Jones would face higher prices. supranote 3. 125. If this economic rationale holds. Revinng The Law of Substantive Unconsdonabily:Appying the Implied Covenant of Good FaithandFairDealing Excssively PrjicedConsumer Credit Contracts. Id. 128. 940. 127.33 to UCLA l REV. the price of the freezer in Jones included a risk premium to Star Credit Corp. would no longer be able to purchase appliances on credit.
2d 264. Plaintiff argued that. there is little guidance in precedent given the highly subjective nature of the doctrine" This ambiguity leads to inefficient transactions in the marketplace.. 27 Cal.7 Am." Harry G. The court believed that while a price set by a competitive market was unlikely to be unconscionable. Star Credit Corp. 634 (1993) (arguing that the "inadequacy of private strategies for overcoming defects in the bargaining process oftenjustifies legal intervention").MoratHazardandSunk Costs:A Default Rule for Precontractual Negotiations. and unconscionability is applied. at 512. A final problem with unconscionability is the inconsistency in its application. 459. even the market price might be excessive under certain circumstances. L. 621. 132.s3 This results in contracts being held unconscionable because the price differences are perceived to be too high. 402 (Ct. at 948 (stating that somejudges use personal opinion to shape the term unconscionability). REV. 89 HARV. 1994) (holding that volume is "inconsequential" to an unconscionability claim and noting the insufficient funds fee to be on the "low end" of the market). a $6 fee was excessive. 414 1998-1999 . 1969). with California Grocers Ass'n v. At least one court has allowed a plaintiff to go forward with a substantive unconscionability argument. ArTospide A tangential issue in unconscionability analysis was raised inJones. Ct. Form and Substancein PrivateLaw Adjudication.2d 503 (Cal. at 266-67. Crocker Nat'l Bank. A central purpose of contract law is to provide certainty to exchanges. Rptr. 46 HASTiNGS LJ. Id. Uneonscionabilityin California:ANeedfor Restraintand Consistency.$. Prince. Crocker Nat'l Bank. SOCIAL POLICY & THE LAW [Vol. Bargainingwith Uncertainty. See Perdue v. 702 P.30. Gender Soc. The California Supreme Court held that the substantive unconscionability claim was a triable issue. see also Horowitz. Bank of Am. U.550 (1995). 7:395 default risk. 2d 396. and it is assumed that the consumer was subject to oppression and unequal bargaining power. and thus reversed the trial court's dismissal. even though the two markets are separate and distinct. they may mistakenly believe that the two values should be identical. Carboniv. Id. Jones and similarly situated customers would be made worse off by holding such a contract to be unconscionable. 1985).' Where a judge has overwhelming personal misgivings or feelings regarding the case. at 525. 130. 1685. App. 129. J. HeinOnline -. Pol'y & L. 133. 44 HAsnNGs LJ. Jones v. Thus. One commentator has noted that the case "clearly endorses both the view that a price may be unconscionable because it gives a party too much profit and the novel concept that the cumulative profits from many separate transactions are relevant to an individual plaintiff's claim. 298 N. I4 at 512. 702 P. I.267-68 (Sup. ComparePerdue v. SeeDuncan Kennedy. This is accomplished through background rules which reduce the parties' transaction costs associated with exchange.2d at 513 (finding that small charges applied to a large volume of transactions may yield a sizeable sum). 131.. Kostritsky. 1688 (1976) (discussing the differences between formal rules and social policy and the resulting problems when they overlap). supranote 124. When judges look to related markets in comparing the value of the contract to the "market" value.414 JOURNAL OF GENDER. even where the price of the good offered was the market price.Y. SeeJuliet P.' 3 ' D. since the net cost of a check drawn against insufficient funds was only $0.
Id.4 6 This was a correct assessment. however. HeinOnline -. 415 1998-1999 . at 847. 146. Se id. i. 144. Id.S. Rptr.4 The court also noted that Carboni testified that Arrospide could have obtained 134. App.1998-1999] SCYLLA AND CHARYBDIS This market comparison is the reason for the holding in Carboni v. 2d 845 (Ct. 147. 137. Gender Soc. Arrospide" Arrospide borrowed $4. 138. 2d 845." The initial intent of the parties was that Arrospide would pay off $6.2d 264. J.346 in principal. 135."'" cited Jones for the proposition that "deciding the issue is substantially easier than explaining it. 266 (Sup. eventually totaled 140 By March of 1990. 2 Cal. at851."'" The court noted that the interest rate was the "price" of the money loaned. the court. Id. 140. 143. 1991). Id.3 9 Still. 139. at 849 (quotingJones v. 846. 2 Cal."7 Although there was some confusion as to what the note was to be used for. App. Id. Arrospide. Carboni v." The note was not paid on time. at 136. Id. after having "little trouble concluding that an interest rate of 200 percent on a secured $99. Id. Rptr. Arrospide.. which by November 25. that it imposes a cost on the borrower which is overly harsh and was not justified by the circumstances in which the contract was made. 1988. Star Credit Corp. 849 (Ct.' The Superior Court of San Mateo County.. Carboni continued to make cash advances.'3 .846 (Ct."' 47 This was much more than the price "difference" in Jones. Rptr.The note issued on July 27. rd. 298 N.at 849.Y.000. Id. at 845.000 from Carboni.000 loan was unconscionable. nearly $390.000 in six months. which was merely three to four times the market price. The court remarked.7 Am. carried an interest rate of 200% per annum 6 and was due in three months. 1969)). 2 Garboni appealed. Carboni v. 141. 142. the court apparently believed that the purpose of the loan was to pay medical 1 costs. at846. 2d 845. Arrospide owed Carboni $99.e. 1991). 148. App. California found the contract unconscionable and modified the interest rate to twenty 4 four percent. Id. 2 Cal. but the California Court of Appeals affirmed the decision. Ct. Id. 1988.'" Ironically. U. 1991). that the interest rate was approximately ten times the "rate then prevailing in the credit market for similar loans. 145. Pol'y & L.
850 (Ct.10 (C. 153. the court concluded that Carboni was able to offer credit on a "take it or leave it" basis. Rptr. App.. 47 CONSUMER FIN. 2 Cal. 702 P.' 0 While noting in its substantive unconscionability analysis that Arrospide could have obtained a loan more cheaply. 158.416 JOURNAL OF GENDER. The interest rate Carboni charged was too high because the rate for "similar loans" was ten times lower. however. Pol'y & L. 2d at 849 (concluding that the price of credit was ten times its actual value). 1985)). See Carbon4 2 Cal.' 59 This contradiction. Gender Soc. 157. 416 1998-1999 ."9 Below this "analysis" of substantive unconscionability. led 149. U.1 The court's substantive unconscionability and procedural unconscionability arguments lead to two conclusions. L. Id. 152. 156. 2d 845. Id at 850 (analyzing procedural unconsdonability)."' but fails to note the dissimilarity between a home improvement loan and a loan to repay hospital bills. First. arising from the court's misunderstanding of the market mechanisms at play in this case. See Edward Giedgowd..'s4 Carboni himself testified that Arrospide told him that it was impossible for him to borrow funds from other sources. courts may compare "the price actually being paid. the 5 court's analysis is contradictory. 1991).000 loan secured by a third deed of trust for ten points. whose loan application was denied by several lending institutions.851 (C. Id. 7:395 a $4. Rptr. 150. at 851. 155. 57 The contradiction arises from the court's misunderstanding of the market mechanisms at play.Arrospide. HeinOnline -.7 Am. yet lacked meaningful choice. 1 Arrospide could have turned to other sources of credit.512 (Cal. Id.' the court stated that Arrospide "had attempted unsuccessfully to secure a loan from other 5 sources. 2d 845. [with prices paid by] other similarly situated consumers in similar transactions. See Carboni v. 2 Cal. 1991) (citing to Perdue v. REP. 154. came the court's procedural unconscionability analysis."' 2 This was directly stated in the agreement. 2d 845.2d 503. The court correctly points out that in determining unconscionability. Rptr.Arrospide. 104 n. Crocker Nat'l Bank. 98. App. Rptr.Q. 2 Cal. This distinction was not lost on Arrospide. Arrospide. at 850. 159. App.'s3 Thus. 1991). yet Arrospide was unable to obtain financing from these other sources. Id. 151. Carboni v. Id. Carboni v. 849 n. SOCIAL POLICY & THE LAW [Vol.2 (1993) (arguing that the court's analysis in Carboniwasinternally inconsistent). and the court used the contract's clause to hold that there was an inequality of bargaining power which effectively robbed Arrospide of any meaningful choice. J.
as a monopoly. J. Initially. The purpose of the loan was to pay for medical bills and personal liabilities." Second. Supranote 41. Id. in No ACCESS To LAW: ALTERNATIVES To THE AMERICAN JUDICIAL SYSTEM 380-88 (Laura Nader ed. Rather.. Arrospide was only prompted ee by his initial conditions. 417 1998-1999 .' Thus. 2 Cal. and Arrospide. The transaction in Arrospidewas an instance of bilateral monopoly. 162. Easy Tens." and because "[tihe shopping radius of poor people is quite narrow. HeinOnline -. 160.'6 That is. See supra note 41 and accompanying text. U. Potential Feminist Objections to Law &Economics Anaysis This brings us to the question we started with: Does the Law & Economics analysis bring about a result amenable to feminists? In order to answer this question. under the economists definition. we first must deal with some objections that might be raised with upholding the contracts in Williams. 1991) (explaining that the note paid to Carboni had an annual interest rate of 200%). 63 was satisfactory to Arrospide. App. which was "plainly set out" in the contract. 846 (Ct. the loan was mutually beneficial at the time it was created and was efficient because the parties voluntarily entered into the contract. 166. at 850. and nonetheless agreed to the terms.6 This rate. Given that the loan was for medical costs and not property investment.Jones. See id at 846 (accounting for the fact thatArrospide was pressured). Pol'y & L. Hard Times: Complaint Handingin the Ghetto. Arrospide was unable to find a lender until the interest rate was sufficient to cover the lender's risk that Arrospide might default. See David Greenberg.Arrospide. at 846. 161. 165.7 Am. Rptr. Id. Gender Soc. See Carboni v..' 6' This is probably why conventional lenders denied Arrospide credit.1998-1999] SYUIA AND CHARYBDIS 417 the court to the incorrect conclusion that Arrospide was under duress. 164. the furniture store is not harmed by the removal of the add-on clause. the loan is efficient under a Law & Economics analysis. This makes him no different than any other economic actor.. hence the high interest rate. 163. Walker-Thomas could merely raise its price to compensate itself for the risk associated with dealing with low-income consumers. Id. he clearly was not under the economists definition of duress since Arrospide was not coerced into signing the contract by an improper threat from Carboni. knew the terms of repayment. 2d 845. he was not under duress. Thus. While the court may believe thatArrospide was under duress. 1980) (arguing that because most "name" stores would turn away "almost all unemployed and benefit-receiving credit applicants.'6 E. when in fact the transaction was unique. Thus. some feminists might argue that the add-on clause in Williams evidences monopoly power. Walker-Thomas often becomes the only accessible merchant of credit"). since he intended to repay the loan within three months. the risk of default was higher.
the firm did not do this because it feared competition or losing customers. U. it would not exercise it through the add-on clause. Se Prince. Walker-Thomas would be forced to seek customers from the same customer group as Sears and other similar stores. 7:395 No evidence. 171. Since it is doubtful that the repossessed goods have high resale value. Gender Soc.7 Am. Pol'y & L. HeinOnline -. Walker-Thomas may fear potntial entrants. See infra note 175 and accompanying text. Thus. however. then it appears that Star Credit and Carboni did since they were able to raise prices directly without the clause. but this would not mean that it is a monopolist unless no entry occurred and consumers did notswitch to other suppliers. the fact that the price exceeded the value of the freezer by a factor of four indicates 167. monopoly power implies that the firm could increase price without consumers switching to alternative suppliers 6 and without firms entering the market and undercutting its price. There is no indication of what occurred following the court opinions. Walker-Thomas may indeed have raised the price of its goods. The fact that a term is favorable to one party does not imply that the party had monopoly power. Posner. SOCIAL POLICY & THE LAW [Vol. 169. supra note 1.'7 In other words. If Walker-Thomas did not hold monopoly power. John J. but would simply raise the price. It is unclear whether Walker-Thomas would have fared well in this market. 418 1998-1999 . 168. Flynn. at 478 (stating that these situations are monopolistic in that the buyer does not have many options). Monopoly power is not merely that terms in a contract are more favorable to one party than the other.' one can assume that the clause merely assigns the risk of default to the party most able to avoid it. there must be some reason absent monopoly power that explains the add-on clause. Alternatively. If so. J. other firms would enter into the business of repossessing and selling repossessed items." Thus. then other furniture stores could have entered the market to capture a portion of these monopoly rents. Without their patronage. It is equally reasonable to assume that the low-income consumers patronizing WalkerThomas had some degree of power over the store. 1. suggests that Walker-Thomas held monopoly power. it is doubtful that the mere presence of the add-on clause alone leads to the conclusion that the firm had monopoly power. Clearly. Monopolization Under The Sherman Act: The ird Wave and Beqond 26 ANTrrRusr BULL. at 275 (suggesting that lower income customers are not devoid of all power). 10-11 (1981). 172.418 JOURNAL OF GENDER. Thus. supranote 131. There is another argument that the add-on clause does not indicate monopoly power: if Walker-Thomas had monopoly power. If none existed and Walker-Thomas was able to capture super competitive profits. Rather. consumer power (choosing not to purchase) might force Walker-Thomas to keep the terms of sale to economically reasonable levels. 170.' 7 Absent the ability to dominate the market and prevent customers from switching. Walker-Thomas' customers could have sought alternative sources and bypassed Walker-Thomas' practices.
1 (1982). Gender Soc. if the market is contestable. The contestable market literature states that the threat of entry by an actor who has not yet entered the market can influence market price. Consumers may opt to forego purchasing the item. The threat of entry by a in the Theoy of Industrial Structure 72 AM. 177. The market for consumer goods in impoverished neighborhoods may be isolated from other retail sectors. spa note 131. In Jones. because it noted the alternative suppliers of credit and the rates they charge as evidence of the excessive interest rate. at 940 (citing to U. a monopoly cannot produce results harmful to consumers. it misinterprets the nature of the market. CONTESTABLE MARKETS AND THE THEORY OF INDUSTRIAL STRUCTuRE 51 (1982). JOHN C. the term monopoly implies that consumers have no other alternatives. A process of competition prevails based on the terms of the contract. 174. Horowitz. 1998. at 114. That is. J. Rptr. or they could purchase the item on layaway. 1991) (noting that the high HeinOnline -. Finally. The Carbonicourt was not at all clear on this point. Arrospide. low-income retailers cannot monopolize price. 846 (Ct. the price of Jones' freezer embodies the risk premium of the seller. ROBERT D. Carboniisan example of monopoly power. The contestable market literature supports this assertion. the retailers serving low-income consumers received lower profit rates (on net worth) than the general market retailers. U.7 Am. There is a third alternative for consumers. ECONOMIST. 74 Nonetheless. supra note 124. Apr. this conclusion is wrong for several reasons. ECONOMIc REPORT ON INSTALLMENT CREDIT AND RETAIL SALEs PRACtiCES OFDisTcr oFCOLUMBIARErAiLRs (1968)).17 6 This article has mentioned two alternatives to consumers. Se Carboni v. Prince. PANzAR.' 7 In contrast to Jones. they could save a portion of their income until they are able to purchase the appliance. 1. William Baumol. Evidence of this isolation is that the rate of profit for low-income consumer appliances was lower than for other consumer appliances.1998-1999] SCYLLAAND CHARYBDIS 419 monopoly power. making installment payments until the item is paid off. 2 Cal. ECONOMIC ANALYSIS oFLAw. First. 419 1998-1999 . at3. Surprisingly. Contestable Markets: An Uprising 175. This option has the effect of forcing a seller to offer more attractive terms in order to complete the sale. WILLIAM BAUMOL. In that environment. One study found that retailers serving low-income clients charged higher prices than their retail counterparts. 178.S. 176. Pol'y & L. at478. WILLIG. as does an interest rate of ten times the prevailing rate. The Comparative Study ofPublic Economies. ECON. while the value of the freezer ($300) is the cash value of the appliance. REV. FED. low-income retailers may be barred from retrieving super competitive profits because of potential entrants from the general retail sector. AMi. ElinorUstrom. incomparable. App. TRADE COMM'N. 75 Second. These two numbers are therefore. the court argues that 173. supra note 3. potential competitor forces the firm to act as though competitive conditions were already in place. 2d 845." Simultaneously. Posner. The seller's competitors will do likewise.
Trade Comm. The nature and magnitude of these two types of demand responses respectively determine the scope of the product market and the geographic market. groceries). electricity and gas) or in highly competitive markets (e. and that this desperation conferred more bargaining power upon Garboni. 554. supranote 166. Participant suppliers in the relevant market include firms already the products within the relevant geographic area and any "timely. reprinted in 4 Trad. Id at 851." s the consumers might still have had an option. ofJusfice and Fed. Greenberg asserts that Walker-Thomas was a monopoly because consumers felt that they lacked alternatives to Walker-Thomas' products. See U. the analysis would be more complicated. REV. 563.g. 57 Fed. it is possible that Arrospide could have bargained Garboni down to a rate just above Garboni's next best alternative.32). Carboni could have used his capital in other markets. however. Greenberg.7 Am. If the goods were necessities." and "sufficient" supply responses to a five percent price increase. Pol'y & L. if the HeinOnline -.' Arrospide could not find alternative sources of financing.S. 1992). Rep. Given the nature of the contract. (CCH) [ 13. a compelling argument could be made that Williams' goods were necessities." ECONOMicANAL'sts OF LAW. 420 1998-1999 . Gender Soc. 179." "likely. Id. Most necessities are either regulated (e. SeeSpence. If the goods were necessities. It seems unlikely that most of the consumer goods Williams purchased were necessities.. it seems clear that Carboni had monopoly power. Section 1. it is necessary to evaluate the likely demand responses of consumers to a price increase. L.104. 184. and Walker-Thomas were monopolies. 181. 2d at 850-51. at 41.' Additionally.552 (Sept. Star Credit. 608 (1982) ("Consumers are too poor. Feminists might counter that Arrospide was desperate." 9 The court could properly state its point in the following manner: every economist knows that the relevant market for determining monopoly power is the market where consumers can practically turn to for supplies and where no suppliers would enter given a five percent increase in price. (drawing from § 1. "The fact that a product is monopolized does not make it a necessity of life. a consumer's ability to withdraw from the market and coerce the monopoly into offering more attractive terms is minimized. SOciALPOLIGy &THE LAW [Vol. Reg. at 851.. 183. Dept. Id. at 115.."). supranote 12. 180. 41 M. See Duncan Kennedy.g. But the value of this monopoly is reduced given that Arrospide had monopsony power. J. U.420 JoURNAL OF GENDER. However. 41. 7:395 Arrospide could not turn to these sources for supply. 182.'"" Instead of interest rate was against public policy). supra note 3.' 2 Thus. no suppliers entered to compete with Carboni. No other consumers of credit were competing with Arrospide for Garboni's capital. at 93-94 (giving examples of necessities). Nonetheless. sellers don't have to provide unless the price is right. A price increase could be made unprofitable by consumers either switching to other products or switching to the same product produced by other firms at other locations." Id. Distribuive and PaternalisticMotives in Contract and Tort Law With Special Reference to Compulsory Terms and Unequal BargainingPower.. t Even if Garboni.0 of the Guidelines states: "In determining whether a hypothetical monopolist would be in a position to exercise market power. Horizontal Merger Guidelines. 2 Cal. to induce sellers to provide something that under the free contract model. Carboni. 10. at 382. contrary to the court's substantive unconscionability assertion that other alternatives were available. Rptr. Reg.
Walker-Thomas Furniture. 349. 421 1998-1999 .Jerome D.C. FrancisJ. "[e]onsumers attempting to evaluate creditors' remedies also face the difficulty of estimating the likelihood of default and of weighing terms contingent on default against more immediate aspects of transactions. For example. the monopolist is forced to change its price or terms in order In Carboni. Co. In addition. Note the monopoly is still inefficient because it produces net losses to social welfare. it is unlikely that she could have determined the meaning of the terms without exceptionally high transaction costs. 189. void.lsa She believed that the clause called for the repossession of the most recently purchased good only. Leone."7 ignorance as to the terms of the contract. it enjoyed power by controlling the Williams professed information available to the consumer. through their unwillingness to purchase. availablein 1998 WL 13503461. available in 1998 WL 16568457 (arguing that "the antitrust laws are directed toward restricting specific practices that are likely to be anticompetitive because such practices are not in the long run interests of consumers). even if consumers were able to obtain contract information from the firm. 1964). Gender Soc. Mulhern. supra note 3.1998. Williams could have employed an attorney to explain the terms to her. Law & to maximize profits." Ad. A second objection of feminists regards the procedural elements of the cases. 363 (1988) (asserting that consumers face barriers in information gathering). For example. that the parties to the agreement fare better under the contract than if it were held unconscionable and therefore. The language of the contract is comprehensible only to those who have a legal education. See id. the Williams court should have product is monopolized and a consumer necessity. Jones.22.2d 914.function of a firm's marginal cost If demand for the and the product's elasticity of demand. Sept. DefiningUnfairness:Empathy andEconomic Analysirs at the FederalTrade Commission. if a price increase on good A leads to an enormous consumer withdrawal from the marketfor good A. 68 B. Monopoly pricing is a.'O For feminists. She probably could not afford one. HeinOnline -. For example. Williams v. andBrandDeterminantJouRNAL 186. U. the consumers could have forced change. Pol'y & L."' monopolist's product declines due to either excessive terms or high prices. Debtors in general do not expect to default and avoid thinking about this risk.7 Am. L. (explaining that appellant signed the contracts without reading them). then demand for good Ais said to be elastic.. and Williams. however.U. 190. See id. Antitrust laws may provide a stronger remedy either through divestiture of the firm or regulation.1998-1999] SCYLIAAND CHARYBDIS 421 competitors forcing the sellers to change the terms of the sale. 187. Seesupranote 95. EcoNOMICANALiSIS OFLAW. so a budgetary constraint prevented her from acquiring full information. 188. 198 A.915 (D. 8 Economics leads us to the same conclusion. Note that a holding of unconsdonability in the contract does not render the monopoly neutered. SwJean Braucher. 89 In addition. at 115. (stating that Williams provided for herself and seven children by means of public assistance). Sept. See Daniel L Rubinfield. consumers may fear the denial of credit if they ask about the consequences of defaulting. 1998. REV. Wflliams could not reduce her ignorance as to the terms of the contract because of high informational and budgetary constraints. ANTrrusr BuunnN-Dow JONES. J. there may be a strong case for antitrust enforcement. 22. Elasticity of demand measures consumer responsiveness to changes in price. Williams & Robert P. Income OFR-TAniNG. even if Walker-Thomas had no monopoly power in the commodity market. Theoretically. Furthermore. 185. Antitrust Enforcement in Dynamic Network Industris. Id. Variabilityof BrandPriceElastidtiesAcross Retail Stores:Ethnic.
having sought other loans. 195. This action could be challenged on the grounds of fraud and misrepresentation. 2d 845. SOCIAL POLICY & THE LAW [Vol. POST. 298 N. D. It is possible that "word got around" regarding the nature of the agreements with Walker-Thomas. § 164. 1969) (stating that the plaintiffs signed a note in the amount of $4. U..App. Williams was bound to the contract despite not asking Walker-Thomas to read the terms to her. See Greenberg. L REv. SeeJones v. the cost of information to Williams is almost zero. 1027. 45 AM.' In the absence of fraud. See 1 SAMUELWILUJSTON & RICHARD A. s Second.S. HeinOnline -. WIL. 422 1998-1999 . see also William Raspberry. Arrospide. This argument could not be made as toJmes and Arrospde because in both instances the consumers knew the price of the goods. 196. 7:395 declared the clause unenforceable on procedural grounds. LORD. "If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying. 1036 (1996) (explaining the duty to read doctrine in the context of consumers who are in a language minority). she still 9 would have signed the contract! Second. it follows that one cannot know which barriers to information she actually faced.Y.000 to be paid off in a single lump sum payment of $6. Lessons of the Riots. CONTRACTS 2d § 162-64 (defining fraudulent misrepresentation and providing that misrepresentation may prevent formation of a contract and may make a contract voidable).2d 264. the store's agents could have read and explained the terms to 93 her. Williams. fraud. 193. 192. Rptr.7 Am. Gender Soc. U. The Day the City'sFury was Unkashed. 2 Cal. See RESTATEMENT OF THE LAW.' The above analysis indicates that in this instance. Williams 191. Apr. Star Credit Corp. she would have known the result of nonpayment. WASH.850-57 (Cal.422 JOURNAL OF GENDER. 1991). There is some evidence that the nature of Walker-Thomas' practices were well known in the ghetto. the store could have deliberately deceived Williams and intentionally misexplained the contract's provisions. if the store had refused to explain the contract. then Williams had the option not to purchase. 198 A. Martin Luther King in 1968: "There was the woman yelling at looters in the Walker-Thomas Furniture store. at 159. Because she filled to take even this minimal step. at Al (describing the riots in Washington. There is no indication of what type of informational network existed in the neighborhood. three possible outcomes could have resulted. following the assassination of Rev. 1990) ("Itwill not do for a man to enter into a contract and when called upon to respond to its obligations. In this case. Williams admitted that she did not ask anyone to explain the contract. noted for its high-interest charge accounts. or duress leads to the conclusion that Williams made a unilateral mistake. to 'Get the books! Get the booksl'"). 3. 264-65 (Sup. 194." Id. First. would be familiar with interest rates for various secured and unsecured loans. 1988. the contract is voidable by the recipient. Arrospide. to say that he did not read it when he signed it or know what it contained"). 92 If she had. Consumer Protectionfor Latinos: Overcoming Language Fraud and English-Only in the Marketplace.' The preceding conclusion is unsupported for two reasons. Even though Williams did not know the terms.LSTON ON CONTRACTS 4:16 (4th ed. namely the refrigerator and the loan. Finally. supra note 166.. First. Ct. Pol'y & L. courts have generally held that persons signing contracts have a duty to read the contract's provisions or to have the terms read to them. In particular. Steven Bender. The lack of evidence of monopoly. Carboni v.000 after three months).C.2d at 915. J.
SCYLLA AND CHARYBDIS
believed the terms to be that if she did not pay, Walker-Thomas could repossess only the item at issue.r 7 It is unlikely that she asked for clarification of the terms or that there was much discussion of them. It also seems unlikely that Walker-Thomas knew of her mistake. Again, under a Law & Economics analysis, this contract should be enforced. Where information costs are small (Williams asking someone to read and explain the provisions of the contract to her), holding the contract unenforceable discourages parties from obtaining full information and is inefficient. Another argument for a holding of unconscionability in a Williamstype scenario might be that enforcing the contract ignores the sheer disparity in bargaining power"" between the two parties. On one side, there is the impoverished uneducated Williams, and on the other is a large, powerful firm that can employ several attorneys to protect its interests. Feminists would argue that the law should protect the weak from the powerful. This argument implies a paternalism based on class, racial, and gender grounds.'9 The "weak" would be protected from entering into contracts that the law concludes are not in their best interest.2 ° 0 Williams. 2 ' Protecting the poor was Judge Skelly Wright's concern in The problem is that the judge imposed his values on the contracting parties despite the absence of a showing of monopoly power or 202 By voiding the contract based upon his own process concerns.
197. See~lilliams v. Walker-Thomas Furniture, Co., 198 A.2d 914, 915 (D.C. 1964) (stating that appellant signed the contractwithout knowledge of contractual details). 198. The U.C.C. expressly disclaims any concern with disparity in bargaining power. See U.C.C. § 2-302 cmt. 1 (1989 & Supp. 1998). But see RESTATEMENT (SECOND) OF CONTRACTS § 2.08 cMt. d (1981) (suggesting that while "mere" inequality does not make for unconscionability, gross inequality does have a role to play). See also Dalton, supra note 12, at 1037 (recognizing that every contract is the "product of inequality of bargaining power" with respect to the subject of the bargain). Rghts, 22 199. See PatriciaJ. Williams, AlhemicalNotes: ReastructingldealsFromDeconstructed
HARV.C.R-C.L. L REV. 401, 420 n.54 (1987) ("A quick review of almost any contracts text will show that most successful defenses feature women, particularly if they are old and widowed; illiterates; blacks and other minorities; the abjectly poor, and the old and infirm."). 200. See Leff, supra note 64, at 541 (criticizing the "vacuousness" and "nth level of abstraction" of the U.C.C.'s unconscionability provision as its highly subjective nature allows courts to make decisions based on stereotype and class distinctions) (citing Williams v. WalkerThomas Furniture, Co., 198 A.2d 914 (D.C. 1964)). 201. See J. Skelly Wright, The Courts Have Failed the Poor, N.Y. TIMEs, Mar. 9, 1969, (Magazine), at 26 (discussing Williams v. Walker-Thomas). 202. The paternalism may have subtle racist overtones. See Amy H. Kastely, Out of the W'zhiteness: On Raced Codes and MhiteRace Consdousness in Some Tort, COiminal and ContractLaw,63 U. CmN. L. REv. 269, 306 (1994) ("By fhiling to include further detail about the contracts
between Walker-Thomas and Williams and by resting instead on the vague and broadly associated listing of limited power, little knowledge, limited education, and lack of choice, Judge Skelly Wright's opinion allows-even invites--the reader to use raced tropes linking poverty, lack of education, single parenthood, and lack of capacity with black women ... ").
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subjective preferences, the judge may have made the very people he was trying to protect worse off by casting them out of the marketplace.203
203. The mixed success that plaintiffs have before the courts is evidence of the courts' paternalistic biases towards plaintiffs perceived to be less rational on the basis of their race, class, or gender. The more the plaintifffits the role of the rational actor, the less likely that the relief sought will be granted. See Stewart McCaulay, Bambi Meets Godzilla: Reflections on Contracts Scholarship and Teaching vs. State Unfair and Deceptive Trade Practices and Consumer Protection Statutes, 26 HOUs. L REv. 575, 583 (1989) (suggesting that unconscionability has fhded as a viable contract defense and has been replaced by state trade protection statutes). For example, McCaulay points out that business people repeatedly assert unconscionability, and most lose. Id. at 579 n.24. In some instances, unconscionability is no longer viewed as a viable defense because the business people attempting to assert it have been paragons of the economically rational actor. See Kansas City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 535 P.2d 419, 424 (Kan. 1975) ("None of the parties here involved were neophytes or babes in the brambles of the business world."); Bowlin's, Inc. v. Ramsey Oil Co., Inc., 662 P.2d 661, 668-69 (N.M. Ct. App. 1983). The court in Bowlin'sstated: Most parties who assert 2-302 [Same as § 55-2-302, N.M.S.A. 1978] and most who have used it successfully in reported cases have been consumers. Most of these successful consumer litigants have been poor or otherwise disadvantaged. Since much current literature suggests that the low.income consumer is often the victim ofsharp practices, it is not surprising that the targets of the unconscionability doctrine are usually plaintiff-creditors and credit sellers. The courts have not generally been receptive to pleas of unconscionability by one merchant against another. Presumably, few businessmen and middle-class cash purchasers are victims of the kinds of gross advantage-taking that usually calls forth 2-302. Id. Courts tend to be less paternalistic of business people than impoverished people. Unconscionability claims are still successfully raised by non-Wall Street types. See McCaulay, supranote 203, at 583 (indicating that farmers have done well raising unconscionability issues). In addition, defendants have successfully raised unconscionability in contracts with mandatory arbitration agreements; see also Doctor's Assoc., Inc. v. Casarotto, 517 U.S. 681, 654 (1996) (holding that unconscionability is applicable to arbitration agreements); Stirlen v. Supercuts, Inc., 60 Cal. Rptr. 2d 138, 159 (Ct. App. 1997) (holding a compulsory arbitration clause to be substantively and procedurally unconscionable); Patterson v. IT Consumer Fin. Corp., 18 Cal. Rptr. 2d 563, 567 (Ct. App. 1993) (holding that arbitration provision was unconscionable and thus unenforceable); Fritz v. Nationwide Mutual Ins. Co., 1990 WL 186448 at *6 (Del. Ch. Nov. 26, 1990) (holding a compulsory arbitration clause solely against the insured to be unconscionable). Unconscionability can also be successful in contracts in which a plaintiff attempts to limit damages. SeeWalker v. American Cyanamid Co., 948 P.2d 1123, 1130 (Idaho 1997) (holding a disclaimer of consequential damages in fertilizer sale unconscionable); Adams v. American Cyanamid Co., 498 N.W.2d 577,590 (Neb. Ct. App. 1992) (holding same); Sosa v. Paulos, 924 P.2d 357, 364-65 (Utah 1996) (holding a clause requiring patient to repay physician's attorney's fees to be unconscionable, if the patient's award in a malpractice claim was less than half of damages sought); Art's Flower Shop, Inc. v. Telephone Co. ofW. Va., 413 S.E.2d 670, 675 (W. Va. 1991) (holding a contract limiting damages for failure to place yellow advertisement to twice the cost of advertisement unconscionable). Finally, unconscionability may still be used if the process or substance of negotiation seems particularly egregious to the court. See Ilkhchooyi v. Best, 45 Cal. Rptr. 2d 766, 775 (Ct. App. 1995) (holding a profit sharing clause unconscionable); Family Fin. Servs., Inc. v. Spencer, 677 A.2d 479, 485 (Conn. 1996) (holding a mortgage between a non-English speaker and a mortgage company unconscionable); Waters v. Minnesota Ltd., 587 N.E.2d 231, 234 (Mass. 1992) (holding the assignment of an $189,000 annuity for $50,000 unconscionable); Leasefirst v. Hartford Rexall Drugs, Inc., 483 N.W.2d 585, 588 (Wis. Ct. App. 1992) (holding a forum selection clause unconscionable). Unconscionability is also sometimes raised in addition to consumer protection acts. See, eg., Walker v. Winks Furniture, 640 N.Y.S.2d 428, 430 (Sup. Ct. 1996) (holding a furniture sales contract to be unconscionable, in part, where the store failed to deliver on the date promised and failed to cancel the contract without imposing a cancellation fee).
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Thus, the objections raised here do not lead to a result contrary to a Law & Economics analysis. While feminists may object to the terms of the contract the acceptable alternative is not to void the contract. The belief that voiding the contracts is better for Williams, Jones, and Arrospide is based on several false premises. First, unequal bargaining power does not imply that the contracts made these consumers worse off at the time they entered into them." Second, even if feminists could find a way out of the contracts that would make Jones, Williams and Arrospide better off, the effects of saving them go beyond these three individuals to those similarly situated. Making Williams, Jones, and Arrospide "better off' might make future consumers who would seek to purchase furniture and borrow money worse off. The lack of welfare-improving alternatives creates a conundnm for feminists. Law & Economics provides a way out of the dilemma by demonstrating that the best alternative is to enforce the contract because the other choice, voiding the contract, does not make the parties better off. Such action also does °5nothing to correct the "monopoly" or power concerns of feminists.2 05 Finally, feminists are also likely to be concerned with rationality and the distribution of income.0 7 Law & Economics is unable to alleviate these concerns. Feminists may argue that the crucial assumption that makes the previous analysis work is the assumption that both Walker-Thomas and Williams are rational actors. In economic theory, individual units within the marketplace ("the firm" or "the consumer") are rational actors engaged in the maximization of either profits or pleasure, subject to resource and budget 2 constraints. 8 Any action taken by either Williams or Walker-Thomas is the result of a complex cost-benefit analysis that yields a utility or profit-maximizing outcome.!" The conclusion that the contract between Williams and Walker-Thomas benefits both parties and that
204. SeeDalton, supranote 12, at 1037 (noting that"gross" inequality of bargaining power is
not a "conclusive indicator" of unconscionability because inherent in every contract is unequal
and theLaw andEconomics Movement 84 GEO. LJ. 205. SeeThomas F. Cotter, LegalPragrnatism 2071, 2139 (1996) (asserting that "economic analysis forces the policymaker to undertake the sometimes painful task of thinking through her moral beliefs. by upholding a doctrine of unconscionability, is she really serving the interests of the poor, or is she only assuaging her guilty conscience with a low-cost (to her) pseudosolution that accomplishes nothing?"). 206. See, eg., Hadfield, supranote 84, at 1258 (discussing rationality). 207. See, e.g., Hadfield, supranote 84, at 1263 (discussing the relevance of income). 208. See Revisiting Regulation andDereglation Through the Lens of CompetitionPolicy: Gettingthe BalanceRight MONDAQBUS. BRMIING, Nov. 16,1998, availablein 1998 VL 22855749. 209. SeeHarrison, supranote 83, at459 (discussingprofit-maximizing outcomes). HeinOnline -- 7 Am. U. J. Gender Soc. Pol'y & L. 425 1998-1999
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the add-on clause has wealth-maximizing value rests on this crucial assumption. There may be several reasons, however, why the clause was inserted into the contract. Perhaps an overzealous law clerk inserted the clause at the behest of his or her supervisor, or Walker-Thomas sought terms in its adhesion contract which would maximize the value of the contract to itself. Alternatively, there are several irrational reasons why Williams had signed the contract: One is that human behavior includes a significant element of submission to authoritarian and hierarchical control that does not serve individual interests in any conventional sense.... We may learn to submit to control through socialization. This view of human behavior leads to questioning whether consent should always be equated with rational pursuit of one's own best interest. "Submission" has dark overtones and perhaps does not evoke the actual feelings of consumers entering into credit transactions, particularly large ones. A consumer borrower may feel some elation at the social participation of entering into the market in a significant way and at the approval thus conferred by the creditor. This may produce a desire to play the expected role by dutifully assuming the obligation and not questioning the authority of the entity that confers approval and good feelings. Creditors' ordinary presentation of adhesion contracts-as a matter of course and as how these things are done-adds to the consumer's sense of 210 appropriate role-playing. If the add-on clause was inserted for a reason other than risk assignment, and Williams accepted the term for any reason other than that the benefits of the contract exceeded the costs, the theory cannot possibly hope to address whether the contract should be enforced, because the value of the contract is indeterminate. 1 212 Law & Economics assumes rationality. According to the theory, 2 when people are not rational, they are not competent. s For Law & Economics, there is no way to prove that people are consistently rational in market transactions, except to prove it by definition. t 4
210. See Braucher, supranote 187, at 366-67 (citing Robin L. West,Authority, Autonomy, and
Choice: The Role of Consent in the Moral andPolitical Visions ofFranz Kajka and RichardPasner,99 HARv. REy. 384,386-88 (1985)). L. 211. See Kennedy, supra note 17, at 389-93 (discussing the standard procedure in costbenefit analysis).
212. See Cotter, supra note 205, at 2116 (explaining the "central concept" of law and
economics). 213. Cotter, supra note 205, at2116. 214. Cotter, supranote 205, at 2116.
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Amartya K. CAL. 2 9 It assumes a "separative" individual whose tastes and preferences are exogenous from the social context 215. people consistently pick those options which give them the greatest pleasure because they are rational. ECON. REV. to be engaged in a feat of hedonistic equilibrium . then those human acts are also beyond criticism in normative or effidency terms. 155 (1959) (discussing the coherence theory of truth). limited 7 It appears that the rationality assumption cannot be completely accepted on the basis of empirical study. 259-69 (1986) (analyzing reasons for human processing errors). Gender Soc. Gary S. 18 Feminists. may be wary of readily adopting this assumption for several reasons. & Kevin Murphy. HeinOnline -. Michael Grossman. some psychological and economic literature directly disputes this assumption as being either patently false or. 219. & ORG. because they consistently pick those options that give them the greatest pleasure. REv. in point of taxonomic reality. Indeed. In those terms it is not at all surprising that economic analyses have 'considerable power in predicting how people in fact behave. but can only be accepted as a principle that coheres with other closely held first 2 principles. at 41.1998-19991 SCYLLA AND CHARYBDIS 427 215 People are rational This thrusts the theory into a tautology.. SeeScott Atkinson. at the very least. 193 (1961). And that is all there is to it. THE PROBLEMS OF PHILOSOPHY 140. for economic theory of this kind. . and if human desire is made definitionally identical with certain human acts. L. RICHARD NISBETT & LEE ROss. 30J. 1982) (discussing the study of subjective probability and strategies of reasoning).. supranote 24. 237 (Papers and Proceedings 1991) (portraying addicts as rational economic actors). England. 102-05 (1993) (demonstrating that game show contestants Pail to act rationally and do not engage in strategic behavior). Pol'y & L. see also Randall Bennett & Kent Hickman. the rationality assumption has 1 been considered male-biased. [a] gang of Aleutian Islanders slushing about in the wrack and surf with rakes and magical incantation for the capture ofshell-fish are held. Terrorism in a BargainingFramework. NELL. Economics ofDrugs: Rational Addiction and tle Effec ofPrice on Consumption. 317 (1977) (criticizing rationality BehavioralFoundations assumption of mainstream economics). 218. Ward Edwards & Detlof Von Winterfeldt."6 In addition. ECON. 59 S. First. supa note 17. Conversely. See BERTRAND RUSSEL.' 21J.L. J. 1. See also MARTIN HOLUs & EDWARD J. Slovic &A. & ECON.7 Am. Rationalityand the Price is Right. 81 AM. "If human desire itself becomes normative (in the sense that it cannot be criticized). Tversky eds. Sen. BEHAV. It should not shock the reader to discover that both terrorists and addicts are rational under economic theory. 216. 6 PHIL & PUB. 427 1998-1999 . For the economist. thatis all there is to any economic situation." Lef. Kahneman. HUMAN INFERENCE-. P. U.. Todd Sandier & John Tschirhart. ArT.. RATIONAL ECONOMIC MAN: A PHILOSOPHICAL CRHrIQUJE OF NEo-CIAssicAL ECONOMICS 5-6 (1975) (discussing the connection between philosophy and economics as they related to Rationalist philosophy and classical or Manian economics). in THE PLACE OF SCIENCE IN MODERN CIMLIZATION AND OTHER ESSAYS 182. everyone is doing as best he can in exactly what he has set out to do. See generally JUDGMENT UNDER UNCERTAINTY HEURISTICS AND BIASES 32-47 (D. 2-6 (1987) (explaining the stages of bargaining with a terrorist and the factors used to test bargaining theory hypotheses). Cognitive illusions and Their Implicationsfor the Law. 217. 225. at 458. which by definition is 'good' for him. Thorstein Veblen.STRATEGIES AND SHORTCOMINGS OF SOCIALJUDGMENT (1980) (discussing human inference and human error and human beings' "failure to use the normative principles and inferential tools that guide scientific inquiry").ProfesorClark'sE m=ias. RationalFools:A Critiqueof the ofEconomic Theo-. however. Becker. 99.
See also Herbert Hovenkamp. EQUALrYAND EFFICIENCY: THE BIG TRADEOFF 1-5 (1975)). at 461. J. ECONOMICANALYSIS OF LAW. Law & Economics explicitly rejects any redistribution of income from the wealthy to the poor. supranote 187. Gender Soc. These conclusions lend insight regarding the potential drawbacks and benefits of using 220. 836-37 (1990) (noting that at least some laws have redistributive effect as their purpose). the theory may devalue the feminine. sexism. it adopts a masculine view of the world and human behavior. SOCIAL POLICY & THE LAW [Vol. See ROBERT KUTINER. 223. The theory may implicitly favor the wealthy. 221. There is a second. 815. 1 HeinOnline -. are considered competing values which require a tradeoff to reconcile capitalism and democracy. at 351 (citingARTHUR OKUN. an analysis based on the economist's view of rationality does not lend itself to criticizing the social. cultural or political institutions of a society. feminists might be reluctant to use Law & Economics as a policy prescription. EVERYrHING FOR SALE: THE VIRTUES AND LiMaTs OF MARxETS 68 (1997) (providing a recent analysis and critique of the use of economics to determine public policy). U. In other words. except where those institutions create barriers to the smooth functioning of the economy. England. insofar as courts assign entitlements to those individuals that value the entitlements 22 the most based on willingness and ability to pay. supranote 3. REv. 7:395 within which the individual exists. Insofar as masculine is the metric. L. 78 CAL." Braucher. and homophobia are unviewable through the lens of efficiency. supranote 24.4' Thus. Two conclusions can be drawn with respect to whether unconscionability should be touted by feminists. 224. Coase. 4 Thus. POLICY IMPLICATIONS FOR FEMINIST LEGAL THEORISTS: A CONCLUSION This brief discussion of unconscionability provides some insight as to whether Law & Economics is a useful tool for feminist legal theorists.428 JOURNAL OF GENDER. supranote 21. they should use Law & Economics as a tool with which to predict the long-term equilibrium outcomes of the policies they advocate. in the sense of (rough) equality in the distribution of resources. 222. this article does not argue that feminists should wholeheartedly adopt Law & Economics as their basic operating mechanism. Such a transfer not only fails to create wealth but actuall reduces it because the redistribution of wealth is not without cost. Positivism in Law dEconomics. related issue that demonstrates that Law & Economics is a useful tool. at 41. but not a panacea. IV. at 12-13. Second. Pol'y & L.7 Am. Instead. however. 428 1998-1999 . Nonetheless. the origins and causes of racism. "Usually efficiency and fairness.
The unconscionability doctrine does not have the power of threatened regulation or divestiture to prevent such reallocation. This article reaches this conclusion with respect to the cases presented.2 The contract provisions in question enable transactions to take place at a reduced cost to the consumer.g. Ct. Walker-Thomas Furniture. Law & Economics asserts that the challenged terms of the contract make the buyers better off. the low-income consumer will either be totally barred from the transaction or will only be able to engage in the transaction at a substantially higher cost. U.2d 914 (D. There cannot be unequal bargaining power between buyer and seller if the buyer is forced from the marketplace. 1964).C. 1965). particularly if the hypothetical case is then used as an argument in support of real control. those that feminists seek to protect are better off under the contract than under a regime where the contract is unenforceable. Cir. The unconscionability doctrine unfortunately only remedies the feminist issues of monopoly or unequal bargaining power by eliminating the victim from the marketplace. Law & Economics allows for agency in markets for disadvantaged groups while simultaneously seeking to protect those groups from the throes of the market. Absent these provisions. unconscionability does not address the seller's monopoly power (if any exists) because the seller will merely reallocate the power (e. Arrospide.7 Am. raise its prices if the add-on clause is unconscionable. Second.. the unconscionability doctrine ultimately hurts the very people it is trying to protect.26 Williams 7 and Arrospid~s have effectively barred low-income groups from entering into the marketplace (ones. supra note 34. 1969)." Epstein. 429 1998-1999 . With respect to unconscionability. Co. By disallowing firms to insure against the risk associated with selling to low-income groups. for example. Protectionism through unconscionability is 225.2d 264 (Sup.Y..1998-1999] SCYLAAND CHARYBDIS Law & Economics in the context of feminist policy. 228. at 306 (emphasis added). Gender Soc. "In this context I think it is dangerous to begin the analysis of unconscionability by talking about h)pohetcal clauses that have never appeared in any commercial agreement. 298 N. A perceptive contracts professor might come up with a hypothetical that runs contrary to our findings. 2d 845 (Ct. a holding of unconscionability has all of the vice and none of the virtues of ihe Law & Economics viewpoint.2d 445 (D. J. HeinOnline -. Rptr. Star Credit Corp. Unconscionability masks the issue by hiding the problem.' Hence. Jones v. It could. Arrospide). remanded 350 F. Unlike antitrust laws.S. Carboni v. 2 Cal. 226. raise its prices if the add-on clause is unconscionable). the courts in Jones. Pol'y & L. 227. or have the raised the transaction costs of doing so (Williams). 1991). Williams v. 198 A. App.C.
Law & Economics can provide a good starting point for feminist debate. Second. Law & Economics has little to say about the distribution of income in society. this knowledge comes at a loss because Law & Economics has difficulty addressing issues of power and conflict outside of the notions of duress/monopoly. Law & Economics can be a useful tool to guide feminist policy so as to avoid outcomes that ultimately harm the people feminists are trying to empower. Pol'y & L. except that it is generally skeptical of wealth transfers because they are inefficient. While it creates the ability to predict the outcomes of advocated policies. 7:395 unsound policy with no benefit to the disadvantaged groups. While this article agrees with Judge Posner's opinion that Law & Economics should be a part of the feminist chorus. SOCIAL POLICY & THE LAW [Vol. Law & Economics cannot speak to the inherent unfairness of bargaining positions between buyers and sellers. 430 1998-1999 . Gender Soc. they must turn elsewhere. HeinOnline -. U. Law & Economics fails to provide insight as to the nature of conflict and power in the existing social structure and lacks voice as to issues regarding distribution of income.430 JOURNAL OF GENDER. Insofar as feminists seek to address these issues outside of the context of a pure monopoly or duress situation. J. First. it does not assert that Law & Economics should be given the role of soloist. However.7 Am.
Hamilton College. Pol'y & L............ Scenario Two: Known DonorMakes A ClaimforPaternity.......... I wish to thank Professor Nancy Polikoff for her insight and guidance in the development of this paper.............. FamiliesandAssisted Reproductive Technologies Over the past decade.................................. Dissolutionof the Lesbian Relationshipwith Children........... I would like to thank my parents for their never-ending support and encouragement............... Gender Soc.............. A....... U..... HISTORICAL DISCUSSION OF ARTs AND THE NOTION OFTHE FAMILY ..... RECOMMENDATIONS .......Visitation and/orCustody Based on Known Sperm DonorStatus..................................................... new reproductive technologies have J..... ArtficialInsemination by Donor.......................... The New Procedures:Tri-GameticIn Vitro Fertilization...... 440 B... ANALYSIS: How DOES TGIVF FIT INTO THE EXISTiNG LEGAL 442 LANDSCAPE? ....................... C..................D................................ Scenario One: Known DonorMakes ClaimforPaternity....................... Candidate................... Finally............... 441 HIL............... INTRODUCTION A..... 1999................. INTRODUCTION ........ 433 II......................... 463 I.... BA................. IV.................7 Am..................... 452 C........... ritation and/or Custody Based On SurrogacyAnalogy .... 431 A................................... 435 437 A.. Surrogacy....................... My thanks also goes out to the many researchers........... 462 V...... VELIE I....... 1993......... 442 B.... scientists and doctors who patiently guided me through the mysteries ofreproductive biology and technology.............................EGGING ON LESBIAN MATERNITY: THE LEGAL IMPLICATIONS OF TRI-GAMETIC IN VITRO FERTILIZATION KYLE C.. J...... Washington College of Law............................................................ Families andAssisted Reproductive Technologies............................................. 431 B.............. Scenario Three: Dissolutionof a Lesbian Couple With ChildrenBorn 460 Through TGIVF ........................ HeinOnline -.. American University.. CONCLUSION ........ 431 1998-1999 ..............
appointed by President Clinton. Polikoff. andProcreativeLiberty: The Legal Structure of the New Reproduction. Ikemoto. Embyos. available in 1997 WL 8079574 (describing the scientific breakthroughs of cloning a sheep in Scotland and a monkey in Oregon. Christensen. Gender Soc. 6. See Karen M. 5. 432 1998-1999 .4 the discourse surrounding assisted reproductive technologies (ARTs) has moved away from the secrecy of scientific laboratories and into the very public arenas of popular culture. 4.78 GEo. June 11. Dec. See Lawrence Hall. (explaining the public's doubts and concerns about the moral. and the trend towards "yes" donors who agree to allow the child created from their sperm to find out limited information about them when the child turns 18). POST. REV. SOCIAL POLICY &THE LAW [Vol 7:431 emerged and become widely available as a means of creating a family. The In/Fertle. 5.2 (1986) (discussing the story of Louise Brown. Assisted Reproducive Technology and the Family. 12. 1299. 2. 939. most lesbians with children had their children in the context of a marriage before they discovered that they were lesbians. 47 HASTINGS LJ.J.S. at D2A (describing the portrayal of donor insemination on television. thereby challenging the traditional notion of family. 1997.' 1. STARLEDGER (Newark. This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Non-Traditional Families. CURRENT POPULATION REPORTS. Robertson. see also BUREAU OF THE CENSUS. Lesbians who want to become mothers currently have few options available. Lisa C. WASH. lesbian. Artfiidal InseminationNo Longer Shrouded in Secrec. 464-65 (1990) (explaining that until recently. 3. See Nancy D. and the judicial system. including cloning). 459. The Too Fertile. SeeJohn A. and The Dysfertile. Legal Orderingof Family Values: The Case of Gay and LesbianFamilies. DFP'T OF COMMERCE. ited in Craig W. 447. 47 HASTINGS LJ. at 25. rather than the more legally precarious family structures that are currently available to lesbians and lesbian couples. A HouseDivided. 943 & n. In the past. NO. at 2-3 (1990). 59 S. HOUSEHOLD AND FAILY CHARAcTERISncS: MARCH 1990 AND 1989. GREENSBORO NEWS & REC. mass media. 911. and lesbian and gay couples to create families. 912 (1996) (discussing the widespread availability of assisted reproductive technologies (ARTs) in the last ten years).2 Beginning with Louise Brown in 1978. CAl. A Culture So CavalierAbout Life Can't Be Trusted To Tinker.432 JOURNAL OF GENDER. 18 CARDOZO L. The growing availability of ARTs has allowed single women. or gay). Pol'y & L. See id.' and continuing into the present-day debate over the possibility of human cloning. lesbians and gay men. 1007. (Magazine). 1311 (1997) (defining the "traditional nuclear family" as "a married couple and their biological child(ren)").7 Am. SERIES P-20. 1033 (1996) (describing as "dysfertile" those rendered "socially sterile" because they are unmarried. the first known baby born in 1978 as a result of in vitro fertilization). J. at 12. including the effect on the children born from these technologies and the feminist concerns about the control and use ofwomen as vehicles of reproduction). Oct. Thomas. L. REV. SeeJohn A.' The resulting family structures have challenged the traditional meaning of family.J. see also Susan Cohen. lesbian mothers were HeinOnline -. Robertson. the announcement by a Swiss religious cult to offer cloning services to gay couples. . Although these processes could theoretically be used by any two women to create a child. her own decision to reveal to her daughter that she was conceived through artificial insemination. ethical and practical consequences of the widespread use of ARTs.).. in devising federal guidelines for the use of genetic technologies. the techniques likely will be utilized most often by lesbian couples to create families that are based on biology and genetics.5 This Comment addresses new and not yet widely used ARTs that utilize the genetic material from two women to create an embryo. and the public outcry that cloning is morally unacceptable). 1997. U. Families. available in 1997 WL 14706752 (describing the deliberations of the National Bioethics Advisory Committee. U. 1997. N.
University of Vermont School of Medicine (Jan. In order to respect this request. See infra. At this conference. Se Libby Brooks. 433 1998-1999 . several techniques to create a child who is the genetic and biological result of two women have been suggested. 7he Mother of AU Dilemmas. 1997. Although some doctors confirm this procedure is possible. University of Vermont School of Medicine (Jan. 524. BIOLOGY 611 (1988). See Interviews with Dr. note 11. George Osol. and the amount of work and commitment she puts forth to conceive a child through artificial-insemination). who will not carry the child. "the legal assignment of parental status may contradict and frustrate the original intentions of the AIDS participants. More information may be available by reaching the author or the American HeinOnline -. The gestational mother's egg is then fertilized by the sperm containing the non-gestational woman's genetic material. Although these procedures are not currently being offered in any major fertility clinic. NEavrON & FREDEKicKA. 10. Gender Soc." Anne Reichman Schiff FrustratedIntentions andBindingBiology: SeeingAlD In The Law.note 11. DAVID E. See Interviews with Dr. DNA contains coded biological information that is passed between generations. note 11. See infra notes 42-47 and accompanying text (discussing the legal challenges faced by lesbian families). McConuAcK. Assistant Professor of Obstetrics and Gynecology. U. The New Procedures:Tri-GameticIn Vitro Fertilization With new advances in science.C. see also Electronic Mail Correspondence with anonymous researchers (on file with author). See generally SLESNIcK. See Notes from the National Gay and Lesbian Task Force's Creating Change Conference in Washington. and Dr.1998-1999] EGGING ON LESBIAN MATERNHY 433 B. but others have made several suggestions concerning other procedures that would reach the same result. because the current state of the law accords more weight to biology than intent. (Nov. and that egg's DNA is removed and placed into an "empty" sperm casing (a sperm cell with the DNA removed). The author has confirmed that the procedure is possible. 1998) (on file with author). Professor of Microbiology and Molecular Genetics. McCoRIAcK. 6. More recently. Id. a lesbian couple shared their story.C. 1996) (on file with. The process will most likely occur in vitro. ALANJ.author). new reproductive technologies are being developed. NEivwON & RASMUSSEN. at 611 (defining a gamete). Charles Novotny. 8. there is anecdotal evidence that at least one procedure has been attempted by at least one lesbian couple.7 Am. The term Tri-Gametic In Vitro Fertilization (TGIVF) best describes these processes. due to its complexity.E. D. they remain unnamed throughout this Comment. many lesbians have chosen artificial insemination by donor (AIDS) to create families.note 11. See IRWIN SLrSNICF. BAI. D. An egg is removed from the non-gestational mother. Seeinfra. The couple described this procedure as follows: The deoxyribonucleic acid (DNA) is removed from the donor sperm and discarded.' Although debate in the scientific and medical communities about the feasibility of these procedures continues. Several of the doctors and researchers contacted by the author requested anonymity regarding their comments on this topic. Many researchers and doctors contacted did express doubts as to the feasibility of this procedure. Charles Novotny. George Osol. See Notes from the National Gay and Lesbian Task Force's Creating Change Conference in Washington. however." Because these procedures are predominantly mothers who gave birth in heterosexual marriages before they "came out" as lesbians). (Nov. 44 DuKE LJ. at 19 (describing the process a woman goes through. J. 1996) (on file with author). However. Some new reproductive technologies involve eggs from two different women. other doctors expressed skepticism and are not convinced that this procedure is possible. A gamete is a human sex cell (an egg or a sperm). Assistant Professor of Obstetrics and Gynecology.9 The result of these procedures is a child with genetic material from both women. See infra. May 11. Seeinfra. 7. 6. and Dr. Professor of Microbiology and Molecular Genetics. 11. 9. THE INDEPENDENT (London).1998) (on file with author). Pol'y & L. which involves three gametes-an eggfrom each of two women and the sperm from a donor. LEVON BALZ. 538 (1994). RASMUSSEN.' They may also use a sperm casing.
thus giving each partner a physical. not with sperm. available in 1995 WL 9048164 (noting the growing number of lesbians and gay men utilizing ARTs to create families. 8. Finally. 28. The nucleus of one is removed and placed in the denucleated egg of the other. in which the oocyte. 30.'" TGIVF introduces issues that are unique and potentially explosive in both the political and judicial UniversityJournal of Gender. 8. SeeElectronic Mail Correspondence with anonymous researcher at the Samaritan Institute of Reproductive Medicine. Social Policy & the Law. the female nucleus from the non-gestational mother's egg is suctioned out and placed into the mature egg belonging to the gestational mother.1998) (onfile with author). and genetic connection with the resulting child. Yet another option may be to activate an egg to begin the chromosomal reduction process. the backlash from the Religious Right. 625 (1996) (documenting the controversial nature of lesbian and gay parenting as presented in the popular press in the last several years. note 11. reduces to one set of chromosomes. known as the "haploid" stage. each of which contains the appropriate number of chromosomal sets." or swell. for purposes of this Comment this new set of technologies is referred to as Tri-Gametic In Vitro Fertilization (TGIVF) . at Al. At the point in the fertilization process in which the nuclei from both the egg and the sperm "decondense. 12. J. 1998) (on file with author). 13. U. one researcher has suggested a method in which the non-gestational mother's egg is activated. the gestational mother's egg is fertilized with a sperm. 1998) (on file with author). Lesbians Turn to Art fical Insemination. as well as the introduction in some jurisdictions of legislation restricting the rights of lesbian and gay parents). and therefore have no official names. but parthenogenetically. Once the oocyte is reduced to two "polar bodies" in this haploid stage. Electronic Mail Correspondence with anonymous researcher at the University of Wisconsin (Oct. which then progresses in the same manner as if fertilized by a sperm. a procedure known as "cytoplasmic transplant" has been suggested. One technique for TGIVF involves fertilizing an egg from the non-gestational mother with a donor sperm. July 16. The embryo created through TGIVF is the genetic combination of the two women who are the intended parents. one of the polar bodies is placed into the sperm head. Pol'y & L. HeinOnline -. 1995. Arizona (Jan. Seesupra. At this point. 24. SeeElectronic Mail Correspondence with Professor John Robertson. the sperm nucleus is removed and discarded.1998) (on file with author). Gender Soc. 1998) (on file with author). Custody and Conduct: How the Law Fails Lesbian and Gay Parentsand Their Children. see alsoJulieShapiro. A New Kind of Family: Some Gays.1998) (on file with author). Additionally. DALLAS MORNING NEWS. biological.434 JOURNAL OF GENDER. Given the political backlash that surrounds the use of more common ARTs by lesbians and gay men to create families.7 Am. In this procedure. See Electronic Mail Correspondence with anonymous researcher at the Cooper Institute for Reproductive and Hormonal Disorders (Jan. and the resulting offspring comes from an egg crossed with another egg. and the hesitancy of legislatures and courts to recognize lesbian and gay families). Next. after which the male pronucleus is removed.623. 434 1998-1999 . See Electronic Mail Correspondence with anonymous researcher from Albany Medical Center (Oct. 71 IND. which is then used to fertilize the gestational mother's egg. so that the DNA comes from one partner and the cytoplasm with mitochondrial DNA comes from the other. LJ. Electronic Mail Correspondence with anonymous researcher at the University of Georgia (Oct. 12. each woman provides an egg. SOCIAL POLICY & THE LAW [Vol 7:431 not yet available in any major fertility clinic in the country. or egg. See Deborah Bradley. Note that this procedure does not involve sperm in any way. and the non-gestational mother's pronudeus is injected into or fused with the gestational mother's egg. and then the pronuclei is removed. University of Texas School of Law (Jan. Phoenix.
For example. THE ADVoCATE. In vitro fertilization involves the removal of a woman's mature egg and its placement in a test tube. the judicial definitions of family. See id. AM. 17. The second alternative is a child with three legal parents-two mothers and one father. at 53 (reviewing the current social and sdentific debates about a possible biological origin to homosexuality). Etiden efor a BiologicalInfluence in Male Homosexualty. U. See Note. 669. 15. and responsibilities of parents. Part Ill analyzes the legal issues involved in artificial insemination by donors and surrogacies. There are two distinct family structures that may result from TGIVF. Part II consists of a brief summary of the now-common and widely accepted ARTs. These techniques include in vitro fertilization (IVF). 670 (1985) (defining in vitro fertilization). with a sperm. and how the current legal landscape may treat TGIVF. is inseminated with the sperm of the infertile woman's husband or partner. a synopsis of their historical uses. REv. the embryo is implanted back into the egg provider or into the womb of a surrogate. 6 gamete intrafallopian transfer 14. Gender Soc. J. and a discussion of legislative and judicial treatment of these ARTs. In this process an "ovum donor. NEvToN & RASMUSSEN. McCoRMACK. 1998. present and future of reproductive technology. II. Further. Reproductive Techno!ogy and the ProcreationRights of the Unmarried 98 HAMV. its place in the past. and the legal and political struggles over control and definitions of family. HISTORICAL DIscussION OFARTS AND THE NOTION OF THE FAMILY Several reproductive technologies currently exist and are widely used to achieve conception. Sm. This Comment argues that a family with three parents should be recognized only if such a family structure is intended by the two genetic mothers. and the legal issues that may emerge with TGIVF. Embryo transfer occurs most commonly in a heterosexual couple when the woman cannot produce eggs. obligations. Pol'y & L. This analysis addresses the various rights. Gayfor the Thrill of t. The first alternative is a child with two legal mothers. (explaining the process of embryo transfer).1998-1999] arenas.. or similar laboratory medium." or a woman who is fertile. After a few days. the embryo is flushed out of the ovum donor's uterus and placed in the uterus of the woman who intends to gestate and raise the child. Part IV recommends that families created by TGIVF be legally recognized by legislatures and courts. children born through TGIVF will all be girls because women's genes carry only female chromosomes. if a genetic component to homosexuality is ever discovered. 16. at 20 (describing the current state ofscientific research on homosexuality). supra note 11. at 161.7 Am. 435 1998-1999 . 5 embryo transfer. May 1994. Feb. L. Simon LeVay & Dean Hamer. Part V concludes with thoughts and reactions to TGIVF. 14 EGGING ON LESBIAN MATERNrIY This Comment explores the unique legal issues that may emerge from TGIVF. See SLESNICK. the children of TGIVF may have an increased chance of being lesbians. HeinOnline -. See generaly John Gallagher. After fertilization occurs. BALZER. both of which should be legally recognized.
Id. citing OFFICE OF TECH. 436 1998-1999 . 17. at 14 (describing the story ofJaycee Buzzanca. Surrogacy: A Last Resort AlternativeforInfertie Women or a Commodyiscation of Women's Bodies and Children?. Id. and No Suppor4 MiLWAUmEJ.REv. Kerian. at 336 (noting that ARTs were created with the intention of enabling infertile heterosexual couples to create families). at 336 (describing the increasing popularity ofARTs among the "socially infertile. see also King.'" egg donation. The embryo created from the donated sperm and donated egg is placed in the womb of the surrogate. 1997.7 Am. SENTINEL.S. 23. "donor surrogacy" involves the sperm of the intended father and the egg from an unknown donor. 21." including lesbian and gay couples). Egg donation. AND SOC. See Robertson. See id. married couples who wished to form a family 5 However. Orphan' With FiveParents? Yes. Id. Gamete intrafillopian transfer involves the placement of an egg and a sperm into the patent fallopian tube of the intended mother. Historically. CHILDREN OF CHOICE 99 (1994) (describing the GIFT process). L. The Search for Common Groundand the Recognition ofDifference. See Ellen Goodman. SeeJoHN A. 114 (1997) (defining and discussing the different types of surrogacy). over the past decade ARTs have been used by a growing number of people to form families. created in vitro from the intended mother's egg and the intended father's sperm. "Traditional surrogacy" involves the artificial insemination of the surrogate with the sperm of the intended father. See Christine L. the genetic product of the surrogate and the intended father.113. 329. J. WOMEN'S LJ. U.J. 22. The technique is relatively unsophisticated and involves the introduction of sperm into the intended mother through a syringe orsimilar instrument. SOCIAL POLICY & THE LAW [Vol 7:431 9 7 (GIFT).24 single heterosexual women or lesbians. CIN. SeeAlexa E. who has no genetic tie to it. 1623. Id. IVF and AID are the most widely used techniques. at 911." including lesbians and gay men). 340 (1995) (defining egg donation)." Robertson. at 8 (describing AID procedures and choices). ROBERTSON. King. INFERTILITY: MED. SeeROBERTSON. The embryo is. which has been analogized to sperm donation. a child conceived through AID with a donated egg and a donated sperm. Gender Soc. 24. Another variation of donor surrogacy involves the sperm from an anonymous donor and the egg from an anonymous donor. U. Pol'y & L. See Mary Lynne Birck. 19. is placed into the gestational surrogate's womb. who also have no genetic tie to the child. HeinOnline -. then gestated by a gestational surrogate and turned over to her intended rearing parents upon birth). who has no genetic tie to the child.12 WIS. Finally. allows women who cannot produce their own eggs to conceive. 20.436 JOURNAL OF GENDER. at 912 (discussing the statistics of ARTS use generally). AssigningParenthoodin the Context of CollaborativeReproduction. "Infertile" is defined as a "lack of pregnancy after a year of unprotected intercourse.' 0 surrogacy. Zygote intralilopian transfer involves the placement of a zygote directly into the patent fallopian tube. Modem Reproductive Technology and Motherhood. supra note 1. see ing. "Gestational surrogacy" occurs when an embryo. and lesbian and gay couples. Id. Solomon Revisited. There are several types of surrogacy. The donated egg is fertilized in vitro then placed into the intended mother's womb. 5 UCLA WOMEN'S L. Using these techniques to build non-traditional family 17. supra note 19. The conceived child is then turned over to the intended parents. supra note 17. CONGRESS. 18. The fertilized egg is then placed into the womb of the surrogate. supra note 19. Id. therefore. 2 and artificial insemination by a known or anonymous sperm donor (AID). Sept. supranote 1. with an estimated twenty-to-thirty thousand children born each year from their use. these techniques were used by infertile. ASSESSMENT. 62 U. 1 zygote intrfallopian transfer (ZIFT).1625 (1994) (discussing the growing use ofARTs by "many persons traditionally excluded from parenthood. Artificial insemination by donor is the oldest and most commonly used ARTS. Some of these people have included infertile unmarried couples. CHOICES 3 (1988). (defining the ZIET process).
The UPA's purpose is to "provide substantive legal equality [for] children regardless of the marital status of their parents. and thus.. 26. at A7 (discussing the Radical Right's negative reaction to lesbian families in an interview with Kate Kendell." IExisting AID law is one way to analyze TGIVF.. The first is artificial insemination by donor and the second is surrogacy. the laws and judicial decisions addressing AID vary from state-to-state.. Two ARTs in particular are implicated in TGIVF. See Schiff.. By failing to do so. supra note 6. legislatures around the country adopted laws to define the participants' legal relationships created or extinguished by AID. see also King. supra note 6. See UNIF. An examination of the doctrine that courts use to impose some parental obligations or confer some parental rights illustrates that this approach is inadequate. A. UsingFamiy Values to ExpandLesbian Rights. See Polikoff. at 469-71 (explaining how existing family law is inadequate for dealing with the range of non-traditional families that exist today). See infranotes 96-38 (discussing the statutes addressing AID). AID and surrogacy are also the ARTs that are most analogous to TGIVF. introduced in 1973. at 344 (stating that "families of consent" created by lesbians and gay men do not generally receive legal protections). Executive Director of the National Center for Lesbian Rights).29 Although AID laws are state creations. Id.. These techniques are implicated because they involve a third party to reproduce. When a conflict arises between a known donor and the two mothers in the context of TGIVF. J. Customarily. HeinOnline -.." 25.1998-1999] EGGING ON LESBIAN MATERNHY 437 structures has created a backlash in popular culture and has tested the limits of the existing law and the judicial interpretations of those 25 laws. just as TGIVF requires a third party sperm donor to conceive a child. the realities of family formation and parenting are considerably more complex. 29. Gender Soc.. 27.. 437 1998-1999 . PARENTAGEACr § 5.28 AID occurs in the context of family law. the Uniform Parentage Act (UPA). because it involves a form of insemination by donor. 9B U. they perpetuate the fiction of family homogeneity at the expense of the children whose reality does not fit this form. Rovella. Aug..LA.NAT'L L. legal parenthood is an all-or-nothing status. See infranotes 117-42 and accompanying text 28. 287 (1987).J.27 These two potential arguments are fully explored in Part HI of this Comment. U. SeeinfraPartIll (discussing TGWVF). Polikoffstates: Although courts have gone to great lengths to provide every child with precisely one mother and one father. and to guide judges in reaching decisions when a dispute arose in the families created by AID. the known donor may base his arguments on existing statutes and case law concerning AfD and surrogacy to gain custodial or visitation rights. SeeDavid E. which is state-created.. 30. AtificialInsemination by Donor As AID became more widely used. supranote 19. Courts should design rules to serve the child's best interests.. 1997. at 538 and accompanying text (discussing the state-specific nature ofAMD and surrogacy). provides guidance to state legislators. Pol'y & L.7 Am.
§ 19-4-106 (West 1990). under the supervision of a licensed physician and with the consent of her husband. SeeKristin E. 9B U. However. STAT. LAWS ANN.ASKA STAT. ANN. where it shall be kept confidential and in a sealed file. MASS. STAT. 750 IL. It was thought useful. ANN. ANN. DOM. Re-ExpressingParenthood. See Schiff. Mo.iF PARENTAGE AcT § 5.H. Gender Soc. 321. CAL. Pol'y & L. CODEANN. § 25. COMP. CODEANN. ARK. § 168-B:3 (1994). § 9-10-201 (Michie 1993).045 (Michie 1996). UN. § 40-11-6 (Michie 1994). 287 (1987). STAT. N. and file the husband's consent with the [State Department of Health]. CODE § 7612 (West 1995). IDAHO CODE § 39-5405 (1998). SeeSchiff. 34.L. § 126. STAT. 287 (1987). FAM. "This Act does not deal with many complex and serious legal problems raised by the practice of artificial insemination. ANN. STAT. Esr. The Comment to section 5 reads. NEV. NJ. the donor may win primary custody of the child). The physician shall certify their signatures and the date of the insemination. 46. GA.7 Am. § 45a-774 (West 1998). STAT. FAN. are subject to inspection only upon an order of the court for good cause shown.. either heterosexual or lesbian.A. at 1356 (noting that in almost every case where "a donor has asserted parental rights against an unmarried woman. ANN. All papers and records pertaining to the insemination. STAT. STAT. thirty-four states have laws dealing with AID!s Of those 31. STAT. GEN. 807 (1988) (stating that when a lesbian uses a known donor. however. supranote 6. § 257. L.98 YALZ LJ. ANN. see also Katharine T.438 JOURNAL OF GENDER. LAWs ANN.32 The effect of sections is to strip a sperm donor of any parental rights and to confer those legal rights to the husband of the inseminated woman!' The UPA is silent on the issue of single women. ANN. CODEANN. to encourage sperm donation. § 40/3 (West 1993). N.L. 32. J. § 19-7-21 (1991). COMP. the husband is treated in law as if he were the natural father of a child thereby conceived. Christensen. § 40-6-106 (1997). UNiT." Id. 438 1998-1999 .061 (1995). 33. LAw § 73 (McKinney HeinOnline -. REv. whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere. to single out and cover in this Act at least one fact situation that occurs frequently. § 4B (West 1995). at 535 (explaining the purposes of the UPA). The husband's consent must be in writing and signed by him and his wife. MD.M. ANN.20. 5 Currently. ARIz. who conceive through AID. § 210. CODE § 26-17-21 (1992). supranote 2. a wife is inseminated artificially with semen donated by a man not her husband. Bartlett. § 742.Y. 85. & Tpusr § 1-206 (1997). MICH. § 23-129 (1995). REV. & TECH. the physician's failure to do so does not affect the father and child relationship. (b) The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other then the donor's wife is treated in law as if he were not the natural father ofa child thereby conceived. CODE ANN.A. ANN. COLO. REV.56 (West 1992). 4 This silence results in an uncertain and precarious legal status for children born to single 3 women through AID. Section 5 of the UNIF. STAT.11 (West 1994). SocfAL POLICY & THE LAw [Vol 7:431 Section 5 of the UPA addresses artificial insemination. STAT. FLA. the donor prevailed" and even in cases involving written agreements between donors and recipients. § 12-2451 (West 1992). N. GEN.824 (West 1996). Atificiallnseminati: In the Child sBestInterest SAE. at 585 (explaining the purposes of the UPA). 36. AI. REV. § 333. REL. U. SeeALA. MINN. CONN.2824 (West 1994). Sc. PARENTAGEAcr reads: (a) If. supra note 6. PARENTAGEACr § 5. the majority of agreements upheld in court have been those that favor the donor's claim). 293. MONT. STAT.332 (1996) (explaining that "slingle and lesbian women are more vulnerable than married women to the interference of donors because most AID statutes apply directly to married couples only"). ANN. ch. § 9:17-44 (West 1993). but is limited 3 to the context of a husband-wife relationship! ' The goals of this section of the UPA are to support the traditional nuclear family. Koehler. ANN. 9B U. and to guarantee some level of certainty and predictability as to the outcome of legal disputes.
at 9 (describing the case of a gay man who provided sperm to a lesbian couple with an agreement that he would relinquish all parental rights. 10.C. FA. Missouri. Hawaii. § 109. New York. § 151. Washington.. STAT. Utah. § 9:17-44 (Vest 1993). where the factual circumstances fill outside of those laws). § 40/3 (West 1993). § 891.050 (West 1997). REV. 5. California. CODEANN. CODE § 26-17-21 (1992). SuN-TIMES. § 26. See Schiff. traditional family Historically. sup a note 19. § 40-11-6 (Michie 1994). OR.7 Am. Indiana. STAT. Vermont and West Virginia. § 891. N. COLO. at 349 (explaining the failure of the law to respond to new family structures resulting from ARTs). Nebraska. STAT.26. MINN.D. GEN. 41 These statutes and judicial precedents are. COMp. VA. More specifically. N. WASH. Nevada. CODEANN. N. tit. e.239 (1997). ANN. 39. § 126. at 526 (explaining that courts have traditionally defined family as a relationship based on biology. STAT. Iowa. Pennsylvania. § 20-158 (Michie 1995). CODE ANN. STAT. 320 (1992) cited in King. Mississippi. ANN. after the baby's birth.M. N. § 3111. therefore. § 26. REL. at 660 (describing judicial bias and prejudice as bases for non-recognition of lesbian and gay families). These states include: Delaware. J. 750 IL. ANN. OKLA. ANN. holding that the Illinois UPA only applied to married women). § 210. Court Allows SpennDonorsPaternity ight. adoption and marriage). 43. ANN.4 parenthood have been grounded on biology and genetics. TEX. STAT.061 (1995).101 (West 1996). 40. WASH.1998-1999] EGGING ON LESBIAN MATERNITY 439 thirty-four states. § 49A-1 (1995). 439 1998-1999 .Y. § 194-106 (West 1990). CODE ANN. CODE ANN. STAT. See. which an Illinois court allowed him to pursue. NEV.40 (West 1997).g. Illinois. HeinOnline -. 38. TENN. See Schiff.37 (West 1996). ANN. U. Louisiana. Rhode Island. Sez Rochelle C. LAW § 73 (McKinney 1996). at 535 (explaining the legal treatment of AID cases in states without laws addressingAID). CENT. New Mexico. Wis. supra note 19.050 (West 1997). STAT. and Wisconsin. supra note 6. OHIO REV. STAT.40 (West 1997). CODE § 7612 (West 1995). STAT. § 551 (West 1987). 41. § 68-3-306 (1996). the District of Columbia. family law decisions regarding law also governs. Aug. the donor changed his mind and instituted a paternity action. but the factual circumstances fall outside the statute's language. thirteen have adopted laws based on the UPA37 In states that have no law addressing AID. in part due to "genetic essentialism"). supra note 13. ANN. DOM. Minnesota.ss traditional family law governs?' In states that do have laws addressing AID. lesbians seeking to create families with their partners have suffered under the current legal framework. CODE § 14-18-03 (1997). Montana. STAT. 43 There are two common scenarios that are litigated in the context of lesbian The first involvds a known sperm donor asserting families.J. WYo. South Dakota. REV. of limited use when applied to factual situations that fall outside the biological or traditional nuclear family models 4 2 These outdated laws. 1997. REV. Dreyfuss & Dorothy Nelkin.56 (West 1992). NewJersey. FAM. § 257. Gender Soc. ANN. 1996). These states include: Alabama. Wis. REV. Kentucky. see also Schiff. STAT. ANN.824 (West 1996). ANN. see also Shapiro.26. supra note 6. when mixed with the reality of contemporary family life. N. L. Mo. at 535 (explaining the legal treatment of AID cases in states with laws addressing AID. STAT. REV. South Carolina. REV. 37. CODE ANN. CHI. Maine. supra note 6. CAL. Pol'y & L. at 346 (itating that courts are hesitant to validate lesbian and gay parenthood. Thejurisprudence of Genedics 45 VAND. 42. have created a legal quagmire for judges and for non-traditional families struggling for legal recognition and protections. See King. 313. Colorado. SeALA. § 14-2-103 (Michie 1994). Bryan Smith.
See Christensen.7 Am. eg. & MED. supranote 2. the outcome of either of these situations is status. See. Robin Y. this Comment focuses on the use of AILD by lesbians and lesbian couples. and not his genetic material. 440 1998-1999 . at 1356 (describing the risks ofusing a known donor). Div. Pol'y & L." The question in the context of TGIVF becomes: How will a court treat a known donor who comes forward and asserts paternity when only the casing of his sperm. J.S. See Christensen. at 1356 (describing the outcomes of the majority of cases in which known donors assert parental rights). J. SOCLALPOLicY&THELAW [Vol 7:431 patemity. A Tal of Three Women: A Survey of the Rights and Responsibilities of UnmarriedWomen Who Conceive by Altem ativeInsemination and a ModelforLegislative Reforn. 1994) (granting an order of filiation to a known sperm donor who donated his sperm to a lesbian couple with an oral agreement that he would not assume a parental role in the child's life).Y. 45. 285.. at 350. see also King. (reporting that where the sperm donor is anonymous there is more legal protection. many lesbians choose to use a known donor for several reasons.4 7 The decisions in cases involving challenges by a known donor vary from state to state. SeeVickie L. the lesbian mother may want to have access to the donor in order to answer questions the child may have about his or her background and origin. is used to conceive a child? B. 357 (App. the lesbian mother may want to assure access to medical information to have more control over the insemination process. supranote 19. stemming from the desire to encourage sperm donation and the desire to protect the expectations of both the donor (the expectation not to fhce a paternity action) and the mother (the expectation that the donor will not assert a right to parental status)). U. Gender Soc.440 JOURNAL OF GENDER. Surrogacy The second ARTS implicated by TGIVF is surrogacy. use known sperm donors to conceive children.2d 356. v. See Polikoff. First. supra note 2. at 1356. See Christensen. 299 (1993) (discussing the non-biological mother's chances of continued participation in the life of the child after the dissolution of the relationship with the biological mother). Do Sperm Donors Have RightsZ FRESNO BEE. at 533-34 (describing the increasing number of cases concerning custody and visitation when lesbian partners end their relationship). both of these issues take on a new significance when they arise in the context of TGIVF. lesbian mothers may use a known donor with the intention of facilitating some level of interaction between the child and the donor. at El (describing a case in which a lesbian couple used a known donor who. visitation. July 20. both lesbian and heterosexual. successfully petitioned for a declaration of paternity). 46.* uncertain However. id. Although the use of an anonymous donor generally results in more legal protection for the lesbian family. supra note 2. The risk of using a known sperm donor in AID is that the known donor will come forward and attempt to claim a right to custody. 618 N. Although single women. and lesbians and their partners. 47. but they are overwhelmingly decided in favor of the known sperm donor.L. 19 AM.Jennifer Bojorquez.4 The second occurs when a lesbian couple with a child or children ends their relationship and both women assert parental Often. after the child's birth. Second.. Finally. 48. 1993. There are 44. Hehry. see also Thomas S. HeinOnline -. and/or a declaration of legal paternity of the child conceived with his sperm. supra note 6.
2d 1128 (N. In re Baby M. 49.5 The question in the context of TGIVF is: What happens when a known donor uses the analogy of surrogacy to argue for parental rights to the child conceived using his sperm casing? C. 525 A. In traditional surrogacy.O A second form is gestational surrogacy. 53. 1988).J. at 114 (defining types ofsurrogacy). Div. finding the surrogacy contract void as a matter of public policy. supra note 20. Kerian. 1987).2d at1238. Super. See In reBaby M. a. 1988). upranote 20.J.2d 1227.2d 1227 (N.1240 (N. Ct. Kerian. 537 A.7 Am. at 114 (defining types of'surrogacy). despite the contract. Chancery Division. the court affirmed the lower court's determination of custody.'9 The birth mother then turns the child over to the contracting couple and relinquishes all parental rights to the child. 441 1998-1999 .ff'd in part and rev'd in par4 537 A. The highly publicized case of Baby M involved a surrogate mother who repudiated a surrogacy contract after giving birth. a couple contracts with a woman to conceive and carry a child to term. at 114. J..1998-1999] EGGING ON LESBIAN MATERNITY several forms of surrogacy. 52. the gestational surrogate carries an embryo 2 created with another woman's egg. HeinOnline -.. The New Jersey Supreme Court reversed in part.5 Instead.-vis the child(ren) upon dissolution of their relationship-are addressed in Part III. SeKerian. at 114 (stating that infertile couples typically employ this method of surrogacy to conceive a child that is biologically and genetically related to both of the intended parents). In 1987. 51. and the legal status of the two women vis-i. Pol'y & L. American courts first tested the legality of a traditional surrogate agreement in the case of In re Baby Al" The birth mother argued that. The question emerges: How will courts deal with the competing claims of the two mothers? All three of these issues-known donors asserting parental rights based only on the donated sperm. U. enforced the contract and awarded custody to the biological father and his wife. Gender Soc. Ch. known donors using the analogy of surrogacy to assert paternity. which differs from traditional surrogacy in that the gestational surrogate has no genetic link to the child she carries 1 to term. supranote 20. Id. SeeKedan. The Superior Court. 537 A. 54. supranote 20. 50. she was the rightful parent of the child. However. at 1258. Dissolution of the Lesbian Relationshipwith Children The final issue addressed involves the dissolution of the lesbian relationship when children are born using TGIVF.J. relying on the best interests of the child standard.
56 (West 1992). Reasons for choosing a known donor include: the desire for involvement in the child's life by the donor. STAT.. COLO. 56. LAWSANN. SeeJhordan C. U. Pol'y & L.LAW § 73 (McKinney HeinOnline -.H. ANN. nor will the donor act as a parental figure to the child. see also ROB"fEON. ALASKA STAT. 46. ANN. 377 A. supra note 46. a lesbian conceives a child with no legal father. § 19-7-21 (1991). SeeKing. CODE § 7612 (West 1995). at 8 (noting the various reasons that lesbians choose known sperm donors). 442 1998-1999 STAT. Scenario One: Known DonorMakes ClaimforPaternity. STAT.045 (Michie 1996).824 (West 1996).. MICH.*5 Many lesbian couples use known 5 donors to create families. & TRUSTS § 1-206 (1997). § 168-B:3 (1994).C. Rel. Mary K. § 40-6106 (1997). C. ANN. (explaining that most states bar paternity claims by men who donate sperm anonymously). REV. COMip. App. 1986) (upholding parental rights of a known donor). STAT. 224 Cal.e sixteen have statites that address AID only in the context of 55. § 19-4-106 (West 1990). GA. STAT. See King. § 210. See id. REv.. KAN. ANN. ANN. . and the inexpensive nature of using a known donor (it can be accomplished at home without the supervision of a doctor). visitation and rights to the known sperm donor of a single woman. § 742. CODEANN. Gender Soc. at 132 (describing the many instances in which agreements are made in the context of collaborate reproduction. RELt. STAT. 57. § 12-2451 (West 1992). CODEANN. STAT. MO. C. ANALYSIS: HOW DOES TGIVF FIT INTO THE EXISTING LEGAL A. STAT. FAM. CODEANN. STAT. 1977) (granting an order offiliation. ANN." Jd.442 JOURNAL OF GENDER. See id at 288 (describing discrimination faced by lesbians at some sperm banks). Using an anonymous donor's sperm obtained through a sperm bank guarantees that the donor will not attempt to claim paternity of the child. STAT. CODE § 26-17-21 (1992). § 23-129 (1995). See id.M.2824 (West 1994).(discussing laws regarding anonymous sperm donation through sperm banks). CAL. over the mother's objections). § 9-10-201 (Michie 1993). EST. Rptr. § 333. SeeALA. 531-32 (Ct. supra note 19. MINN.COMP. § 40-11-6 (Michie 1994). supra note 17. 825 (NJ.. Visitation and/or Custody Based on Known Sperm DonorStatus This scenario typically involves a lesbian couple who chooses a known sperm donor. at349-50 (discussing the security of using an anonymous donor). ANN. N. 530. at 289. J. GEN.7 Am. § 9:17-44 (West 1993). ch. N. FLA." The legal uncertainty stemming from using a known donor is based on a lack of statutes that specifically address the use of known donors by single women. This legal assurance stems from statutes that mandate that men who donate to sperm banks must waive all parental rights. DOM. NJ. ANN.M. This is the most common scenario with traditional AID. supranote 19. 6 despite the fact that using a known donor significantly decreases the legal stability of the lesbian family. & Dom.11 (West 1994). ANN.061 (1995).Juv. IDAHO CODE § 39-5405 (1993). supa note 17. see also ROBERSrON. LAWSANN. including sperm donation). The couple would most likely have a written or oral agreement with the donor that the donor would have neither parental rights or obligations toward the child. ANN. v. § 45a-774 (West 1993). Several cases illustrate the dangers of using a known donor. NEV.2d 821. REV. Of the thirty-four states that currently have legislation dealing with AID. CONN. STAT. CODE ANN. King also observes that. MASS. § 4B (West 1995). AiZ. v. at 35152 (noting the prevalence of oral or written agreements between known donors and single women). nor any of the rights and duties that accompany legal parenthood. § 126. when using anonymous sperm from a sperm bank. N.Y. 750 ILL. Therefore. C. ANN. See Henry. the fact that some sperm banks refuse to treat single or lesbian women. MD. § 257. § 25. STAT. MONT. SOCIAL POLICY & THE LAW [Vol 7:431 LANDSCAPE? III. "[a]s yet. ARK. neither written nor oral agreements made between women and donors have been upheld as legally enforceable or binding. § 40/3 (West 1993).REv. 58.20. GEN.
OR. WYo. TENN.20.Y There also was a factual dispute over the existence of a pre-conception agreement6 The donor claimed that he and the child's mother intended to marry and that he donated his sperm in reliance on this intention. STAT.0 Unmarried women lack legal security for. ANN. Michigan.D. § 109. STAT. ANN. Oregon. Id.ANN. as well as those jurisdictions with AID statutes that do not address their factual situation. KAN.37 (West 1996). STAT. GEN. Ct. rd 67.239 (1997). GEN.2d 821 (NJ. CODE ANN.. § 40-11-6 (Michie 1994). CODEANN. REV.. MASS. STAT. CODE ANN. § 14-2-103 (Michie 1994). STAT. CODEANN. § 25. STAT. These states include: Alabama. Georgia.11 (West 1994). rd 66. § 109. Colorado. NEV.C. and Tennessee. CODE § 7612 (West 1995). ANN. 65. GA. 377A. ANN. § 68-3-306 (1996). Missouri. Gender Soc. tit.40 (West 1997). but did not wish to engage in sexual intercourse prior to marriage. REV. 1977). In this case. § 126.C.045 (Michie 1996). STAT. Mo.65 The mother denied this contention. OHIO REV. CODEANN. Esr. North Carolina. did not have an AfD statute. § 49A-1 (1995). VA. 377 A. Maryland. ANN. &Dom. § 9:17-44 (West 1993). J. GEN. Arizona.2d 821. ANN. REV. STAT. Minnesota. 61. at 469 (describing the vulnerability to paternity claims of unmarried women who use AID to conceive). WASH. STAT.56 (west 1992). CODEANN. § 49A-1 (1995).824 (west 1996). LAW § 73 (McKlnney 1996). 59. § 14-2-103 (Michie 1994). REV. STAT. The parents then broke off their relationship before the birth of the child. MICH. CODEANN.Y. IDAHO CODE § 39-5405 (1993).40 (West 1997). § 891. N. MONT. STAT. C. see also Koehler. I. 60. unmarried women using AID are expressly or implicitly addressed. CODE ANN. The court found that the couple was contemplating marriage. ANN. ANN. at 821-22. ANN. § 40/3 (West 1993). Rel. ANN. COMP. DOM. at 824. their families in jurisdictions with no AID statute. See Polikoff. Nevada. FAM. 63. STAT.87 (West 1996).v. AIz.M. Florida. ch. STAT.C. STAT. CODE § 14-18.Juv. RA. At the time of the dispute. CODEANN. CODEANN. REn LAW § 73 (McKinney 1996). N. at 332-33 (discussing the vulnerability ofsingle women who use AID). STAT. § 23-129 (1995).101 (West 1996). the father agreed to supply sperm to assist the mother in arrificial self-insemination.050 (West 1997). Illinois. COMP.66 Because there was no other man willing to take on the responsibilities of fatherhood.7 Am. MINN. CODE ANN. OHIO REV.M.1998-1999] EGGING ON LESBIAN MATERNIY 443 marriage 5 9 In the remaining eighteen states. § 257. § 194106 (West 1990). Idaho. § 742. Wisconsin. In order to conceive. Id. § 45a-774 (West 1993). GEN. Pol'y & L. § 3111. CODE § 26-17-21 (1992). C. 750 ILL. § 20-158 (Milchie 1995). N. and the father sought a court order to establish parental rights. STAT. STAT. supra note 35. ANN.2824 (West 1994). 7 The court analogized the 1996). ANN.C. Massachusetts. WIS. ALASKA STAT. N. 62.. MD. STAT. § 151. &TRusrs § 1-206 (1997). § 4B (West 1995). 46. STAT. § 40-6-106 (1997). supra note 6.Y. REV. OR. 10. in C. VA. Virginia. HeinOnline -. REv.239 (1997). See CAL. § 3111. Alaska.6 " a known donor prevailed in his paternity action.M. NewYork. New York. 443 1998-1999 .AwSANN.M. Rel. the father and motherwere dating prior to the child's conception.061 (1995). LAWS ANN. Ohio. WYO. § 68-3-306 (1996). DOM. the court held that the 6 donor should be the child's legal parent. 64. § 19-7-21 (1991). N.Juv. Id. § 333. § 891. the jurisdiction in G.J.824 (NJ. U. v. § 26. STAT. § 20-158 (Michie 1995). &Dom. New Mexico. ANN. Ct. and Wyoming. COLO. C. New Jersey. and recognition of. N. ANN. 1977).26. Kansas. § 210.3 (1997). FAM. CENT. § 12-2451 (West 1992). TENN. § 551 (West 1987). These states include: California. OKLA. Montana. REL. Connecticut. TEx. CONN. N.1 For example. WiS. See ALA.
7 Jhordan brought an action for paternity and visitation."' The court further stated that it was in the child's best interest to have one father and one mother!' The court 7 made this ruling over the objections of the child's mother. Id. Rptr. 70. May _ .444 JOURNAL OF GENDER. Id. Rptr. v. 74. CAL. 1986). Mary. 80. who inseminated herself with Jhordan's sperm. App. 69. at 28. Jhordan C. 1986) (affirming trial court's holding thatJhordan was the child's legal father). The issue becomes whether a man is any less a father because he provides the semen by a method different from that normally used. at 537-38. In In re . § 19-4-106 (West 1986). 74 The California AID statute is a modified version of the UPA and states in pertinent part that "[t~he donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived. 72. 224 Cal. The Colorado statute states. at535. Jhordan prevailed. FAM. 530 (Ct. 224 Cal.7 Am. because Mary did not use the services of a licensed physician as required by the statute. 7 is another AID case. 1989). at 531. U. 775 P.2d 27 (Colo. Id. App.7 The Jhordan C. Rptr. 77. "Ct]he donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived. 79. Jhordan C." COLO. REV."75 The court held that. stating that "[i]f the conception took place by intercourse. 71. dicta suggests that when a doctor assists an unmarried woman who used a known donor in AID. Id at 532. 73. Seeid. STAT. 224 Cal. 8 Contrary results have occurred. ajurisdiction with an AID statute. 76." The donor filed a paternity suit alleging that the only reason he donated his sperm was because the 68. involved an unmarried woman. case arose in California. Id. 531 (Ct. Id.C. she was not entitled to the statute's protection in relation to the sperm donor.7' an unmarried woman used a known donor and involved a licensed physician in the process as required by the Colorado statute. Gender Soc. there would be no question that the 'donor' would be the father. J. Pol'y & L. she would be protected from paternity actions by the known donor.. Id. v. 530.7 Jzordan C. 444 1998-1999 . 6 As a result. Mary K. 75. HeinOnline -. 78.. assuming that her jurisdiction's statute was not limited to married women. ANN. at 822. CODE § 7613 (West 1995) (emphasis added). SOCIAL POLICY & THE LAW [Vol 7:431 situation to sexual intercourse. at 533. This fwrdan C.
Crouch. 82. Ct App. App. 522 (Or. but that it did not deprive her of the statute's protection.1998-1999] EGGING ON LESBIAN MATERNiy woman promised that he would be treated as the child's father!' The court.239 (1997). Pol'y & L. 87. Id.s The statute referred to in McIntyre further provided that a donor "shall have no right. the statute in McIntyre required involvement of a licensed physician in the AID process." OR. obligation or interest with respect to a child born as a result of artificial insemination"' 8 if the sperm donor is "not the mother's husband. 1994) (holding that a written waiver ofparental rights given by a known sperm donor to a lesbian couple was valid). But see Leckie v." The court stated that if the lower court found that there was an agreement that the donor would waive all parental rights. J. 9 Based on the alleged agreement. "[o]nly physicians licensed under this chapter and persons under their supervision may select artificial insemination donors and perform ardficial insemination. 1989). Gender Soc. In mR.. remanded the case for a factual determination of whether an agreement existed between the donor and the unmarried woman.C.7 Am.2d at 28. at 35. The statute states. 92. contrary to the plain language of the statute. The decision in McIntyre v. 84. Id. Voorhies. the court held that the statute. then the donor could not maintain the paternity action. Crouch8 farther illustrates the limited legal protections afforded to unmarried women who use known donors in AID 8 7 Like the statute in In re R C. 90. See id.REv. determined that the statute was ambiguous when applied to the case of a known donor. Id. 86. 241 (Or. as applied to this 81. 775 P. 780 P.REV.260 (1997).9 The court stated that the woman's failure to use a physician was a misdemeanor. STAT. U."0 In this case.' The court concluded that the legislature must not have intended the statute to apply to the known donor situation. 875 P. Ct. 1989) (stating that it is an undisputed fact that the woman inseminated herself. at 243 (stating that if a woman artificially inseminates herself without a physician's supervision. HeinOnline -. 780 P. the woman knew the donor but 1 failed to use a licensed physician in the insemination process. STAT. § 677.. Cc App. at 242-43 (noting petitioner's claim that he donated his semen in reliance on an agreement with respondent that he would have parental rights). McIntyre v. even when the parties adhered to the statutory requirements. OR. without physidan supervision).2d 239 (Or. she commits a class C misdemeanor). Id. § 109.Y The court. 91. 445 1998-1999 . Id.2d 239. 93. 88. Id.2d 521. 89.2 The donor claimed that he had an agreement with the 3 woman that he would play a role in the child's life. 85. 83. however.
"'" The New York Court of Appeals.364 (App. See id.S.446 JOURNAL OF GENDER. 618 N.at358. (noting that appellant wished to introduce Ry to other members of his family. 1989) (discussing the New York case Lehr v. 780 P. Gender Soc. 1994). was unconstitutional. 599 N.S. 102. a state may completely bar a biological father's efforts to assert his rights to fatherhood). Both children were introduced to their biological fathers. 101. but was uncomfortable introducing Ry's mother to them). Robertson. v.'s partner). Pol'y & L.98 a lesbian couple used sperm from a known donor to conceive a child. as well as on the repeated visits between Ry and the donor that were encouraged by the mothers. the donor requested visitation with Ry alone. Sme at 362 (noting that petitioner is estopped from denying appellant the right to id. was three-and-a-half years old.. 1994). 618 N. 780 P.0 2 When the lesbian co-mothers refused. the donor filed a paternity action to attain filiation. 1993). Div. Thomas S. stating that the donor appeared to Ry as "an outsider attacking [Ry's] family. Div. 248 (1983). all three parties verbally agreed that the lesbian couple would raise the child as their own and that the donor would have no parental rights. 103. at 358.. Thomas S.2d 239. J.Y. SOCIAL POLICY & THE LAW [Vol 7:431 petitioner.S. 104. 95. The court remanded the case for a factual 97 as to the existence of an agreement. v. 99. C.2d 356. Id.'0' Thereafter. 446 1998-1999 ." When the resulting child.2d 377.S. Id. the donor visited Ry when the mothers requested that he visit her. Id. Before insemination. at 363 (noting that this was prompted by questions raised by the five-year-old child of Robin Y. Robin Y.7 Am.2d at 246 (finding genuine issues of material fact with respect to a parental rights agreement). which interpreted the case as indicating that under the Due Process Clause. 245-46 (Or. See Mclntyre. 98. refusing to give it respect. Id at 244. See McIntyre v.2d at 357. Id 96. her mothers introduced her to the donor.'0 3 The lower court denied the donor's claim. v.Y.Y.Y. Crouch. reversed the lower court's decision. HeinOnline -. 105. App. 618 N. Ry. The appellate court based its holding on the biological tie between Ry and the donor..382 (Farn. U. See id. but that the donor would reveal his identity to the child upon request of the mothers. at364. 97.'." then the statute denied the donor due process by terminating his parental rights and providing him no process by which to challenge that termination.'° Over the next several years. 100." The court stated that "if [the donor] could establish that he and the respondent agreed that he should have the rights and responsibilities 9 of fatherhood and in reliance thereon he donated his semen. however. Thomas S. depriving him of due process.S. 6 The appellate 94. Ct.2d 356 (App. 463 U. 106. determination In Thomas S. Robin Y. Robin Y.
So Steven W. a role much less than that of a father."' The lesbian couple successfully self-inseminated. 3 Civ."5 The court did 6 in reaching its decision. May 6. 3 Civ. Yolo County. v. Id. Calif.1 The lesbian couple wrote the donor a letter terminating any contact. is whether the rights of a biological parent are to be terminated . Rc. Gender Soc. See id.. 115.1993). 108. 112. at 7-8 (Super.1993). slip op. highlighting the tenuous nature of legal protections afforded to unmarried women who use sperm from known donors. Cr.Yolo County. Calif. Id.. HeinOnline -. at 2-3 (stating that Steven expressed an interest in being "responsible" for the child.. Martha Andra N."' During the pregnancy.1998-1999] EGGING ON LESBIAN MATERNHY ] 447 court stated: [I] t is appropriate to begin 'with the observation that the effect of Family Court's order is to cut off the parental rights of a man who is conceded by all concerned-the child. Id... 116. the donor changed his mind and began telling family and friends that he 2 was an expectant father. Steven W. 109. ird. [T]ermination of those rights is in violation of well established standards of due process and cannot stand. PARENTAGE Acr § 7005(b) (1995) (requiring that semen for artificial insemination be "provided to a licensed physician" in order for the donor not to be the resulting child's legal father). Pol'y & L. but that he never defined what that meant). C012456. Calif. C012456. No.1993)."3 Because the California statute governing AID requires the participation of a licensed physician in the insemination process. J.. No. Martha Andra N.atM58-59. 111. 3 Civ. (Super. 447 1998-1999 .." parties The forgoing decisions involving known donors are important for their precedential value when applied to a dispute between a known legal recognition of the relationship). C. ited in Steven W." a known donor agreed to provide sperm to a lesbian couple and to play a very limited role in the child's life. Ct. and the donor subsequently filed a paternity action. See UNIF. 110.Yolo County. slip op.at3."' Finally. at 10-11 (Super.7 Am. The appellate court based most of its opinion on determining whether denying an establishment of paternity is in the best interests of the child. 113. 3 Civ.. in Steven W.14 the court held that the donor's rights had not been not consider the intentions of the terminated. May 6. 07 The appellate court failed to consider either the oral agreement or the original intentions of the parties. The legal question. v.. No. MarthaAndra N.. v. Martha Andra N. U. No. 114. Id. v. at4-5. C012456. her mother and the court-to be the biological father. at 361 (dismissing the alleged agreement as unenforceable for failure to comply with statutory requirements). slip op. C012456. May 6. 107.
or custody. SeeSLESNIC. when released. at 611-12. rise to the same level of importance as the functions performed by whole sperm containing the genetic material of the donor in traditional AID. Id. the sperm's nucleus combines with the egg's nucleus and forms-a zygote. Because the sperm contains the genetic material of the nongestational mother. Gender Soc. Id.ZER. albeit filled with someone else's genetic material. Charles Novotny. is that which allows fertilization to occur: The enzymes contained in the head of the sperm trigger the fertilization process. McCoRmAcK. supra note 11. at which gestates for approximately nine months until birth. 118. and the sperm's role is limited to enabling fertilization. HeinOnline -. performed by his sperm casing. Pol'y & L. and Dr. NEvTON & RASMUSSEN. This argument should rarely succeed. 1 7 In an action for a declaration of paternity. visitation. the child would not have been conceived. the zygote and resulting embryo will contain 23 chromosomes from each of the two women involved. Once the sperm penetrates the egg. a known donor may cite the forgoing precedents in support of his claim. During heterosexual intercourse. at 611 (describing the fertilization process). but for his sperm casing. regardless of the presence or absence of an AID statute. The sperm head contains digestive enzymes that. GRAHAM. The donor will have to assert that these functions. The role of the sperm casing. THOMAS C. in order to win custody the donor will have to establish that the sperm casing used in TGIVF plays as important a role as the entire sperm used in traditional AID. George Osol.7 Am. the known donor likely will analogize the facts of his case to the facts in the line of cases discussed above."8 The donor will conclude that. NavroN & RASMUSSEN.448 JOURNAL OF GENDER. BIOLOGY 735 (1986). See SLEsICK. performed a necessary biological function in the fertilization process. The scenario in which the lesbian mothers and the donor agree that all three parties will play a role in the child's life is addressed in Part IV. U. BALZER. On the contrary. Id Usually only one sperm can fertilize each egg. ' leading to the creation of the embryo. because a court will not be able to conclude. SOCIAL POLICY & THE LAW [Vol 7:431 donor and a lesbian couple in the context of TGIVF. that the donor is a biological parent of the child. BAI. 448 1998-1999 . EMMEL. and changes occur in the egg to prevent other sperm from entering. This section of the Comment only discusses the scenario in which the donor and the lesbian couple disagree about the role that the donor will play in the child's life. Supra note 11. This zygote contains 23 chromosomes from at the mother and 23 chromosomes from the father. the donor will assert. 735. the donor will argue that his sperm casing. FRANCES UM. See id. The zygote develops into a fetus. See HARVEY D. SeeInterviews with Dr. stpranote 11. there will be no grounds for a presumption of paternity in the donor. LINDAE. MCCoIACK. SLOWICZEK&YAAKOV SHECH'7ER. the head and the middle section of the sperm enter the egg. To accomplish this. J. Id The egg releases chemicals that attract the sperm. In all jurisdictions. In these cases. and several thousand sperm reach the egg. In TGIVF. GOODMAN. 735. a genetic or blood test to determine paternity will reveal the donor not to be a natural parent 117. Id. however. several hundred million sperm enter the vagina. Once the sperm penetrates the egg. dissolves a path to the egg. Seediscussion infraPart IV.
the human leukocyte antigen test"). Ct. in a jurisdiction with no AID statute. at 825 (finding that a known donor can be a legal parent). shall order the mother.2d 821 (N. C.244 (Or. See id. v. v.. may order the mother.M. Ct. 1994) (holding that a written waiver of parental rights by a known donor to a lesbian couple was valid). For example.1998-1999] EGGING ON LESBIAN MATERNnY 449 of the child conceived through TGIVF. tests of red cell antigens. Crauch. See McIntyre v. the donor may cite a decision such as C. "[glenetic testing methods include. App. ME. J. 1989). but are not limited to. "[t]he court.'2 However. Rel. Ct. See id. The Leckie court distinguished this holding from the decision in Medntyre V. Most states use genetic testing through blood tests to determine paternity in cases where paternity is contested. ARiz. ag. S&4 eg. 1977). which may include."9 Upon reaching this conclusion. visitation. See.2 1 is correct and controlling. her child or children and the alleged father to submit to the drawing of blood or tissue samples for genetic testing").' A donor in a state with an AID statute that includes unmarried women may cite Jhordan C.7 Am. The outcome of any of these proceedings will hinge on the precedent in thatjurisdiction. human leukocyte antigens and serum proteins"). See i.. the donor should be declared the child's legal parent.M. Pol'y & L. 875 P. or custody.. 19-A. 122. Although the Leckie court did not reach the issue of the applicability of the Oregon AID statute.App. if one exists in that state. the courts should find that the donor waived all parental rights. HeinOnline -. Crouch. 123. red cell isoenzymes. 120.. at 824 (describing the need for a father). Mary 119. a court should find that the sperm casing in TGIVF can never be on the same level of importance as the entire sperm in AID. 377A. U. but are not limited to. STAT. In the unlikely event that a donor is successful in convincing a court that the sperm casing and the entire sperm play identical roles in the respective AID procedures. if there is no other man available and willing to accept the role of the father. See supra notes 4348 and accompanying text (describing the precarious nature of lesbian families in relation to the law). The statute further explains that. &Dom.Juv. which held that a known donor was the child's legal parent.. tit. 124. REV..2d 521 (Or. The donor will further assert that. Voorhies. the same outcome can be presumed if reached under the statute.. ANN. CODE § 26-17-12 (1992) (stating that in a paternity proceeding. he may have a valid cause of action for paternity.C0 The donor will assert that the reasoning in C. at 522. child and defendant to submit to one or more genetic tests to assist the court in determining paternity of the child.2d 239. ALA. § 1558 (West 1998) (stating that in a paternity proceeding.J. which held that the Oregon AID statute was unconstitutional as applied to a sperm donor who gave his sperm in reliance on an agreement that he would be involved in the child's life. Gender Soc. Leckie v. § 25-816 (West 1992) (stating that in a paternity proceeding the "department of economic security. REV. which states that a sperm donor who is not the woman's husband waives all claims to parental rights.'2 In the eighteen states with AID statutes that include protections for unmarried women. 780 P. provided that all the statutory requirements have been met. 449 1998-1999 . and on the AID statute. 121. ANN. existing case law illustrates that such an outcome may not be guaranteed. the court "shall order the mother. STAT. child and alleged father to submit to blood or tissue typing tests.
if the donor can prove he gave semen in reliance on an agreement that he be able to participate in the child's life. 1986). at 532 (noting that sperm was "donated personally to Mary by Jhordan") (emphasis in original).'33 In jurisdictions where the AID statute protects only married women. J. Ct. U. 128. Id."8 Finally. App."5 which held that a known donor was the legal parent of a resulting child because an unmarried woman did not use a licensed physician in the insemination process as required by the AID statute. there are several possible results if the known donor asserts paternity. C. FOR LESBIAN RIGHTS. 1989). 1989). which also applied to unmarried women. if any. Id. a known donor in a TGIVF dispute need only assert that he intended to raise the child or that he believed he would share in the parenting of the child.' Furthermore.7 Am. Gender Soc. In states that interpret the AID law to include unmarried 125.2d 239 (Or. 127. and found that a known donor could be a legal parent if there was an agreement between the donor and the woman that the donor would play a role in the child's life. even if a woman who is using this new technology fulfills all the statutory requirements. 530 (CL App. 224 Cal. 130. 126. and stated that a sperm donor relinquishes all claims of paternity. 780 P.2d 27 (Colo. HeinOnline -. he may be able to establish parental rights despite the limiting language of the statute). 131. McIntyre illustrates the importance of a pre-conception agreement between the sperm donor and the unmarried woman that states specifically what role. Crouch. 775 P."2 Additionally.C. Rptr. SOCIAL POUCY& THE LAW [Vol 7:431 K.450 JOURNAL OF GENDER. the donor may still 7 prevail if the court follows the holding in In re . Accordingly. which stated that a sperm donor waives all claims to parental rights. 129. Pol'y & L. LESBIANS CHOOSING MOTHERHOOD: LEGAL IMPLICATIONS OF ALTERNATIVE INSEMINATION AND REPRODUCTIVE TECHNOLOGIES 28-31 (1996) (describing the importance of written agreements between known donors and unmarried women in protecting the preconception intent of all parties). to raise a fhctual dispute for litigation. See id at 243-45 (discussing how.' The McIntyre court held that an agreement between a known donor and an unmarried woman superseded the plain language of the AID statute. court ignored the plain language of thre Colorado AID statute. See id. at 35." The R. a donor may rely on McIntyre v."9 which provides that a court may ignore the plain language of an AID statute requiring a sperm donor to waive all claims to paternity. at 244 (concluding that the contract between the mother and father of a child born out of wedlock may supercede a statute that mandates waiver of paternity rights). 450 1998-1999 . 132. the sperm donor will play in the child's life. See NATIONAL CTR.'3 ' Relying on McIntyre will allow a known TGIVF donor to argue that a court can find reasons to ignore the plain language of an AID statute and declare that the donor is a legal parent to the child. See id.. Id. 133.
136. STAT. § 14-2-103 (Michie 1994). U. REL. BiologicalDeterminismIn Legal Decision Making: The Parent Trap. Gerald was listed as the child's father on her birth HeinOnline -. CODEANN. and Gerald D. ANN. While still married to Gerald. Colorado. 266 (1994) (describing the law's preference for biology over intent in family matters). 491 U. J. 138. courts will most likely declare that the two women are both the natural and legal parents of a child born through TGIVF. But se generallyMichael H." In states that follow the statutory language and deny protection to unmarried women.1' The court will then be able to 134. 135.Y. STAT. 140.VA. STAT. during an adulterous relationship with him. CODEANN.'!" In many states with an AID law excluding unmarried women. and cannot be. traditional family law will govern. CONN. Oregon. see also Koehler. 750 ILL COM'. Illinois. paternity is established through blood tests. Seesupranotes 3034 and accompanying text (discussing using the UPAas guidance for analyzing the issues presented in ART situations). 139. Ohio. 265." 9 In the more likely scenario. Gender Soc. IDAHO CODE § 39-5405 (1993). Gerald D. § 20-158 (Michie 1995). notwithstanding the lack of genetic ties to that child). Carol D.239 (1997). REV. supra note 6. the family law principles governing AID are the same as the principles that govern when the child was conceived through sexual intercourse. were married. COLO. STAT. v. WOMEN & L. § 45a-774 (West 1993). § 109. at 113. NJ. New Mexico. LAW § 73 (McKinney 1996). § 9:17-44 (West 1993). § 3111. Schiff. supra note 35. In MichaelH. N. Wisconsin. New Jersey. the donor will have a stronger case for winning parental rights. STAT.37 (West 1996). ANN. ' " In these jurisdictions. 137. Courts prefer to declare that two natural parents also are the legal parents of any child. notwithstanding the statutory language to the contrary. § 19-4-106 (West 1990).S.M. DOM. ANN.7 Am. ANN. supranote 6. GEN. See CAL. Following this reasoning. § 891. STAT. Idaho. Pol'y & L. These states include: California. CODE § 7612 (West 1995). FAM. See Schiff. STAT.40 (West 1997). Se supra note 119 and accompanying text (explaining the statutory guidelines and processes that determine paternity). and Wyoming. ANN. at 539 (discussing the resolution of AID cases in states with no AID statute). § 40-11-6 (Michie 1994)..Wis. the court will most likely rely on the genetic truth that the child is the offspring of two women and declare that the donor is not.J. 451 1998-1999 . See Schiff. Virginia. N. at 539 (describing the application of family law principles to AID cases injurisdictions with no AID-specific law). See R. a 4 natural or legal parent to the child. as in most 3 others. however. Id.. § 40/3 (West 1993). "the law treats the unmarried woman and the donor as it would any two biological parents who have conceived a child out of wedlock. it will be more difficult for the donor to gain paternal rights because the unmarried woman will be protected by the statute. NewYork. WAo. The same blood tests that are used to determine paternity can be used to demonstrate that two women are the natural parents of a child. supranote 6. If this happens. ANN. STAT.REv. OHIO REV. Alta Charo. the donor will not be able to establish a level of parity between the role of the sperm casing in TGIVF and the role of the entire sperm in traditional AID.1998-1999] EGGING ON LESBIAN MAXTERNITY women. at539. OR.' s In jurisdictions without an AMD statute. Connecticut. at 332-33 (discussing the vulnerability of single women who use AID). Id. ANN. Carol became pregnant by Michael H. 110 (1989) (suggesting that a court may be able to declare a TGIVF sperm donor the legal parent of a child. 3 TEx.35 In these states.
at 508 (discussing the laws addressing third parties in custody and visitation disputes). The first challenge is for the third party to establish standing to bring the action. Id. at 508. other than a parent. 214-15 (Ct. may be implicated. NEB. Nancy S. the "primary consideration is the best interest of the child"). during which time he held himself out as the child's father. ANN. notwithstanding the parental preference. 279 Cal. 142. Id. can be distinguished from a TGIVF case on the basis that neither mother in the TGIVF family will be married to the donor. 'the law presumes that the child's best interests will be served when in the custody of its parent. Id. inability to discharge parental responsibilities. CIV. Painter v. stating that [b]efore the court makes any order awarding custody to a person . § 46(b)-57 (West 1995 & Supp. 1991) (quoting CAL. Bottoms v. accordingly. U.W. Gender Soc. Id. GEN. see also. without the consent of the parents. The second consideration is the substantive standard that the court will apply in considering the claim. The United States Supreme Court upheld the lower court's decision. like the one in Michael H.Visitation and/orCustody Based On SurrogacyAnalogy A second type of argument potentially available to a known donor who makes a claim for paternity. Id.. at 131. Carol lived with Michael. at 116. The laws governing claims by third parties for child custody or visitation vary from state-to-state. REV. 104 (Va. J. SeePolikoff. the court "shall be guided by the best interests of the child.. 1954)). or abandonment of the child(ren)). courts generally will consider any claim by the donor for visitation or custody as it would any third party asserting such a claim.g.452 JOURNAL OF GENDER. there is a "presumption of parental preference" and. 452 1998-1999 . MicAad H. Once this distinction is made and paternity is declared a legal impossibility. at 113.. HeinOnline -.1 B. SOCIAL POLICY &THE LAW [Vol 7:431 distinguish between the sperm casing and the entire sperm and. and he held himself out as her father..'" citingJudd v. 81 S. due to their sometimes divergent careers. 1998) (stating that in a custody dispute between a parent and a third party. § 42-364 (1993) (stating that to award custody to a third party. at 113-14.. CODE § 4600(c) (West 1991). Id. See id. App. However. Pol'y & L. Rptr.2d 152. Blood tests revealed that Michael was the biological father. Bottoms. Id. v. During some of their separations.7 Am.. and he sued for paternity and the right to visitation. 140 N. There are two considerations when a third party asserts a claim for custody or visitation. visitation. e. but most states have stringent standards and high evidentiary burdens that a third party petitioner must meet.E. The fact that the highest court in the United States can declare a man to be the legal father of a child when it has been scientifically proven that another man is the child's father indicates that a court may be able to reach a similar conclusion in the case ofa TGIVFsperm donor asserting paternity. 212.2d 102. Bannister. and/or custody is one certificate. at 114. STAT. supra note 6. the court must find parental unfitness. see also CONN. STAT.. Scenario Two: Known DonorMakes A ClaimforPaternity. 115-16. Carol and Gerald often lived apart.. . 156 (Iowa 1966) (holding that in a custody dispute between a parent and a third party. Michelle G. Id. 1995) (stating that "[i]n a custody dispute between a parent and non-parent. See Polikoff. a California Court of Appeals affirmed the superior court's holding that Gerald was the child's legal father. The superior court based its holding on the California statute that provides that a child born to a married woman living with her husband is presumed to be a child of the marriage. it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child."). be able to justify disparate custody decisions and visitation actions by known donors. However. neglect of the child(ren). so any marital presumption between the mothers.2d 432. Notwithstanding the fact that Michael was the child's biological father. Van Horn.E. 141.436 (Va. supra note 6. 457 S.
143. REV. Pol'y & L. 146. the gestational surrogate carries an embryo created with the egg and sperm of two people who are unrelated to her. See Kerian.291 (1995) (comparing the characteristics of blood and sperm donation) [hereinafter SolomonicDecisions]. SurrogateMotherhood Contractsin Louisiana: To Ban or to Regulate?. The statutes and case law relevant to the donor's argument are those that address 143. that a court will equate the role of a gestational surrogate and the role of a sperm donor in TGIVF. U. 144. the statutes and common law addressing surrogacy are instructive in predicting how a known TGIVF donor will fare in his action for paternity. fast. including traditional surrogacy and gestational surrogacy. See Barbara L. at 114 (explaining types ofsurrogacy). Furthermore. More specifically. 148. 147.179 (1988) (noting the differences between surrogacy and sperm donation). there are several types of surrogacy. supranote 20. L. There are important distinctions between sperm donors and gestational 4 7 surrogates that require the law to treat the two scenarios differently. is crucial and therefore deserving of legal protection. See Anne Reichman Schiff. painless. Keller. he carries the genetic material of another. like the gestational surrogate. REV. however. Seesupranote11. and without 4 risk. It is unlikely. Solomonic Decisions in Egg Donation: Unscramhing the Conundrum ofLegalM'atenify. 80 IOWAL. the gestational surrogate carries the genetic material of others. See Kerian. J. Seesupranote 11. 265. supra note 147. supranote 20. 145.1 The process of sperm donation is simple. 49 LA.1' Gestational surrogacy. 453 1998-1999 . at 179 (describing the physical and psychological risks of carrying a child in a surrogacy arrangement). the sperm donor plays the same role as the gestational surrogate.'" The donor will likely argue that in TGIVF. 149. the donor may claim that. involves a substantial time commitment and the potentially serious health risks associated with pregnancy. See Keller.14 A donor most likely will claim the following: In a gestational surrogacy situation. HeinOnline -. like that of the gestational surrogate. at 114 (defining types ofsurrogacy). He may argue that his role in reproduction. As previously noted." s Both also play critical roles in conception1 But the similarities end there. The donor's argument will be based on an analogy between gestational surrogacy and TGIVF. It is true that both the gestational surrogate and the donor sperm in TGIVF carry the genetic material of others.1998-1999] EGGING ON LESBIAN AIATERNHY 453 analogous to arguments made by surrogate mothers. If a court agrees with the donor that the two scenarios are analogous.7 Am. Gender Soc. on the other hand.'4 These physical and emotional differences should compel a court to find the two processes different enough tojustify differential treatment under the law. visitation and/or custody.
LAWS § 722. UTAH CODE ANN. 1997). REV. STAT. U. IOWA CODE § 710. REL LAW § 122 (Mcdinney 1996). Virginia.26. or visitation because he is not a genetic parent to a child bor of TGIVF. Therefore. CODE § 14-18-03 (1997). The basis of the donor's analogy to a surrogate mother is that his sperm casing contains a third party's genetic material. CODE § 16402 (1997). See id (noting that the surrogate mother relinquished "all parental rights").20-163 (Michie 1995). will not assist the donor in his action for paternity.2d 776 (Cal. STAT.000. In contrast. at 924 (noting the lack of specificity in existing surrogacy statutes). ALA. Id.32 (1994). therefore. ANN. he will rely only on those statutes and cases addressing gestational surrogacy. the most appropriate precedent for the sperm donor in TGIVF. 52 Case law addressing gestational surrogacy is. New Hampshire. N. Tennessee. custody. § 25-218 (West 1991 & Supp. Nebraska. REV. ANN. a married couple. Calvert. and West Virginia. 851 P. §§ 20-159 . CENT. NEV.C.454 JOURNAL OF GENDER. N. §§ 168-B:1 . See supranotes 140-42. 153. § 127. distinguishes between traditional surrogacy and gestational surrogacy. SrAT. however. Aiuz. § 9-10-201 (Michie 1993 & Supp. DOM. There are very few cases involving gestational surrogacy. States that allow enforceability of surrogacy contracts in some form include: Arkansas.Y. CODE §§ 26. Florida.000 (1995) (surrogacy contracts).210 . REV. HeinOnline -. resulting in a lawsuit in which the Calverts sought declaratory 150. STAT. surrogate mother). the birth mother in a traditional surrogacy arrangement is also the genetic mother. REV. REV. . § 126. supra note 1. STAT. COaMP. N. MICH.17 (1997). REv. where the surrogate is a genetic parent to the child. WASH. 154. Anna Johnson agreed to carry to term the embryo created from the egg and sperm of Mark and Crispina Calvert. several states have statutes that address surrogacy.H. relations between Johnson and the Calverts deteriorated. J. New York and Utah also prohibit unpaid surrogacy contracts. FLA.11 (1993). NEV. The states that void paid surrogacy contracts include: Arizona. ' None of these statutes. 151.'5 4 Johnson signed a contract in which she agreed to relinquish all parental rights to the child and turn the child over to the Calverts. NEB. 152."5 In return. VA. ch. 1998). Those gestational surrogacy cases where the gestational surrogate attempted to claim maternity are the most analogous to the claim a sperm donor would attempt to make in the context of TGIVF. 18 states have surrogacy statutes.045 (1997) (surrogacy contracts).590 (1998). Gender Soc. 156.D. Kentucky. CODE § 484-16 (1998). 742. and Washington. North Dakota. STAT. New York. REV. § 76-7-204 (1995). CODE ANN. § 25-21. Nevada. at 778.859 (1993).7 Am. Relying on cases and statutes that address traditional surrogacy. 454 1998-1999 § 9:2713 (West 1991).287 (1997) (surrogacy exception allowing payment for surrogacy services). the situation where the surrogate mother carries an embryo that has no genetic link to her. ARK. the Calverts agreed to payJohnson $10. Indiana. Currently. Arizona. 155.'o During the pregnancy. CODE § 26-IOA-33 (1992). KY. Michigan. Pol'y & L. CODE ANN.15-. the District of Columbia. § 199. W. STAT. ' 5 Currently. VA.'3 In Johnson. SOCIAL POLICY& THE LAW [Vol 7:431 gestational surrogacy. The most 5 influential case to date is Johnson v. Utah. Louisiana. LA.60 (1997). REV. STAT. 1993). See id (noting that the husband and wife took out a life insurance contract for the. D. See Robertson.
including the rare case in which a child's maternity is in issue. she who intended to bring about the birth of a child that she intended to raise as her own-is the natural mother under California law. at 782. the court held that Crispina Calvert was the natural and legal mother of the child.1998-19991 EGGING ON LESBIAN MATERNITY 455 judgment that they were the legal parents of the unborn child. Calvert. Calvert. Id. despite advances in reproductive technology rendering a different outcome biologically possible. Id.'57 Johnson countersued.781 (Cal. 1993) (noting that the two cases were consolidated). although both women could be considered the child's mother. 851 P. Id. when the two means do not coincide in one woman." The court looked to California's version of the UPA for assistance in deciding the case. at 779. she who intended to procreate the child-that is. (noting that "the act sets forth no specific means by which a natural mother can establish a parent and child relationship"). Gender Soc. 851 P.165 As a result of this reasoning. 162.""t The court stated that both Anna and Crispina "adduced evidence of a mother and child relationship as contemplated by the [California Uniform Parentage] Act"' Anna because she gave birth to the child. HeinOnline -. "for any child California law recognizes only one natural mother.'6 The court decided that the intent of the parties was dispositive in determining which woman was the legal mother to the child: We conclude that although the [California Uniform Parentage] Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship. See id. 160. 159. U. and Crispina because blood tests confirmed that she was the child's genetic parent6 2 The court further stated that. " 'O The court specifically declined to find that the child had two legal mothers. J. Id. Td. 166. 164.2d 776. 778 (Cal. SeeJohnson v. at 781 & n.'6 157. 158. seeking a declaration that she was the child's legal mother. the woman who donates would at be the natural mother). 161. 165. it was nonetheless helpful because it "facially applies to any parentage determination.7 Am. at 780 (providing means by which biological mothers and fathers can show parentchild relationship). See id. Id. 455 1998-1999 .'59 The court stated that although the UPA was not enacted with the intent of resolving surrogacy disputes. 163.8 (noting that to recognize a third party's parental rights would diminish a natural mother's role). 1993). Pol'y & L. 787 (noting that in an egg donation scenario. Johnson v.2d 776.
a married couple had two children during their marriage. 478. in a true egg donation situation.' 7 The hospital informed the gestational surrogate that. 174. 171. the gestational surrogate discussed the issue of the birth certificate with the hospital. who was also the wife's sister. Common Pleas 1994).Y. 70 In deciding that the gestational surrogate was also the natural and legal parent to the children.Y. 456 1998-1999 . 1994) (finding that the gestational surrogate/mother was entitled to temporary custody of the children. McDonald 67 also addressed a dispute involving gestational surrogacy. Gender Soc. in Belsito v. while the gestational mother is the woman who carries the fertilized eggs in her uterus until birth"). was not the genetic mother of the children. at 169.'" Further. Id. See McDonald v. See i (explaining further that.'6' The wife. 851 P.2d 477. See id.E.Y.'7 In preparation for the birth. she would contribute none of her own DNA to the child). although Clark was the birth mother. at 762 (elaborating on Ohio law pertaining to the parentage listed on birth certificates).. See id. the court awarded temporary custody of the two children to the gestational surrogate/mother.7 Am.'" 7 Finally. SeeMrDonal. J. we have a true 'egg donation' situation. at 761 (discussing the procedures and routines followed during the in vitro fertilization process). because 167. McDonald.456 JOURNAL OF GENDER. the hospital informed the gestational surrogate that. Pol'y & L. her name would appear on the birth certificate. 177.S. Div." The couple filed for divorce.' 4 a married couple who could not give birth to their own child transplanted an embryo created from their egg and sperm into a gestational surrogate. and we find the reasoning of the M Supreme Court of California on this issue to be persuasive. 608 N. See id. because she was the birth mother. 644 N. 168. 608 N.2d 776 (Cal. 1994). SOCIAL POLICY & THE LAW [Vol 7:431 McDonald v. the "genetic mother is the woman whose eggs are fertilized during the conception process. 1993).' stated: Thus.S. 480 (App.. U. 173. 172. Div. See id (stating that instead. with the husband having visitation rights).S. although she gestated and gave birth to both children. the couple used donated eggs that were then fertilized with the husband's sperm and implanted into the wife's uterus). Clark. Calvert.2d 477 (App. In McDonald. the birth mother is the natural mother under California law. 176. 608 N.' In the case at bar. (stating that for purposes of the court's decision. and the court had to decide whether the wife was the natural parent of the children for the purpose of deciding custody. where a woman gestates and gives birth to a child formed from the egg of another woman with the intent to raise the child as her own.2d 760 (Ohio Ct. relying onJohnson v. HeinOnline -. . Under this reasoning. 175.2d at480 (internal citations omitted). the court. 170.
the court stated that "as a matter of public policy. This concept should be recognized and applied to the identification of the legal parent of a child delivered by a nongenetic-providing surrogate. Id. 187. See i& (explaining that the child to be born would be recorded with the last name of the gestational surrogate). 184. and the stability of the parent-child relationship.s The court stated that "[b]y formulating the law in this manner. 644 N. the child would be considered illegitimate. Common Pleas 1994) (stating that the birth certificate would then reflect the "legitimate" status of the child). 644 N. further. which reflect the recognition that someone other than the natural parent may assume the legal status of a natural parent). at 765 (discussing the difficulty of proving intent).2d 760." 9 The Belsito court rejected the intent test articulated by Johnson v. ' possibility that. at 766-67. 185. and. Clark.8 The court reasoned: The law must recognize the reality that the surrogate who did not provide the genetics of a child may wish to be the legal parent. 180. that it contravened two important areas of public policy. 776 (Ohio Ct Common Pleas 1994) (stating that "[t]he law must recognize the reality that the surrogate who did not provide the genetics of a child may wish to be the legal parent").E.7 Am. However..'. 179. are used in determining parentage. 1993). J. 186. in some circumstances. 457 1998-1999 . the gestational surrogate may want to take on the role of the natural parent. See Belsito v. 181. The birth test becomes subordinate and The Belsito court also addressed the secondary to genetics. 851 P. Id.2d 776 (Cal. they are no longer equal. Pol'y & L..1998-1999] EGGING ON LESBIAN MATERNITY 457 she was unmarried. genetics and birth. U.E. SeeBelito 644 N."' Finally.. Id. both tests. Gender Soc. the married couple sought a declaratory judgment that they were the natural and legal parents of the child and to have their names listed on the child's birth certificate."' a Second. (pointing to state adoption laws. children.2d 760.' The court opined that theJohnson intent test was difficult to apply. the state will not enforce or encourage private agreements or contracts to give up parental rights. Sez id.. It should be applied when the 178.'"' First.' As a result of this information. (discussing how the adjudication of adoption prevents later challenges to the rights and interests of both parents and children). at 767. See Belsito v. Calvert. See id.2d at 764-65 (citing tojohnson. HeinOnline -.E. Clark. the court stated that the public policy behind the state's adoption laws strove to protect mothers. and public policy regarding parental tights and adoption law). the court rejected theJohnsom intent test because of its "failure to fully recognize the genetic provider as having the right to choose or to consent. 182. the Belsto court articulated a new test-one that considered both genetics and gestation. After rejecting the Johnson test. See id. 183. 762 (Ohio Ct.
Gender Soc. at 293.88 After explaining these tests.1 2 Further. Polikoffstates that.2d 776. a person must intend to bring about the birth of a child and intend to raise the child as his or her own). See Polikoff. 193."3 Finally. U. the donor may first assert that. supra note 46. 458 1998-1999 . the court decided that. 1993). if one exists. at 782 (holding that to be considered a natural parent. given the scientific reality that the child is the natural. or visitation in the context of TGIVF may cite the foregoing line of cases in support of his claims. Calvert. 851 P. if a child is "delivered by a gestational surrogate who has been impregnated through the process of in vitro fertilization. If he relies on the Johnson precedent. 1993) (finding that the genetic and "intending" mother was the natural mother). It must apply only with consent. 781 (Cal. which usually 188. Even in states with laws governing sperm donation. "courts have gone to great lengths to provide every child with precisely one mother and one father. the nongestational mother by her genetic contribution. 9 ' he should be declared the child's legal father. SeeJohnson v. a child cannot have two mothers under the law. SeeJohnson v. there are three possible parents as a result of TGIVF.458 ' JOURNAL OF GENDER. See id. 782 (Cal. "case law demonstrates that the courts will interpret the statute in such a way as to facilitate thejudicial search for one mother and one father.2d 776. the genetic parents. A second argument that the donor may offer is. Pol'y & L. because public policy mandates every child have two parents. J. custody. according to the California Supreme Court.7 Am. the donor may assert that. genetic child of two women. Calvert.'8' A TGIVF sperm donor asserting paternity. who' were also the intended parents. SOCIAL POLIGY & THE LAW [Vol 7:431 gestational surrogate wishes to raise the child she has delivered. See id (clarifying that under Ohio law. at 469." Id. This interpretation ofJohnson is not likely to succeed.'9' Further. and the sperm donor by his biological contribution-the Johnson precedent still mandates that a court finds only two of those three parents to be the legal and natural parents." Henry. preferably one mother and one father. as with the facts in the Johnson case. of the genetic parents. supra note 6. under the Johnson test. or waiver of consent. were the natural and legal parents of the child carried by the gestational surrogate. 190. Id 189. on the facts of this case. HeinOnline -. 191. the donor would face the challenge of overcoming the statutory language of the state's UPA. at 469-71 (explaining how existing fanily law strives to provide every child with two parents). Even if a court finds that there are three possible parents-the gestational woman by her genetic and birthing contribution. the donor would have to show that the pre-conception intent of all three participants was that the donor play the role of a parent in the child's life. the natural parents of the child" are those providing the genetic makeup of the child). however. 192. 851 P.
200. Gender Soc. the reasoning behind the court's holding in McDonald-that the birth mother was also the natural mother even though the couple used a donated egg1 -.. Seeid. the donor will have a difficult time overcoming the scientific fact that the two women are the genetic parents of the TGIVF child. Div. See McDonald v.2 2 even if that sperm later 194.781 (Cal. he. J.2d 760 (Ohio Ct. 199. Clark.2d 776. which held that a gestational surrogate was also the natural and legal parent of the child. The important differences between gestating and birthing a child and donating sperm. 459 1998-1999 .7 Am. because a gestational surrogate may sometimes assert the role of natural parent. but instead intended to relinquish all parental rights.S. 94 The donor may assert that the McDonald case. Belsito v.1998-1999] EGGING ON LESBIAN MATERNnY declares that a sperm donor waives all claims to parental rights. 198. he will cite the court's statement that. [sperm] donation. in TGIVF women use sperm in the context of a true sperm donation. Id.9 s compels a court to find that he is a natural and legal parent to a child born of TGIVF.. should be able to assert that role. 21 Again. See supranotes 36-38 and accompanying text (cataloging those states that have a UPA statute. in some circumstances. Pol'y & L. analogous to the McDonald court's "true. and accompanying text (discussing the differences between HeinOnline -. the donor most likely will analogize his position as one carrying another's genetic material to the position of the gestational surrogate.. However. this simplistic reading of the McDonalddecision will rarely convince a court to find for the TGIVF sperm donor. the gestational surrogate will want to take on the role of the natural parent. He will state that.2d 477. Saesupranote 11.at 767. 1993)).should compel a court to hold against the sperm donor. genetics supersedes birth in determining parentage2 00 Therefore. McDonald. The donor will need to distinguish much about the Belitd' holding in order to make a legitimate argument. 851 P. and stating that traditional family law governs in cases where the facts are not governed by the UPA statute). 97 Finally. those states that do not. too. Instead.2d at 480. 195. while simultaneously assuming that the sperm donor did not intend to raise the child. 197. So Kerian. 201.Y. Under the Belsito test. Common Pleas 1994). supra note 20.""" in which a court assumes the two women intend to raise the resulting child.E. 1994) (following the intent reasoning ofJohnson. If the donor somehow meets this challenge. U. 480 (App.S. In the case of a TGIVF dispute. the gestational mother is also a genetic mother. 644 N. SwMcDonald 608 N. 196. 608 N. See id 202.
In a second-parent adoption.. C. Florida and New Hampshire. 628 A. See id. the non-biological co- parent adopts her partner's biological child. REv. § 170-B:4 (1998) ("[A]nyindividual .E. at 300 (explaining that no existing AID statutes address the rights of non-biological co-parents of unman-ied women."). 207.B. See FLA. J. Belsito. 20 7 However. the nonbiological co-mother has no legally protected relationship with the surrogacy and sperm donation). there are few legal protections for the non-biological mother. Two states.H.. ANN. the biological mother does not relinquish her parental rights. Currently. SOCIAL POLICY & THE LAW [Vol 7:431 contains the genetic material of another. in those states and jurisdictions that do not offer second-parent adoptions. supranote 46... 401 (N.E.V.. at 54. 644 N.7 Am. ANN. the court's disclaimer in Belsito. However.042(3) (West 1997) ("No person eligible to adopt under this statute may adopt if that person is a homosexual.392 (1996).E. see also NATIONAL CR.L. In reB.B. § 63. 1993) (holding that joint adoption by lesbian co-mothers was in the child's best interest and that the legal rights of a biological motherwould not terminate upon the adoption of the child by a second mother). when a lesbian couple with children dissolve their relationship.2d at767. HeinOnline -. 203. ban lesbians and gay men from adopting. 375. Finally. sup-a note 133. 54 at (defining second-parent adoption). App. See In reDana G. FOR LESBIAN RIGHTS. that the gestational surrogate will be able to raise the child as a natural and legal parent "only with 3 consent. TheDiberateConstructionofFamilies Without Fathes: Is It an Optionfor Lesbian andHeterosexualMothers. & E. including lesbian co-parents). supranote 133."). of the genetic parents. N. In reTammy.460 JOURNAL OF GENDER.2d 397.""° most likely will prove fatal to the donor's claims. The child therefore has two legal mothers. or waiver of consent.V..2d 315. LESBIANS CHOOSING MOTHERHOOD. will most likely convince a court that this type of argument by the donor is not legitimate. Nancy D.Y. and Vermont. 321 (Mass. STAT. 1275-76 (Vt. 1993) (holding that lesbian genetic mother's children could be adopted by her partner without terminating her parental rights where they comprised a family unit and it was in the children's best interests). 204. 205. supranote 46. See Henry. 36 SANTA CLARA L. Polikoff. Pol'y & L. 460 1998-1999 . U. 2 "Second-parent adoption solidifies the parental status of the nonbiological parent who would otherwise be a legal stranger to the child.. Scenario Three: Dissolution ofa Lesbian Couple With ChildrenBorn Through TG1VF Currently. REv. nota homosexual may adopt. and dozens of jurisdictions permit second-parent adoptions. at 54. the adoptive mother has the legal guarantee of custody and/or visitation based on her status as a legal parent to the child. LESBIANS CHOOSING MOTHERHOOD. Gender Soc.2d 1271. Massachusetts.21 Some jurisdictions allow second-parent adoptions that bestow full parental rights and obligations upon the non-biological 5 lesbian co-parent. Ct. 206. See Henry. regardless of the intent and conduct of the parties. 619 N. see also NATIONAL CTRL FOR LESBIAN RIGHTS. 17 states. 660 N. at 297 (explaining the legal protections created by secondparent adoptions). 2 Upon dissolution of the relationship.L. 1995) (finding that lesbian co-adoption of partner's genetic child comported with public policy of adoption statute and that genetic mother's legal ties needn't be severed for secondparent adoption. STAT. including New York.
279 Cal.1998-1999] child. When a non-biological mother. 252 in (1996). A. the non-biological co-mother is denied custody and visitation with the child she helped bring into the world.. she has notfared well in the courts. § 665 (1996) (stating that when parents cannot agree to divide parental duties. that the biological mother of children born during a lesbian relationship was the only legal parent to the children.v. Broward County. even one who participated in the decision of the biological mother to conceive by AI[D]. NAT'L LJ. 471 N. 829 P. Therefore. at 534-35 (explaining the state by state nature of family law). No.. 209. In re ZJ. STAT. L &Soc.B. A060829 (Cal. Gender Soc. Aug. visitation. ag. 1991) (holding v. supra note 46.") (internal citations omitted). 87-24926 DA (Fla. at A6 (stating non-biological co-parent has standing to bring claim for visitation rights). even if that termination is against the child's best interests. lesbian co-mother did not have standing to petition for visitation). See also. 1992) (holding that a consent decree outlining the shared parenting that was entered into by a biological and non-biological coparent upon dissolution of their relationship was enforceable according to the child's best interests).Y. v..* TGIVF guarantees both mothers the right to visitation and/or custody upon the dissolution of their relationship because both are biological and genetic parents to the child. MONT. Cir. CODEANN. C. Virginia M..2d 651. 664 (N. Pol'y & L. and Gay and Lesbian Parents CoalitionInternational Supportof Respondent-Appellee. REV. Sonoma County). MnCH. 4.COMP.U. Gay andLesbian Advocates andDefender. Texas Court Says She May Sue for Visitation. Ct. 211 (Wis. 210. Ct. 208. Robin Y: BriefAmicus Curiae of the National Center for Lesbian Rights.2d 202. laws addressing the issues of child support. v.App. thatjoint legal custody is in the best interests of the child"). at the request of either parent. Polikoff. sues for visitation. ANN. Rptr. See Schiff. eg. § 518. Alison D. HeinOnline -. J. Georgia P.. 655 (1992) (holding that a non-biological. 213-14 (Ct. custody.Y. 1991) (holding that the nonbiological and non-adoptive co-parent lacked standing to petition for visitation and declaring the child's adoptive parent the sole legal parent. the court "shall use a rebuttable presumption . 212.C. the court "shall award parental rights and responsibilities primarily or solely to one parent"). visitation and custody vary from state-to-state. Henry. 22 N. 31. supranote 6. supra note 19.7 Am. Kerry B. U. 461 1998-1999 . and child support will be decided by state laws governing 2 such matters. Because family law is state-created. MINN. Nos. Ct... Ct. 1989) (setting aside adoption by maternal grandparents of a child born through anonymous AID after the biological mother died and instead granting custody to the non-biological co-parent) cited in Nancy D.23 EGGING ON LESBIAN MATERNITY In many cases.W. considerjoint custody under the best interests of the child standard).. See also Kate Thomas. aff'd Nos.2d 660. 77 N. Lambda Legal Defense and EducationFund. at 362-63 & nn. and that any contact between the children and the non-biological comotherrequired consent of the biological mother). at 299 (stating "the non-biological mother has little legal recourse if the biological mother terminates the non-biological mother's relationship with the child.H.. " As a result. VT. § 40-4-212 (1997) (directing the court to determine custody "in accordance with the best interest of the child"). 213. 15. notwithstanding a written agreement between the co-parents that both would share parenting in the event of the dissolution of their relationship). But see In reKristinJanine Pearlman.197581 (Cal. 1997. LAWS § 25.. App. 31.17 (1992) (mandating that upon request of either parent. tit. Michele G. Lesbian Lover Wins Standingas a Parent. Mar. Jan. A059817. Sep.312(6a) (1994) (mandating that in custody disputes the court shall inform the parents about joint custody and.I. v. 197577... both mothers will maintain their parental roles in the child's life. STAT. App. Thomas S. 1994) (unpublished opinion) cited in King. CHANGE. Center Kids.150-57 (holding a written agreement between the biological and non-biological co-parents void and declaring the biological mother to be the sole legal parent of the child). Sup. Nancy S..
215. at 483. This three-parent family should only be recognized and protected if the two genetic mothers intend to create such a family. Common Pleas 1994). supranote 148. the intent component comes from the mutual intent of the two genetic mothers who desire to have the sperm donor play a role in the child's life as a father or other adult figure. 2 Granting this decision-making power to the two genetic mothers assures that their intentions will be realized by precluding intrusive actions by the donor.". 462 1998-1999 . 644 N. See supranotes 190-91 and accompanying text. 214.2d 760 (Ohio Ct. Given the historical deference to biology over intent. Clark. Polikoff. Polikoff rightly states that "[t]he law must develop a new definition of legal parent to solve [judicial] inconsistencies and uncertainties.E. the law should recognize a TGiVF-created family with two legal parents-the two mothers-and the children. 212. 1989). 213. RECOMMENDATIONS State legislatures and courts should embrace TGIVF as a valid method of family formation. C. See McIntyre v. J. SOCAL POUCY & THE LAW [Vol 7:431 IV. " A modified Belsitd ' s test may be envisioned to determine when these three-parent families should be protected. 216. 780 P. This Comment suggests two alternative family forms that should be recognized as a result of TGIVF. SeeCharo. App. should be recognized by courts in all jurisdictions. at 266 (stating that "public policy and the law frequently use biological categories and an unthinking preference for whatever is 'natural'. HeinOnline -.7 Am. Pol'y & L. courts and legislatures most likely will have difficulty invalidating the TGIVF family with two genetic mothers and their child2 " Therefore. see also supra notes 86-97 and accompanying text.. this form of TGIVF family .2d 239 (Or. Instead of using the two-tiered Belsito test." Solomonic Decisions. "). Crouch. A parent under this new definition would be the child's parent regardless of how many other parents the child has or what sex those parents are. supra note 6. This three-parent family will be based on biology. Schiff further comments that "the pre-conceptlon intentions of the parties should be respected. Courts have been reluctant to recognize either families of intent or 2 families with more than two parents. First." and "that enforcing pre-conception intentions may require the law to expand traditional notions of what constitutes a 'family. Gender Soc. genetics. sutrranote 140.1 3 Gaining judicial recognition and validation of the TGIVF family that seeks to include three parents will be more problematic than gaining judicial acceptance of the two-parent TGIVF family. and the sperm donor likewise agrees and intends such a family. U. Second.' to mirror more accurately the reality that children today may have more than two biological parents. Belsito v. The genetic component comes from genes of the two women. and intent. which 211. the law should recognize a TGIVF-created family with three legal parents-the two genetic mothers and the sperm donor. Finally. The biological component comes from the 'role played by the sperm casing that contains the DNA from the non-gestational mother. at 267.462 JOURNAL OF GENDER.
' 8 The intent should be manifested in a binding preconception agreement involving the two mothers and the sperm donor. by extension. Gender Soc. these families were often families of intent.21 V. See infra Part V (discussing the lesbian and gay community's efforts to convince courts to recognize families of intent).'2 0 More specifically. No second-parent adoptions or written co-parenting agreements are necessary. The second inquiry into genetics would only be 9 triggered in the event of a dispute among any of the parties. but places the birth subordinate to genetics. See id. TGIVF offers this option through the traditional means of birth. The families that lesbians and gay men fought for were not usually based on genetics. in deciding family law issues to recognize their families.1998-1999] EGGING ON LESBIAN MATERY 463 considers both genetics and birth. Seesupranote 11. it still is important to argue that fhmilies of intent be recognized. the number of parents and who those parents are. In this intent-genetics test. CONCLUSION TGIVF is just the latest in a growing number of reproductive technologies. For lesbian families that desire a non-traditional. However. but places intent over genetics. Both of these TGIVF family forms represent a step forward in the struggle for recognition and protection of lesbian and gay families. at 527-43 (discussing the work of the lesbian and gay community to gain recognition of lesbian and gay families). On the contrary. 219. the birth testis secondary to genetics). supranote 6. the genetic tie between both mothers and the TGIVF child might guarantee an additional level of legal protection. 463 1998-1999 . U. 221. The determination as to parentage. Fighting for recognition of the three-parent TGIVF family is especially important because of the potential threat that TGIVF poses to the lesbian and gay community's work concerning family issues. Pol'y & L.22 217. due to the deference given to genetics by courts. not only the historically recognized bases of biology and genetics.at 767 (explaining that although genetics and birth tests are used in determining parentage. Suggesting that intent supersedes genetics attempts to further the struggles within the lesbian and gay community for legal recognition of families of intent. three-parent family. Since the 1980s. provided that courts meet the challenge of expanding what is considered a "real" family by the judicial system and. 2" a court considering a three-parent family should apply a two-tiered test that takes into account genetics and intent. by society as a whole. HeinOnline -. 220. J.7 Am. the first inquiry is whether all three parties intended and agreed to form a family and parent the child. TGIVF offers this option. See infra Part V. would realize the pre-conception intent of all three parties. Id. Id. 218. Although the easier argument may be to advocate genetics over intent. SeePolikoff. For lesbian families that desire a twoparent nuclear family. and they faced the challenge of convincing ajudiciary to consider intent. TGIVF provides a legally secure family for lesbian mothers. lesbian and gay families have fought legal battles to gain recognition and protection of their families.
and children from previous marriages or relationships as only one of the many recognized and protected family forms. U. Gender Soc. SOCIAL POLICY & THE LAW [Vol 7:431 TGIVF'should not become the only judicially recognized form of lesbian families simply because it represents the genetic model that the courts are so comfortable in recognizing. HeinOnline -. TGIVF-created families should represent a stepping stone into the future of legally recognized. Pol'y & L. TGIVF should stand with adoption. nontraditional families. Instead. J. at 266 (stating that "public policy and the law frequently use biological categories and an unthinking preference for whatever is 'natural'" in deciding family law issues).464 JOURNAL OF GENDER. supra note 140. See Charo. 222.7 Am. 464 1998-1999 . TGIVF should not narrow the family options of lesbians by compelling those lesbians who want children to use TGIVF and no other method. AfD by known or anonymous donor. TGIVF should represent only one of several ways by which to gain a legally recognized and protected family. To limit lesbian family options by requiring that TGIVF be used to trigger legal protections would be a step backwards in the struggle for the recognition of lesbian and gay families.
.................... To replenish its diminishing ranks....... 11.............1 million members................. adult content films and sexually oriented interactive games on CD-ROMs at $300 million a year. Gender Soc............ just 14 percent of the work force........ Control................ See Kieran Murray........... APPLICABLE LAWS ... 465 1998-1999 ...... 2 it is logical that * HollyJ................ PROFESSIONAL EXEMPTION ..... IV.........1 billion a year.................. B...........CIO) now vows to actively recruit women.............. and pay-per-view TV and "gentlemen's clubs... who make up approximately 40% of the nation's trade union membership................. Union membership has declined steadily since the 1960s and last year fell another 159........................... P....NAKED FEMINISM: THE UNIONIZATION OF THE ADULT ENTERTAINMENT INDUSTRY HOLLYJ......... CONCLUSION ................. INTRODUCTION With the power and membership of labor unions dtclining every year' and the popularity and revenue from adult entertainment products and services rising at astronomical rates.................................. 465 471 477 A..................... 1..7 Am........000 to 16.. Wilmet is currently an associate with the Law Office of Joseph D.... V.C............ cable................................ WILMET I... U...... 19........ D...... ANALYSIS ..... DwindlingLabor Unions RruLit Women..... Apr.................... INTRODUCTION .. TMIt....................... Revenues from the legal adult entertainment industry are conservatively estimated at at least $10 billion a year and include home video sales and rentals at $3. J................... IntegralPartofEmployer's Business........................... which concentrates its practice in labor employment discrimination and civil rights law.............................................. H.................................... in Washington.......... the American Federation of Labor-Congress of Industrial Organizations (AFL...... at 9. Wilmet received a Bachelor's degree in political science and Russian studies at the University of Southern California and aJuris Doctorate from the Washington College of Law at American University..... C..............." upscale strip HeinOnline -.C..................... Relative Investments ..... Skill andInitiative........ D... 1998................ Permanency of the Relationship.... OpportunityforProfitandLoss ............................. F................................. Gebhardt........... E.... satellite.. internet services.............. Pol'y & L............... 477 486 486 488 488 492 494 494 I............. CHI................. 2........
5 Nevertheless. peep shows. at 1A. creed.466 JOURNAL OF GENDER. LAS VGAS REv.4 but they want to be organized. N.htnl> (explaining how strippers went from no recognition to union contact ratification). See Kuntz. Telephone Interview with Paul Bales. however. customer interaction and/or customer satisfaction ."Organizer/Dancer at the Lusty Lady (Apr.. employee returns to work within one week or stated return date. Objects and Principles 3. disability. 4. unlike most workers who are clubs offering tuxedoed doormen. II. at 7. Dec. In early 1996.. and trust. turn its attention to one of the last unorganized and disenfranchised groups of workers in America: adult entertainers Not only are adult entertainers appropriate for union organization.. Sept.. May 12. began organizing themselves in an effort to persuade club management to remove the one-way mirrors in customer booths that allowed customers to clandestinely photograph and videotape dancers.. see also Telephone Interview with "Jane. J. no significant weight gain or loss).4. age. and stock options traded on NASDAQ.. 4. to family/personal leave. Cal.org/Edjust-piec. club-by-club basis. Exotic dancers' unionizing efforts date back td the 1940s when the American Guild of Variety Artists (AGVA) individually represented a large number of dancers through recognition agreements.) 1998 (on file with author). the dancer's appearance has not changed materially since she started her leave (i. Alaska. BOSTON GLOBE. The relationship between AGVA and dancers ended abruptly in 1973 when a federal court first declared nightclub performers to be independent contractors. San Francisco Strippers Enjoy Union Coverage. Pol'y & L. and adult bookstores. when she expects to return. without AGVA's assistance. in the early 1990s at Pacer's. TImES. benefits and job security. Since then. Skin Trade SpreadingAcrossU.1998). NoJustice.Se aso Wis. The mission of the AFL-CIO includes: "To aid workers in securing improved wages. national origin. 14. valet parking. and working conditions.200 more traditional strip clubs. offensive.6 But.. and the hiring of dancers who would notjoin the union. Group organizing efforts started up again.. the product of which they feared would begin appearing on the Internet or on bootleg videos without dancer permission or financial gain. High Tech Finds Boonfor$I061ndusty. Southern California Chapter (Apr. 10.bayswan.. religion. NEWSLErraa 10 (Exotic Dancers' Alliance.000 a week. the Lusty Lady dancers' first collective bargaining agreement secured for them the right to be treated by management "vith dignity. 1997. Cal. U. SOCIAL POLICY & THE LAW [Vol. protection and advancement. respect. In what is generally representative of the working condition demands of most strippers. San to one paid sick day... at 7 (discussing the first union contract in the nation covering workers in the sex trade). based on scheduling considerations. courtesy. 466 1998-1999 ... . or hostile work environment. No Pice (last modified June 12. in writing." to 'just cause" dismissals which include "[e]mployer's opinion regarding employee sexiness while performing.. which bring in over $100. Id. to promote the organization of the unorganized into unions of their own choosing for mutual aid. art.". due largely to managements misinformation.e. 3." AFLCIO CONsr. organizing efforts have begun in Hollywood." to be free from "an intimidating. 1998).Jane. not to mention revenues from the over 2. See Martha Irvine. STATEJ.S. Pa. 5. United OrganizedLabors Red-Light Beacon. NewJersey. strip club. provided that "the Eelmployer approves . to encourage all workers without regard to race. 20.." to a guaranteed HeinOnline -. the employee states. 1993. a San Diego. and some provinces within Canada. 1997) <http://wv. supra note 3. Apr. and standard contracts for minimum wages on a dancer-by-dancer. X-rated theatres.J. Cal. 1. Massachusetts. Anchorage. or sexual orientation to share equally in the full benefits of union organization. Those efforts were short-lived. to be free from the arbitrary docking of pay for missed meetings and sick days. 7:465 organized labor would. atAl. employee has no additional tattoo or piercing.. 1996. Gender Soc. Executive Director of AGVA. at some point. strippers of the Lust Lady peep show in San Francisco.1997. casual engagement contracts. the dancers voted to decertify the union in 1993.. Dancers of a Tawdy World. Francisco. organized labor has all but turned its back to the exotic dancers and pornographic movie actors seeking assistance in securing minimum wages. 6. threats.7 Am. sex. hours.Y. See generally Tom Kuntz. See Anthony Flint. color. Cal. Philadelphia.
"9 So why then. MILWAUKMEJ. supra note 5. Unsurprisingly. The Lusty Lady dancers. Inc. Nov. In the cases of dancers in Philadelphia and Anchorage the situation was much worse. SENTINEL.note 5 (contract on file with author). Not CoveredStrippersReject Chane to Form Union. 8. a hiring cap on the number of dancers employed at a particular time. 1998). is entitled to set standards for admission so long as those standards are not constitutionally forbidden. won't these labor pay scale ranging from $12. work three days (or collect three vouchers) as an extra on approved shows. Id. Service Employees International Union. the benefits increased to include up to four paid sick days (based on hours worked) with no monetary penalty for additional sick days. the International Brotherhood of Teamsters. time and one-half pay for New Year's Eve. the Screen Actors' Guild (SAG) is the major representative for movie actors. supranote 3. initially agreed to represent the dancers. The Lusty Lady and Local 790. NLRB. when they inexplicably abandoned the effort and the dancers. 4. the Alaska Exotic Dancers' Union." Telephone Interview with Tor Brawley.00. extra pay for working in the Private Pleasures/talk dirty booth at 50% of gross receipts. Id. petition the NLRB for approval. Those charges were eventually dismissed by the NLRB for lack of cause. a San Francisco-based advocacy group. availableat 1997 WL 3636315. at B5. was denied Guild membership. Irvine. In Anchorage. The Teamsters agreed to represent the dancers of the Showboat Show Club. J.00 per hour for new hires to $21.26. a guaranteed pay scale of $22.7 Am. Gender Soc. 21. and had gone so far as to collect signature cards. to a grievance and arbitration procedures. plus tips.1998. which the employer can increase to $23. right to the door marked "Screen Actors' Guild.. 7. Pol'y & L. with a membership of nearly 90. or be a member of an affiliated entertainment union. Sunday through Thursday. SeeJane. prior to being eligible for membership. and their biggest coup. and begin a campaign.00 per hour for dancers employed 31 weeks. persuaded Local 790 to represent them. and with their assistance. 4. Ms. Id. May 4.. See Its the Naked Truth. TMms. At the Oakford Inn in the Philadelphia suburbs. Friday and Saturday". and as a result filed charges with the National Labor Relations Board (NLRB) against SAG for discriminatory and arbitrary denial. Dancer/Organizer of the Showboat Show Club (Apr. and the effort failed. to remove the one-way windows. to pay for dancers who undertake the "selecting. Id. purchasing. who sought out Service Employees International Union (SEIU).000. as a private organization. SeeJane.00 . cashiers. Valdes seemingly did not meet SAG's standards for admission and now has little recourse because SAG. ratified on April 4.1997 (on file with author). provided that it is "taken before midnight. In November 1996. Porn Actress Takes Case to NationalLabor Board uims: PerformerFilesComplaintAfter Getting Cold ShoulderFrom the Screen Actors GuiI4 LA. Office (Apr. As its name suggests. and before 1:00 a. and support staff [bouncers. but Local 790 had an informal affiliation with the Exotic Dancers' Alliance. SeeJane. at5. 30. initially encountered resistance from the union. to paid 15 minutes preparation time. As a result of diligent efforts on the part of the dancers' organizer. ratified Apr. in mid-campaign. and janitors] to receive two 15-minute paid breaks and one unpaid 20-minute lunch.supranote 5.1998-1999] NAKED FEMINISM customarily approached by union organizers7 these adult entertainers have had to go door-to-door at the AFL-CIO in an effort to find a union willing to represent them. to 10-minute breaks every 40 . In their second CBA. See Collective Bargaining Agreement (CBA) between Multivue. AFL-CIO.1997.50 minutes on stage. supra note 5. and a 30-minute lunch break. Alaska Exotic Dancers' Union. AFLCIO. SAG is under no legal duty as a labor union to accept everyone seeking membership. in the por actress's case. 1997. and programming" of music. an independent union. supra. schedule an election. U.8 or. requiring applicants to either work on a project financed by a guild signatory (usually a major movie studio or production company). 8. Dalny Marga Valdes. Oct. HeinOnline -. Telephone Interview with attorney. star of more than 70 X-rated films. but they suddenly abandoned the dancers mid-campaign.00 per hour. to time plus 1/10 pay for working New Year's Eve. TtuLSAWORLD. warning organizers "not to call back. sought out and initially affiliated with the Teamsters. 467 1998-1999 .m. Dade Hayes. Id. 1998) [hereinafter Brawley Interview]. the Showboat's dancers informally affiliated with the Hotel Employees Restaurant Employees. the dancers failed to get enough votes to certify the union. Local 790 for representation. Southern Cal.1997. see also Kuntz. and AFL-CIO. It operates as a closed union. 9.
supranote 8.0 the industry's reputed ties to organized crime.Co-Founder of the Exotic Dancers' Alliance. alleging that he demanded payments of both the dancers and the club owner. including Mitchell Brothers O'Farrell Theatre. Sept. or assist labor organizations. these women work on a continuing basis for one particular club. This distinction is important because. Greg B. 1997." a highclass New York City strip club that is the focus of a recent extortion case brought by the government againstjohn Gotti.bayswan.com/industry/legislation/celebrate. The National Labor Relations Act's (NLRA) mostimportantprovision.F. a 40-persofi porn star delegation went to the state capital and personally lobbied state representatives. See Mark Katches. availableat 1997 WL 7429157. which is the subject of current unionizing efforts by dancers.freespeechcoalition. 30. ORANGE COUNTY REG. 18. a rumor supported in the continued presence of leatherdad." 29 U.. N. "Scores.Y. Generally.org/sioblntvw. ownership of San Francisco strip clubs. Pol'y & L. 24. Nov. Touch of Savvy Helps Pora IndustryAvoid Tax. on exception they may alternate or simultaneously work for more than one club located in the same area and owned by the same enterprise. However. and therein lies the distinction. 1964. § 157 (1994).S. 3. JuniorsBrand New Jam: EnforcerImplicates Gotti in Extort Cases. The porn industry has taken a bold step to be heard above the roar of condemnation: lobbying. 1999) <http://www. Independent contractors are explicitly excluded from the NLRA's section 7 rights and other related provisions by section 2(3). 15. The porn industry currently keeps a full-time lobbyist on payroll.'3 It does not.a. however.join. the club subject to a class-action suit discussed herein." Wesley Pruden.C. ExAMINER. Brawley Interview. 7:465 unions accept ready-organized contingents of strippers or por stars? Although one could speculate that labor's reluctance is due to the controversial and sexual nature of these professions. the primary2 reason for labor's reluctance may actually be our nation's labor laws." fear of public backlash. AJungle Out There andIt's BoilingHo. se also. 10.7 Am. 1999) <http://wiv. 468 1998-1999 . Kennedy [a. Report of the President's Commission on the Assassination of President John F. Id. § 152(3) (1994). grant those same rights to supervisors or independent contractors.1 4 By arbitrarily classifying their exotic & dancers as "independent contractors ' 5 rather than "employees" and 10. Gender Soc. exotic dancers are of one of two types: "house" dancers or "features. Id. Id.468 JOURNAL OF GENDER. BoogieNights: The '70s Are Alive and Well at S. See infra notes 13-18 andaccompanying texL 13. 11.C.k. Celebrate Free Speech Lobbying Days 1998 (last modified Feb.S.June 22.' The National Labor Relations Act [hereinafter "NIRA"] grants most employees the right to organize and join unions. rumored to be controlled by the Hell's Angels motorcycle gang. 1997. In a successful effort to defeat California state legislation that would have taxed pornographic materials. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 12. (visited Apr. Showboat Show Club. Interview by Siobhan Brooks with Dawn Passar. TImES.html>. Jr. Alaska strip club. Rumored affiliations between strip clubs and organized crime are numerous and notably include: ties tojack Ruby and the assassination ofJohn F. states: "Employees shall have the right to self-organization. WASH. 14. a strip club owner. although it is not widely known. the Anchorage. or any combination thereof. and includes such sentiments as "not taking [them] seriously" and assuming that exotic dancing/entertaining is "not an honest day's work. DAILY NEvs. 1997. armed Hell's Angels at management-union meetings. Kennedy (Ruby. Free Speech Coalition. Warren Commission Report]. Apr. House dancers comprise the majority of exotic dancers and are the ones misclassified as independent contractors. section 7. at 7. atA4." See Christine Fuentes. Smith. S. Organized labor's reaction to strippers is representative of the general public's. SOCIAL POLICY & THE LAw [Vol. 1998.htm>. it is rare for a dancer to work equal amounts of time for two more HeinOnline -. to form.. said he was not at the assassination because he was at his club dealing with union/Mafia problems). at M16. J. May 6.'s Gold Club. U.. 29 U.F. to bargain collectively through representatives of their own choosing.
proprietors of strip clubs have.2d 715 (2d Cir. The courts have become an active partner in the continuing financial exploitation of adult entertainers (namely exotic dancers) by legally classifying various types of stage entertainers as independent contractors. the fees reach amounts as high as $150 per shift. 581 (1973) (orchestra leader and strolling musicians of restaurant club considered independent contractors under NLRA). commonly called "stage fees.. and enforcda. and would not be able tojoin a union. Existing labor law permits union members." etc. supra note 15. This practice is believed to have originated at the Mitchell Brothers O'Farrell Theatre in the late 1980s." "tip-out. Alternatively. U. 1971) (casino house band members considered to be independent contactors under NLRA). amounts.N.D. supranote 11." "leases. supranote 11. See Combined Century Theatres." the price customers pay dancers directly for private table or lap dances. v. 278 F. Bow & Arrow Manor. settled for $2. United States.L. usually referred to as "stage fees. eg. a multiple-employer situation would not arise during unionization and collective bargaining. the fees are "tip-outs". Los Angeles to San Francisco to Las Vegas). Inc. or other sex industry celebrity.Julie N. Id. therefore. NMVsLarr-t 8 (Exotic Dancers Alliance.e. It is. Because the settlement reportedly did not include any admission of liability. collectively involving over 5000 exotic dancers and thirty-one strip dubs. supra note 11. 16.. An outrageous industri)wide practice requires exotic dancers to pay their employing strip dub for each shift they work.1998. so long as each employer is party to a collective bargaining relationship with the union. Cal. Brooks. O7anrUSeue With 500 Daners: $12.) 1997 (on file with author). CHRoN.85 Million Indudes Restitution. NLRB.. 160 (Wash.2d 306 (2d Cir. 17.2d 471 (9th Cir. however. 1379 (1960). such as the Market Street Cinema and Century Theater in San Francisco." "commission. Prior to publication of this article. until recently." and range between $25-100 per shift. The feature is often a pornographic movie actress. 329 (S. Harrah's Cub v. mod. An exception may arise.Y. Id. See. been able to stop organizers in their tracks. Brooks. 1943). City of Bellevue. once properly part of a bargaining unit. have been filed 9 in the state courts of California!° and Nevada.' That may be about to change. Thus. The fees are often fixed. 18. Id. San Francisco. Fuentes. 206 NJ-RB.." "house. if the visited dubs are all owned by the same enterprise (which they often times are). which included attorneys' fees and restitution. S. affmningSO F. appropriate to discuss the issue as apendingmatter (with this disclaimer). however. at M16. When the clubs visited are owned by separate enterprises. and in some cases of different employers. see Ino Ino. v. the claims and issues contained therein remain untested in the courts. 1997) (adjudicating where the Club charged dancers $65 or more for a six to eight hour shift). Gender Soc. magazine centerfold. A "Feature" is hired by the dub for promotional purposes for a limited engagement. Supp. See Associated Musicians of Greater Newark v. v. Id." "rent. 1960) (stating that thirteen movie theatre companies are considered a single employer under the NLRA). Inc. LegalFe.1998-1999] NAKED FEMISM 469 charging them fees to work' 6 rather than paying them wages. These fees. and thus denying these workers protection of the labor laws enacted for their benefit.. 446 F. 937 P. HeinOnline -.' The independently owned strip dubs. atA22.July 10. 135 F.where the amount to be remitted to the dub is determined by a percentage of the dancer's daily earnings on "tips. infra note 20.R. 1942) (holding movie theatre intermission stage performers are to be considered independent contractors).85 million. Pol'y & L.7 Am. the feature dancer is properly classified as an independent contractor. 120 N. 469 1998-1999 . purport to be for the right of use of the owner's facilities as dancers ply their "independent trade. Those who do dance tend to be individually recognized and advertised as they travel a "circuit" of strip dubs (i. J. to work at different job sites of a single employer. F.2d 154. Radio City Music Hall Corp. Several class action law suits. quickly spreading nationwide. NLRB. 19. the first of two Califomia cases. thereby denying dancers the protection and benefits of collective action. Lynem." Brooks. in this author's opinion. who will sign autographs or take photos with customers but rarely dance.B. Atsome dubs.
locker fees. pits five exotic dancers (seeking to represent a class that indudes all dancers employed at the dubs since 1994) against 23 strip dubs in the Southern California. The dancers were granted class action starus in May 1995.) (No. and dancers were not engaged in independently established businesses). over 5000 former and present exotic dancers as a § B(2) class. exotic dancers lack the business independence required for classification as independent contractors. Virginia Employment Comm'n. supranote 20.. v. Stripper Sue Clubs Over Work Status. Inc. J. Cinema Seven. Id. supranote 20. atSB. filed in Los Angeles Superior Court on December 9. and the benefits that accompany that status. 2d 246. U. Here too. 25. at N8. Nev.877 (1990) ("An employer cannot change the status of an employee to one of an independent contractor by illegally requiring him to assume a burden which the law imposes directly on the employer. The manner in which the principal handles any tax obligations is of no significance in determining employment status under California law. simultaneously stopping the payment of wages and implementing the practice of charging stage fees. these women must demonstrate that their classification as independent contractors is a subterfuge (likely created by club owners to avoid employment-related costs and taxes). such as hourly wages. 1998. rather than employees. workers' compensation and overtime pay. Ct. 1998. the dancers allege a "sham independent contractor arrangement" exists between the dubs and the dancers that work at them. &e Caren Benjamin. and 20.2 4 that the reality of their employment situation clearly demonstrates that club owners. the Fair Labor Standards Act and California and Nevada state laws.E. at 5B. commission. and that. 22. Letter from Miles Locker.! To win their cases. 21. App. 1998) (explaining that the club exercised actual or potential control over dancers. SOCIAL POLICY & THE LAW [Vol. Dec. to the corresponding federal and state courts' interpretations. The second lawsuit. rent. 10. San Fernando Valley region. and declaratory judgment prohibiting the future sharing of tips and gratuities. Superior Court.7 Am. Gender Soc.. accordingly.job benefits. SeeYard Bird. A371500) (on file with author). 10. Id." and best known for on-stage and private seating live performances of sexual acts involving multiple dancers and/or sexual "props/toys"--sued the dub for backwages and reimbursement ofstage fees. 470 1998-1999 . not dancers." reimbursement for costume/uniform expenses. are suing for unpaid wages.")) (on file with author). Id. control the actual working conditions within the clubs. 480 former exotic dancers of the O'Farrell Theatre-a unique multi-theme roomed strip dub in San Francisco. Two class-action lawsuits have been filed in California to date. billed as "the adult Disneyland. reimbursement of stage fees. Labor Comm'n (Oct.22 Success on the merits would mean the dancers are legally entitled to back wages. Benjamin.June 12. 503 S. See Peter Hardaub. Cheetah's Lounge (D. App.470 JOURNAL OF GENDER. Stdppezs Expand Wage Lawsuit to Addidtonal Las Vegas Clubs. in violation of state and federal wage and hour laws. Cheetah's Lounge. In the first. Inc. Vickery v. In Roe v. Attorney for Cal. and other damages. overtime wages. LAS VEGAS RE. Roe v. Ct. LA DAILY NEws.J. 220 Cal. The dancers hope that this lawsuit will reward them with punitive damages and employee-status. at 5B. reimbursement of monies paid to the dubs as "tip-outs. The dancers alleged that in 1988 the dub impermissibly changed the classification of its exotic dancers from employees to independent contractors.1997. 24. Benjamin. 7:465 legal basis of each suit is that strip dub proprietors have improperly classified their exotic dancers as independent contractors. 3d 864. and requiring payment of minimum wages. tests. disability insurance. Petitioner's First Amended Complaint for Class Action Relief at 8-13. 253 (Va.2 This article explores the legal basis for the dancers' claims. 23. from the treatment of employees and independent contractors under the NLRA. Seeid.1997) (citing Toyota Motor Sales v. HeinOnline -. Pol'y & L.
be influenced by such action. these lawsuits present the court with an ideal opportunity to apply the Fair Labor Standards Act's model of employee/independent contractor law to the adult entertainment industry. or by collective action on the part of dancers . See 9 U. The Board may.C. it has acted as the primary powerequalizing tool for employees. See infra Part II (discussing how the case of pornographic movie actors differs from that of exotic dancers in that their unionization issues turn more on the labor laws regarding union representation and membership. In 1947.31 Not only does the NLRA grant 26. 322 US. As a result. a direct response to the Supreme Court's decision in NLRB v. hours. 27. S infraPartil. "statutory purpose" test] and finding newsboys to be employees covered under the NLRA).ka. by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages. HeinOnline -. through further legal action. as well as federal law. As stated in the National Labor Relations Act Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury..which was significant in two respects. Republican-led Congress amended the NLRAwith the Taft-Hartley Act. second.9 Furthermore. and therefore would not be bound by a trial court's determination of dancers' employee status. it specifically excluded independent contractors from NLRA protection. despite subsequent amendments in 19473' and 1959. 28. § 141 (1994) (stating the purpose of the Act to be to benefit public policy and working conditions).7 Am. rather than wage and hour laws). impairment. there is no legal precedent holding a union responsible to an individual for denied membership in that union. Since 1935. 1 Assuming that judicial determination of exotic dancers' employee status on a class-wide basis would subsequently lead to an industry-wide change in the practice of treating dancers as independent contractors either voluntary. Such a definitive judicial application would not only benefit public policy and the working conditions of thousands of working women. Pol'y & L.S. 471 1998-1999 . 29.APPLICABLE LAWS The primary statute granting employees the right to organize and collectively bargain is the NLRA. J. but may also have possible persuasive value in any subsequent 2 NLRA action. provided that there was "no threat of reprisal.1998-1999] NAKED FEMINISM 471 classification of exotic dancers. 30. Hearst Enterprises.this article explores the future of their unionization and the unavoidable implications for the feminist movement!9 I. and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest. SeeinfralPartll. It should be noted that the NLRB has complete autonomy in deciding cases arising under the NLRA. or force. an and-Labor. Gender Soc. however. or benefit. U. 111 (1944) (using the "economic factors" test ta. 26 The facts suggest that these cases would be successful under both California and Nevada law." 31.First. the amendments permitted employers to actively campaign against unions during the pre-election campaign. or interruption. Unfortunately. the unionizing efforts of pornographic movie actors will not be specifically discussed further in the context of this article.
by which union. See29 U.nlrb. and by restoring equality of bargaining power between employers and employees.gov/facts. 29 US. the free democratic choice of employees whether they wish to be represented by a labor union in dealing with their employers. 29 U. The NLRA vaguely defines the term "employee" as "includ[ing] any employee. § 152(2) (3) (1994) (defining the term "employer").S. the reviewing federal court of appeals must give deference to the Board's findings of fact and accept them "if supported by substantial evidence on the record considered as a whole.. through secretballot elections." 9 What constitutes "substantial evidence.C. HeinOnline -. J.C. 7:465 employees collective action rights.C. 29 US." however. 32. and if so. 34. 29 U. any individual having the status or other working conditions.a. National Labor Relations Act.S.C. or workers hired under the Railway Labor Act from NLRA protections). Section 152(3) specifically excludes certain businesses from NLRA coverage. Pol'y & L. 38. independent contractors. Dec. a court). the Act protects employers and unions from each other's activities by defining specific acts which constitute "unfair labor practices. 11.. Fact Sheet on the National LaborReations Board (last modified 1998) <http://www. See id (encouraging "the practice and procedure of collective bargaining"). 36.S.S. 37. § 158(a) (1994) (indudingunfair practices by the employer). § 153 (1994).html>.S. 6 7 The Board "does not act upon its own motion in either function.S."" It proceeds only after petitions for elections or charges of unfair labor practices are filed with one of the fifty-two Board offices nationwide!8 In reviewing an order or decision issued by the Board. supervisors. In addition. 29 U. § 141(b) (1994). § 153 (1994). SOCIAL POLICY & THE LAW [Vol. § 160(f) (1994) (reviewing a final order of the NLRB subsequent to a petition of 40.S..C.. an independent federal agency created by Congress in 1935 to specifically administer the NLRA through "two principal functions:" (1) to determine. 33. § 151 (1994). 39. § 153 (1994).C.472 JOURNAL OF GENDER.k.C. 29 U."4 few businesses are beyond the NLRA's reach*5 Enforcement power for the NLRA is vested in the National Labor Relations Board [hereinafter "Board"]. § 152(3) (excluding employees such as agricultural laborers.7 Am. is undefined in the Act!' This omission has resulted in the type of inconsistencies between Board and court decisions commonly found injudicial review of administrative action."' With broad coverage extending to all enterprises "affecting commerce. Seeid. but shall not include .'2 it also prevents employers (and unions) from impinging on those rights. See 29 U.C.. 35. and (2) to prevent and remedy unlawful acts (a. 29 U. unfair labor practices) by either employers or unions. U. employees hired by a parent or spouse. Gender Soc. 472 1998-1999 .C. domestic servants.
d. BCB. United States. 1953) (quotingReisman v. 1209 (W.D. Gender Soc. 473 1998-1999 . 1973) (stating that under the control test. J.1932)). respondeat superior Accordingly.2d 444. 2) method ofpayment. Supp. Darby. Russell v. But se Matcovich v. 754 P. 29 U.197 (NJ.1998-1999] NAKED FEMNISM 473 Because the NLRA fails to define of an independent contractor."" The narrowness of this approach has resulted in mixed treatment of adult entertainers' employment status in the courts.S. See eg. 45.125 (1941). App. 324 (D. Pol'y & L.Jr.2d 196.JI 464. 948 (N. efficiency. dancers were employees subjecting the dub to liability for violation of obscenity laws).C. 466 (NJ. v. the right of control test has usually been rejected in favor of the broader "economic reality' test.M. generally applied the common law respondeatsuperior"rightof control" testO Under the right of control approach.Super. Inc.2d 888 (Or. Inc. v. v."' "independent contractor. United States. 446 (Idaho 1988) (stating that the right of control test includes: "1) direct evidence of the right. Co. Errickson v. 744 (194) (finding control exerted by dance hall proprietor created employer liability of Social Security taxes of employee dancers). 82 N. 1911). 239 F. Ct. 316 U.. Wash. 135 P. &ee Rutherford Food Corp. HeinOnline -.S. Shumate Constructors.). The purpose of the Fair Labor Standards Act is to preclude "laborconditions detrimental to the maintenance of minimum standards of living necessary for health. Supp. In the absence of statutory guidance. 312 US. the right of control test applies to determine if an employer should be held vicariously liable).Public Serv. Overnight Motor Tramnsp. and general weU-beingofworkers. McComb. Radio City Music Hall Corp. 934 F. 514 P. have consistently held that "employee" and "independent contractor" should not be used in their common law 47 sense when used in federal social welfare legislation..C. carrying on an independent business. 1994) (holding that. v. 97A. v. 572. the Board and the courts have.. Club Hubba Hubba v. United States. Schwlers. but only as to the result of the work. 722 (1947) (interpreting FLSA). U. Haw. 1943) (finding stage entertainers to be independent contractors). 331 U." 29 U. Corp. See Mylar. 1996) (holding control test supports industry practice of treating exotic dancers as independent contractors). 47.2d 940.S. 888 P. in common law. Oregon Liquor Control Comm'n. 134 F. Ct.W. 836 (9th Cir. 1965) (explaining that entertainers were employees for Social Security and unemployment taxes). Missel. 100. Hanson v. 4) right to terminate the employment relationship")..4 Cases arising under the Fair Labor Standards Act [hereinafter "FLSA"].4 however. Romero v. Inc. 43. F. Torch Club. § 152(3) (1994).7 Am.2d 715. 158 A. an [i]ndependent contractor is one who. 3) furnishing major items of equipment [dancer's body held not to be piece of equipmentfor test's purpose]. Anglim. which encompasses elements of the control test and is indistinguishable from the c6mmon law test for 41. and without being subject to the control of his employer as to the means by which the result is to be accomplished.2d 834. "the test lies in the degrees to which the principal may intervene to control the details of the agent's performance. 577 (1942). 482 (NJ. since 1947." it has been left to the Board and the courts to define the parameters of the term. 44.§ 202(a) (1994).S."" In determining the right of control. Co. 717 (2d Cir. Se gnmaayPalm Garden.S. contracts to do a piece of work according to his own methods. 42. ert denie4 320 U. App. 46. United States v. 1204.
Invs. 916 F. is "any person who renders service for aspecified result. (5) the amount of skill. Priba Corp. 15 F.S.S. see alsoNationwide Mutual Ins. 318 (1992) (holding common law agency principles includes evaluation of economic factors and should be used to determine employment relationship when Congress provides only nominal definitions). App.Y." (4) the "employee's" opportunities for profit or loss. or foresight required for the success of the claimed independent enterprise. and (6) the permanency and duration of the relationship. v. Wilde v.D. 1961) (explaining the economic reality test). this analysis has not been explicitly 48. FED. U.L. Industrial Accident Comm'n. 51. Budget Rent-a-Car. 503 U.7 Am. Gender Soc. IRS. courts asked to determine the employment status of exotic dancers by applying the "economic reality" test have overwhelmingly found the dancers to be employees under the FLSA.49 a court must consider several factors in evaluating whether an employer-employee or employerindependent contractor relationship exists between two parties: (1) the extent to which the services in question are an integral part of the "employer's" business. Dist. Crowley & Brother. Annotation. 126. signed contract for "lease" ofspace held not controlling). 1993) (applying economic reality test factors to find exotic dancer was employee under FLSA). Supp. S!e United States v. Bally. J.2d 888 (Cal. 712-19 (1947) (holding liability for employment taxes under Social Security Act requires evaluation of totality of circumstances in employment relationships).3d 103. and tax and worker's compensation laws.2d 105. Circle C. 97 F.. Determinationof "Independent Contrador"and "Empkee"Status for PuPoesof§ 3(E)(1) of the FairLabor StandardsAct (29 US. where the purported employer has the right to control the mode and manner of doing the work. Frankel v. Inc. 331 U. 7:465 agency8 Under the economic reality test. 106 (8th Cir.-" The Supreme Court has expressly approved of the application of the aforementioned factors to entertainment employment situationsO Thus. 1993) (explaining that the agency approach is substantially the same as economic factors approach).R. 987 F. See ag. under the control of his principal as to the result ofher work only and HeinOnline -. Landis.. 586 (N. Enter. 303 West 42nd St. Birmingham. 1937) (holding that an exotic dancer was an employee covered under worker's compensation). Pol'y & L. 49.2d 324 (5th Cir.. 890 F. 349 (S. 53.A. 998 F. 1995) (recognizing that an exotic dancer is an employee under FLSA). Darden. (2) the amount of the "employer's" investment in facilities and equipment.. SeeBartels v. 90 (2d Cir. 332 US. not surprisingly. (3) the nature and degree of control retained or exercised by the "employer..! California courts employ a similar analysis in determining employee status under state law 5 To date. 474 1998-1999 . initiative. 1996) (staring that private booth/peep show exotic dancers were employees for tax purposes over employer's contentions that a landlord/tenant relationship existed. 702 (1981). § 2750 (citing Randolph v. Debra T. See Mitchell v.N.C.. Se CAL LAB. 109 (5th Cir. in other words." by comparison. v. An "independent contractor. 2 the Social Security Act. 72 P. 130 (1947) (approving the Sik test factors for use in entertainment employment cases). Reich v. Pagones v. Supp. judgment. an employeremployee relationship exists.D.474 JOURNAL OF GENDER. § 203 (E)(1)) 51 A. Reich v. 704. 50. Silk. Inc. Tex. 1993) (holding both approaches employ list offactors to determine whether employer controls work environment). County of Kandiyohi. SOCIAL POLICY & THE LAW [Vol. Ct. Under Califonialaw. 1996)). Co. 52.3d 319 (9th Cir. 292 F. whether or not a person isan "employee" depends on the degree of control that the purported employer has to exercise over that person.2d 86.
. which prohibits an employer from charging its employee a fee to work. (6) Plaintiff was entitled to costs. Such factors included management requirement that dancers schedule particular shifts to work or be available to work. 55. (6) whether the service requires special training and skills characteristic of licensed contractors. (13) sequence of work. no tattoos. Department of Indus. where the court found migrant cucumber pickers who had signed a 60 day employment contract were. See NEaWs 9 (Exotic Dancers' Alliance.) 1997 (on file with author). seealsoLocker. (5) furnishing tools and materials. essentialness of dancers' services to function and purpose of HeinOnline -. and the California Labor Commission. Sup. employees of the farm that hired them. management control over what a dancer wears or does not wear (i. In March 1996. Williams v. San Francisco.supranote 24. (6) method of payment. which weighed the following factors: (1) extent of the principal's right to control the manner in which the work is performed. respectively: (1) making a profit or loss. Gender Soc. however.. (7) working for more than one firm. RS 20 FadorControlTest (visited Feb.F. have breast enhancement surgery. (2) Defendant's failure to pay minimum wage violated California law. wage and hour violations. 1989). Pol'y & L. Relations.e. (4) the independent contractor agreement that Plaintiff signed was a fiction and a subterfuge. which found that (1) Plaintiffwas an employee of Defendant not an independent contractor. lose weight. management decisions regarding dance rotation. 25. (10) business or travel expenses. San Francisco. (12) instructions. tools. (7) and whether or not the parties believe they are creating an employeremployee relationship. or to what music she may dance. 54. not as to the means by which such result is accomplished. (II) right to quit. Bijou Group. management prohibition against dancers leaving premises during shift. 1995) (on file with author). The dancer was awarded back wages and reimbursement of stage fees. piercings. including reasonable attorney's fees. (9) investment in equipment or facilities. (17) set working hours. thus rendering the agreementvoid. U. Telephone Interview with Miles Locker. (8) continuing relationship. (19) oral or written reports. What began as a wage and hour case brought by an exotic dancer of the Market Street Cinema. employed a multi-factored test. Cal. Williams the monies due to her. Compare these factors with the 20 factors the Internal Revenue Service uses to determine whether a worker is an employee or independent contractor for tax withholding purposes under W2 or § 1099. orwhether the services rendered are part of the regular business of the principal. (4) right to fire. nonetheless.. not employer-independent contractor relationship. Bijou Group Inc. 969116 (S. the club honored the judgment and paid Ms. (7) Plaintiff was entitled to prejudgment interest on the unpaid wages. the Labor Commission determined that the degree of control exercised by strip club management was more like that of an employer-employee. (2) whether the person performing the services is engaged in a business or occupation distinct from that of the principal. etc.. 48 Cal. (3) Defendantes collection of stage fees violated California law. 969116. J. Applying the Borellofactors. and the place in which the work is performed. Cal. (14) training. or what the dancer may look like (i. Labor Comm'n (July 14. (2) work on specific premises. seesupranote 53.1998-1999] NAKED FEMINISM M applied to exotic dancers by the courts in a precedent-setting action.7 Am. The court. id. 5.. (20) integration into business. No. Attorney for Cal.1998). S. Ct. The exception to this statement is Williams v.nindsrc.s It has. (5) Defendant's bad faith failure to pay minimum wage compelled imposition of liquidated damages. Three years foliowing the court's ruling.. the Labor Commission decided its first exotic dancer case in favor of the dancer who was arbitrarily fired for refusing to sign an independent contractor agreement with the Crazy Horse strip dub..). (3) offering services to general public. (18) working fuUl-timt. (15) services performed personally. and thus was entitled to payment of minimum wage. managementrequired minimum or maximum charges for private dances.com/2rues_body.e." The seminal California Supreme Court case regarding the test to determine employee/independent contractor status is Borello & Sons v. at351.1999) <http://www. rejecting the common law "right ofcontrol" test. (5) the degree of permanence of the working relationship. turned into a contentious bankruptcy action upon the issuance of a tentative ruling by the court. No.html>. The California Labor Commission investigates charges of discriminatory employer conduct. (8) whether the principal or the worker supplies the instrumentalities. 475 1998-1999 . Tentative Ruling (filed Oct. (16) hiring assistants. been the subject of several actions by the California 5 Labor Commission. (4) whether the person providing the service has an opportunity for profit or loss based on his managerial skill. 1995). d 341 (Cal. must be nude by certain time).
org/InsdFocus3.R. or talent" in a recognized field of artistic endeavor.r The consequence of this exemption. and "whose primary duty consists of.html>. 1343. creates a potential problem for exotic dancers under that act's "professional"." and that it "is predominately intellectual and varied in character. First. 842 (1984) (holding that if the statute is silent or ambiguous with respect to a specific issue.. The "short test" requires the exemption of an employee who is paid $250 or more per week. Since "professional" is undefined in the LSA. administrative. the "long test" requires only $170 wages per week. § 541.. See id at 12.3 (1998) (stating that professional work is exempted from the provisions of FLSA if the worker satisfies a minimum income level and the work is original and creative in a recognized field ofartistic endeavor).3 (1994)). 1998) <http://wv. 57. 6° Second.C. Pol'y & L. 61. Exotic Dancers' Alliance. Supp. ABC/York-Estes Corp. No. 1997) (holding that dancers received tips from customers through the collection of "dance fees"). 58. 1997 WI 264379 at *7 (money earned by exotic dancers are tips and cannot be used to off-set employer's obligation to pay minimum wages)." 29 U." that it requires the "consistent exercise of discretion and judgment. Inc. at *6 (N. Diamond A Enter. majority of dancer's income is from a particular strip dub. See &. 992 F. not their right to collectively act and organize under the NTRA. 1997 WI 264379. imagination. absence of opportunity for profit or loss based on dancer's managerial skill. Gender Soc. HeinOnline -.Chevron U. at 1346 (noting that the exotic dancer plaintiff relied entirely on tips and dance fees compensation). SOCIAL POLICY &THE LAW [Vol.R. exotic dancers seeking artistic recognition and legitimacy for their profession are caught in a catch-22 because vindicating their rights under the FLSA necessarily means repudiating the artistic integrity of their profession...!9 Such income has been held inapplicable to meet the preliminary burden of the tests: the minimum wage liability requirement. but burdens the employer with showing that the job requires "innovation." Harrell v. dancer's performance of labor/services at a particularjob site.7 Am.. two tests are available under the regulation that defines professional employees in a recognized field of artistic endeavor. should it apply.F. or talent in a recognized field of artistic endeavor. work requiring invention.bayswan. most dancers receive their income exclusively from customer tips. U. or professional capacity. 91-C-6265. that the employee's work is "original and creative in character. National Resources Defense Council.476 JOURNAL OF GENDER.SA v.F. 56.. see asoABCYoh-Etsr.S. 1997) (quoting 29 C." al at 1357. not employer-paid wages. the question for the court is whether the agency's answer is based on a permissible construction of the statute). but the employing clubs would not be required to comply with minimum wage or working hours requirements. the courts may rely on regulations promulgated pursuant to express legislative directive 7 Hence. Fla. however. Alternatively.! The argument that an exotic dancer is an exempted professional fails for at least two reasons. 59." While finding that exotic dancers are entitled to minimum wage adult entertainment club.. I11.. § 213(a)(1) (1994). 60. 467 U. § 541. exemption. The minimum wage and overtime provisions of the FLSA do not apply to "any employees employed in a bona fide executive. is that exotic dancers would be held to be employees.S.. imagination. See Reich v. 7:465 Use of the FLSA to determine employee status.D. 476 1998-1999 . Inc. See 29 C. Supp. 1355 (MD. 837. J. see also Harrell 992 F. InsideFocus '98 (last modified May 16.. The professional exemption in this case would affect only the dancers' ability to collect a minimum wage and overtime pay.
v." 6 An illustrative case is Harrellv. See i at 1348-54 (analyzing the plaintiff's working conditions to determine if an employer-employee relationship existed). 65. See i at 1356-57 (refusing to construe broadly the term "dancer" to include erotic dancing for consideration of artistic integrity). The Hanmlcase was a case of first impression to the court because previous exotic club defendants had not attempted to invoke the § 541. the court must analyze six independent factors. See Hwreg 992 F. Id.S. the court held that an employment relationship existed between the plaintiff and defendant.Ina' In Harrell. and talent" contemplated by the regulation. 63.3) (emphasis added). Supp." Id. Gender Soc. The court tried to balance its decision to grant the plaintiffrecovery of unpaid minimum wages under the FLSA with a public policy distinction that erotic dancing is not "dancing" as contemplated under § 541. 62 Finally. 331 U. See id. See U/at 1354-56 (analyzing the nature of the plaintiffs work to determine if the plaintiff met the requirements for the professional exemption). would also fail the professional exemption requirements. 64. 992 F. DiamondA Enterpises. 477 1998-1999 . the courts have determined that exotic dancing does not require the type of "innovation. 69.1998-1999] NAKED FEMIISM requirements.D. Id. See id. McComb. Supp. that exotic dancing would not qualify as a "recognized field of artistic endeavor. " 63 and thus.3. at 1348 (citing Rutherford Food Corp. In determining economic dependence. imagination.69 In Harrel4 the court found substantial club control when: 1) the club established a set fee dancers had to charge for table dances. Id.3 exclusion from minimum wage requirements. III. at 1357. 728 (1947) (holding that employment will be determined if an employee is "economically dependent upon the alleged employer")). at 1353-54. Control The first factor to be considered under the economic factors/reality test is the degree of control that strip club proprietors exert over the working conditions of their exotic dancers. 66. After analyzing each of the seven parts of the FLSA test for employment. Pol'y & L. 68. an exempted professional employee under the FSLA. not only did the court hold the exotic dancer was an employee of the strip club under the economic factors test 6 but it also soundly rejected the club's contention that the dancer was. 67. Id.7 Am. ha. 2) each dancer was obhgated to 62. at 1354 n. at 1348-5.Y7 It is this comprehensive and recent analysis of the employment relationship between stripper and strip club that offers the best framework for analysis of the aforementioned class action lawsuits.13 (quoting a Department of Labor interpretation of § 541. See id. it can be reasonably argued.at 1354. although courts have yet to proceed so far into the tests. J. at 1355-57 (stating that work product being purchased by customers is notdaning skill but dancer's ability to titillate male customers). In so doing. ANALYSIS A. U. alternatively. 1343 (M. the court held that there was no evidence before it to indicate that the plaintiff was doing anything more than "moving. HeinOnline -. 722. 1997).
Id. 1343.7 Dancers failing to find such suitable substitutes risk club-imposed penalties ranging from removal of the dancer from a popular shift.'998 F. per week. 72. SeeReich v. HeinOnline -. but more competitive.76 Dancers unable to work a scheduled shift. 73. (finding that dancers were required to comply with mandatory work schedules that the club compiled based upon the days each dancer wished to work). to cover that shift..7' the court. Invs. 7:465 perform on center stage during her shift. 478 1998-1999 . Supp. 521. (detailing the areas where the exotic dancers had discretion in their positions within the club). SeeHarrellv. and customer volume. and coloring. 732 P. SOCiAL POLICY &THE LAW [Vol.2d 1073. SeeJeffcoat. 992 F. undergo training. 4) the club employed bouncers to protect the dancers from unruly customers. Employee Rights in Sex Work: The Strugglefor Dancers' Rights as Employee. 14 LAW & INEQ. See id. 1997).! Although the exotic dancer exercised discretion in scheduling her hours. 1075 (Alaska 1987) (noting that the dancers were hired to work six days a week.1349-50 (M. scheduling for less profitable shifts. and a busier and more profitable.7 The first factor indicative of dub control is mandatory scheduling of work shifts.2d at 327 (finding that the use of fines to enforce work attendance where dancers missed scheduled shifts to be indicative ofemployer-like control). U. see alsoJeffcoat v. State Dep't of Labor. concluded that the club exerted control over the "meaningful" parts of the business?2 Each class action lawsuit contains similar factors weighing in favor of the strip clubs' exercise of control over the dancers. night shift 75 Dancers are often required to work a minimum number of hours per shift. 71. 732 P.75 (1996) (stating that some clubs schedule shifts for dancers with a break during slow periods to maximize hours while minimizing compensation). eight hours a day. Pol'y & L. 74. and was not required to report her earnings or. at 1349. Ea. for a six week period). 3) the club required the dancer to purchase and wear costumes consisting of high heeled shoes and provocative lingerie. the number of table dances she performed. supranote 5. shape. 5) the club controlled advertising. See id. Enter. 534 n. The court finally held that the control of the dub over the dancers was dispositive of the argument that the dancers were independent contractors. DiamondA.2d 224. 77.J. nonetheless.D. 76.478 JOURNAL OF GENDER. Jane. Circle C. Inc. See Reh. at 1350. Carrie Benson Fischer. J. Cf.!4 Strip clubs usually schedule two 6-8 hour shifts: a day shift for the lunch crowd. the selection of music to be played. club atmosphere. often must find substitute dancers who bear a physical resemblance in size. 78..327 (5th Cir. or even termination 8 Unlike most others around the country. even in cases of illness.2d at 1075 (observing that the club hired dancers to perform an eight hourshift). Id.7 Am. 75. The court held that the correct analysis of the case required the court to determine whether the amount of discretion provided to the dancers was symptomatic of economic independence or if it merely covered up economic dependence. Gender Soc. 998 F. strip clubs in 70. 1993). thereby making the dancer completely dependent upon the club for her earnings. arbitrary fines.
Most dubs involved in the Las Vegas lawsuit schedule over 200 dancers per shift. 1999) <http://wwivw.B.5 A true independent contractor would be free to charge any price she wanted for a private dance. or directly out of the dancer's pocket.. See Olympic Garden Topless Cabaret (visited Feb. 38 STAN. A second factor indicating employer control over the dancers' working conditions is mandatory prices for table/lap dances. 8' The arbitrariness by which hours are assigned perpetuates the economic uncertainty among dancers created by the tips-only compensation system. Fla. U. If an exotic dancer was truly an independent contractor. 992 F. See Harrell v. 1999) <http://www." In order to guarantee that a larg6 number of dancers are present at all hours. will HeinOnline -. Id. SeeThomasJ. Diamond A Enter. See American Guild of Music Artists. how is satisfaction to be measured? 84 The inability to easily answer these questions demonstrates the improbability of an exotic dancer being an independent contractor.1998).1998-1999] NAKED FEMINISM Las Vegas are open for business twenty-four hours a day. as well as the demand for it. Esq. yet unaddressed questions regarding the independent contractor/employee distinction: What is the work for which the exotic dancer is being hired?' Furthermore.ogcabaret. subject only to the laws of supply and demand 8 79.LR. Pol'y & L..com/ dubinfo. J. supranote 5 (reporting that dancers at San Francisco's Lusty Lady Club were subjected to favoritism and arbitrary company poliies and rules). Inc. Currently. as the defendant in Harrell argued. 81. 1999) <http://wwv.. This raises one of the most obvious.7 Am. SeeJane. 157 N.D. 16. these clubs are more rigid and controlling in the scheduling of dancers than clubs that are not open all day long. 1346 (M. 80. Jane. 991. 1004-05 (1986) (explaining that the amount of the supply of a good or service. so long as she completed the piece of 82 work for which she contracted with the dub. 738-39 (1966) (finding that dancers had contracted with a theatre to perform a specified number of performances for a specific fee). Tally-Ho Stylish Entertainment (visited Nude Feb. 1997) (reporting that customers paid asetfee of five dollars or ten dollars for a table dance).wvildj. 23. 735. Gender Soc. 1343. on whichever days. Accordingly.tall)ho. 82. 479 1998-1999 . 23. 85. But see Wild J's (visited Feb.htmI> (advertising limited hours).L REV. 84. 23. Plaintiff' Counsel (Apr. LaborLaw & Economks. Campbell. customers "dissatisfied" with their private dances may obtain refunds either from the dub. Telephone Interviewwith Ara Shirinian. supranote 5. she would likely have the freedom to work at whatever times. while punishing disfavored dancers and those who violate the dub's unwritten and often unarticulated rules by scheduling them fewer hours or even no hours at all." Clubs also use the schedule as an arbitrary means of control by rewarding "pef" dancers with numerous "choice" hours. See id. the court held the dancers to be independent contractors. who in turn fines the dancer for failing to satisfy the "needs" of the patron.com> (advertising the Las Vegas dub as "open 24 hours"). 86. Supp.com> (promoting the Las Vegas club open 24 hours a day and 7 days a week). 738-39 (finding that the specific piece of work the dancers were required to at perform was a set number of performances). and for however long she wanted. 83.
g. 992 F. See id. Accordingly. Supp. 93. the San Francisco dancers may be independent contractors under the Harrelcourt'sanalysis. Pol'y & L. See Harre4 992 F. after which each pair of dancers is available for a private showing at the patron's command. in which a round stage with numerous dancers rises from the floor to eye-level for an "orgy-style show" several times daily. costing the customer ten dollars to over one hundred dollars per dance. 87. 90. (noting that dancers received most of their money frrm private dances. the number and type of sexual props used. in which each dancer performs "individually in her own personal style" (e. J. 94. the dancers affect the market price for that good or service. 92." "sexy dominatrix") for two songs that leave her completely nude. Mitchell Brothers O'Farrell Theatre has five different theme rooms: the "New York live" room. peep-show style" domination scene. requires the dancers to perform on various types of stages and in various settings. not the public dances the club required them to perform)." a HeinOnline -. after which the dancer will visit private." billed as the "most explicit" in the dub. Interview with "John Doe. at 1349 (indicating that the dub's control over the price of table dances was a significant form of control over the dancers). and effectively converts the dancer from an independent contractor into an employee. Such mandatory performances preclude dancers from 93 earning money for private dances. dancers engaged in "specialty dances" set their own prices. SOCIAL POLICY & THE LAW [Vol. See id. 13. 7:465 By setting prices. 992 F. irrespective of the true value of that good or service). the strip clubs take away one of the most important element of business independence in a free-market system. the San Francisco dancers exercise more control over the compensation for private dances than have dancers in previous cases. dancers must rotate on raised stages for the traditional striptease/erotic dances. private dance prices are generally set by the strip clubs.1998). Id. See Harrell. The obvious implication of requiring public dances was to provide free entertainment to entice male patrons in the dub.480 JOURNAL OF GENDER. in Washington. The San Francisco dancers at O'Farrell Theatre differ from the Las Vegas dancers enough to make the determination of employment uncertain. the "Green Door Show. "Private Cabanas." patron of O'Farrell Theatre. at 1346. the number of dancers involved. the "Kopenhagen.. See id." "glamorous showgirl. curtained customer booths. In many of the Las Vegas clubs. the Las Vegas exotic dancers clearly satisfy the . Gender Soc. For example. (noting that the public dances were paid for by the dub from a flat weekly rate to the dancers). 480 1998-1999 Francisco. U.7 Am.4 In addition. 88.89 As a result of set prices for private dances. while the other dancers solicited drinks and dances from the patrons. 91." the "Ultra Room.. and finally." which offer one-on-one shows where the patron "controls the action.s' however. DC (Apr. at the Mitchell Brothers O'Farrell Theatre in San Harrellstandards. See id. Supp at 1348-54 (analyzing the various standards that distinguish independent contractors from employees). Supp. 90 while the San Francisco dancers may notY The performance of mandatory stage dances provides free dances for 92 all patrons. and often depends upon such factors as the length and type of act performed. per dancer." a "fast-action. Price of individual performances at Mitchell Brothers varies quite dramatically. thereby meeting the Harrellrequirements for employer control.87 In Las Vegas. 89. at 1346 (finding that the dub regulated the prices assessed for private dances). Mitchell Brothers in San Francisco. "little girl next door. surreptitiously alluded to as "gifts" by the dancers.
making it one of the steepest fees in the nation.1994.ofarrelwelfiame. this factor indicates employer-like control over the dancers' working conditions. at 50.52.bayswan.1999) <http://www.1998-1999] NAKED FEMINISM must get on their hands and knees. Roe v.. SeeHarrell. 102. 9 5 Strip dub proprietors would be hard pressed to find a court that would not find this demeaning. § 608. No.97 in violation of both Harrell and Nevada state law The O'Farrell Theatre dancers must not only purchase lingerie and costumes at their own expense.8. the commission is reduced if a customer pays by credit card. Martin. No. The requirement that a dancer be topless or nude at a certain time during her dance (i.7 Am. Seeid. 100. strip clubs.html#Inside Focus-DaisyChain>.e.are responsible for controlling unruly customers. she may either be fined or fired. 9. CAL. Undreasingthe FtstAmendment and Corsettingthe StipteaseDancer. 101. FstAmended Complaint for Class Action Relief (D. Ct.9. A Mini Theatre Tour (visited onApr. exotic dancers are required to purchase and dry clean their own uniforms at their own 9 expense. as well as advertising. Pol'y & L. In return for having a patron buy the dancer a drink at an inflated price. for example. Other than fees for dances. 16. rather than an independent contractor relationship. Supp.July 1995.. 98. J. 24. A371500. Again. See Nina Martin. and therefore indicative of employer control. some dubs require dancers to sell drinks as away of making money. 992 F.6 In Las Vegas strip clubs. rather than in cash.1999) <wv.f ed Mar. Additionally. charges a fee of approximately thirty dollars for admission. by the end of the first song) is arguably analogous to the requirement that she wear a specific uniform. Cinema Seven. 959610 (Cal. The Autobiography of an Adtiis NBEw m 8 1997 (visited Apr. 95. unsafe sexual requirement indicative of employer control. Cheetah Lounge. 481 1998-1999 . 42 DRAMA REv.. supranote 97. Ifa dancer fails to meet the required drink quota.165 (1997) (placing the duty on the employers to dean uniforms or accessories without cost to its employees).). as in Harrell. Brawley Interview. at 52. &eJennifer Bryce. The fourth factor indicating employer control is mandatory costumes/uniforms. dry deaning) violates Nevada law) (on file with author) (citing NEv. Mitchell Brothers O'Farrell Theatre." illuminated only by the airplane controller-like flashlights held by the customers. U..fid May 29. REV. 1998). which while increasing dub profits may decrease a dancer's ability to profit if the fee operates to leave customers with less disposable income to spend on dances and 02 drinks. and customer volume' t o These factors directly affect an exotic dancer's opportunity 0 for profit and increase her economic dependence on the dub. Dancers Cope Wlth the Latest Labor Trend: MakingErployees Independent Contractors. Super. 97. Gender Soc.e. at 1349. SrAT." Many strip clubs also charge an admission fee. SeeJudith Lynne Hanna. supranote 8.html>. Mitchell Brothers. Nev. The Daisy Chain. &eVickery v. completely darkened room where two dancers "perform their theme show.). 96. but niust buy sexual props to use in their performances. become completely nude. Inc. Ct. Other dubs have expanded the use HeinOnline -.org/EdaNews. the dancer receives a drink voucher. and perform interactively as a group what is commonly called a "daisy chain. 99. The voucher entitles her to a remittance or commission. 1997 at 11-12 (requiring employees to launder uniforms by special processes (i. club atmosphere. Often. 6 (June 22. LAW.
some employers have begun to circumvent this restriction by paying dancers a minimum wage. Exotic dancers in Las Vegas are compelled to pay their employers anywhere from $25 to $50 per shift. legally unchallenged practice of charging the dancers $150 per shift. at Wll (stating that "a lot of women are told they have to make $150 to $200 in four hours just to meet cash quotas") . If customers fail to purchase any or all of the cigars. Jane. and management. while also prohibiting confiscation or conversion by an employer of tips and gratuities earned by their employees. $42 of which is returned to the dancers in "paychecks. in Anchorage. SrAT. Shirinian. supra note 5. Research and Statistics Office (Oct. 110. after having been found liable for wage and hour violations. Las Vegas Convention and Business Authority. bartender. as amende 29 U-S. Co-founder.75 per hour by the club. Sup. Pol'y & L. 7:465 Finally. WorkingaBroad. Fair Labor Standards Act of 1938. 12. at4. 105. Ct. 1995). § 201 (1997). 1995. strip club dancers commonly pay over $100 per shift.supranote 102. Apr. HeinOnline -. has responded to fee. LAB. In 1997 alone. 111. mandatory tip-outs and stage fees '" not only indicate employer control. but also violate the FLSA. mandatory tip-outs and stage fees constitute an independent cause of action under both California' and Nevada' 6 law. the Gold Club in San Francisco. Sept. and management).749 conventions. 103. 1998). Unfortunately. SeeTelephone Interview withJohanna Breyer. § 608.160 (1997). See CAL. See Melissa. Nevada law prohibits both the sharing of tips and gratuities by employees with their employers. Strippers Get Ground-breakingLaborPat. at 22. CODE § 351 (West 1989) (prohibiting an employer to directly or indirectly claim any part of employees tips).10 all of whom are usually paid by the club as wage-earning employees. The GreatAlaska Bush Company. but imposing dance "quotas" on the dancers. Jane. SeeJane. While workers can be compelled to share tips with other employees. legal action by changing its stage fee practice. supra note 5. bartenders. 108. to date. 21.' and $75 per shift when a convention is in town. see also Martha Irvine. supranote 5. excluding the percentage of tips which must be shared with the disc jockey.' 3 In San Francisco. See Hanna. &eid. Alaska. NoJustice NoPiec4 supranote 5. at 12. 482 1998-1999 . See Reich v. the proceeds of which must be relinquished to the club. 1995) (holding that an employer's collection of tip-out fees violates the FLSA because the deduction reduces entertainers' wages to below the minimum wage). 1997. 1997 (on file with author).Jane. Telephone Interview with Kevin Bagger.C. Dancers at Mitchell Brothers O'Farrell Theatre are forced to "pony up" a month's worth of stage fees prior to working their first shift.DANzoNE.482 JOURNAL OF GENDER. No. Tex. LA DAILY NEvS. at 13. REv. at 22 (stating that the "stage fee" is a fee the dancer pays to the club for the performance space. This means that the clubs can require dancers to sell a minimum number of lapdances. Supp. in addition to tipping the bartenders and DJ. SeeNE. 107. Exotic Dancers' Alliance (Apr. 104. 109. supranote 102. Gender Soc. SOCIAL POLICY & THE LAW [Vol. 890 F. instituted a similar practice whereby dancers are paid $4. supranote 80. The Bijou Group. they cannot be forced to give tips to employers in any form. 19. California requires dancers to purchase cigars from the club and sell them to customers. 586. U. nor can tips be credited against the minimum wage thatthe employer mustpay. For example. Cal. J." thus resulting in a $108 stage 1998).'" In addition. NEIVSLErr 9 (Exotic Dancers' Alliance.F.). San Francisco. PFriba Corp. .. Hanna. Dancers failing to meet this quota can be fired. 106. This suggests that the $75 fee is in place more often than not. but must pay the club $6 for every hour they work. See Bijou Group. wait staflf. the dancer still must pay the club for them.595 (ND. Las Vegas hosted 3. 969116 (S.'1 of quota sales to include other products..7 Am. and "tip outs" are tips paid out of the dancers earnings to the discjockey. It has implemented a complicated and.
in addition to a $10 "ladies' drink fee. must submit to market pressures until brothellike services become the norm. Compounding the dancers' frustration at paying these fees is the chain's heavy-handed practice of having someone spy on the dancers by walking around the dubs. and tipouts cost dancers $30-50 per shift.1 7 This occurs when customers demand more and more explicit performances from dancers who. in Austin. At the Great Alaskan Bush Company in Eugene.1998-1999] NAKED FnMINISM Considering that the average dub-mandated price for a table dance ranges from $5 to $30 per dance. at 11." which must be paid whether or not the dancer actually drinks anything. Workinga Broad. ALLEN. at 11. in combination with the dissatisfaction refund policy. payable on their next shift. Daily registration fees. Compounding this situation is the fact that many dubs take an initial cut of the fee a dancer earns for doing private dances. Texas. if a patron is not satisfied. the dancer may actually earn only one-half to two-thirds of a dance fee prior to the pay out of any stage fees. 1996. InsideFocus '98. whereby the t selling of sexual imagery quickly becomes the selling of actual sex. Pol'y & L. the dancer must return tips without argument lArtin. the dancers may even "owe" dub management. supranote S. atS." 4 Thus. Even worse. As a result. secretly recording the number of dances each dancer sells.org/InsdFocus2. already struggling to pay the rocketing stage fees. Dancers must dance on several stages 2-3 times per 6-8 hour shift for songsets. 116. 118. supranote 98. U.bayswan. Exotic Dancers' Alliance. 114. table dances are $5 when performed topless $10 for a nude version. 6 arguably leads to the creation of a slippery slope towards prostitution. supra note 5. California. Id. DANzINEJune/July 1996. In some cases. supra note 5. taxes. See ROBERT C.1998) <http://wwv. The practice at each is for the dancer to pay the dub $9 for every $20 nude lap dance she sells. Gender Soc. HORRiBLE PRETTINESS: BURLESQUE AND AMmEcAN CULTURE 50 (1991). it is common for dancers to be forced into borrowing money from other dancers. Irvine. or to use their own money to cover the stage fee on a slow shift. atNll. (last modified May 16.html>. a dancer may potentially lose money by going to 115 work. HeinOnline -. Oregon. table dances at the nude dub are $20 (no touching of dancers allowed). Hanna. 113. Thus. a dancer's 112. dancers must pay the tip-out fees regardless of whether they make any money during their shift. Se Emplkiymt inEugene DAzINE. SwJane. 483 1998-1999 ."' it becomes dear how clubs financially exploit their exotic dancers:" ' each dancer must dance anywhere from two to fifteen dances in addition to the free stage dances she must perform just to break even for the night. The D~j! Vu chain owns and operates four strip dubs in San Francisco. at 52. at 3. at22. 115. Under this policy.Jan. More importantly. J. and $30 (light touching permitted) at the topless dubs.7 Am. SeeTeresa Dulce. For example. the practice of charging stage fees. 117. Jane. supranote 102. thereby transforming a legal profession into an illegal one."' When this happens.
or if the dancers agree to do such a performance for money. Women's Work: Attitudes. touch each other physically or with a sexual toy or prop. cubicles. 121. DANZINE." Although many strip clubs (and local ordinances) forbid any physical contact between dancers and patrons.rs and. Many states outlaw the public performance of actual or simulated sexual acts. and even encourage. U. In Oregon. at 2 (quoting OR. and Lack of Power Within the Sex Industry. or the condition of being fettered. supra note 99. often providing customers with private V. Id. bound or otherwise physically restrained on the part of one so clothed" in a live public show). Gender Soc. 411 on T-n-A. at Nil. while the majority of adult entertainers are women. when a customer pays for the performance. SeeJane. supranote 109. See OR. Pol'y & L. rooms. such behavior in their clubs. 1995." strip clubs become "bordellos. 177. (2) most club proprietors are men.062 (1997). not telling family and friends because of society's disapproval and misunderstanding of exotic dancing. Financial arrangements. Taste It. § 167. J. at 84. § 167. and arguably go unchecked in the adult entertainment business for any number of reasons including: (1) many exotic dancers operate with a certain amount of secrecy about what they do. such as stage fees and employee out-ofpocket refunds. are virtually unheard of in any other industry. STAT.' Not only does this perpetuate many societal stereotypes about exotic dancers. Sept. at 183. Furthermore.P. 122.'2 (3) many exotic dancers are simply unaware of their legal rights and protections. which bluntly advertises "See It. supranote 5. without the benefit of collective action she 119. Touch It. couches and beds on which their dancers perform. STAT. SOCIAL POLICY & THE LAW [Vol. and $250 for the night shift. Id. 2 ' who have been culturally indoctrinated by an intolerant and unsupportive society to accept such power differentials and sexist treatment without complaint.484 JOURNAL OF GENDER. or for safety and privacy reasons. finally (4) even if a single dancer did take a stand. equipped with beds to dance on.062). as well as the immediate need for legal intervention or collective action to remedy that power differential. 123. REv. and thus allow the practice to continue unchallenged and unreported." 9 customers become 'Johns. 120. at 3. it is not uncommon for some strip clubs to condone. it also highlights the power imbalance inherent in the existing employment structure. see alsoIrvine. Martin. This type of law would apply to two dancers who. for $150 during the day shift. see also Teresa Dulce. for example.REV. 7:465 "hustle" becomes "solicitation. 7 HASTINGSWOMEN'S LJ. at 13. Mitchell Brothers. 484 1998-1999 . the act becomes solicitation of prostitution. thus there is no public outcry at the practice. Regulation. it is unlawful for any person to knowingly engage in sexual contact (defined as "any touching of the sexual organs or other intimate parts of a person not manied to the actorforthe purpose of arousing or gratifying the sexual desire of either party") (emphasis added) or sadomasochistic acts (defined vaguely as "flagellation or torture by [or) upon a person who is nude or clad in undergarments or in revealing or bizarre costume. Id. HeinOnline -.I.7 Am.177-78 (1996). during a performance." "rents" to its dancers private rooms. See Heidi Machen." and' club owners become "pimps.
either because of physical sexual abuse (such as Dworkin says she experienced) or mental and emotional abuse. Free Speech Coalition.000. No MORE NICE GMRLS: COUNTERCULTURAL ESSAYS 15 (1992).1% of total business. comprises the largest portion of the industry and is made up of producers. 125. Free Speech Coalition Employment Statistics (last modified Feb. almost 92. have rallied against pornography and. like Andrea Dworkin. Gender Soc. ELLEN WILLS. d.freespeechcoalition. supranote 122.800 retail stores carry adult videos for sale and/or rental. In addition to strip clubs. led by Dworkin and MacKinnon. wholesale distributors. the sex industry. adult video sales and rentals accounted for 28. In an effort to explain how such opposing forces unite on a topic such as the andpornographers have with regard to sexual imagery and practices.com/industry/truth/employmen. The fervor with which some feminist activists. These rentals generated a minimum of $22 million in sales tax for the state of California. In 1995. each store stocking an average of 700 titles for rental purposes. adult videos are carried in more than 25. author Carol Queen has put forth a provocative theory she coins "absexuality. See eg. DirtyPictures.. 10. massage parlors. in stores carrying both adult and general release films. Does Seual Speech Harm Women? The Splt WithinFeminisi. all of whom seek to end the industry altogether. a religiously abused child is obsessively punished and made ashamed of her own sexual feelings.Throughout the United States. 485 1998-1999 .as the struggle of the women who comprise the majority of the industry will continue unnoticed. & POL'YREV. U.1998-1999] NAKED FEMINISM would almost certainly be subject to retaliation by the club. Id.' 24 Many of the factors contributing to the continuous financial and physical exploitation of exotic dancers can be changed only by altering our societal views towards the sex industry. demonstrating how potentially valuable the adult video industry can be to the states where the product is made and sold. Dworkin and MacKinnon have drafted and introduced legislation to ban pornography throughout the United States and Canada. approximately 2." literally meaning "away from sex. and adult movie theaters.htni>. PLAYBoY. Id. Id. novelty products. 1999) <http://www." Carol Queen. 5 STAN. or be branded a trouble-maker and subjected to peer pressure from other dancers. taking a backseat to the demands of consumers.50 (1994). profitable. the greed of the profit-makers. 126. supranote 95. Id. centered in California. and the vocal opposition of anti-pornographers. 1997. adult video retail sales and rentals made up 13. Bryce. Id. and movies. Machen. <http://wwwafreespeechcoalition.7 Am. and necessary professions. the adult entertainment industry is comprised of various segments involved in the production and sale of adult-oriented magazines.000 of them in California.. Joan Kennedy Taylor.3% of the entire video market. 1999) In California alone. accounting for $3. is ironic since opposition to pornography is also a conspicuous feature of the religious right's conservative political agenda. Queen theorizes that "absexuals. social learning theory best explains the genesis of an absexual a sexually abused child grows up.1 billion.com/industry/truth/tats. In fact. manufacturers. supranote 109. se also Breyer.and the New Abseuality: Why Antipom Crusaders Have Sex on the Brain. at 41. 49. 10. Statistical Infornation (last modified Feb. by implication. In Queen's view. Se eg. 609 million rentals of adult videos were reported. books. J. looks for an explanation of what happened to her and targets pornography. The adult video industry.html>. retailers.121 124. who together employ thousands of people. In 1995. Aug. Pol'y & L. at 177. resulting in an inordinate focus later on other people's sins. and mail order companies.000 retail outlets. HeinOnline -.Moral Outrage. Until society openly •recognizes the adult entertainment industry as a collection of legitimate. often religiously inspired. L. Cathadne Macinnon." developed their anti-sex mindset during childhood because ofvarying degrees of early trauma about sex. and the Christian Coalition.
leases on stage and lights. See g. it is likely that the California and Nevada courts would use the same analytical framework and similarly would find this factor weighing in favor of dancers' economic dependence. a club may have the burden of proving that a dancer undenvent cosmetic surgery as an investment in her career.. sound equipment. Harrel 992 F. 131. supra note 102 (stating that some club rules actually require dancers to surgically alter their bodies). 992 F. maintenance. inventory of refreshments. Relative Investments 7:465 Courts addressing relative investments have universally concluded that an exotic dancer's investment in costumes is minor compared to a club owner's investment in the club. maintenance and renovation. Inc.. supra note 122. Pol'y & L. s e also Reich v. C."2 It remains to be seen whether any dubs will make such an argument. J. "More reliable than table dances. location. the most important type of initiative attributable to exotic dancers is their ability to mingle and socialize with male patrons to solicit private dances from them.7 Am. While there are no firm numbers on how many dancers undergo such procedures. hours of operation. supra note 15. Fa. at 1350 (finding that because courts have universally concluded that a dancer's investment is minor compared to the club's.D. this factor works in favor of economic dependence). but could seemingly weigh against dancers and in favor of dubs in the relative investment analysis. 486 1998-1999 . 14M."' Nonetheless. and advertising).2d 324. et cetera.. HeinOnline -. supranote 102 (finding that many dancers feel pressured to surgically alter their bodies rather than risk replacement. Harrell v. at M16.' 28 Therefore. SOCIAL POLICY & THE LAW [Vol. B. 328 (5th Cir. is the increasingly common practice of undergoing breast augmentation and cosmetic surgery if dancers pay for the procedures themselves. advertising. 998 F. it is clearly evident that many are electing to do so. See Hanna. rather than for personal or medical reasons. the clubs' investments in facilities and products would likely continue to outweigh the cost of cosmetic surgery. Invs. 1997) (listing cases finding thatclubs' investmentovershadows dancers' investment). utilities. See. Skill andInitiative Potentially. 1993) (noting dub's investment included liquor license." One factor that has not been considered by any court thus far. 128. 130.486 JOURNAL OF GENDER. supply and selection of food and drinks. which is known as "hustling." Fuentes. See i&. since demand for such jobs is high).""' The argument that hustling is a factor weighing in favor of independent 127. See Machen. Supp. itis conversation that reels in the Regulars-a smart dancer's sustenance. Diamond A Enter. 132. 27 The courts all have looked to the club owner's total investment in the strip club as a business operation and have considered such factors as facility. Supp. Circle C. Gender Soc. at 194-95 (discussing willingness of business to suffer added expense because women are integral to the business and are what customers pay to see). 1350 (M. See Hanna. 129. eg.. 133. U."' Furthermore.
137.. Supp. an audition does not guarantee a dancer ajob. there is a limited possibility that the Mitchell Brothers O'Farrell Theatre dancers' abilities to plan. See id. and how provocatively to dance. at 1351 (according to plaintiff/dancer. 593 (5th Cir. at 1350 (quoting Reich v. 136. Priba Corp.1998-1999] NAKED FEMINISM contractor status has been universally rejected by every court to consider it as a type of initiative different from that contemplated by the tesL The dancer's initiative is therefore restricted to decisions involving what costume to perform in. Civ. 143. Gender Soc. at 3.&eHare 992 F. or to dance for audience approval in an "amateur contest. 142. Tex. and no court has held this a sufficient skill requirement. "The ability to converse with dub clientele in an effort to generate a larger dp is not the type of initiative contemplated [by this factor]. 1995) (defining initiative as activities that expand client base. 326 (D.. absent specific criteria for evaluation. 1996. Se i&at 1351 (finding that dub's only requirement that dancer "had to be moving" was insufficient to prove specal skill orinitiative)." The California court. Aug. not her formal dance training.. choreograph. 239 F. seminars. 139./Sept. Customer rapport much more dosely parallels effidency than initiative .DANZINE. 1965) HeinOnline -. Teresa Dnice. Pol'y & L. or choreography. 3:91-CV-2786-G. at 1351 (citing Martin v. gyrate on stage to music. 992 F. Supp."8ss These auditions serve as an opportunity to evaluate the dancer's figure and sexiness. Priba Corp.7 Am." 7 Most clubs "audition" potential exotic dancers either by requiring applicants to disrobe in front of the manager.. the only requirement for a prospective dancer was that she had to keep moving and that dancers who failed the tryouts were few and far between). could rigorously analyze this element on two fronts.seeasoRechv. to dance"). at 13.. 586. See. 487 1998-1999 . 890 F.. and sell their unique live sex routines may be considered above the average skill level and initiative exercised by traditional exotic dancers'~ Whether that carries them over to the skill level and 134. Supp. 135.D.. United States. Mitchell Brothers auditions potential dancers with a rather critical eye. 324. 586. See Harref. Supp. 1995) (finding no special skills where exoticdancers had no prior experience and strip dub had no skill requirement). Compare Club Hubba Hubba v. at *4 (N. U."6 Evidence that exotic dancing requires specialized exotic dancing skills could be demonstrated by specific criteria or standards for dancers. 140. Id138. 1992 WL 486911. goodwill. supranote 5. Supp. what style of hair and makeup to wear. Working a Broad. 890 F. A. Nov. See id.992 F. such as those of an independent businessperson)). No. Sex id. 141.4 ' Second. " 4 Supp..135 Such limited initiative is more consistent with the status of a service employee than an independent contractor. for example. J. 1992)) (rejecting the "hustling argument" because "Ct]he scope of (the dancer's] initiative is restricted to decisions involving what clothes to wear or how.. First.. Haw. eg. unlike most dubs. Priba Corp. instruction booklets.592 (5th Cir."9 Many exotic dancers have no prior exotic " dancing experience. 6. Jane. and/or contracting possibilities.
arousing. 7:465 initiative exercised by an independent contractor remains to be seen. SeeHanna. an exotic dancer's value to her employer tends to decrease after reaching a certain level of seniority. 992 F. See Hanna. 144.. Gender Soc. at 1351 (finding no evidence that plaintiff participated in any effort to increase client base. and (finding that the dub characterized imported troupe of Japanese dancers as independent contractors) with Ha-ell.. dance prices. D..Y. at 1346 (discussing plaintiff's stage fee and tip-out). United States.D. supra note 102. 1971) (casino house band members considered to be independent contractors under NLRA). v.2d 715 (2d Cir. 1942) (holding movie theatre intermission stage performers to be considered independent contractors). 890 F. 329 (S. HeinOnline -. at 192 (asserting that strip clubs are eager to have young. NLRB. supra note 122.14 Las Vegas strip clubs have increased their opportunity for profit beyond those of other clubs by installing and operating casino games within the strip clubs themselves. 8 E. at 12 (explaining that clubs may be glamorous or sleazy. SeeAssociated Musicians ofGreater Newark v. Bow& Arrow Manor. J. at 188-91 (describing the wage practices at the O'Farrell Theatre in San Francisco). which may be controlled by the strip club. however. advertising. 149. afflg50 F. etc. or establish contracting possibilities). OpportunityforProfit and Loss Like the relative investment analysis. Supp. thereby creating more control over the profit/loss determinants. Permanency of the Relationship Exotic dancing as an industry is impermanent and transitory. See ag.7 Am. expensive or free. supranote 102. An exotic dancer's risk for loss is limited to the amount of the stage fee/tip-out. Supp.2d 471 (9th Cir. set fees for dances. 135 F. at 53 (describing new dancers as "a stream of young women often at the dam ready to take a vacated place"). Supp.'4 Because adult entertainment is an industry built around creating. 1943). such an analysis would be a novel issue for the California court. the key determinants for profit and loss to be considered are those of a successful business enterprise (i. 488 1998-1999 . atmosphere. depending on a customer's expectations). SOCIAL POLICY & THE LAW [Vol. the skill and initiative factor supports a finding that dancers are economically dependent on the club. serve alcohol or not. 147. 145. U.N. strip clubs completely control both the dancers' opportunity for profit and amount of loss. Radio City Music Hall Corp. enhance good will. Like a professional athlete. Harrell 992 F.'4 Profit opportunities for exotic dancers depend a great deal upon the club's reputation.e. Harrah's Club v. see also Machen. Supp. The same types of practices are involved in San Francisco and weigh heavily in favor of employee status. at 593 (explaining each party's risk related to profit and loss). Pol'y & L. advertising. supra note 122.488 JOURNAL OF GENDER. and generally those factors that initially attract customers to one strip club as opposed to another.). inexperienced workers). 146.' In this manner. SeeP_.'" Overall. Corp. In any case. See Machen. 148. 446 F. 206 NLRB 581 (1973) (orchestra leader and strolling musicians of restaurant dub considered independent contractors under NLRA). hours of operation.
Gender Soc. which are as varied and fluctuating as the customer base itself. Similarly. Supp. MO-91-CA. Priba Corp.. 998 F. 154. See ag. more experienced ones. there would be some dancers who would be numerically excluded from selling any dances. Mar.g. 1995) ("Because dancers tend to be itinerant.D. 1993) (holding that the balance ofother factors outweighs the lack of permanency).. new faces are more valuable to a strip club than are fewer.2d 824. Finally. per song. Reich v. No. 27.. Many patrons prefer to withhold their money and act as voyeurs. for illustrative purposes."' Assume. Circle C. See e. 992 F. courts place less emphasis on this factor. at 20 ("[C]lub managers may schedule more performers than needed and the dancers compete for the few customers available. 890 F."). the numerous young. U. supranote 102. supra note 102. 586. the potential number of patrons a dancer could dance for decreases to one.5 2 This occurs because there is a fixed number of potential customers and a fixed number of potential dances 5 available.'O Accordingly. at 1349-50. Reich v. if more than forty dancers were scheduled. 153.1991) (the fact that dancers are tiansitory is not determinate). Supp. the preceding hypothetical is optimistic. 1991 WL 338239 (W. then each dancer can only sell. Invs. 489 1998-1999 . and with all customers buying private dances. Hannah. at 22 (describing how customers fantasize about getting the "personal attention of an attractive female who would not otherwise 'give him the time of day'"). Cirde C. It is a rare occurrence for a strip club to be consistently crowded during all hours of operation. J. that there is only one dance available. simply looking on as other patrons buy dances.7 Am.supra note 102. 151. at best.328-29 (5th Cir. which employed about 80 dancers). a maximum of fifteen dances per hour. Pol'y & L. Tex. each dancer would potentially have two customers per song. See Hanna. Harrel. if forty dancers were scheduled for the same customer base. S Hanna. relying instead on the weight of the other factors combined to demonstrate economic dependence. Inc. at 17 (discussing the types of dances performed in strip dubs and the responses ofmembers of the audience). .'6 This scenario is very common throughout the industry and creates 150. If a club had forty customers and twenty dancers scheduled at a given time. Invs.593 (5th Cir. regardless of how many potential customers are present. Inc...1353 (noting that dancers had no control over the customer volume at the night dub.' s A high number of dancers is good for the club and even good for the customers. Consider as well that if each song lasts an average of four minutes. the court must focus on the nature of their dependence"). per customer. 152.1998-1999] NAKED FEMINISM 489 exploiting customers' sexual fantasies. Martin v. HeinOnline -. or watching the free dances being continuously performed on stage.-43.. older. but not good for the dancers since a dancer's ability to earn is inversely proportionate to the number of dancers working at a given time.
and does what she needs to make it look like he rocks her world.. 157. 9 (1998) (detailing the distinction between stage dances and lap dances). 42 DRAMA Rav. Such competition acts as a formidable barrier to union organization. 156. The time spent "hustling" is vital to the sale of private dances because the dancer is not selling the mere image of her nude body. Se Hanna. Desire. SOCIALPOLICY& THELAW [Vol. attention-ss This is the process by which dancers build clientele.'6 0 The fact that an adult entertainer's career is so fleeting tends to support a socio-economic theory that many women. Gender Soc. a group of "regulars" who frequent the club to see a particular 5 dancer. Now. U. that he has in some way attracted her. Girl walks around the club.' 9 This dynamic further reduces the number of potential customers to whom other dancers can sell dances.7 Am. She says all the right things: if he thinks black is white. obtaining the majority support necessary for union recognition will prove difficult. Se also Hanna. She's sure to keep it going: her face lights up when he walks in the club. and is potentially one of the most desirable provisions in obtaining a collective bargaining agreement. she pays attention only to him. supranote 102. Mimetic Jeopardy."' Unless union organizers persuade dancers to view each other not as competitors. looks sad when he has to go and laughs about it backstage later with her friends. It's a business. Striptease. although certainly 155. See Hanna. the guy may start to think that he's got something here. at 54 (describing the types of union agreements some dancers have negotiated).'It is also important to emphasize that these hypothetical figures include neither the number of dances the dancer is required to perform free on stage. but actually the illusion that she is personally interested in the male patron . 1995).. Fuentes states that: One dancer has described the process as follows: "Making good money is luck and hustling. supra note 102. sees who's checking her out. See eg. but as allies. Pol'y & L. if not impossible. HeinOnline -. supranote 15. it's white . SeeHanna. supra note 102.490 JOURNAL OF GENDER. and Performing Spectators. he's paying more and more moneyjust to sit with her. 158. Soon. 159. building the rapport necessary to sell a dance. When she sees someone she makes her way over.. 160. DANZINE (Nov. In a second she's sized him up and decided her approach. For these reasons.in other words. J. a hiring cap on the number of dancers employed or scheduled at any one time has tremendous economic value to the dancers. so he starts coming in more regularly during her shifts. 490 1998-1999 .*7 Both expectations further decrease the number of dances she can potentially sell. nor the time she must spend talking to the customers. at22. She takes the money. at 4 (on file with author).. 7:465 fierce competition among dancers for customers. See geneaUyKatherine Liepe-Levinson. WorkingaBroad. Fuentes. at 50 (noting that conflict exists among strippers).supranote 102. at 54 (detailing the difficulty two dancers experienced in organizing other dancers in an effort to present their complaints about working conditions to the management).
168. at 53 (characterizing the abusive tactics employed by some strip club owners in an effort to minimize the willingness of dancers to complain and to ensure that dancers will tolerate abuse in order to avoid loss of theirjob). enter the adult entertainment industry because it provides an immediate source of income which is available to women without much commitment in the way of education. and thus would remain dependent on the largess of men or society.16' The flexible schedules accommodate women who are 162 mothers. supra note 102. the case of television evangelist Jimmy Swaggart. Hanna. at 11 (noting dancers' diverse backgrounds). 167. are allowed and even encouraged to flourish unabated and unchecked. Swaggart was again caught with a prostitute in 1991. a hypocritical society pushes the industry underground and out of sight.'66 Many people who speak out publicly against the sex industry are the same people who salivate over it and financially support it in private. 1990. while simultaneously ensuring their silence about their mistreatment'64 It is also arguably one of the main reasons that feminists should be supportive of adult entertainers' legal and unionizing efforts. after being stopped for a traffic infraction.'63 This type of economic dependency makes adult entertainers more susceptible to the illegal demands of their employers. at 51. for instance. supranote 102.' 67 By denying its existence and legitimacy.supranote 102. training. tolerated. STAT.S.or through the collective bargaining relationships that 161. at40. 164. SeeHanna. HeinOnline -. Pol'y & L. whereby illegal and exploitative practices such as those described herein. either by state or local government . at 28. Aug. In many cases.as are Nevada's brothels6 9 .354 (Michie 1997) (allowing acts of prostitution to be conducted legally in licensed houses of prostitution while making the same acts illegal outside of such houses). legitimized. See NEV. 166. See Hanna. at 28 [hereinafter Swaggart]. at 40. supranote 102." Perhaps a better solution is one where all factions of the adult entertainment industry are recognized. Joe Domanick. actors. NMVS & WORLD REPORT. 28. students. legalized. Take. In 1988. REV. Gender Soc. 165. § 201. Hanna. 162. J.'6 Without the opportunities that the adult entertainment industry provides. Jimmy Swaggart: Television Evangelist is Caught zith Prostitute. and regulated when necessary. many women would lack financial empowerment and independence. 491 1998-1999 . 1991. U. 169. at 110. PLAYBOY.7 Am. the popularity of Swaggart's TV ministry crashed after he was exposed leaving a New Orleans motel room with a prostitute. at 54. Hanna. U. supranote 102. supranote 167. Hanna. Oct. Proving that old habits die hard. or employees in need of additional income. the income a woman makes from dancing is the difference between work and welfare. or financial investment. 163. supranote 102. ANN. Swaggart.1998-1999] NAKED FEMINISM not all. Maybe There Is a God: Six Lessons on the Pifalls of Public H)pocrisy.
those working in the industry can be assured of safe and non-exploitative working conditions. Relations. IntegralPartofEmployer's Business Strippers are an integral and essential part of a strip club's operation.1998). and thus. 1998). Investigation by Author in Las Vegas. Fla. the courts are logically concluding that "[wihen the success or continuation of a business depends to an appreciable degree upon the performance of certain services. supranote 175.7 Am. Id See also Locker. Nev. see also. however. 1352 (M.1 n No court examining the issue has found otherwise. Hanna.357 (S. One only needs the briefestvisit to any of the clubs involved to observe that the women are indeed the club's main feature.. 'The modem tendency is to find employment when the work being done is an integral part of the regular business of the employer. F.Y. 1997) ("Exotic dancers are obviously essential to the success ofa topless nightclub. 19-20. is the integral part of their business. 173. and when the worker. 7' When the aforementioned factors are considered "collectively and 170. "After all. Reich v. See Liepe-Levinson. 48 Cal. 492 1998-1999 .. IRS. 998 F.'75 The dubs' dependence on the dancers is. 176. Circle C. Enters.. Society would. supra note 24. 1993) (finding dancers' economic dependence on nightclub without considering the factor of the nightclub's success depending on the dancers' performance of services). patron of Crazy Horse Saloon (Oct. 175.. ef. J. if by a slim chance the Las Vegas strip clubs can demonstrate that gambling. at 40. employees within the meaning of the Act. rather than exotic dancing.' 71 In this way.D.. Telephone Interview withJohn Roe. negates this argument. Supp 349."). Hanna.492 JOURNAL OF GENDER.. The court determined that the dancers were economically dependent on the nightclub. citing Borello & Sons v.."1 7 The same will likely be true of the lawsuits evaluated in this paper. (Sept.D."" However. 3d 341. U. Pol'y & L. Supp. The nature of the seven strip clubs involved. 916 F. Department of Indus.. supranote 102. Gender Soc. does not furnish an independent business service. [a] mirrored warehouse with faded carpet and a snack bar attached. supranote 95. therefore. access to necessary medical and social services. Diamond A. acceptable wages. 1996). HeinOnline -. 327-28 (5th Cir. therefore." Bryce. the worker who performs those services is more likely to be considered an employee than an 3 independent contractor. Invs. in Las Vegas. 303 West 42nd St. Harrell v. Investigation by Author. what would the O'Farrell Theatre be without the dancers?. relative to the employer. in return.") (citations omitted). SOCIAL POLICY & THE LAW [Vol." Ia174. supra note 157 (reporting statements made by a strip club owner relating to the amount of money an individual dancer can earn in a single day and the way that this income supports a lucrative business). 1. v. supranote 102. 1343. 171. 7:465 unions provide. 992 F. then they may be able to convince a court that their dancers should remain independent contractors. 172. less burden on the welfare system and 171 increased tax revenues. highly indicative of an employee-employer relationship between stripper and strip club.N. at 54. 357 (1989) ("[P]ermanent integration of the workers into the heart of [a] business is a strong indicator that [the principal] functions as an employer. benefit from a decreased risk of transmittable social diseases. and legislative protection. Enter.2d 324.
or lessee.2d at 328-29 (holding that exotic dancers are employees based on the five factors of the economic reality test set forth by the court). 178. 998 F. HeinOnline -. See generaly Reick 998 F. Inc. 992 F. 3d 1288. See Reid 998 F. Supp. Tex. 181.7 Am. U.'n Considering the broad tests applied to previous exotic dancer cases brought before the courtsss the similarity to the facts discussed herein. because such contracts are usually the result of intimidation or an ultimatum. 664. Supp. Inc." Interestingly. Priba Corp.. entitled to all the 177. exotic dancers are highly controlled in most aspects of their employment and are economically dependent upon the strip clubs 8 employing them. Supp.2d at 327 (finding that dub owners control their dancers by requiring 179. 3:91-CV2786-C. exotic dancers are not independent contractors as claimed by the dubs. 226 Cal. 183. at 1353. wherein she agrees to define her relationship to the dub as one of an independent contractor. the only fair and equitable solution is for the courts to hold these exotic dancers to be employees of the strip clubs they work for. See also 303 W. it seems inconceivable that the courts would find exotic dancers in California and Nevada to have independent contractor status. at354 (describing the club owner's arguments that exotic dancers were not employees). Pol'y & L. 163 P. they are employees of the clubs. at 353 (SD.1998-1999] qualitatively. this analysis is not affected by the existence of an employment contract between the stripper and a strip club. Supp. v. 1992 WL 486911. 1917) (explaining that the terms contained in an employment contract do not necessarily determine the existing relationship between parties. Nov. See generally303 W. Therefore. SeYellow Cab Coop. 9 rather.. Civ. See Hayrell 992 F. Courts have astutely observed that it is a common practice within the adult entertainment industry for a dancer to sign a boilerplate contract. See Reid. tenant.N. the courts have declared that they may be voided after an examination of the employment circumstances. J. Industrial Accident Comm'n of Cal. 916 F.. Martin v. No. 182. at 1346 (noting that the defendant night club owner argued that the plaintiff dancer was an independent contractor and not an employee).'84 and the inherent inequity of the existing system. Gender Soc. provided such treatment is "consistent" and there exists a "reasonable basis" for such treatment. 1301-02 (1991) ('Where the pincipal offers no real choice of terms. the workers' acquiescence in that characterization does not by itself establish a forfeiture of the act's protections"). governed entirely by the subsequent conduct of the parties"). 1992) (recounting the dub owner's view that exotic dancers are independent contractors). Id.2d at 8-29 (finding that exotic dancers are employees under the economic reality test). Enters. 493 1998-1999 .' 8' However. Supp. 42nd St. A. See Harrl.. at 1353 (observing that the contracts which the dancers signed contained a boilerplate independent contractor provision). 665 (Cal.'7 For that reason. them to comply with work schedules and fining them for absences and tardiness).4 (NJ). 184. Enters. Ina. 6. at *3. Hne11.. 42ndSt. such a relationship may be.. Brown v. Section 530 of the IRS Code permits treating a worker as a non-employee irrespective of the worker's status under common law. 1996) (reviewing whether exotic dancers are employees for tax purposes under standards that are broader than the common law). 180. 992 F. App. but imposes a particular characterization of the relationship as a condition of employment.Y. 916 F. "and often is. Worker's Compensation Appeals Bd.' NAKED FEMINISM it appears obvious that in the reality of strip club practice.
186. Fuentes. though. imagination or talent of the employee"). Pol'y & L. See 29 U. 7:465 benefits and protections of the state law. 190. the employer will raise the exemption as a defense to a finding of employee status. 189. IV. 494 1998-1999 .8 While the performances that many of the exotic dancers of the Mitchell Brothers O'Farrell Theatre give are too graphic for description in this paper.S. and/or table dances that were found in Harrelltobe lacking artistic qualities. This law classifies "sexual conduct engaged in as part of any stage performance. See 29 C. PROFESSIONAL EXEMPTION The FLSA's professional exemption is the last legal hurdle the exotic dancers might face in their bid to become wage-earning employees once it has been determined that they are employees under the economic reality test.95.R. and by implication. Hence. 992 F.3 (1999) (defining "a recognized field of artistic endeavor" as "music. the FLSA. See 29 C.. at M16. J. the employer bears the burden of establishing that its employees are exempted professionals. See HarrAl. 188. SOCIAL POLICY &THE LAW [Vol.' In this case. supra note 15. the NLRA. it could be argued that such a proposition is supported by a California law that legalizes live sex acts.R. supra notes 56-67 and accompanying text. play. § 541. Gender Soc. the theater and the plastic and graphic arts"). CONCLUSION The unionization of adult entertainers is already in progress and promises to continue with ever-increasing speed as greater numbers of dancers. imagination.494 JOURNAL OF GENDER. lap.F. Supp. 187. 9 ' V.302 (1999) (proclaiming that the result of an artistic endeavor derives primarily from the "invention. § 541.'8 it suffices to say that these performances may come close to the professional exemption of the FLSA if considered to be imaginative and innovativeIs It is unlikely. informed of their legal rights and empowered by their 185. &e eg. 9 This analysis is not " required for the San Fernando Valley or Las Vegas exotic dancers.F. U. HeinOnline -.7 Am.CA § 213 (a)(1) (West 1998) (mandating that professionals are exempted from the minimum wage rules of the FLSA even if they are found to be employees under F SA).120. 191."8 9 However. at 1356 (finding that the dancer's work did not fulfill the "invention. since these dancers generally perform the more traditional stage. or talen" requirement). See ditsc supanotes 20. that this type of "dance" would fall within the professional exemption's threshold requirement of a "recognized field of artistic endeavor. or other entertainment open to the public" as a form of artistic expression. writing.
harassment. Spring/Summer 1998. and eating disorders. The unionization of exotic dancers promises to be like no other in modem history. Pol'y & L. See Nude Dancers Win the Minimum Wage. Id. (3) those objectives which are more realistic (eliminating street harassment or sexist speech) either cannot or should not be achieved by government intervention. SeeJOAN BREN GUERNSEY. not a shield. the reason all women have failed to turn into liberated women is that the patriarchy (typically defined as a pervasive and self-sustaining system of male domination and privilege) stands in the way. Although dancers at both clubs are now entitled to minimum wage. In Eugene. In addition to the successful organization of the Lust Lady (which remains the best motivator). like Susan Faludi. and often anti-male." rather than "exotic dancer.JuNEAU EMNPIRE. Underlying the criticism of modem feminism are four basic points: (1) gender feminists have undermined the original conception of feminism (the emancipation of women from laws and social regulations confining them to one type oflife) by hardening the theory into an inflexible set of political opinions.7 Am. and (4) what many feminists. erotic. is actually resistance by both sexes to the extremes of establishment feminism. see also Torn Brawley. at C3. FUTURE 52 (1996). successful in their wage and hour claim lawsuit. and Susan Fauldi. are calling a backlash against feminism. AEDU Geesis: Alaska ExoF Dancers' Union and How It Got Star/e4 EXOTIC TIMES. by characterizing and focusing on most women's life's events as episodes of systematic male brutality. Second Wave feminism has fractured the feminist movement into several competing. See UnionizedStrippersSettle with Club. U.9 3 Unlike modem feminists9 who decry beauty. restraint. causing them to revert back to traditional roles and behaviors. Although unaware of it themselves.1998-1999] NAKED FEMINISM brethren's success. Not only will it be a new chapter in the history of the labor movement.1998. or a lesbian. the Alaska Exotic Dancers' Union (AEDU) filed ULP charges against the Showboat Show Club on behalf of three employees who were allegedly fired for union activities. the ruling is being appealed by the clubs' owner. monogamously married. and where women bare their bras. these strippers may become the next feminist leaders. The club settled with the union for $40. The dominant trend in modem feminism (also known as "Second Wave" feminism. sexy. See KAREN LEHRMAN. but it promises to be the birth of a new breed of feminism: a movement where beauty is a sword. painted" fictitious entity of an c exotic dancer. yet remain dissatisfied with the Second Wave's narrow goals. factions: the pioneering Second Wave feminists. For instance. Oregon. and often antagonistic. abuse.'9 gather the knowledge and courage to stand up for their legal and civil rights. 495 1998-1999 . Arguably. 5. By use of the term "stripper. SEX &POWERINTHEREALWORLD 9 (1997). Kaitie Roiphe. professional goals. Oct. the newly emergingyoung.456. VOICES OF FEMINISM: PAST. 192. See id. the critics. 1995. led by Camille Paglia. equity feminism.. but contrary to the desires and values of women today. where the dancer mightbe a single mother. other exotic dancers have had success in recovering damages from strip clubs for wage and hour claims and unfair labor practice charges. and misogynist social messages. collected $45. Women then internalize these negative responses. at 5 (on file with author). (2) many feminist expectations are not only unrealistic. See eg. J. tweezed. at 5. confident feminists who grew up benefiting from the work of the Second Wave feminists. depression.000 after ajudge determined that they were employees of the two strip clubs for which they worked. THE LIPSTICK PROVISO: WOMEN. this attitude is different from the one that represents these women outside of work. Susan Brownmiller. supra note 15. 194. Christina Hoff Sommers. PORTLAND OREGONIAN.) has evolved from one of equality-seeking to one intensely focused on women's victimization by men. Unfortunately. and androgynous behaviors and attire. responding to women's progress with backlashes-discrimination. not burn them. 193. in addition to having self-destructive behaviors like low self-esteem. Germaine Greer. attitude and character which engulfs the woman when she is transformed into the "manipulated. gender feminism. and coercion in the employees' exercise of§ 7 rights (charges on file with author). According to this set of beliefs. The AEDU had filed five additional ULP charges against the same club for interference. curled. Fuentes. angry. at 10. dominance HeinOnline -. and the Third Wave feminists. Gender Soc. PRESENT." I mean to convey the confident. May 6. such as Gloria Steinem. etc. nine exotic dancers.
Jane not only faced various methods of management retaliation (i. and illegal abuses they have suffered at the hands of management are horrific and probably unbelievable to the uninformed."9 of abuses by male-dominated dub 7 management. and in that independence is equality. When the possible involvement of organized crime is added to that already volatile situation. NAOMI Wol'. threats of violence and intimidation are common practices by management. by Naomi Wolf in her bestseller. and reputation for man-hating. 197. butshe also faced threats of personal harm (e. See supra note 11 and accompanying text. was blacklisted from all San Francisco strip clubs after she began organizing other dancers. Pol'y & L. Also. 93 having heard how they by white.. Se. that power is money. Se4 ag. 496 1998-1999 . This view has been espoused in a variety of contexts by several feminists. It idealizes women's child-bearing capacity as evidence of women being closer to nature and better than men. or having the DJ play the wrong music during the stage performance of a dancer after she refuses to date him. Obviously. and non-competitive. SeeNAOMI WOLF. J. Brawley.7 Am. then verbally and physically threatened by the club owner. This movement is also judgmental of other women's sexuality and appearance. Terry Stalhman. She and other dancers of the Showboat received numerous threats from management and their affiliated Hell's Angels motorcycle gang. was physically escorted by an armed guard to the Showboat owner's basement office.'95 strippers take what is inherently theirs-feminine sexuality-and they exaggerate it to extremes. regularly being called "bitches" and "whores" at company meetings.) during her organization ofthe Lusty Lady. peace-loving.496 JOURNAL OF GENDER. The stories dancers tell of the demeaning. This includes permitting customers HeinOnline -. if not increased sensitivity. where she alleges that she was falsely imprisoned. Johanna Breyer.g. Brawley Interview. hostile customers. like Madonna. sup= note 8. Such abuses include: hostile environment. Exotic Dancers' Alliance co-founder. broken legs) from management of the Showboat Show Club when she attempted to assistTom Brawley in organizing that strip dub.. they confidently use their bodies as weapons against the very men who believe they are using the stripper. There is also quid pro quo sexual harassment. wearing only a bikini and stiletto heels. at 6. supra note 193. strippers manipulate these men into believing that they (the strippers) are attracted to them. middle-class women. Second Wave feminism is incompatible with the stripper unionization-feminist movement since this movement is generally viewed as sexuallyjudgmental. then the patriarchy has failed miserably. arbitrary firings. supra note 95. and sexuality as weapons of a patriarchal plot to keep women submissive. As with most other industries facing unionization for the first time. During the organization of the Showboat Show Club. The Beauty Myth. everything from blacklisting to physical violence. Playing on men's desires and arrogance. FiRE WrH Fi E 147-49 (1993) [hereinafter FIRE].' 9 of criticism by other women. verbal abuse. Having interviewed two extraordinary women at the center of this movement. that money buys independence. lock-outs. strippers know that sexuality is power. forced prostitution is often required as a condition ofemployment Bryce. and it believes that women are naturally cooperative.. sexual harassment.. thus also requiring an androgynous sexuality from women.e. etc. make-up and sensuous movements. Gender Soc. having heard their stories of threats and intimidation. Then. THE BEAutYMYrH (1990). or even anti-sexual because it refuses to accept the existence of differences between the sexes. U. and club tolerance for rude. Ultimately. Tom Bmwley. most notably 196. If the beauty culture is truly a patriarchal plot against women. 7:465 femininity. and subject to. SOCIAL POuCY & THE LAW [Vol. eg. 195. See U/. humiliating. supra note 193. such as being fired for not allowing management or their friends to fondle them. the men pay for perpetuating such false and sexist beliefs with hard currency. Brawley. it comes as no surprise that dancer/activists have been threatened with. using surgery. because.
Women should acquire money for their own dreams. The IDA. rather than primarily through our shared vulnerability and pain. and utterly certain that she is entitled to have her ego.7 Am.. J. Poverty is not glamorous.1998-1999] NAKED FEMINISM 497 have only become more encouraged by these obstacles. rebellion against injustice. it is Naomi Wolf. not only would the income have to be reported. she is the force of creativity. they to touch. women must shake off their ambivalence toward using power and get in touch with the part of their psyche she calls the "inner bad girl. there is dissent regarding organization and legal action. 199. and outright lies persuade and intimidate many dancers into believing union membership would actually be harnxfll. at 334-36. selfabsorbed. It calls for alliances based on economic self-interest and economic giving back rather than on a sentimental and workable fantasy of cosmic sisterhood:' FIRE." the part which is "mischievous and boisterous.. competitiveness and desire for autonomy and separation is as much a part of the female psyche as is nurturing behavior. Power feminism encourages us to identify with one another primarily through the shared pleasures and strengths of femaleness. greedy. fondle. women's experiences matter. Aggression. SeBrawley Interview. For example. Women should be tolerant of other women's choices about sexuality and appearance. rather than beneficial. A woman must be unapologetically sexual. Women should actively seek power and use it responsibly to make the world more fair to others. General Information. The IDA also appeared at a furndraising event for the Exotic Dancers' Alliance. megalomaniacal. At her worst she is narcissistic and destructive. grasping. Wolf would not have to look long at the stripper-cum-feminist to see her "bad girl" in the flesh: Every molecule of the [girl] seeks ever pleasure. which not only was dismissed as a retaliatory action under the state's "anti-slap" statute. ' These are the 'bad girls' of power feminism. but also resulted in the IDA being sanctioned and ordered to pay plaintiff's attorney fees. or even molest them. To Wolf. accompanied by one of the defendants in the case to protest the union's involvement. Women can hate sexism without hating men. Some dancers are forced to perform unsafe sex acts (forced sexual battery) with other dancers as a condition of employment. But it is in the principles of Wolf's power feminism that its applicability to the stripper movement and the distance from the victim feminism becomes most obvious. in her theory of "power feminism. I can confidently say "[tihese are not the traditional feminists of years past. one dub promotes its "Sundays" as a night when the dancers' genitals are covered with whipped cream and a cherry and customers can pay for the opportunity to eat it off. understanding that good pleasures make good politics. E-D. Wolf argues that for power feminism to occur." who unwittingly offers a blueprintfor the stripperunlonization/feminstmovement. if dassified as employees. In power feminism women have the right to determine their lives. and primal self-respect. at her best. 497 1998-1999 .. practicing tolerance rather than self-righteousness. her power and her way. and security as well as for social change. supra note 95.She is a very naughty girl. U. Ironically. at 334. lick. but itwould also be taxed. 198. misinformation. NEVSLErR 8. not less. The reasons are numerous but can be narrowed to a few prominent theories: (1) successful management anti-union propaganda campaigns based on threats. thereby reducing what is usually an already poverty-level income. Making social change does not contradict the principle that girls want to have HeinOnline -. supranote 194. Even within the ranks of exotic dancers. Pol'y & L. at 2 (on file with author). Finally. filing a separate lawsuit against one of the main plaintifJennifer Bryce. supra note 8. Bryce. independence.. and (3) management often threatens dancers with termination or physical violence if they support other dancers' organizing/legal efforts. (2) many dancers do not report their income on tips to the IRS which both prevents having to pay taxes and allows them to receive welfare money for their families. believing that what every woman does with her body and in her bed is her own business. supra note 194. at 77. Id. 1997." FIRE. She is sensuous. Id. have unsuccessfully attempted to intervene three times in the lawsuit. at6. Gender Soc. and a woman's choices affect the people around her and can change the world.A. Those reasons are suspected to be at the heart of the repeated efforts of the Independent Dancers Association (IDA) to intervene in the Mitchell Brothers class action lawsuit."' They have passion. fierce.. composed of the present dancers at Mitchell Brothers O'Farrell Theatre. [plower feminism means taking practical giant steps instead of ideologically pure baby steps.
Gender Soc. Their motto could be "If I can't dance." Id. it's not my revolution.498 JOURNAL OF GENDER.7 Am. 498 1998-1999 . at 149-50. SOCIAL POLICY & THE LAW [Vol. 7:465 have a plan. J. U. and soon they will have the power of the law. Pol'y & L. fun. HeinOnline -.
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